Cottom v Scone Race Club Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Cottom v Scone Race Club Limited [2022] NSWPIC 519
APPLICANT:	Gregory James Cottom
RESPONDENT:	Scone Race Club Limited
Member:	John Wynyard
DATE OF DECISION:	20 September 2022
CATCHWORDS:	WORKERS COMPENSATION -
determinations made:	1. The application is rejected.

STATEMENT OF REASONS

BACKGROUND

Gregory James Cottom the applicant, brings an action against Scone Race Club Limited, the respondent, for lump sum compensation.
Dispute notices were duly lodged.
The Application to Resolve a Dispute (ARD) and Reply were issued.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) does the Personal Injury Commission (the Commission) have jurisdiction to order a reconsideration by the Medical Appeal Panel?

PROCEDURE BEFORE THE COMMISSION

At the video hearing on 28 April 2022, I issued directions for written submissions as set out below. The applicant was represented by Mr Christian Hart of counsel instructed by
Mr Raymond Blissett of Messrs Bale Boshev, solicitors. The respondent was represented by Ms Belinda Walsh from Messrs Hall and Wilcox, lawyers.
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 have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. 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.

EVIDENCE

Documentary evidence

The relevant documentary evidence will be referred to in the reasons below. It is impractical to list the evidence, most of which is of marginal relevance. There were over 50 files of evidence to download. I have accepted the factual background as it has been set out by both parties, as there is no dispute as to the chronology. I have also been assisted by the chronology filed by the applicant.

Oral evidence

No application was made with regard to oral evidence.

