CHC v Park Pty Ltd
[2025] NSWPIC 474
•11 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | CHC v Park Pty Ltd [2025] NSWPIC 474 |
| APPLICANT: | CHC |
| RESPONDENT: | Park Pty Ltd |
| PRINCIPAL MEMBER: | Glenn Capel |
| DATE OF DECISION: | 11 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; application for reconsideration seeking a revocation of a Certificate of Determination and a referral to another Medical Assessor (MA) pursuant to section 329; challenge to assessment of MA on basis of miscalculation of whole person impairment, deduction pursuant to section 323, lack of detailed reasons, and in the interests of justice; State of New South Wales (NSW Department of Education) v Kaur, Campbelltown City Council v Vegan, Ferguson v State of New South Wales, Marks v Secretary, Department of Communities and Justice (No 2), Cole v Wenaline Pty Limited, Howell v Stringvale Pty Ltd, and Samuel v Sebel Furniture Limited discussed and followed; Held – no merit in applicant’s application; application declined. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant’s application pursuant to s 57 of the Personal Injury Commission Act 2020 for reconsideration of the orders made in the Certificate of Determination dated 4 June 2025 to allow for referral of his claim to a Medical Assessor pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 is declined. 2. The orders in the Certificate of Determination dated 4 June 2025 are confirmed. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
[CHC] (the applicant) sustained a psychological injury arising out of or in the course of his employment with Park Pty Ltd (the respondent) on 1 February 2023 (deemed).
Liability was accepted by Employers Mutual Ltd (the insurer), and it appears that the insurer continues to pay the applicant weekly compensation and medical expenses.
On 3 September 2024, the applicant’s solicitor served a served a notice of claim on the insurer in respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The applicant relied on a report of Dr Khan dated 21 August 2024. Dr Khan assessed 17% whole person impairment (WPI) due to a psychological injury sustained on 1 February 2023.
On 15 January 2025, the insurer responded to the applicant’s claim and indicated that according to its independent medical specialist, Dr Pothala, who reported on 15 November 2024, the degree of permanent impairment was not capable of assessment because maximum medical improvement had not been reached.
The applicant’s solicitor filed an Application to Resolve a Dispute (the Application) in the Personal Injury Commission (Commission) on 8 February 2025. The applicant claimed lump sum compensation in respect of 17% WPI due to injury sustained on 1 February 2023 (deemed).
The applicant’s claim was referred directly to Medical Assessor Singh who was requested to assess the degree of impairment as follows:
“Date of Injury: 1 February 2023 (deemed)
Body part/s referred: Psychological/Psychiatric disorder
Method of assessment: Whole person impairment”
Medical Assessor Singh examined the applicant on 4 April 2025 and provided his Medical Assessment Certificate (MAC) on 30 April 2025. He assessed 7% WPI due to a psychological injury sustained on 1 February 2023 (deemed).
On 4 June 2025, I issued a Certificate of Determination (COD) in the following terms:
"The Commission determines:
1. The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 1 February 2023 - deemed.
2. The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 1 February 2023 – deemed…”
PROCEDURE BEFORE THE COMMISSION
By letter dated 22 July 2025, the applicant sought a referral of the MAC of Medical Assessor Singh to another Medical Assessor pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and a revocation or amendment of the COD dated 4 June 2025. Submissions were included in the correspondence.
On 12 August 2025, the solicitor for the respondent filed submissions in response.
The correspondence of each party was referred to me on 19 August 2025 and I issued a COD in the following terms:
“The Commission notes:
1. The applicant filed an application for reconsideration with submissions on 25 July 2025 seeking the following orders:
a. Revocation of the Certificate of Determination dated 4 June 2025.
b. Referral of the to a Medical Assessor for assessment.
2. The respondent filed submissions in response to the application on 12 August 2025.
3. The applicant sent an email to the Commission on 13 August 2025 in which he confirmed that he was seeking a reconsideration and not an appeal.
The Commission directs:
4. The applicant is to file and serve written submissions in reply to the respondent’s submissions by 29 August 2025.
5. At the conclusion of the time allowed for submissions the application will be determined “on the papers”.
On 27 August 2025, the applicant’s solicitor filed a Notice of Ceasing to Act.
On 3 September 2025, the applicant filed submissions in reply that included a report from Dr Pothala dated 10 July 2025. On the same date, the Commission sought the respondent’s views regarding the fresh evidence.
The respondent’s solicitor advised the Commission on 8 September 2025 that the respondent did not object to this fresh evidence being filed as part of the reconsideration application.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
ISSUE FOR DETERMINATION
The following issues remain in dispute:
(a) whether the COD dated 4 June 2025 should be revoked, and
(b) whether the applicant’s claim should be remitted to the President for referral back to the Medical Assessor to provide a further assessment of WPI.
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) the Application with attached documents;
(b) Reply with attached documents;
(c) MAC dated 30 April 2025;
(d) COD dated 4 June 2025, and
(e) report of Dr Pothala dated 10 July 2025.
Legislation
Personal Injury Act 2020 Workers Compensation Act 1987
Section 57 of the Personal Injury Commission Act 2020 (the PIC Act) deals with the reconsideration power of the Commission. It provides:
“57 Reconsideration of decisions of Commission
(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a) alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision the stated reasons.”
Workers Compensation Act 1987
A worker’s entitlement to lump sum compensation is governed by s 66 of the 1987 Act. It provides:
“66 Entitlement to compensation for permanent impairment
(1) A worker who receives an that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.
(1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury…”
Workplace Injury Management and Workers Compensation Act 1998
There are a number of sections in the 1998 Act which are of relevance. These are as follows:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of assessment and a medical assessment certificate under this Part.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment).”
