Fabik v State of New South Wales Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fabik v State of New South Wales – Department of Education [2022] NSWPIC 103
APPLICANT:	Bogdan Fabik
RESPONDENT:	State of New South Wales – Department of Education
MEMBER:	John Isaksen
DATE OF DECISION:	11 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Application for reconsideration of Certificate of Determination for lump sum compensation following Medical Assessment Certificate and decision of Medical Appeal Panel; application based on deterioration and/or additional information of a body part (right leg) not previously referred for assessment or assessed by Approved Medical Specialist (AMS); reference to O’Callaghan v Energy World Corporation; whether need for assessment is for a threshold dispute and not a claim for lump sum compensation; reference to Merchant v Shoalhaven City Council; Held– application for reconsideration dismissed; no further assessment allowed for a body system or body part which was not included in referral for assessment or assessed by AMS; no evidence supporting a deterioration or there being additional evidence of the body part (the lumbar spine) which was referred for assessment.
DETERMINATIONS MADE:	1. The application for reconsideration made by the applicant is dismissed.

STATEMENT OF REASONS

BACKGROUND

Bogdan Fabik, the applicant in these proceedings, seeks a reconsideration of the Certificate of Determination dated 3 September 2019 which provides as follows:
“The Commission determines:
1.     The applicant suffers 8% permanent impairment resulting from injury on 9 September 2013.
2.     The applicant has no entitlement to lump sum compensation resulting from injury on 9 September 2013.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act1998.
4. The claim for compensation was made on or after 19 June 2012. The applicant did not reach the threshold for entitlement to compensation, as required by section 66(1) of the Workers Compensation Act1987.
5.     The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
The Certificate of Determination was issued following a Medical Assessment Certificate (MAC) from Dr Gibson dated 18 March 2019, wherein an assessment was made of 8% permanent impairment resulting from the injury sustained by Mr Fabik on 9 September 2013. Mr Fabik’s was unsuccessful in having that Certificate revoked by a Medical Appeal Panel in a decision dated 30 July 2019.
Mr Fabik sustained an injury to his lumbar spine in the course of his employment as a teacher with the respondent, Department of Education, on 9 September 2013. The respondent accepts liability for this injury.
The injury description in the ARD is “lumbar spine”. A claim is made for 26% permanent impairment. The only body part nominated for assessment is the lumbar spine.
The claim for 26% permanent impairment is based upon an assessment made by Dr New, orthopaedic surgeon, in a report dated 28 November 2018, wherein Dr New makes the following assessments of permanent impairment:
(a)    lumbar spine - page 384, section 15.4, Table 15.3 – DRE III 10%;
(b)    impact of ADL- page 28, section 4.34 of SIRA Guidelines 3%, and
(c)    gait derangement- page 529, section 17c, Table 17.5 – mild – (c) 15%.
Mr Fabik withdrew claims that he had made for weekly payments of compensation and medical expenses in the Application to Resolve a Dispute (ARD) at a telephone conference which was conducted on 7 February 2019. The parties to the outstanding dispute for a lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) agreed to have that dispute remitted to the Registrar for referral to an Approved Medical Specialist. That agreement between the parties was set out in a Certificate of Determination dated 7 February 2019, which included the following order:
“The matter is remitted to the Registrar for referral to an Approved Medical Specialist as follows:
Date of injury:  9 September 2013
Body Part:  Lumbar spine
Method of Assessment:  Whole Person Impairment”
As already noted, Dr Gibson, Approved Medical Specialist (AMS), issued a MAC dated 18 March 2019 wherein he assessed Mr Fabik as having of 8% permanent impairment resulting from the injury sustained on 9 September 2013.
Mr Fabik failed to have that assessment revised by a Medical Appeal Panel (Fabik v State of NSW (Department of Education) [2019] NSWWCCMA 101). The Panel said at [34-35]:
“The consent award and the referral are both clearly limited to consideration of the lumbar spine. The assessment of that body part incorporates interference with activities of daily living by operation of the Guidelines but does not permit assessment of gait impairment.
The latter was not the subject of referral and the AMS would have fallen into error had she made an assessment pursuant to Table 17-5 of AMA 5 or otherwise in respect of gait derangement.”
Mr Fabik made a separate application (693/21) for an assessment of the degree of permanent impairment by an AMS for the purposes of sections 32A, 39 and 59A of the 1987 Act, and section 314 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). I dismissed that application and gave short oral reasons for that decision at a telephone conference on 8 March 2021.
The Certificate of Determination dated 8 March 2021 provides as follows:
“The determination of the Commission in this matter is as follows:
1. The applicant has had the degree of his permanent impairment from injury on 9 September 2013 assessed by Approved Medical Specialist, Dr Gibson, in a Medical Assessment Certificate dated 18 March 2019.
2. Pursuant to section 322A of the Workplace Injury Management and Workers Compensation Act 1989, the applicant is not entitled to be referred again for assessment of the degree of his permanent impairment.
3. The application is lacking in substance and is dismissed pursuant to section 54 of the Personal Injury Commission Act 2020.”
Mr Fabik requests that the Certificate of Determination dated 3 September 2019 be reconsidered and set aside so that there can be an appeal of the MAC dated 18 March 2019 pursuant to section 327 (3)(a) and/or section 327 (3)(b) of the 1998 Act, or the MAC dated 18 March 2019 be reconsidered pursuant to section 57 of the Personal Injury Commission Act 2020 (the PIC Act).
Mr Fabik states that he is not seeking to make another claim for lump sum compensation but he is seeking to make a threshold dispute so that he has the ability to claim work injury damages and maintain ongoing benefits pursuant to sections 32A and 39 of the 1987 Act.
The respondent opposes the application for reconsideration sought by Mr Fabik.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the Certificate of Determination dated 7 January 2021 should be reconsidered and set aside (section 57 of the PIC Act);
(b) whether there has been a deterioration of the applicant’s condition that results in an increase in the degree of permanent impairment and/or the availability of relevant information (section 327 (3)(a) and (b) of the 1998 Act); and
(c) whether there can be only one assessment of the degree of permanent impairment of the applicant (section 322A of the 1998 Act).