FINDINGS AND REASONS

This matter has a somewhat chequered history, as can be seen from the volume of documentation.
The matter number confirms that it started life as an ARD in 2020 for weekly payments arising from an injury on 23 May 2008. The matter was heard by Arbitrator (as he then was) Philip Young on 10 September 2020, by which time a claim for lump sum compensation had been added, as on 16 September 2020 Arbitrator Young remitted the matter for referral to an AMS (now Medical Assessor).
On 21 October 2020 a Medical Assessment Certificate was issued by Dr Mark Burns, assessing 20% whole person impairment (WPI).
On 17 November 2020 an Application for Reconsideration was lodged by the applicant’s solicitors pursuant to s 329(1)(b) of the Workplace Injury management and Workers Compensation Act 1998 (the 1998 Act), then in force. The application stated relevantly:
“We note that any application to appeal under section 327 (c) and (d) is required to be filed within 28 days of the MAC. We request the issue of the COD be delayed until the matter is further dealt with by your office or by Mr Young.
If it is intended to issue the COD, despite this request, we request that Mr Cottom have an opportunity to make further submissions, and or an extension of time to seek funding from WIRO to obtain further Counsel’s advice on any Appeal.”
On 25 November 2020 the application for reconsideration was heard by Arbitrator Young. He directed:
“1.     The applicant’s reconsideration application under cover of letter 17 November 2020 is accepted for consideration.
2.      The applicant is directed to file and serve by 9 December 2020 written submissions, which submissions must incorporate the arguments already set out in 1. above.
3.      The respondent is to file and serve written submissions on or before 18 January 2020.
4.      Any submissions in reply are to be filed and served by the applicant on or before 25 January 2020.
5.      The matter may thereafter be dealt with ‘on the papers’.”
The respondent appealed against the determination of Arbitrator Young, and on
9 October 2021 Deputy President Elizabeth Wood set aside his decision. The learned Deputy President ordered that the matter be remitted to another non-presidential Member for re-determination.
The Application to Appeal was apparently dealt with administratively following the acceptance of the application for reconsideration, and it was discontinued without notice to the parties.
The matter was further listed before Member Catherine McDonald on 28 January 2022. She made consent orders which stated:
“1.     I note that the appeal in M1-3314/20 in respect of the Medical Assessment Certificate dated 21 October 2020 was administratively discontinued by the Commission without reference to the parties.
2.      I direct that M1-3314/20 be reinstated.
3.      The applicant discontinues the application for reconsideration.”
An email chain followed involving the Commission and the parties. It commenced with an email to the Commission dated 9 March 2022 from Mr Ray Blissett, the applicant’s solicitor, following receipt of the referral following Member McDonald’s order. Relevantly, he wrote:[1]
“We are obliged to draw your attention to the provisions of section 14B of the PIC Act 2021subsection 14B (4)(c), which clearly preserved the statutory provisions existing prior to the commencement of Schedule 6 of the PIC Act 2020, on 1 March 2021.
We also draw your attention to the relevant section of the WIM Act, prior to the commencement of Schedule 6.
In these circumstances, we require you to reconsider the referral and grant the applicant the relief he has sought in the original application, within the parameters of the previous legislative
provisions.
………
Further, given the delay from the original assessment certificate of Dr Burns on 21 October 2020 (now 16 months ago) the applicant attaches an application to admit late documents for the consideration of the Appeal Panel (however it is constituted).
……”
[1] Respondent’s AALD.
The Disputes Support Officer, Ms Heena Mistry wrote relevantly:
“I refer to your Application to Admit Late Documents and the correspondence attached therein.
You have raised the transitional provisions contain in cl 14B of sch 1 to the Personal Injury Commission Act 2020 and asserted that you ‘require you to reconsider the referral and grant the applicant the relief he has sought in the original application, within the parameters of the previous legislative provisions’. It is not clear what is sought by this statement. The matter was determined in accordance with the transitional provisions. It was referred to a medical appeal panel constituted in accordance with s 328 of the Workplace Injury Management and Workers Compensation Act 1998. By the operation of cl 14B, the ‘new decision-maker’ is to determine the proceedings. That is, a member and two medical assessors (as opposed to an arbitrator and two approved medical specialists).
If the assertion is made in reference to the submissions made under the heading ‘paragraph 4.3’, dealt with in the my decision at [10]-[11], the legislation that applied ‘immediately before the establishment day’ likewise did not contain any power to constitute an appeal panel as is constituted in the present matter, i.e. there was no scope within the legislation to have the appeal panel constituted in any way other than by a member and two medical assessors.
In terms of the Application to Admit Late Documents, the material will be forwarded to the appeal panel. The panel may deal with it in accordance with their powers.”
Ms Tarana Singh. A Senior Associate with the respondent’s solicitors, emailed Ms Mistry objecting to the Application to Admit Late Documents (AALD) being admitted into evidence and provided to the Appeal Panel.
Ms Singh also sought a telephone conference to give the respondent “a proper opportunity to respond”.
Ms Mistry answered to all parties at 4.16pm that day:
“Dear legal representatives
I note the respondent’s objections to the admission of the late evidence.
The matter has been referred to an Appeal Panel is currently before them for consideration. The Appeal Panel has the power to admit fresh evidence under section 328(3) of the 1998 Act.
The correspondence noting objections to the evidence will be forwarded to the Appeal Panel, who will determine the appropriate steps to take with regards to that evidence and the respondent’s objections.”
Ms Singh replied at 5.02pm renewing her request for a teleconference. On 14 March 2022 at 3.43pm Ms Mistry responded:
“The matter is presently before an Appeal Panel who have the power to admit fresh evidence under s 328(3) of the 1998 Act.
The Appeal Panel controls its own procedures and your concerns regarding procedural fairness have been forwarded to the Panel. Your request for a teleconference before a member, separate to the appeal process, is declined. It is a matter for the Panel to determine whether to admit the evidence and the appropriate steps that need to be taken.”
In Cottom v Scone Race Club Limited[2] the Medical Appeal Panel confirmed the MAC on
[2] [2022] NSWPICMP 70.
31 March 2022. It rejected a further statement from the applicant of 16 November 2020, and it found that the allegation by the applicant that the referral and MAC were ultra vires were matters that preceded the MAC, and thus beyond the MAP’s power to deal with.
The matter thus came before me at teleconference on 22 April 2022. I had the assistance of counsel at the teleconference, but even so, I had difficulty in comprehending its purpose.
Mr Hart alleged that the MAP had not been supplied with all the relevant evidence, and that I had power to order a re-consideration of the original MAC of Dr Burns. I accordingly ordered written submissions to be supplied, and directed that the Medical Assessment file be obtained from the Commission.
Written submissions were duly received. It is convenient to refer to the AALD of 9 March 2022 as “the subject AALD”.

SUBMISSIONS

Mr Hart

Mr Hart commenced his submissions by referring to s 14 B of Schedule 1 of the Personal Injury Commission Act 2020 (the 2020 Act), which he kindly reproduced. He submitted that this matter was a “pre-establishment” proceeding as the Application to Appeal to a Medical Appeal Panel had been discontinued administratively without notice to the parties in
January 2021, prior to the commencement of the 2020 Act.