“326 Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of an approved medical specialist certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds:
(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal
(6) The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note.
Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act….”
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by:
(a) the Registrar as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the Registrar to the approved medical specialist for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
SUMMARY OF EVIDENCE
I have reviewed the evidence, the MAC, COD and the submissions of the parties. I do not propose to summarise this material for the purpose of this determination but will refer to the evidence where relevant.
Report of Dr Khan
Dr Khan reported on 21 August 2024. He recorded a detailed history of the circumstances of the applicant’s injury, his symptoms, treatment and current functioning. He noted that the applicant was diagnosed with bipolar II disorder around 2015. He sought psychological and psychiatric treatment but was later only treated by his general practitioner. His condition had remained stable for a number of years.
Dr Khan diagnosed post-traumatic stress disorder, bipolar II disorder, major depressive disorder and alcohol use disorder. He considered that the applicant had suffered an aggravation of the pre-existing condition of bipolar II disorder with his current episode being a major depressive episode.
Dr Khan assessed 19% but reduced the assessment by one tenth due to the pre-existing condition pursuant to s 323 of the 1998 Act, resulting in a final assessment of 17% WPI.
Dr Khan provided the following assessment of WPI:
Psychiatric diagnoses
post-traumatic stress disorder
Bipolar II disorder, current episode major depressive episode,
alcohol use disorder
Psychiatric treatment
GP | Psychologist | Psychiatrist | Psychotropic medications
Is impairment permanent?
Yes
Psychiatric diagnosis – Whole Person Impairment Rating
PIRS Category
Class
Reason for Decision
Table 11.1
Self-Care and personal hygiene
2
[CHC] showers daily but he brushes his teeth less frequently. He tries to complete domestic tasks, including cooking, grocery shopping and cleaning, but he often struggles to motivate himself to do so. [CHC]’s neglect to his self-care is evidenced by his appetite disturbance, weight gain and escalating alcohol use since the subject injury.
Table 11.2
Social and recreational activities
3
[CHC] previously enjoyed socialising with family and friends and attending outings. He does not actively engage in any social and recreational activities. [CHC] prefers to remain socially isolated at his home.
Table 11.3
Travel
2
[CHC] is able to travel to familiar places on his own although he struggles with anxiety, panic, hypervigilance and avoidance of crowds when he leaves his home.
Table 11.4
Social functioning
2
[CHC] was not in an intimate relationship at the time of the subject injury. He remains withdrawn from his friends.
Table 11.5
Concentration, persistence and pace
3
[CHC] struggles with his attention and concentration. He has difficulty focusing on tasks such as reading and retaining the information he reads. [CHC] can become easily distracted when in conversation. His short-term memory has been affected.
Table 11.6
Employability
5
[CHC] cannot work at all due to his pervasive mental health and cognitive difficulties.
Score Median Class
| 2 | 2 | 2 | 3 | 3 | 5 |
| 2.5 = 3 |
Aggregate Score Impairment WPI Total
| 2 | 2 | 2 | 3 | 3 | 5 |
| 17% |
Impairment (%WPI) from Table 11.7 in Guidelines
19%
Adjustment for pre-existing impairment (%WPI)
- 2%
Adjustment for treatment effects (%WPI)
0%
Final Whole Person Impairment (%WPI)
17%
Reports of Dr Pothala
Dr Pothala reported on 15 November 2024. The doctor referred to a previous report dated
25 October 2023 which is not in evidence. He recorded a detailed history of the circumstances of the applicant’s injury, his symptoms and treatment. He noted that the applicant was diagnosed with bipolar affective disorder in 2015 by a general practitioner and a psychiatrist, Dr Al Dury. He had seen a psychologist and since 2015, he had been well managed by his general practitioner with Epilim and he had been stable. He also had a diagnosis of childhood attention-deficit/hyperactivity disorder (ADHD) and was on stimulants.Dr Pothala diagnosed a post-traumatic stress disorder and a pre-existing bipolar disorder which appeared to be stable. He was not satisfied that the applicant had reached maximum medical improvement.
In his report dated 10 July 2025, Dr Pothala provided an updated history and noted the applicant’s treatment and symptoms. He referred to the diagnosis of bipolar disorder and noted that this had been well managed by medication and was stable. He also recorded the childhood diagnosis of ADHD.
Dr Pothala diagnosed post-traumatic stress disorder and noted that both Dr Khan and Dr Singh accepted that diagnosis and they believed that the applicant had reached maximum medical improvement. Significantly, he noted that the applicant’s symptoms had remained the same since his previous examination.
MAC of Medical Assessor Singh
Medical Assessor Singh provided a MAC on 30 April 2025. He recorded a consistent history of the applicant’s injury that arose from abuse and threats by a customer of the respondent. The final straw was an incident on 1 February 2023 when the customer threatened to kill him, and he was forced to call the police. He was transferred to another site, but he eventually left work in August 2023.
Medical Assessor Singh reported that the applicant was being treated by a psychologist who he saw every three weeks, and he was going to see another psychiatrist. His general practitioner provided certificates every 28 days. He had been prescribed sodium valproate and mirtazapine for the last few years.
Medical Assessor Singh noted that the applicant could not concentrate, and he tended to remain at home where he watched debates in his room. He was no longer having nightmares but had random dreams about work. His symptoms could be triggered by news items on the television. He struggled to leave home and became panicky. He felt lethargic and lazy during the day. His medication helped him sleep and he felt better and was comfortable after taking it. He enjoyed reading and listening to relaxing videos. He was hypervigilant and exhibited some paranoid ideation and suspiciousness about going out. He denied self-harm or suicidal thoughts.
