Jones v Berrigan Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Jones v Berrigan Shire Council [2025] NSWPIC 314
APPLICANT:	John William Jones
RESPONDENT:	Berrigan Shire Council
MEMBER:	Gaius Whiffin
DATE OF DECISION:	2 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (WC Act); Personal Injury Commission Act 2020 (PIC Act); Workplace Injury Management and Workers Compensation Act 1998 (WIM Act); claim for lumbar spine injury and scarring; claim for lump sum compensation pursuant to section 66 of the WC Act; applicant assessed by Medical Assessor (MA) and Medical Assessment Certificate (MAC) issued; Certificate of Determination (COD) subsequently issued despite respondent disputing the correct date of injury before issuing COD; respondent applied for reconsideration and rescission of COD and requested determination of correct date of injury; consideration of applicant’s statements, medical and factual evidence, and claim correspondence; consideration of whether Commission should exercise discretion under section 57(1) of the PIC Act to reconsider COD; consideration of whether respondent requires leave under section 289A(4) of the WIM Act to dispute deemed date of injury and whether leave should be granted; consideration of correct deemed date of injury pursuant to sections 15(1)(a) or 16(1)(a) of the WC Act; Held – COD reconsidered and rescinded; respondent required leave to dispute deemed date of injury of 30 August 2023; leave granted; applicant’s deemed date of injury is 13 March 2000 being the first day of incapacity in accordance with sections 15(1)(a)(i) or 16(1)(a)(i) of the WC Act; award for applicant in accordance with MAC as injury deemed to have occurred on 13 March 2000.
DETERMINATIONS MADE:	The Commission determines: 1. In the exercise of its discretion pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act), the Personal Injury Commission (Commission) reconsiders the Certificate of Determination issued by the Commission in this matter on 12 February 2025. For the reasons given, the Commission rescinds that Certificate of Determination. 2. The respondent is granted leave in accordance with s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to dispute the applicant’s deemed date of injury as being 30 August 2023. 3. The applicant’s deemed date of injury in relation to his claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) is 13 March 2000, in accordance with s 15(1)(a)(i) or s 16(1)(a)(i) of the 1987 Act. 4. The applicant is entitled to $31,803.08 pursuant to s 66 of the 1987 Act, with respect to the 13% permanent impairment found in the Medical Assessment Certificate dated 8 January 2025 (MAC), as a result of his injury deemed to have occurred on 13 March 2020 (taking into account the necessary 5% uplift applicable for the 12% lumbar spine permanent impairment found in the MAC). The Commission orders: 5. The Certificate of Determination of the Commission in this matter dated 12 February 2025 is rescinded. 6. There will be an award in favour of the applicant in the amount of $31,803.08 pursuant to s 66 of the 1987 Act with respect to 13% permanent impairment, as a result of injury deemed to have occurred on 13 March 2020.

STATEMENT OF REASONS

BACKGROUND

John William Jones (the applicant) is 64-years-of-age, and he commenced employment with Berrigan Shire Council (the respondent) in 2005. He initially worked as a labourer, and then as a plant operator. He continues in the employ of the respondent, although from around May 2023, he has performed alternative duties, largely involving driving.
The applicant injured his back during the course of performing his employment duties with the respondent. The respondent has accepted liability for this injury, and both parties agree that it is a ‘disease’ injury in accordance with s 4(b) of the Workers Compensation Act 1987 (the 1987 Act).

In relation to the injury, the respondent has made weekly benefits compensation payments to the applicant for periods of incapacity for work since 13 March 2020, and it has also paid the applicant’s reasonably necessary medical expenses in accordance with s 60 of the 1987 Act.
The applicant now claims lump sum compensation pursuant to s 66 of the 1987 Act in relation to the injury, but this claim could not be resolved between the parties. The applicant therefore lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) in this regard.
The Commission referred the applicant’s claim to a medical assessment, which eventually resulted in a Medical Assessment Certificate from Medical Assessor Cawthorne dated
8 January 2025 (MAC). The MAC assessed the applicant’s permanent impairment at 13% (taking into account the body parts/systems of the lumbar spine and scarring (TEMSKI)). Both parties accept the assessment of the applicant’s permanent impairment in the MAC.
The Commission then issued a Certificate of Determination dated 12 February 2025 (COD) awarding the applicant “$36,667.69 in respect of 13% permanent impairment resulting from injury on 30 August 2023”.
The respondent has requested a reconsideration of the COD.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute and require determination by me in these proceedings:
(a) should the Commission exercise its discretion to reconsider the COD;