The effect of being a pre-establishment proceeding, it was submitted, meant that the provisions of s 378 of the 1998 Act were preserved, notwithstanding that they had been repealed at the commencement of the Commission. Mr Hart referred to Sleiman v Gaddalia Pty Ltd[3] in that regard.
[3] [2021] NSWCA 236 at [90].
Mr Hart then set out the reason for the teleconference before me. He was seeking an order that the Medical Appeal Panel reconsider its decision of 31 March 2022.
Mr Hart submitted that, additional to the grounds set out by Mr Cottom in that appeal,
Mr Cottom’s condition had subsequently deteriorated, and indeed he had suffered a consequential injury to his lumbar spine since the date of the MAC, 21 October 2021.
Mr Hart alleged that not all the evidence - particularly the subject AALD filed on 9 March 2022 - had been forwarded to the Appeal Panel. Mr Hart acknowledged that the Commission administrative staff had notified the parties that all materials had been provided to the Appeal Panel, but he expressed some doubts as to the accuracy of that notice. He said that the evidence contained in the AALD was “fresh evidence” and the Panel had fallen into error by failing to admit or consider it.
Mr Hart based his application on the assumption that the Appeal Panel “did not receive the applicant’s AALD”. This assumption was made because the record of the Panel’s statement of reasons did not refer to it. Mr Hart particularly referred to paragraphs 23-28 of the reasons, submitting that this segment made it “apparent” that the AALD had not been received. (Paragraphs 23-28 dealt with an application to admit fresh evidence, but not the evidence in the AALD of 9 March 2022).
Mr Hart referred to the consequences he alleged that followed:
“● There would be ‘practical injustice’ and a constructive failure to exercise jurisdiction regarding the claim for a consequential injury to the lumbar spine.
(i) there would be a constructive failure to exercise jurisdiction regarding the question of whether maximum medical improvement had been reached, again with regard to the consequential injury to the lumbar spine.”
Mr Hart submitted that in all the circumstances the application for reconsideration should be granted. He acknowledged that there was an alternative right to relief contained within s 69 of the Supreme Court Act 1970 by way of judicial review.
I was accordingly asked to exercise a discretion still available under s 378 by virtue of the transitional provisions, which, Mr Hart said, gave me jurisdiction to revoke both the MAC and the MAP on the basis that maximum medical improvement had not been reached, or that I had power to remit the matter to a reconstituted Medical Appeal Panel and to order that the subject AALD be received by it.

Mr Jackson

Mr Jackson noted that the documents from the appeal panel have now been produced in accordance presumably with my direction. The file produced demonstrated that the additional material contained in the AALD in March 2022 had in fact been before the Appeal Panel. I was referred to p 65 of the electronic file of 666 pages.[4]
[4] The insurer in fact divided this file into halves. “Insurer file 1” is a reference to the first file, and “Insurer file 2” is a reference to the second file. The files were not paginated, and I have referred to the page numbers appearing on the computer counter, which I have abbreviated to “cc.” File 1 has cc pages 1 to 333.
Mr Jackson referred to the procedural history of the case. He submitted that the transitional provisions relied on by Mr Hart did not apply, as when the application to appeal to an Appeal Panel was closed administratively following the decision by the applicant to pursue a reconsideration, it could not be said that there was any “pending non-court pre-establishment proceeding” as defined by cl 14B.
The requirement that an order from Member McDonald be obtained to reinstate the application was confirmation that cl 14A and B did not apply.
Mr Jackson submitted that the discontinuance before Member McDonald of the application for reconsideration was significant. He submitted that the respondent relied on that discontinuance when it consented to the reinstatement of the medical appeal.
In the alternative that the transitional provisions did apply, it was submitted as a matter of discretion that I would not refer the matter for reconsideration in any event, as:
(i)    Sleiman was distinguishable on its facts;
(ii)    there was no error by the Appeal Panel;
(iii)   it was not in the interests of justice, and
(iv)   the proper forum was the Supreme Court.
Sleiman was distinguishable, as whilst Mr Cottom sought to invoke the jurisdiction of the Appeal Panel, it could not be said that there was any doubt but that Mr Cottom was seeking to appeal to a Medical Appeal Panel. Mr Sleiman, on the other hand, although too seeking to appeal to an Appeal Panel – again on the similar ground of a subsequent deterioration pursuant to s 327(3) (a) of the 1998 Act – had applied administratively to have the benefit of the transitional provisions, but had mistaken the appropriate avenue, which, as will be seen, could only be a reconsideration. The error in Sleiman was that the delegate should have made enquiries as to what Mr Sleiman intended, or at least have contacted his legal representatives, rather than dismissing the application out of hand, as there could be no appeal to another Appeal Panel from an Appeal Panel’s decision.
The distinguishing factor was said to be that Mr Cottom had expressly abandoned his application for reconsideration, and the delegate had already exercised the s 327 referral power.
With regard to there being no error in any event, I was referred to Federal Court authority to the effect that an inference does not arise from the failure by a decision maker to mention evidence, that the decision maker had not considered it.[5]
[5] SZEHN v MIMIA [2005] FCA 1389, at [58]; SZHPI v MIMC [2008] FCA 306 at [15], per Brennan J; Australian Postal Corp v Sellick [2008] FCA 236 at [64].
Mr Jackson also submitted that the claim of a consequential back condition had not been referred to the AMS for assessment in any event, and it was not surprising therefore that the Appeal Panel did not refer to it. In any event it could not have materially affected the outcome of the appeal, had the Panel indeed overlooked it.