Medical Assessor Singh recorded that the applicant was diagnosed with bipolar disorder type II in 2015. He was prescribed medication, and his symptoms were under control. He had been on sodium valproate since 2015 and mirtazapine more recently. The applicant told him that he that he had probably experienced a few hypomanic episodes but denied any history of depression before this work injury. He stated that he had been pretty stable since he had been on medication.
Medical Assessor Singh recorded that the applicant was diagnosed with ADHD when he was about seven years old and he ceased taking dexamphetamine when he was about 12 years old.
Medical Assessor Singh diagnosed post-traumatic stress disorder and a major depressive disorder. He had a bipolar affective disorder type II and was currently having an episode of major depressive disorder together with a comorbid alcohol use disorder. The Medical Assessor noted the comments of the medical reports from the applicant’s treating clinicians as well as Drs Khan.
Medical Assessor Singh assessed 8% WPI less a one tenth deduction for a pre-existing injury, giving a final total of 7% WPI. He explained his assessment as follows:
“Table 11.8: PIRS Rating Form
| Psychiatric diagnoses | 1. post-traumatic stress disorder. | 2. Bipolar affective disorder, currently major depressive disorder. |
| 3. Alcohol use disorder. | 4. | |
| Psychiatric treatment | Treatment under the care of GP, psychologist and psychiatrist. | Treatment with mood stabilizer antidepressant and psychological interventions. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self-Care and personal hygiene | 2 | [CHC] lives with his grandmother who is very supportive. He stated that he struggles to look after himself and may skip showers. He may be lying in his room for most of the day. He mainly showers when he is going out. He may clean his room but not often. His grandmom had hip surgery and he is trying to help around the house and has done mopping and cleaning recently. His appetite is fine and finds it hard to cook. He has no motivation. He is trying to stay away from takeaway food as he has gained 10 kg since being off work. |
| Social and recreational activities | 3 | [CHC] has seen his friend only twice. He would see his father. He drives to Shellharbour. He does some hobbies with his dad. He will visit his dad in Shellharbour every fortnight. He will go in the morning and then comes back after two to three hours mainly on weekends. He may go to a pub or a Christmas party or a birthday party with his friends but he does not go out often as he is always anxious outside and hypervigilant. He spends his time at home by watching YouTube and tv shows. He may go to the gym every few days sometimes twice a week, but not more than that. He is not going out on his own socially. He does not see his friend regularly and only speaks to them over the phone. |
| Travel | 2 | [CHC] does not drive much. He will go to the local gym or drive to the alcohol shops which is 10 to 15 minutes away. He has not driven far from home. He has not been on any holidays. He is not able to catch public transport as he feels anxious. He drives to his dad's place which is again a short drive and tries to avoid traffic, so he will drive in the morning and will come back in two to three hours mid-day. |
| Social functioning | 1 | [CHC] stated that he has not been in a relationship for a while. He has good relationship with his parents and grandmother who are very supportive, his mother works very hard. His mother is very supportive through all this and his father also has positive words to say. |
| Concentration, persistence and pace | 2 | [CHC] stated that he struggles with his focus and concentration. He may fall asleep while reading a book as his eyes get tired. He is reading about AI and is doing a bit of coding as well using AI to do and he is reading about digital computing and Analog computers and finds that interesting. He has been slow to read and his attention and focus span is reduced. |
| Employability | 5 | [CHC] is not thinking of work. He does not feel that he can work. He definitely cannot work behind the counter in retail. He is always vigilant and worried about his safety and that makes him anxious. He is not thought of any other jobs as well at the present time. |
Score Median Class
Aggregate Score Impairment Total %
Pre-existing impairment = 1/10= 0.8 %
Treatment effects = 0 %
Final WPI = 7 %”
Applicant’s submissions
The applicant makes the following submissions.
Reconsideration rather than an appeal
The applicant submits that the alleged errors are clerical and mathematical or involve omission of reasons. These are suited to a reconsideration, because a Medical Appeal Panel would simply remit the matter if it found the same obvious error. Reconsideration is the more economical course.
Misapplication of the Psychiatric Impairment Rating Scale (PIRS)
The applicant submits that the Medical Assessor recorded a median Class 2 and aggregate score of 15. According to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (the Guidelines), a score 15 converts to 10% WPI, not 8%. A one tenth deduction pursuant to s 323 of the 1998 Act would result in 9% WPI rather than 7% WPI. This constitutes an “obvious error”.
Unexplained divergence from expert evidence and opinion
The applicant submits that Dr Khan assessed 17% WPI. Medical Assessor Singh quoted this assessment in the MAC but gave no clinical reasoning for reducing this figure to 8% WPI. He submits that Procedural Direction PIC7 recognises “failure to provide proper reasons” as a ground for reconsideration.
Excessive s 323 deduction without a factual basis
The applicant submits that his pre-existing bipolar II disorder has been stable since 2015 as confirmed in Dr Khan’s report and the clinical notes of his treating doctors. He submits that the Guidelines generally limit psychiatric deductions to one tenth only where evidence exists of pre-injury incapacity.
The applicant submits that the Medical Assessor identified no pre-injury incapacity, but he still deducted the maximum one tenth. This deduction was not evidence based and represents an error.
Interests of justice and risk of irremediable prejudice
The applicant submits that he is only entitled to one claim, and the outcome of the MAC means that he will have no further entitlement to claim lump sum compensation and it curtails future medical entitlements. Given the potential for an assessment of more than 15% WPI, the denial of a reconsideration would cause a substantial injustice.
Delay
The applicant submits that the MAC issued on 30 April 2025, and he received the outcome from his solicitors on the 14 May 2025. He spoke with his solicitor on 26 May 2025 and was informed that a barrister had advised that an appeal was “not worth it”. The applicant submits that upon further investigation, he identified “obvious errors” for a reconsideration.