(b) if so, does the respondent require leave (in accordance with s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)) to dispute the applicant’s deemed date of injury as being 30 August 2023, as referred to in the COD;

(c) if so, should that leave be granted, and
(d) if the respondent is successful in relation to the first three issues in dispute – what is the correct deemed date of injury in relation to the applicant’s claim pursuant to s 66 of the 1987 Act, in accordance with s 15(1)(a) or s 16(1)(a) of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the proceedings 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 proceedings 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 in the proceedings.
The proceedings were listed for arbitration hearing by way of a MS Teams audiovisual conference on 5 May 2025. On that occasion, Mr Luke Morgan of counsel appeared for the applicant, instructed by Mr Bridge; and Mr Paul Barnes of counsel appeared for the respondent, instructed by Ms Ulmer and Mr Horvath. The applicant attended the conference by telephone due to technical issues with his MS Teams link; and the respondent’s insurer was represented by Mr Payne.
The issues in dispute (see paragraph 8 above) were agreed between the parties, and they both also agreed upon the documents which would be in evidence before me (see paragraph 14 below).
A timetable of events was then read out by me onto the recording in the proceedings, which both parties also agreed was accurate. The recording forms part of the Commission’s record and I outline below the relevant timetable of events:
(a) 30 August 2023 – formal letter of claim (found at page 4 of the ARD) in relation to the applicant’s claim pursuant to s 66 of the 1987 Act sent by his solicitors – the letter attached a claim form (found at page 12 of the ARD) alleging his deemed date of injury to be August 2023 (no specific date mentioned);
(b) 25 January 2024 – respondent issues notice pursuant to s 78 of the 1998 Act (found at page 6 of the ARD) declining liability in relation to the applicant’s claim pursuant to s 66 of the 1987 Act on the basis that it did not accept his permanent impairment to be greater than 10% – the notice refers to the applicant’s date of injury being 13 March 2020 twice in title sections of it, but otherwise, there is no specific reference in the reasons given by the notice regarding the applicant’s allegation that his deemed date of injury was in August 2023;
(c)    19 March 2024 – ARD lodged - date of injury pleaded as 30 August 2023;
(d)    11 April 2024 - respondent’s Reply (Reply) lodged – pleaded date of injury not traversed;
(e)    11 April 2024 – respondent’s solicitors write to applicant’s solicitors (found at page 1 of the Reply) offering “to resolve your client’s claim in line with 13% WPI relying on Dr Powell’s report, equating to $31,920.00 inclusive of the 5% uplift for back injuries”;
(f)    5 June 2024 – Court of Appeal hands down its decision in Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 (Haddad);
(g)    23 August 2024 – initial Medical Assessment Certificate of Assessor Cawthorne issued - refers to the applicant’s date of injury as “30 August 2023 (deemed)”;
(h)    20 September 2024 – respondent’s solicitors seek a reconsideration of the initial Medical Assessment Certificate - no mention is made in this correspondence of any dispute regarding the date of injury referred to in the initial Medical Assessment Certificate;
(i)    18 October 2024 – respondent’s solicitors write to applicant’s solicitors (found at page 22 of the respondent’s Application to Lodge Additional Documents dated
3 April 2025 (respondent’s ALAD)) enclosing a draft letter to the Commission requesting that the “date of injury listed under the Application to Resolve a Dispute, being 30 August 2023, be amended to the applicant’s first date of incapacity arising as a result of the subject aggravation injury, being 13 March 2020”;
(j)    8 January 2025 – following reconsideration by Medical Assessor Cawthorne, MAC issued;
(k)    5 February 2025 – correspondence sent to the Commission by the respondent’s solicitors (with very similar if not identical wording to the draft letter referred to at paragraph 12(i) above) requesting that “the date of injury listed under the Application to Resolve a Dispute, being 30 August 2023, be amended to the applicant’s first date of incapacity arising as a result of the subject aggravation injury, being 13 March 2020”;
(l)    12 February 2025 – COD issued by Commission - without any reference to the respondent’s 5 February 2025 correspondence to the Commission, and
(m)     26 February 2025 - respondent requests reconsideration of COD.
The parties also agreed:
(a) if the applicant’s deemed date of injury was 13 March 2020, a finding of 13% permanent impairment would entitle him to $31,803.08 pursuant to s 66 of the 1987 Act, taking into account the necessary 5% uplift applicable for the 12% lumbar spine permanent impairment found in the MAC, but not applying that uplift to the 1% permanent impairment found in the MAC applicable to scarring (TEMSKI), and