Mr Hart in reply

Mr Hart contended that the fact that the Commission staff indicated that the AALD of
9 March 2022 had been sent to the Appeal Panel was unsatisfactory. A plain reading of the MAP, whilst reciting other evidence, did not refer to this material. The appropriate finding was therefore that it had not been sent or received.
Mr Hart rejected the submission that the applicant had “elected” to discontinue the appeal when it chose to accept the reconsideration option. No presumption to that effect was available when the application to appeal had been dismissed by the Commission of its own motion.
Mr Hart repeated his submissions that the transitional provisions were applicable. He submitted that they would have no purpose if each stage of the dispute extinguished a worker’s right to have his claim determined. Mr Hart submitted that the respondent had failed to address the fact that the alleged consequential back injury was an intervening event after the MAC.
Mr Hart submitted:
“It is wrong to suggest expert evidence is required to evidence injury in this jurisdiction.”

DISCUSSION

It is quite apparent that this matter is a matter to which the transitional provisions apply – as much was conceded by Ms Mistry in her email of 11 March 2022. That concession enabled the applicant to make his present request that the matter be referred for a reconsideration, which was permitted under the repealed regime. The re-instatement of the appeal by Member McDonald I regard as no more than a procedural matter to enable the claimant to pursue the appeal which had been administratively closed without notice to the parties. The consent order discontinuing the application for reconsideration I regard in a somewhat different light, as will be seen.

LEGISLATION

Section 327 of the 1998 Act provides relevantly:
“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 a medical assessor 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 President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, 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 President is satisfied that special circumstances justify an increase in the period for an appeal.
(6)     The President 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 President to refer a medical assessment back to the medical assessor 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.”

Section 328 of the 1998 Act provides relevantly:
“328 PROCEDURE ON APPEAL
(1)     An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows-
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.
(2)     The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
(2A) ….
(3)     Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4)     ….
(5)     The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
Section 329 of the 1998 Act provides:
“(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.”
Section 350 of the 1998 Act as preserved provides:
“350 Decisions of Commission
(1)     Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)     A decision of or proceeding before the Commission is not-
(a) to be vitiated because of any informality or want of form, or
(b)liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)     The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 378 of the 1998 Act as preserved states:
“378 Reconsideration of decisions of Registrar or Appeal Panel
(1)     The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2)     Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.
(3)     Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).
(4)     The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.
(5)     This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”

DISCERNMENT

In considering this complex case the relevant documents were difficult to locate, and I am grateful to the parties for responding to my directions of 23 and 24 August 2022 and filing the nominated evidence.

Did the Medical Appeal Panel receive the 9 March 2022 AALD?