Respondent’s submissions
Failure to appeal
The respondent’s solicitor, Mr Marhaba, submits that according to s 327(5) of the 1998 Act, an appeal based on the grounds set out in ss 327(3)(c) or 327(3)(d) of the 1998 Act must be made within 28 days after MAC, unless the President is satisfied that special circumstances justify an increase in the period for an appeal. The last day to lodge the appeal was 28 May 2025 and this application for reconsideration was not lodged until 22 July 2025.
Mr Marhaba submits that cl 17 and cl 18 of Procedural Direction PIC 7 deal with applications to appeal out of time under s 327(5) of the 1998 Act. The applicant must establish “special circumstances” having regard to “the length of the period of default, the explanation for the default, prejudice, and the merits of what is being sought to be litigated”.[1]
[1] Aguiar v Registrar of the Workers Compensation Commission of New South Wales [2005] NSWSC 1017, [17] (Aguiar) (per Malpass AsJ) .
Mr Marhaba submits that the applicant must establish special circumstances beyond the usual reasons for the granting of an extension of time. The short period of time and the asserted lack of prejudice to the respondent are immaterial to the exercise of the discretion in s 327(5) of the 1998 Act.
Mr Marhaba submits that the applicant, his solicitor and his counsel had considered the prospects of appeal within the time prescribed by s 327(5) of the 1998 Act but chose not to appeal. The applicant allowed the appeal period to lapse. This does not fall within the category of “special circumstances” as a mistake or oversight by a legal practitioner cannot be overlooked or dismissed.[2]
[2] Hurst v Goodyear Tyre & Rubber Co Australia [1953] WCR 29, (Hurst).
Mr Marhaba submits that the applicant has failed to provide proper explanation, or evidence as to when he was advised of his prospects of appeal, and the actions taken following the “investigation of obvious errors”. He submits that it would be prejudicial to the respondent in promoting fairness, efficiency, and effectiveness to allow the applicant’s appeal without considering the actions of the applicant and his counsel.
Mr Marhaba submits that the President would not be satisfied on the face of the application and submissions that at least one of the grounds of appeal in s 327(3) of the 1998 Act has been made out. The role of the President under s 327(4) of the 1998 Act is that of a “gate keeper” who decides whether at least one of the grounds of appeal have been made out.[3]
[3] Kolundzic v Quickflex Constructions Pty Ltd (2014) NSW SC 1523, [51] (Kolundzic) (per Campbell J), and Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 327, [8] and [82] (Vegan).
Mr Marhaba submits that s 327(d) of the 1998 Act requires the applicant to demonstrate that there is an arguable case of error on the face of the MAC, either and error of fact or law, but must be more than one that depends upon evidence that is not within ss 327(3)(c) and 327(3)(d) of the 1998 Act.
Mr Marhaba submits that a demonstrable error is an error which is readily apparent from examination of the MAC and the document referring the matter to the Medical Assessor.[4] He submits that no such demonstrable error exists. There is simply a difference of opinion between the Medical Assessor and other doctors who assessed him and a mere disagreement about the level of impairment is not sufficient to demonstrate error.[5] The assessment is well explained and reasoned by the Medical Assessor in the MAC. The appeal ought not proceed on this basis.
[4] Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 (Merza), [39] (per Hoeben J0.
[5] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, [73], (Jenkins) (per Garling J).
Mr Marhaba submits that the role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before him or her. The matters raised in the consultation is very much a matter for assessment by the clinician conducting the examination[6], and the Medical Assessor did this.
[6] Ferguson v State of New South Wales [2017] NSWSC 887, [23] (Ferguson), and NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, [33] (Wark) (per Campbell J)
Mr Marhaba submits that the ratings under the PIRS scale cannot be disturbed because of a mere difference of opinion. One must be satisfied that the Medical Assessor’s approach was incorrect in a material respect.
Mr Marhaba submits that the applicant’s submissions do not demonstrate where the error is readily apparent, where the reasoning of the doctor is unsupported or where the conclusions reached are glaringly improbable.
Misapplication of the PIRS
Mr Marhaba submits that the applicant has provided no explanation as to how the Medical Assessor fell into error. The Medical Assessor found a median Class 2 score and an aggregate score of 15 in the MAC. According to Table 11.7 of the Guidelines, a combined score of Class 2 and an aggregate score of 15 equates to 8% WPI.
Unexplained divergence from expert evidence and opinion
Mr Marhaba submits that the applicant did not explain how the Medical Assessor failed to provide proper reasons for his assessment. He submits that a Medical Assessor is obliged to provide his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise, and an explanation of the path of reasoning is sufficient to enable a court to determine whether the opinion does or does not involve any error of law.[7]
[7] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, [55] (Kaur) (per Campbell J).
Mr Marhaba submits that a Medical Assessor is not obliged to accept the medical opinion of other specialists. Rather, the Medical Assessor must form this or her own expert opinion as to the level of impairment.[8]
[8] Parker v Select Civil Pty Limited [2018] NSWSC 140 (Parker).
Mr Marhaba submits that the Medical Assessor used his appropriate clinical judgment and provided an adequate explanation, consistent with his obligations under the Guidelines. Further, a Medical Assessor’s reasons do not need be extensive or provide detailed explanation of the criteria applied in reaching the assessment.[9]
[9] Vegan [122], (per Basten JA (Hadley and McColl JJA agreeing).