(b) if the applicant’s deemed date of injury was 30 August 2023, a finding of 13% permanent impairment would entitle him to $36,667.69 pursuant to s 66 of the 1987 Act, taking into account the necessary 5% uplift applicable for the 12% lumbar spine permanent impairment found in the MAC, but not applying that uplift to the 1% permanent impairment found in the MAC applicable to scarring (TEMSKI).

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered by me in making this determination:
(a)    the ARD and its attachments;
(b)    the Reply and its attachments;
(c)    the COD;
(d)    the MAC;
(e)    the initial Medical Assessment Certificate of Medical Assessor Cawthorne dated 23 August 2024;
(f)    the correspondence from the respondent’s solicitors to the Commission dated
5 February 2025 – see paragraph 12(k) above, and
(g)    the respondent’s ALAD and its attachments.

Oral evidence

There was no oral evidence given.

Evidence consideration

I have considered the entirety of the evidence before me. It does not seem to be overly contentious. Apart from the evidence referred to in the timetable of events detailed at paragraph 12 above, I only intend to detail evidence which I consider to be significant to the determination of the specific issues which I need to determine. In accordance with cl 67D(2) of the Personal Injury Commission Rules 2021 (the Rules), I will not be detailing any other evidence that is not specifically referred to in submissions made by either party.
In the applicant’s 13 July 2020 statement (found at page 1 of the ARD), he advises that following an incident on 11 March 2020 during the course of his employment with the respondent, he suffered back pain and consulted with his general practitioner, Dr Alsabti. He advises:
“I was unable to work for some eight weeks with strong and disabling back pain with pain going down my right leg. I returned to work on a date in mid May 2020 on a part-time basis for 16 hours per week. I have been able to access sick leave to top up my pay in addition to the hours that I worked. I am doing very much alternate non-physical duties.”
The applicant also advises that due to the general nature of his employment duties with the respondent, the “condition of my lower back has worsened as the years have gone by”. He says that for a couple of years prior to signing the 13 July 2020 statement, he had been taking regular days off work (and using his sick leave) because of back pain.
In the applicant’s 17 August 2023 statement (found at page 3 of the ARD), he advises that he underwent back surgery under Dr Yang on 25 July 2021. He was then off work until:
“Eventually after a long period of time my employer provided me with alternative duties, being driving duties, initially 3 days a week for 8 hours per day, commencing in or about mid-May 2023. This seems to be going okay.”
The applicant advises that he increased the days that he worked per week to four days per week in July 2023, but that he remained “uncertain about my capacity to return to full-time hours”, due to his need to avoid activities involving prolonged sitting, prolonged standing, lifting, and twisting.
In relation to the medical evidence contained in the ARD:
(a)    in his 21 July 2023 report (found at page 28), Associate Professor Courtenay opines regarding the applicant’s then capacity for work – “He is only working part-time at the moment and I do not think he will get back to being able to do full-time. He certainly will not get back to his pre-existing work.”;
(b)    in his 18 August 2020 report (found at page 37), Dr Poplawsi notes that the applicant required about two months off work after 11 March 2020 due to developing the “sudden onset of severe disabling back pain with right-sided sciatica” – the doctor also opines regarding the applicant’s then capacity for work – “Currently, Mr Jones is not fit to resume his regular work duties as a result of his back injury and is struggling even with the two to three hours light duties per day that he is currently carrying out.”;
(c)    in his 21 September 2021 report (found at page 53), Dr Yang advises that (following the back surgery which he performed upon the applicant on
25 July 2021) – “I have said to John that he can return to normal activity in a graduated fashion over the coming three months. The biggest things he have [sic] to watch out for are heavy lifting and repetitive bending which unfortunately is what I believe led to this problem in the first place secondary to his occupation previously.”, and
(d)    in his clinical notes (found from page 57), Dr Alsabti records the applicant’s complaint on 17 March 2020 as being – “low back pain for days after shovling [sic] at work”.
The respondent’s ALAD also otherwise contains relevant evidence:
(a)    Dr Alsabti’s initial certificate of capacity in relation to the applicant dated
17 March 2020 (found at page 5) – certifying him as having no current work capacity between 13 March 2020 and 27 March 2020 due to back pain, following “chipping weeds with shovel”;
(b)    a previous Certificate of Determination – Consent Orders issued by the Commission dated 29 March 2021 (found at page 8) - in which it is noted that the respondent agreed to pay the applicant voluntary weekly benefits compensation (at various rates) from 8 June 2020 and ongoing;
(c)    a multitude of certificates of capacity issued in relation to the applicant (found from page 31) covering (albeit not exhaustively) the period between 27 March 2020 and 18 April 2024 – each certificate certifies the applicant as having either no current work capacity or a reduced work capacity, and
(d)    a list of payments made by the respondent to the applicant (found from page 178) - referring to weekly benefits compensation paid in this regard between
16 March 2020 and 16 July 2023.