Mr Hart submitted that the Appeal Panel had fallen into jurisdictional error because it had either not received, or not read, or not read adequately the evidence relied on in the subject AALD. Mr Hart maintained that this evidence:
(a) showed a deterioration in Mr Cottam’s condition since the MAC of
21 October 2020, and
(b) showed there had been the onset of a consequential condition to the lumbar spine since the MAC of 21 October 2020.
The evidence alleged not to have been available to the Panel was contained in the subject AALD[6].
[6] Insurance files vol 1 cc p 62.
The documents concerned were:
(a)    a letter from the applicant’s solicitors addressed to the Commission;
(b)    a statement from the applicant dated 25 February 2022, and
(c)    two referrals to Dr Sykes dated 17 November 2021 and 24 January 2022 respectively.
The Medical Appeal Panel gave its decision on 31 March 2022, and confirmed the MAC.[7] In doing so, the Panel considered the admissibility of documents contained within an AALD. One of the documents was an earlier statement from the applicant, dated 16 November 2020.
[7] Insurance files vol 1 cc 3.
In a considered decision, the Panel found the statement to be of no assistance. It did not mention the documents contained in the subject AALD.
In his statement dated 25 February 2022, contained within the 9 March 2022 AALD, the applicant alleged that in February 2021, as a result of an event with a push mower, he further injured his right leg and sustained an additional injury/condition to his back.[8] He had consulted his general practitioner Dr Sykes, who had referred him Dr Kuru. The applicant said he was not good with paperwork and so he did not follow up on another referral to a
Dr Salaria. He said at page 4:
“18. I believe my lower back problems are related to my original knee injury and wish to claim same as part of my whole person impairment.”
[8] Insurance files vol 1 cc p 72.
The assumption on which Mr Hart based his submissions was that because the evidence in the subject AALD had not been mentioned by the Appeal Panel, an inference was available that the Panel had either not read or not read properly or not received that evidence.
I accept that the subject AALD was received by the MAP. I have reproduced the email chain above, in which the Dispute Officer, Ms Mistry, advised that the subject AALD had been sent to the Panel. Mr Blissett’s letter of 9 March 2022, contained within the subject AALD was, with respect, difficult to decipher. He referred to the transitional provisions and then purported to draw the reader’s attention to “the relevant section” of the 1998 Act. No further identification was given and, given there is more than one “relevant section of the WIM Act”, it is unsurprising that Ms Mistry could not understand it. Nonetheless, she confirmed that the subject documents had been forwarded to the Appeal Panel.
Ms Mistry’s assertion was confirmed when the respondent obtained the Appeal Panel file, which showed that the AALD was indeed before it.[9] I accordingly reject Mr Hart’s submission that the emails from the Commission referred to by Mr Hart, that is to say those from the Disputes Support Officer, Ms Mistry, dated 11 March 2022 and 22 March 2022 were insufficient to establish the fact the documents were sent.

[9] Insurer files vol 1 cc p 1.

Did the Panel fail to read the subject documents?

A claim that a Medical Assessor had not read, or not read adequately, documentation on which a party relies on is often made in the Medical Appeal Panel jurisdiction. In Bojko v ICM Property Service Pty Ltd[10] Handley AJA, with whom Allsop P and Giles JA agreed, said at [36]:
“Both [grounds of appeal] ….ignore[s] the presumption of regularity which attends administrative action..”
[10] [2009] NSWCA 175.
In Jones v Registrar WCC[11] James J said at [50], having referred to Bojko:
“There is a presumption of regularity that the AMS had performed such tests as might be required ….”
[11] [2010] NSWSC 481 see also; Vitaz v Westform (NSW) Pty Ltd [2010] NSWCA 667 at [72]: Lifestyle Solutions (Aust)Ltd v Van den Berg [2021] NSWPICMP 184 at [76].
It is also fundamental to the task of an Appeal Panel that it read all the material referred to it. A presumption is of course rebuttable, and Mr Hart’s case goes some way to doing that when the reasons given by the Panel are considered.
As indicated, the Panel reasons dealt in some detail with Mr Cottom’s earlier statement of
16 November 2020, which had criticised the conduct of the Medical Assessor during the assessment. The Panel considered Mr Cottom’s fresh evidence of 16 November 2020, but not that contained in his statement of 25 February 2022.
A MAP template has a section entitled “Fresh Evidence” wherein the Panel is required to deal with any evidence as provided for in s 328(3) of the 1998 Act. It may be, as submitted by the respondent, that the Panel simply ignored that evidence as being outside its remit. Nonetheless it may also be that it did not consider it adequately, or at all, as it is difficult to explain why the Panel ruled on one statement, but not the other.