Mr Marhaba submits that the applicant’s submissions involve a hypercritical assessment of the MAC, which has been challenged by the authorities.[10]
[10] Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175
Mr Marhaba submits that having regard to the principles discussed in Ferguson, the applicant has not shown that the MAC assessment was glaringly improbable, that the Medical Assessor was unaware of significant factual matters, that there was a clear misunderstanding demonstrated that an unsupportable reasoning process could be made out, how the application of his clinical judgment was inconsistent with the Guidelines or there was any procedural irregularity in the assessment which would otherwise infect his conclusions and render his assessment untenable. He submits that the Medical Assessor did not apply incorrect criteria and there was no demonstrable error in accordance with ss 327(c) and 327(d) of the 1998 Act.
Excessive s323 deduction without factual basis
Mr Marhaba submits that according to Cole v Wenaline Pty Limited,[11] when determining whether to make a s 323 deduction, the Medical Assessor needs to identify the matters which are considered when assessing impairment, identify any pre-existing condition or abnormality, and determine whether the pre-existing condition or abnormality has contributed directly to the impairment. This involves an enquiry into whether there were other causes of an impairment caused by a work injury, and whether such an impairment made a difference to the degree of impairment resulting from the work injury.[12]
[11] (2010) NSWSC 78, (Cole).
[12] Ryder v Sundance Bakehouse [2015] NSWSC 526 [45], (Ryder).
Mr Marhaba submits that the Medical Assessor recorded that the applicant was diagnosed with bipolar disorder type II in 2015 by a psychiatrist and was treated with medication. He considered that the applicant still had features of the condition and was struggling with management of his mood and anxiety, so he applied a one-tenth deduction. The applicant also had ADHD, which affected his concentration and focus.
Mr Marhaba submits that the applicant’s interpretation of Guideline 11.6 is inconsistent with
s 323(1) of the 1998 Act and Marks v Secretary, Department of Communities and Justice (No 2)[13], which confirms that the section requires a deduction to be made when a proportion of the impairment is due to a previous injury, condition or abnormality, regardless of whether the pre-existing condition was symptomatic at the time of injury[14], and to the extent that Guideline 11.10 requires proof of assessable functional impairment prior to the injury, the guideline is inconsistent with s 323(1) of the 1998 Act, and to the extent of the inconsistency, s 323(1) of the 1998 Act prevails, and Guideline 11.10 is invalid.[15][13] [2021] NSWSC 616, (Marks).
[14] Marks [17], (per Simpson AJ).
[15] Marks [18] and [22] – [29].
Mr Marhaba submits that the authorities[16] establish that the fact the pre-existing condition had been asymptomatic does not preclude it from contributing to the impairment being assessed. Further, it cannot be assumed that an asymptomatic condition contributes to the impairment. Any contribution must be determined on the evidence which includes the competing specialist’s opinion, as well as various other evidence.
[16] Elcheikh v Diamond Formwork (NSW) Pty Limited (in liquidation) (2013) NSW 365.
Mr Marhaba submits that the applicant’s submissions do not show demonstrable error on the part of the Medical Assessor when applying a s 323 deduction. The Medical Assessor would have fallen into error if he applied the Guidelines as suggested by the applicant. There was no error in the Medical Assessor’s methodology or application of the relevant criteria, and the extent of his deduction ought not to be the subject of challenge, merely because another doctor provided a different assessment. There was no demonstrable error on the face of the certificate.
Interests of justice and risk of irredeemable prejudice
Mr Marhaba submits that s 327(3)(d) of the 1998 Act requires the applicant to demonstrate to that there is an arguable case of error appearing on the face of the certificate.[17] The applicant has also not established any such error. The assessment was open to the Medical Assessor as at the date of his assessment. No irredeemable prejudice has been suffered by the applicant.
[17] Marina Pitsonis v The Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Pitsonis).
Mr Marhaba submits that the MAC contains no error under ss 327(3)(c) and 327(3)(d) of the 1998 Act, and no grounds for appeal have been made out. The application should be dismissed.
Orders sought
Mr Marhaba submits that an appeal should not proceed as it is out of time, or it should not proceed to a Medical Appeal Panel as no grounds of appeal has been made out.
Mr Marhaba submits that in the alternative, if an appeal is referred to a Medical Appeal Panel, the matter is capable of being determined on the papers and the Medical Appeal Panel should dismiss the appeal and confirm the MAC.
Applicant’s submissions in reply
The applicant submits that in his reconsideration application, he does not seek an appeal against the MAC pursuant to s 327 of the 1998 Act. He seeks a recission of the COD dated
4 June 2025 and a referral to a Medical Assessor pursuant to s 329 of the 1998 Act to correct obvious and material errors that would otherwise cause injustice. He submits that the difference in assessments is severe and warrants an investigation.The applicant seeks to rely on fresh evidence, namely a report of Dr Pothala dated 10 July 2025 which could not reasonably have been provided earlier.
The applicant submits that Dr Pothala recorded new clinical findings and functional descriptions relevant to the PIRS categories as follows:
(a) Employability: certified no work capacity;
(b) Social/Recreational & Social Functioning: sustained avoidance/withdrawal and reduced social engagement;
(c) Concentration/Persistence/Pace: ongoing impaired focus, low motivation/drive impacting task completion;
(d) Travel: restricted driving and significant anxiety in public settings, and
(e) Self-care: reduced hygiene/routine (irregular showering/shaving), loss of day-to-day structure.
The applicant submits that Dr Pothala confirmed that he had post-traumatic stress disorder and the condition was now accepted as stable such that he had reached maximum medical improvement.
The applicant submits that these post MAC findings relate to multiple PIRS categories and, if available to the Medical Assessor, would likely have altered the assessment of WPI.
The applicant submits that there was a conversion error in the MAC where the Medical Assessor recorded 7% instead of 8% WPI. This is an obvious error that would warrant correction if there was an appeal, but on a reconsideration, it is compelling reason to rescind and remit to a Medical Assessor, so the correct PIRS assessment is applied.