PROCEDURE BEFORE THE COMMISSION

A timetable was issued for the parties to provide submissions as follows:
(a)    the applicant to file and serve further evidence and further submissions by 8 February 2022;
(b)    the respondent to file and serve submissions in reply by 22 February 2022; and
(c)    the applicant to file and serve any response by 1 March 2022.
The timetable was amended to allow the respondent to file and serve submissions in reply by 28 February 2022, and the applicant to file and serve any response to those submissions by 7 March 2022.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Medical Assessment Certificate of Dr Gibson dated 18 March 2019;
(d)    Application for Reconsideration filed by the applicant on 8 November 2021;
(e)    Application to Admit Late Documents filed by the applicant on 8 February 2022; and
(f)    written submissions in reply filed by the respondent on 25 February 2022.

Relevant legislation

Section 66 of the 1987 Act relevantly provides:
“(1) A worker who receives an injury 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.
(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.”
Section 322A of the 1998 Act provides:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(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—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 327 of the 1998 Act relevantly provides:
“(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) …….
(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.”
Section 57 of the PIC Act relevantly provides:
“(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.”

The applicant’s submissions

In the submissions filed on behalf of Mr Fabik it is stated that Mr Fabik sent an email to his then solicitor, Mr Collins, on 19 March 2019 noting that Dr Gibson had made an assessment of the lumbar spine only and that the assessment did not include the right leg. It is further stated that Mr Collins replied that same day indicating that he was seeking an extension of funding from WIRO to appeal the assessment.
It is also stated in Mr Fabik’s submissions that he became concerned following the outcome of the Medical Appeal Panel decision of the failure of gait derangement to be assessed. He asked for copies of the ARD and Reply from his then solicitor and discovered that the lumbar spine was the only body part referred for assessment.
Mr Fabik then obtained alternative legal representation and a report was obtained from
Dr Martin, orthopaedic surgeon, dated 12 March 2020.
Dr Martin writes in that report that he previously saw Mr Fabik on 15 September 2015 and noted bilateral planovalgus foot deformities, worse on the right with painful stiff deformity.
Dr Martin records at a further examination on 12 March 2020 that Mr Fabik describes multiple twisting injuries to his right ankle on uneven ground due to pain and weakness in the right leg secondary to back pain that began on 9 September 2013.
Dr Martin writes:
“It is my opinion that Mr Fabik has had multiple twisting injuries on a background of a painless physiological pes planovalgus. Subsequent to his back injury he developed back pain, right leg weakness and pain and these have been a contributing factor to him having sustained twisting injuries. It is my opinion that the weakness within his right lower limb contributed not only to his injuries but may also have contributed to the progression of the planovalgus foot deformity.”
Dr Martin refers to MRI scans taken of the right lower limb in 2015 and 2020 and opines:
“The usual clinical and radiological courses are, once degenerative changes are present within the tibialis posterior tendon, that they are likely to progress. In fact in the interval from 2015 to 2020 the tibialis posterior tendon does appear to no longer look degenerative. I therefore do not believe that this is a degenerative tibialis posterior that has caused the deterioration of his foot.”
In a second report of the same date, Dr Martin writes that whole person impairment of the right lower limb can be assessed either as range of motion/ankylosis (Tables 17-12 and 17-13 of the Fifth Edition of the AMA’s Guides to the Evaluation of Permanent Impairment (AMA 5)), or as degenerative joint disease/arthritis (Table 17-31 of AMA 5), but the methods of assessment cannot be combined.
Dr Martin assesses Mr Fabik as having 7% whole person impairment from range of motion/ankylosis, and 10% whole person impairment from degenerative joint disease/arthritis.
Mr Fabik states in a statement dated 7 December 2020 that he had been diagnosed with mild pes planovalgus in both feet prior to the injury to his lower back in September 2013, but never had any pain associated with this condition, and had not required treatment or time off work for this condition. Mr Fabik states that since the injury to his lower back in September 2013 the pain and weakness in his right leg has resulted in multiple twisting injuries to his right ankle. He states that the instability in his right leg has not subsided and that he has aching in the ankle and leg throughout the day.
Mr Fabik submits that the additional report from Dr Martin confirms the presence of a secondary condition consequent to the accepted lumbar spine condition with resulting impairment. He submits that the previous report from Dr New dated 28 November 2018 did not identify or assess any independent secondary condition to the right lower limb, but rather the assessment made by Dr New proceeded on the basis of gait derangement by reference to the back injury.
Mr Fabik submits that the “mode of assessment and injury identification” made by Dr New was opposed to the position taken by Dr Martin, which suggested a deterioration in
Mr Fabik’s condition occasioned as a result of the consequential condition affecting the right leg.
Mr Fabik submits that a manifest and substantial injustice will be occasioned to him if the reconsideration is not granted because there are certain rights and benefits which he will be prevented from pursuing, including the recovery of damages and ongoing weekly payments of compensation. He refers to what was said by AsJ Harrison in Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp NSW) at [56]:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
Mr Fabik submits that to the extent that it is sought to assert that there was a mistake on the part of his previous lawyers, that mistake does not prevent the exercise of the reconsideration power because the primary consideration will be the justice and merits of the particular case.
Mr Fabik also submits that to the extent that a mistake did occur, it represented an effective disposal of the litigation by his previous lawyers against his instructions to have all potential impairments of the lower limbs included in the assessment of permanent impairment.
Mr Fabik relies upon the reference by Arbitrator Johnstone in Howell v Stringvale Pty Ltd [2005] NSWWCC 64 (Howell) to the decision of Sorcevski v Steggles Pty Ltd (1991) 5 NSWCCR 315 (Sorcevski) that such a situation has been held sufficient for a reconsideration.