Respondent’s submissions

The respondent submitted orally on 5 May 2025 and had also prepared written submissions dated 3 April 2025. The oral submissions were recorded, and both sets of submissions therefore form part of the Commission’s record. I will not as a result set out the submissions in detail.

The respondent submits that the COD requires reconsideration in order to correct an error on the face of the record, being an error as to the proper construction of s 15(1)(a) or s 16(1)(a) of the 1987 Act, following the decisions in Haddad and Razmovski v NIB Health Funds Ltd [2025] NSWPICPD 9 (Razmovski). As a result of those decisions, the deemed date of injury for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act should be the date of his first incapacity from his injury.
In relation to whether the respondent required leave pursuant to s 289A(4) of the 1998 Act to dispute the applicant’s deemed date of injury as being 30 August 2023:
(a) the respondent argues that that particular dispute was not a dispute as to liability or the applicant’s level of impairment - the dispute was in relation to the quantum to be paid to the applicant, which was not a matter “that falls within the ambit of ss 288, 289 and 289A”;
(b) alternatively, the respondent argues that it had notified the applicant that there was a dispute in relation to the deemed date of injury alleged by him - it refers to its notice pursuant to s 78 of the 1998 Act (see paragraph 12(b) above) which refers to the applicant’s date of injury as 13 March 2020, and it also refers to the letter from its solicitors dated 11 April 2024 (see paragraph 12(e) above) which made a settlement offer in relation to the applicant’s claim pursuant to s 66 of the 1987 Act allegedly calculated in accordance with the rates applicable as at 13 March 2020 to such claims, and
(c) alternatively, the respondent argues that it should be granted the required leave (in accordance with the principles laid down by Roche DP in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus)) as both the decisions in Haddad and Razmovski had not been handed down when the ARD was lodged, the decision in Razmovski only being handed down on
7 February 2025 - these decisions “altered the status of the law” and the respondent acted expeditiously on 18 October 2024 in giving the applicant notice of its intention to dispute the deemed date of injury alleged by him – as the determination of the deemed date of injury is a matter of law, there can be no prejudice to the applicant in granting the required leave, and while “there is an impact to the applicant in respect of the quantum payable, it results from the application of case law that is outside the control of the respondent”.
The respondent then submits that it is clear on the evidence that the applicant’s first date of incapacity from his injury was 13 March 2020.