The applicant submits that the Medical Assessor did not explain how any pre-existing condition caused a proportion of the current work-related WPI. A history of a past bipolar condition and ADHD is not a substitute for a reasoned allocation of impairment related to those conditions.
The applicant submits that the report of Dr Pothala further supports that the present functional impairment is a consequence of the work injury and a one tenth deduction is not warranted. The proper course is to refer the claim for reassessment, so that any deduction is addressed with reasons tied to each PIRS category.
The applicant submits that the suggestion that there is merely a difference of opinion does not consider the conversion error and the recent report of Dr Pothala which would likely have produced a different result if available at the time of the assessment.
Orders sought
The applicant submits that he seeks order rescinding the COD dated 4 June 2025 and a referral back to a Medical Assessor. In the alternative, then the PIRS conversion error should be corrected and the matter referred to a Medical Assessor limited tie the s 323 deduction and any consequences of the fresh evidence.
REASONS
In order to achieve the outcome that the applicant seeks, the COD dated 4 June 2025 needs to be reconsidered and if appropriate, rescinded. Unfortunately, merely setting aside the COD does not address the problems faced by the applicant with regard to the MAC dated
30 April 2025.The applicant submits that he does not seek an appeal against the MAC pursuant to s 327 of the 1998 Act. Section 327(3) of the 1998 Act provides that specific grounds need to be satisfied, such as a deterioration in the injury, or additional relevant information since the MAC that was not available and could not reasonably have been obtained before the MAC, or the assessment was made on the basis of incorrect criteria, or the MAC contains a demonstrable error.
Section 327(7) of the 1998 Act provides that there can be no appeal against a MAC once the dispute has been determined by a court or the Commission or by a Complying Agreement. Therefore, given that the COD issued on 4June 2025 determined the dispute, an appeal at this stage is not an option. Accordingly, the MAC issued on 30 April 2025 is conclusively presumed to be correct as to the degree of the applicant’s permanent impairment by reason of s 326(1) of the 1998 Act.
Sections 329(1)(a) of the 1998 Act provides that the Registrar may refer a matter for further assessment as an alternative to an appeal as provided by s 327 of the 1998 Act, but only if the matter could have otherwise proceeded on appeal. In this matter, no appeal was filed because the applicant’s legal representatives had advised him that it was “not worth it”.
The submissions of the respondent focus on the applicant’s failure to lodge an appeal within 28 days of the MAC. Given that the applicant does not seek to set aside the MAC to lodge an appeal, these submissions carry minimal weight.
However, s 329(1)(b) of the 1998 Act provides that a matter can be referred again or on more further occasions by a court or the Commission.
Procedural Direction PIC 7 sets out the procedural requirements for reconsideration applications and directs that the reasons for reconsideration should specify the demonstrable error or the application of incorrect criteria. It also explains what matters will be considered to determine if a claim should be referred to a medical assessor for reconsideration. I will refer to these matters below.
Section 57 of the PIC Act gives the Commission the power to reconsider any matter and rescind, alter or amend any decision that the Commission has previously dealt with. So, the Commission has the power to reconsider the COD, which is a decision of the Commission, but not a MAC, which is the decision of a Medical Assessor, who is not a member of the Commission. In the absence of a successful appeal to a MAP, the MAC is conclusively presumed to be correct and is binding on the parties.
Section 57(2) of the PIC Act provides that if the President is satisfied that the decision contains an obvious error, the President, or alternatively the Registrar, can alter the decision to correct the error.
Section 57(6) of the PIC Act gives examples of obvious errors that include an obvious clerical or typographical error, an error arising from an accidental slip or omission, a defect of form, or an inconsistency between the stated decision and the stated reasons.
Reconsideration
In Howell v Stringvale Pty Ltd[18], Arbitrator Johnstone, as he then was, provided a useful summary of the principles for reconsideration of determinations pursuant to the now repealed
s 350(3) of the 1998 Act. He stated:[18] [2005] NSWWCC 64, (Howell).
“The subsection and its predecessors have been considered in a number of cases. Having reviewed those cases the following summary of principles may be made as to its application:
1.The power to reconsider is unlimited: Hilliger v Hilliger (1952) 52 SR (NSW) 105, but discretionary: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192. However, it is important to keep in mind the distinction between the existence of the power and the occasion of its exercise: Hilliger at 108.
2.The general rule is that public interest requires that litigation should not proceed interminably, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. Nevertheless, it is appropriate to exercise the power to remedy some manifest injustice: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].
3.The power applies to both questions of fact and law, and is not limited to changed circumstances or fresh evidence: Hardaker v Wright & Bruce Pty Ltd (1960) 62 SR (NSW) 244 at 248 and 249.
4.The section overrides the common law doctrine of estoppel: Lambidis v Commissioner of Police (1995) 12 NSWCCR 225, but the discretion should not be exercised where the party has unreasonably refrained from raising the issue in the earlier proceedings: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26]. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
5.New evidence must be distinguished from additional evidence as opposed to fresh evidence: Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642. If the evidence was readily available at the time of the first hearing, this is a factor to be weighed in considering whether or not to exercise the discretion: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [58]. However, any new evidence must be such that it would have been a determining factor in the decision: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
6.Other grounds for the exercise of discretion include where the original decision maker did not consider an available and possibly determinative argument: Lasaitis v Email Ltd (1990) 6 NSWCCR 154 at 171A. But where the Commission does not have jurisdiction to determine the particular matter asserted, the discretion should not be exercised: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
7.Mistake or inadvertence on the part of legal advisers is an insufficient ground: Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29 at 30. But disposal of litigation by legal advisers on a basis contrary to their instructions has been held to be sufficient: Sorcevski v Steggles Pty Ltd (1991) NSWCCR 315.