The respondent’s submissions

The respondent opposes Mr Fabik’s application.
The respondent submits that the relevant frame of reference having regard to the claim made by Mr Fabik for lump sum compensation and the dispute notice in response to that claim is in respect of any injury to the lumbar spine which was sustained on 9 September 2013.
The respondent submits that Mr Fabik does not seek to set aside the Certificate of Determination dated 7 February 2019, wherein there was consent between the parties that the only body part to be assessed was to be the lumbar spine. The AMS correctly conducted an assessment in accordance with the referral from that Certificate of Determination, and the assessment made by the AMS, was determined to be correct by a Medical Appeal Panel.
The respondent therefore submits that the Certificate of Determination which was issued on 3 September 2019 was free from any error of fact or law.
The respondent submits that section 322A of the 1998 Act prevents Mr Fabik from seeking a further medical assessment. Mr Fabik is only entitled to one medical assessment resulting from injury and that has been undertaken by Dr Gibson.
The respondent submits that Mr Fabik does not advance any evidence which can establish that there has been a deterioration of his condition since the MAC was issued, which is required by section 327 (3)(a) of the 1998 Act. The impairment assessment made by
Dr Martin does not demonstrate an increased impairment over that made by Dr New, whose opinion has been relied upon by Mr Fabik in these proceedings.
The respondent submits that the report from Dr Martin dated 12 March 2020 is not additional relevant information that was not available and could not have reasonably been obtained before the appeal of the MAC because such a report could have been obtained prior to the making of the lump sum claim and the assessment undertaken by Dr Gibson.
The respondent also submits that the report from Dr Martin dated 12 March 2020 is not admissible in any event having regard to Regulation 44 of the Workers Compensation Regulation 2016. Although both Dr New and Dr Martin are orthopaedic specialists who have treated Mr Fabik, their reports are explicitly forensic medical reports which fall within Regulation 44. The report of Dr New dated 28 November 2018 has already been admitted into evidence, so that Regulation 44 bars the admission of the report of Dr Martin dated 12 March 2020.