Applicant’s submissions

The applicant also submitted orally on 5 May 2025 and had also prepared written submissions dated 24 April 2025. The oral submissions were recorded, and both sets of submissions therefore form part of the Commission’s record. I will not as a result set out the submissions in detail.

The applicant extracts in its written submissions the criteria (listed by Roche ADP in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel)) to be considered when a party seeks a reconsideration of a Certificate of Determination. He emphasises a “primary” consideration to be the desirability of the finality of decisions.
The applicant concedes that I am bound by Razmovski, but for me to retrospectively rely upon that decision in order to reconsider the COD would “allow respondents to revisit all decisions made relative to matters for example such as this, [and] would open the floodgates relative to a revisiting of all such entitlement”.
The applicant also argues that when the dispute as to the level of his permanent impairment was referred to Medical Assessor Cawthorne, there had in fact been agreement between the parties relative to what his date of injury was. The respondent had not challenged the pleaded (in the ARD) date of injury of 30 August 2023, and as a result, that was the date of injury listed on the referral to Medical Assessor Cawthorne and in the MAC. The applicant submits:
“The difficulty that the respondent faces, and has failed to address, is the fact that injury has been agreed and that by reference to a MA, injury and its date has been determined…There is no suggestion here the respondent in agreeing to the date of injury, the referral to an MA, and the institution of an appeal of the MAC was labouring under any disability, misapprehension of facts or had been misled. Quite the contrary, the respondent acting on legal advice made a decision and acted accordingly.”
I then put to the applicant that, by agreeing to a medical assessment referral, the respondent was not necessarily agreeing with the date of injury pleaded, as a dispute in relation to a correct date of injury is not a medical dispute, and a medical assessment can only deal with a medical dispute. The applicant replied by submitting that if the respondent had wished to dispute the pleaded date of injury, it should have done so prior to the referral of the medical dispute to Medical Assessor Cawthorne.
I further put it to the applicant that would it not amount to clear-cut injustice to the respondent if I was to refuse a reconsideration application in circumstances where prior to the issuing of the COD, the respondent had (on 5 February 2025) requested that the Commission consider the dispute as to the correct date of injury for the applicant’s claim pursuant to s 66 of the 1987 Act. This was not a case where a respondent was raising a dispute after the issuing of a Certificate of Determination. The applicant replied by submitting that I should consider the applicant’s date of injury as having been determined at the date of referral to medical assessment, rather than at the date of the COD. That determination should not be reconsidered.
The applicant also submits that the respondent’s conduct in this regard should be taken into account by me if I needed to consider exercising my discretion pursuant to s 289A(4) of the 1998 Act regarding whether to allow the respondent to dispute the applicant’s pleaded date of injury. The applicant submits that when considering the principles laid down by Roche DP in Mateus, I would not exercise my discretion in this regard in favour of the respondent.
Further, despite the respondent’s submission that it was not necessary for me to exercise my discretion pursuant to s 289A(4) of the 1998 Act to allow it to dispute the applicant’s pleaded date of injury, it was in fact necessary as such a dispute could not be said to be in any way apparent or clear from its notice pursuant to s 78 of the 1998 Act.
Finally, the applicant submits that the application of Haddad is not certain, and that in that case, “the Court of Appeal made it plain that the approach previously taken in ‘Stone v Stannard’ [referring to Stone v Stannard Bros Launch Services Pty Limited [2004] NSWCA 277 (Stone)] cases was by no means an approach that was not applicable in certain circumstances”. The applicant however concedes that I am bound by Razmovski.