8.An application must be brought without delay and the matter raised must be of such a nature that it would have affected the outcome of the original decision: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].”[19]
[19] Howell, [27].
In Samuel v Sebel Furniture Limited [20], Acting Deputy President Roche, as he then was, cited with approval the Court of Appeal decision in Schipp v Herfords Pty Ltd[21], where the court considered the equivalent reconsideration provisions in the Workers Compensation Act 1926. He stated:
“The factors relevant to the exercise of the discretion in section 36 of the 1926 Act were considered by the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413 (‘Schipp’). The court noted the following factors were relevant in deciding whether the discretion should be exercised in favour of the moving party:
1. delay;
2. whether the worker had a right of appeal from the first decision but failed to
exercise that right;
3. waiver or estoppel issues, and
4. rescinding an earlier award will allow a worker to bring fresh proceedings.”[22]
[20] [2006] NSWWCCPD 141 (Samuel).
[21] [1975] 1 NSWLR 413 (Schipp).
[22] Samuel, [45].
The Acting Deputy President continued:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. the section gives the Commission a wide discretion to reconsider its previous
decisions (‘Hardaker’);2. whilst the word ‘decision’ is not defined in section 350, it is defined for the
purposes of section 352 to include ‘an award, order, determination, ruling and
direction’. In my view ‘decision’ in section 350(3) includes, but is not
necessarily limited to, any award, order or determination of the Commission;
3. whilst the discretion is a wide one it must be exercised fairly with due regard
to relevant considerations including the reason for and extent of any delay in
bringing the application for reconsideration (‘Schipp’);
4. one of the factors to be weighed in deciding whether to exercise the discretion
in favour of the moving party is the public interest that litigation should not
proceed indefinitely (‘Hilliger’);
5. reconsideration may be allowed if new evidence that could not with reasonable
diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6. given the broad power of ‘review’ in section 352 (which was not universally
available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7. depending on the facts of the particular case the principles enunciated by the
High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8. a mistake or oversight by a legal adviser will not give rise to a ground for
reconsideration (‘Hurst’), and9. the Commission has a duty to do justice between the parties according to the
substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”[23][23] Samuel, [58].
The matters that I need to determine concern interpretation of the statutory provisions. The authorities confirm that one needs to look at the text, language and structure of the legislation, the legal and historical context, and the purpose of the statute to come to a reasonable conclusion as to its meaning and application.[24] Reference to the authorities will obviously be of assistance.
[24] Project Blue Sky, [69] – [71] (per McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27, [47] (per Hayne, Heydon, Crennan and Kiefel JJ).
It is clear that I have a wide discretion to reconsider the referral in accordance with s 57 of the PIC Act, but the discretion must be exercised fairly.[25]
[25] Samuel, [58].
When one considers the matters raised in Samuel and Howell, the only relevant matters seem to relate to fresh evidence, indefinite litigation and the interests of justice. There was no major delay in bringing the present application. No mistake by his legal representatives and no issues of estoppel.
Fresh evidence
The applicant relies on fresh evidence being the report of Dr Pothala dated 10 July 2025. He submits that Dr Pothala recorded new clinical findings and functional descriptions relevant to the PIRS categories, however when one compares the doctor’s two reports, his clinical findings and functional descriptions are remarkably similar. They do not disclose any worsening of the applicant’s condition. His functioning is largely the same and he was still taking the same level of medication. I do not accept that the doctor’s comments would have likely produced a different result or mean that a one tenth deduction was not warranted.
Misapplication of the PIRS
The applicant submits that the Medical Assessor miscalculated the final assessment of WPI when he discovered the aggregate score of 15 to 8% WPI before applying a one tenth deduction. There is no merit to this submission.
A review of the Table 11.7 in the Guidelines shows that a median Class 2 and aggregate score of 15 converts to 8%. The applicant submits that it converts to 10% WPI, but he has obviously misread the table. For an assessment of 10% WPI, the applicant would have to have been assessed with a median Class 2 and aggregate score of 18%. Therefore, the MAC does not contain an “obvious error” in this calculation that would warrant a reconsideration.
Unexplained divergence from expert evidence and opinion
The applicant submits that Medical Assessor Singh gave no proper reasons for his assessment of 8% WPI and this omission is a ground for reconsideration, but he has not explained how those reasons were improper or inadequate.
Clause 1.6 of Part 2 of the Guidelines provides that Medical Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries or conditions.
According to Kaur, a Medical Assessor is obliged to use his or her experience and provide an explanation of the path of his or her reasoning, and this is sufficient to allow a decision maker to determine if there is an error of law.
In my view, the Medical Assessor has provided a comprehensive report containing a consistent history, a detailed examination and a reasoned opinion as to a diagnosis and assessment. According to Vegan, the reasons need not be extensive or provide a detailed explanation of the criteria applied in reaching his or her conclusion. Whilst the Medical Assessor’s reasons may not be extensive, they are not inconsistent with the Guidelines and the case law.
A Medical Assessor is required to provide his own opinion, whether he agrees or disagrees with the views of other doctors. Medical Assessor Singh agreed with the diagnoses of Drs Khan and Pothala but differed in his assessment of the degree of impairment as he was entitled to do as an independent assessor appointed by the Commission. According to Ferguson, a difference of opinion between the Medical Assessor and Dr Khan is not sufficient to demonstrate error.
Therefore, I am not satisfied that there is any merit in the applicant’s submissions regarding the adequacy of the reasons of the Medical Assessor.