FINDINGS AND REASONS

The ability of the Commission to reconsider a decision is now provided for by section 57 of the PIC Act, but is in similar terms to section 350 of the 1998 Act. A summary of the principles regarding a reconsideration that was set out in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141(Samuel) remains applicable to section 57(1) of the PIC Act, where ADP Roche said at [58]:
“58. 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’), 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).”
Mr Fabik seeks a reconsideration of the Certificate of Determination dated 3 September 2019 so that he might appeal the MAC from Dr Gibson dated 18 March 2019, or for there to be a reconsideration of that MAC.
However, the fundamental difficulty which Mr Fabik faces is that his aim is to have a body system assessed that was not previously assessed by the AMS, namely the right lower extremity. There have been a number of decisions which have determined that the provisions of section 66 (1A) of the 1987 Act and section 322A of the 1998 Act mean that this cannot be done.
In O’Callaghan v Energy World Corporation [2016] NSWWCCPD 1, the worker claimed that she had sustained injury to her neck, upper and lower back and left wrist. The parties agreed that there be an assessment of impairment of the lumbar spine only. The AMS assessed the worker as having 10% whole person impairment. That was based upon 5% whole person impairment of the lumbar spine and 5% whole person impairment of the coccyx, although no issue was taken with there being a separate assessment of the coccyx.
Some two years later the worker claimed that her cervical spine had deteriorated and sought a reconsideration to have the consent orders for the previous referral for assessment set aside. The worker submitted that this became sufficient to invoke a right of appeal pursuant to section 327 (3)(a) of the 1998 Act.
The worker’s argument was rejected by the Arbitrator at first instance and by AP Roche on appeal. Acting President Roche said at [71-72]:
“The appeal available in s 327 is against ‘a medical assessment under this Part’. That is, it is an appeal against the medical assessment made by the AMS under Pt 7 of the 1998 Act. The only medical assessment made by Dr Ho was in respect of the permanent impairment resulting from the injury to Ms O’Callaghan’s lumbar spine (as noted earlier, it seems to have been accepted without challenge that the referral of the lumbar spine included the sacro coccygeal spine).
As Dr Ho was not asked to do so, it was not open to him to assess any other body part (Aircons). It follows that it is not open to use s 327(3)(a) to appeal against an assessment that Dr Ho did not make, that is, an assessment of whole person impairment as a result of injury to the cervical spine. As the respondent submitted,
s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS.”
Acting President Roche then said at [71-72]:
“…In the present case, the AMS made no assessment of Ms O’Callaghan’s cervical spine and, consistent with the authorities applied by the Arbitrator, which are binding on the Commission, there can be no medical appeal with respect to something that the AMS did not assess.”
Mr Fabik has had an assessment by an AMS of the lumbar spine only. There was no other body system or body part to assess. The Medical Appeal Panel specifically noted and confirmed this in its decision dated 30 July 2019. Therefore, in accordance with what was said in O’Callaghan, there can be no appeal in regard to the right lower limb because that body part was never assessed by the AMS.
I do note that in O’Callaghan the worker sought to have an alleged injury to the cervical spine the subject of an assessment, whereas in this dispute Mr Fabik is seeking the assessment of impairment of a condition which is a consequence of an injury to the lumbar spine, namely the right lower extremity. However, the principles set out in O’Callaghan apply to both claims for injury and consequential conditions, so that there can be no appeal with respect to a body system or body part that was not part of the referral to the AMS and which the AMS did not assess. Acting President Roche said in O’Callaghan at [82]:
“It is correct that s 65(2) of the 1987 Act states that if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury for the purposes of Div 4 of the 1987 Act, which deals with compensation for non-economic loss. However, contrary to Mr McManamey’s submission, that does not mean that the appeal rights in s 327 must relate to the ‘overall impairment’, however and whenever it may arise. As explained above, claims for permanent impairment compensation must be properly particularised and supported with appropriate medical evidence. Those particulars set the parameters within which the AMS must conduct his or her assessment. It follows that ‘condition’ in s 327(3) does not mean any condition, whenever arising, as a result of the relevant work incident.”
The principles set out in O’Callaghan apply to section 327 (3)(b) of the 1998 Act as well because irrespective of whether there is additional evidence which was not available and could not reasonably have been obtained by Mr Fabik before the MAC is appealed against, there can be no medical appeal against something the AMS did not assess, being in this case the right lower extremity.
Mr Fabik makes reference in his submissions to the arbitral decisions on Lizdenis v Centrel Pty Limited [2016] NSWWCC 21 (Lizdenis) and Galea v Colourwise Nursery (NSW) Pty Ltd [2019] NSWWCC 362 (Galea) in support of an argument that a worker is not restricted to the “one claim provisions of the legislation” where a worker is seeking to make a threshold dispute as distinct from a lump sum claim for permanent impairment.
However, from my reading of both of those decisions there was no additional body system or body part that either of the workers sought assessment of which had not been included in the assessment made by the AMS.
The worker in Lizdenis had been assessed for permanent impairment of the cervical spine and both upper limbs and she sought a reconsideration of the Certificate of Determination so that she might appeal the MAC on the grounds of deterioration of both upper limbs. The decision turned primarily on whether the evidence supported a deterioration of the upper limbs.
The worker in Galea had been assessed for permanent impairment of both upper limbs and scarring and she sought and was granted a reconsideration of the Certificate of Determination so that she might appeal the MAC on the grounds of deterioration of both upper limbs. Arbitrator Harris noted that there was also reference in a report from Dr New that the worker had neck and back pain. There was no assessment of permanent impairment of the cervical spine, but Arbitrator Harris observed at [70]:
“I agree with that part of the respondent’s submission, that the neck is a new allegation and was never previously assessed. That body part was not a matter referred for assessment and cannot now be the subject of an appeal.”
That observation made by Arbitrator Harris is consistent with what I have already referred to in O’Callaghan.
Mr Fabik has not provided any evidence which supports a deterioration of his lumbar spine, which is the only body part which Mr Fabik can make the subject of an appeal pursuant to section 327 (3)(a) of the 1998 Act.
There is also no evidence provided by Mr Fabik of any additional relevant information which was not available, and which could not reasonably have been previously obtained by him, in regard to the condition of his lumbar spine. There is therefore no basis for an appeal pursuant to section 327 (3)(b) of the 1998 Act.
Mr Fabik’s cause is not advanced by his argument that he is seeking to appeal the MAC not for the purposes of a lump sum claim but in order to make a threshold dispute. That issue has also been addressed in previous decisions of the Commission. In Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant), P Keating said at [127]:
“Mr McManamey argued in reply that s 322A(2) ‘limits the operation of the section to disputes about claims for permanent impairment compensation, commutations and work injury damages but not to disputes about whether the worker is seriously injured’. He added ‘the failure to mention seriously injured worker in section 322A is consistent with section 32A not being so restricted’. I disagree. The limitation on the number of assessments in s 322A applies to ‘any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury...’ (s 322A(2)) (emphasis added). Whilst the matters referred to by Mr McManamey are certainly included as matters to which the limitation applies, the sub-section expressly applies to any further assessment.”