Discretionary matters

Be that as it may, no determination is necessary as to whether the AALD was actually considered or not by the Panel. This application is for leave to allow the reconsideration to proceed.[12] There are a number of reasons against granting such leave.
[12] See Sleiman at [78].
Deputy President Geoffrey Parker considered the relevant principles in Fairfield City Council v McCall (No 2).[13] The learned Deputy President was dealing with an application for reconsideration of a Certificate of Determination made by a Member. At [26] he referred to dicta of DP Roche in Samuel v Sebel Furniture Ltd:[14] (The comments made in the extract are mine).
[13] [2022] NSWPICPD 29.
[14] [2006] NSWWCCPD 141.
“26. The principles outlined in Samuel with respect to an application to reconsider under the repealed s 350(3) of the 1998 Act are of assistance ….
27. I set them out without providing the full citation of the supporting authorities as follows:
‘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;
[Comment: I accept that the MAP decision is such a decision. Indeed S 378 specifically permitted reconsideration of a MAP.]
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’);
[Comment: The litigious history of this matter explains the delay between the MAC of 21 October 2020 and the MAP decision of 31 March 2022. There was no unreasonable delay between the publication of the MAP decision and the present application of 22 April 2022.]
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;
[Comment: As indicated, s 378 extended the reconsideration to Appeal Panel decisions. As will be seen, in the final analysis this was the only avenue of redress available to the applicant.]
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’), and
9.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)’.”

No back referral

Firstly, I reject the applicant’s claim that there would be a constructive failure to exercise jurisdiction if the evidence regarding the lumbar spine condition had not been considered by the Panel. Indeed, the converse is true. The MAP had no jurisdiction to assess the alleged back condition, as:
“● It may have been caused by the separate accident of ‘February 2021’ as indicated by Mr Cottom in his statement of 25 February 2022;
· Mr Cottom’s expressed belief in that statement that his lower back problems were a consequence of his accepted right leg injury was actually noted by the MAP itself at [53]:
‘Conversely, there are tentative suggestions of problems emanating from the lumbar spine in the evidence. But a lumbar spine injury is not part of the medical dispute referred for assessment’.”
Mr Cottom’s case was referred to Dr Burns for an assessment of his right lower extremity (knee) and scarring. There was no referral for an assessment of Mr Cottom’s back, and neither could one have been made until the insurer had completed its investigations, once the claim was properly made.[15] The terms of a referral are binding on the parties.[16]
[15] S 281 of the 1987 Act requires the insurer to obtain all relevant particulars (as defined in s 282) and accept or deny liability within a specified time limit of at least 2 months. S 289(3) restricts a claimant from bringing an action in the Commission unless the claim is wholly disputed or after 1 month after an offer of settlement has been made.
[16] See Skates v Hills Industries Ltd [2021] NSWCA 142 per Basten JA at [35], Leeming JA at [48], McCallum JA at [82].
For the same reasons, there had been no constructive failure to exercise jurisdiction regarding the issue of whether maximum medical improvement of the applicant’s back condition had been reached.

Deterioration of referred injury not assessable

I note that Mr Cottom also alleged in his statement of 25 February 2022 that his right knee had been deteriorating. Only passing submissions were made regarding that claim, but for the sake of completeness I indicate that Mr Cottom could only have sought a reconsideration of the Appeal Panel decision pursuant to s 327(3)(a) of the 1998 Act. It is not possible to appeal from one Appeal Panel to another.
In Sleiman Leeming JA considered the effect of a claimant’s rights as provided in s 327(3)(a) and (b) where an Appeal Panel had given its assessment. His Honour analysed the text and structure of ss 327 and 328 of the 1998 Act from [55] and found at [78] that:
“It is true that the right to apply for reconsideration is not available as of right but instead is discretionary, and that may be disadvantageous to the worker. However, there is a sound basis in the legal system generally for there to be a single appeal as of right……. Double appeals have long been perceived to be an evil, as was noted in this Court in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [27].”
At [84] his Honour said:
“Accordingly, I conclude that the Registrar’s Delegate and the Associate Judge correctly concluded that the further appeal from the Appeal Panel was not available to Mr Sleiman.”

The discontinuance of the reconsideration application

Further, the applicant expressly discontinued the application for reconsideration before Member McDonald on 28 January 2022. In doing so it elected to have the matter dealt with by the Appeal Panel. I had difficulty in following Mr Hart’s argument that the applicant had not elected in the face of consent order no 3.
As indicated in Sleiman, there can be no second appeal to an Appeal Panel, and accordingly the applicant was confined to the evidence that was referred to the Appeal Panel. The application before me suggested that the applicant might have realised subsequent to the discontinuance on 28 January 2022 that a reconsideration was in fact the only viable option for the redress of the matters raised in the subject AALD. At that stage it was too late as the MAP assessment had already issued and in any event, as explained above, the Panel then had no power to entertain the deterioration allegations contained within the subject AALD.
The application is rejected.

[2022] NSWPIC 519

20 September 2022