Excessive s 323 deduction
The applicant challenges the one tenth deduction applied by the Medical Assessor pursuant to s 323 of the 1998 Act. He refers to the Guidelines, but his submissions ignore how the section and the Guidelines have been interpreted. The reference to “pre-injury incapacity” is confusing.
Clauses 1.1.28 and 11.11.10 of the Guidelines provide that when assessing the degree of permanent impairment resulting from the compensable injury, the Medical Assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality, and this is deducted from the assessment of impairment. The clauses provide that the deduction is one tenth of the assessed impairment, unless that is at odds with the available evidence. There is no mention of the words “pre-injury capacity”.
In Cole, Schmidt J stated:
“Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”[26]
[26] Cole, [30].
Whether the applicant was exhibiting symptoms is irrelevant according to Marks. He was taking medication, and his bipolar disorder was stable and under control.
Medical Assessor Singh noted that the applicant’s bipolar symptoms were stable, and he was still taking medication to address that condition. He believed that this warranted a one tenth deduction consistent with the Guidelines and Cole.
Dr Pothala did not provide an assessment, but he recorded a similar history regarding the applicant’s pre-existing bipolar disorder that was stable and well managed by medication.
Although the applicant challenges the deduction applied by the Medical Assessor, he does not take issue with the similar deduction that was applied by Dr Khan.
Dr Khan noted that the applicant had bipolar II disorder that had remained stable for a number of years. This history is similar to that recorded by the Medical Assessor and Dr Pothala.
Dr Khan believed that the applicant had suffered an aggravation of the pre-existing bipolar II disorder with his current episode being a major depressive episode. Like the Medical Assessor, he applied a one tenth deduction for the bipolar disorder. Therefore, it could not be said that the deduction made by the Medical Assessor was at odds with the available evidence.
Therefore, the only two doctors who have assessed the level of the applicant’s impairment have made a one tenth deduction pursuant to s 323 of the 1998 Act. I am satisfied that these deductions were evidence based, so I do not accept that there was any demonstrable error on the face of the certificate.
Indefinite litigation
The finality of litigation must be weighed against the interests of justice and the wide discretionary power of the Commission.
The insurer has been put to the added expense of dealing with the original lump sum proceedings and the present application. If the COD is reconsidered and rescinded, the respondent would then be required to deal with a further referral to a Medical Assessor, if the one was inclined to follow that course. The parties also might require updated medical evidence which would cause further delay and additional cost.
In my view, it would not be in the public interest to reconsider the COD so that further litigation can be undertaken. Indeed, it would be open for every dissatisfied party to challenge the MAC without filing an appeal and this should be discouraged.
Interests of justice and risk of irremediable prejudice
Finally, one needs to consider whether it is in the interests of justice that the COD should be rescinded because there is some “practical unfairness or injustice” in allowing it to stand.
I am not satisfied that the evidence is sufficient to show that there was any unfairness to, or injustice suffered by, the applicant. The Medical Assessor assessed the applicant as at the date of the examination and I am satisfied that he used his expertise and training to come to a diagnosis and reasoned opinion after receiving an accurate history, undertaking a detailed examination and a review of the medical evidence before him.
It is true that the applicant is faced with the restrictions in s 66(1) of the 1987 Act. The text of the section is clear and unambiguous. The section provides that only one claim can be made for permanent impairment compensation.
A further complication arises as a result of s 322A of the 1998 Act, which provides that only one assessment of the degree of permanent impairment may be made. It prohibits the referral to a Medical Assessor for further assessment, but this is subject to the appeal provisions in s 327 of the 1998 Act.
Whilst the applicant is clearly prejudiced, it was open to him to lodge an appeal within 28 days of the MAC. His legal advisers did not recommend this, and it seems he did not obtain a second opinion. It is not difficult to understand why an appeal was not lodged as there would seem to be no demonstrable error and no evidence to suggest that the MAC was based on incorrect criteria.
The applicant was understandably dissatisfied with the outcome. Significantly, his solicitors filed a Notice of Ceasing to Act, which strongly suggests that they were not prepared to lodge an appeal or reconsideration application.
The applicant seeks to rescind the COD dated 4 June 2025 and refer his claim to a Medical Assessor. There are no grounds for doing this for the reasons above.
In the alternative, he asks that the alleged PIRS conversion error be corrected, and the matter referred to a Medical Assessor limited to the s 323 deduction and any consequences of the fresh evidence.
There is no error in the PIRS conversion to be corrected. Even if the s 323 deduction represented an error, the applicant would still only be left with an assessment of 8% WPI which would not pass the threshold in s 65A(3) of the 1987 Act. The fresh evidence would not make any difference.
I am obliged to do justice between the parties according to the substantial merits of the case. One must have regard to ss 3, 42 and 43 of the PIC Act, which provide that the Commission is to facilitate the just, quick, and cost-effective resolution of real issues with as little formality and technicality as possible. I have a wide discretion, but I must be fair, and justice must be done between the parties.
Any reconsideration of the COD will be highly prejudicial to the respondent because the assessment of the Medical Assessor was such that the applicant did not pass the threshold in s 65A(3) of the 1987 Act and in my view, this outweighs the prejudice to the applicant. The applicant could have lodged an appeal against the MAC, but he chose not to do so. The respondent should not be penalised in these circumstances.
On the basis of the evidence currently before me, in the interests of justice and having regard to the greater prejudice that the respondent will suffer, I am not satisfied that the applicant’s application for reconsideration of the COD dated 4 June 2025 should be granted so that his claim be referred back to Medical Assessor.
Therefore, the applicant’s application to rescind the COD dated 4 June 2025 and to have his claim referred to another Medical Assessor is declined.
0
18
0