The arbitral decision of Ali v Access Quality Services [2019] NSWWCC 79 (Ali) bears similarities to this dispute wherein the worker had been assessed by an AMS as having 14% whole person impairment for injury to the lumbar spine and left leg, but then sought an assessment for a threshold dispute with the addition of a consequential condition affecting the right knee. Senior Arbitrator Bamber referred to Merchant, O’Callaghan and also Singh v B & E Poultry Holdings Pty Ltd [2015] NSWWCCPD 52 (Singh) and then concluded [at 39]:
“A consideration of the context of the workers compensation legislation in the 1987 and 1998 Acts, as a whole, reveals that a regime has been established following the 2012 legislative amendments where various entitlements are dependent on the assessment of degree of permanent impairment. The construction urged by Mr Ali would make such a regime unworkable if differing assessments could be obtained for differing purposes. Just because the above-mentioned types of threshold disputes are not mentioned in the parentheses in section 322A(2) of the 1998 Act, does not mean, in my view, that they are excluded from being caught by the requirement in sub-section (1) of section 322A, that only one assessment may be made of the degree of permanent impairment of an injured worker.”
I consider that what was said by Senior Arbitrator Bamber is also a proper summation of the difficulty faced by Mr Fabik in this application. Mr Fabik cannot have a further assessment of permanent impairment on a threshold issue which might arise from other sections of the 1987 Act because he has had the one assessment of permanent impairment which is mandated by section 322A of the 1998 Act.
There is no evidence of mistake on the part of Mr Fabik’s legal representation in regard to the Certificate of Determination dated 3 September 2019. There appears to be a suggestion of mistake in Mr Fabik’s submissions in regard to the Certificate of Determination dated 7 February 2019. However, that is not the Certificate of Determination which Mr Fabik seeks to reconsider in this application.
There is in any event no evidence that Mr Fabik’s previous solicitor acted contrary to instructions, which was held to be sufficient for a reconsideration in Sorcevski. The limited information provided in Mr Fabik’s submissions, which is not supported by the production of the emails referred to in those submissions being part of the evidence, arguably places the actions of Mr Fabik’s solicitor at the level of mistake or inadvertence, which is not sufficient to allow for a reconsideration (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29).
Although it now has no bearing on the decision I have made, I disagree with the respondent’s submission that the report from Dr Martin dated 12 March 2020 is not admissible having regard to Regulation 44 of the Workers Compensation Regulation 2016. “Forensic medical report” is defined in Regulation 44 (4) as being “a report from a specialist medical practitioner who has not treated the worker”. Both Dr New and Dr Martin have treated Mr Fabik and therefore their reports do not fall within the definition of “forensic medical report” in Regulation 44 (4). The reports from both those specialists should be admitted into evidence if Mr Fabik was otherwise successful with this application.
However, Mr Fabik has not been successful with his application for reconsideration of the Certificate of Determination dated 3 September 2019. There is no basis for setting aside that Certificate of Determination because no grounds have been established by Mr Fabik on the evidence and submissions which have been provided which would allow for an appeal pursuant to section 327 (3)(a) or (b) of the 1998 Act.
The application for reconsideration by the applicant is dismissed.

[2022] NSWPIC 103

11 March 2022