REASONS

Should the Commission exercise its discretion to reconsider the COD

The power of the Commission to reconsider a Certificate of Determination is found in s 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act), which states as follows:
“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 Commission is certainly given a wide discretion in this regard, and it is to be exercised in accordance with the Commission’s duties under ss 42 and 43 of the 2020 Act. Section 42(1) states as follows:
“The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
Section 43(3) then states as follows:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In Samuel, Roche ADP (as he then was) summarised (at [58]) how the then Workers Compensation Commission was to exercise the reconsideration discretion given to it by s 350(3) of the 1998 Act (which applied to the Workers Compensation Commission in almost identical terms to the terms which apply to the Commission pursuant to s 57(1) of the 2020 Act), as follows:
“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).”
Roche ADP also stated ([at 55]) in Samuel:
“In considering the scope and operation of section 350(3) I think it is appropriate to keep in mind the words of Justice Mahoney in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, at 18:
‘Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities’.”
The approach of Roche ADP in Samuel was referred to by Harrison AsJ in Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 (Railcorp), where (at [56]) it was stated:
“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).”
Applying the principles in Samuel and Railcorp, I consider that there would be clear-cut injustice to the respondent if its reconsideration application was not to be successful. The respondent raised a dispute as to the correct deemed date of the applicant’s injury for the purpose of his claim pursuant to s 66 of the 1987 Act by its correspondence to the Commission dated 5 February 2025 (see paragraph 12(k) above), yet the Commission did not deal with this correspondence prior to issuing the COD on 12 February 2025.
The policy requirement regarding the finality of litigation is in my opinion superseded by this clear-cut injustice, in circumstances where the litigation was finalised (that is, the COD was issued) with a dispute raised by the respondent outstanding.
I also note there was no inordinate delay by the respondent in requesting a reconsideration of the COD, which was requested on 26 February 2025 (see paragraph 12(m) above).
The Commission has a duty to do justice between the parties and is to act according to equity, good conscience and the substantial merits in proceedings. For reasons that I outline later, the dispute raised by the respondent in its 5 February 2025 correspondence to the Commission had substantial merit, which in the interests of justice, required consideration by the Commission prior to the issuing of the COD.
I therefore exercise my discretion to reconsider the COD and it will be rescinded.
In doing so, I reject the applicant’s submissions (see particularly paragraphs 30-32 above) that the applicant’s deemed date of injury had been determined at the date when the Commission referred him to medical assessment. That is simply not the case. The referral is not a determination by the Commission even if its terms may not have been opposed by the respondent. The referral is a document which remits a medical dispute to a Medical Assessor. A medical dispute is defined in s 319 of the 1998 Act and does not include a dispute regarding the correct deemed date of injury in a claim pursuant to s 66 of the 1987 Act. A Medical Assessor only has jurisdiction to determine medical disputes.
I also reject the applicant’s submission at paragraph 29 above. All applications for reconsideration need to be determined according to their particular facts, and I cannot see how my decision in reconsidering the COD in these proceedings will “open the floodgates”. There are clearly different considerations involved if a respondent (unlike the respondent in these proceedings) was to seek a reconsideration of a Certificate of Determination in circumstances where it requested that reconsideration a substantial period of time after the Certificate of Determination, or where it had not raised unresolved disputes with the Commission prior to the issuing of the relevant Certificate of Determination.

Does the respondent require leave (in accordance with s 289A(4) of the 1998 Act) to dispute the applicant’s deemed date of injury as being 30 August 2023, as referred to in the COD

Section 78(1) of the 1998 Act reads as follows:
“An insurer must give notice in accordance with this Division of any decision of the insurer--
(a) to dispute liability in respect of a claim or any aspect of a claim, or
(b) to discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation.”
Section 289(3) of the 1998 Act then reads as follows:
“A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made--
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.”
Section 289A of the 1998 Act then reads as follows:
“(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if--
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
Roche DP has considered in a number of cases the requirements for dispute notices (now issued pursuant to s 78 of the 1998 Act) issued by respondents. In Mateus, the Deputy President stated (at [45]):
“Attaching a document to the section 74 notice and leaving it to the worker to work out exactly which issues are disputed does not satisfy those obligations. A section 74 notice must state in plain language, in the body of the document, the reason the insurer disputes liability and the issues relevant to that decision.”
In Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32 (Cannon), the Deputy President stated (at [132]):
“Some confusion arose in the present case because of the unsatisfactory nature of the insurer’s section 74 notice. It is not sufficient compliance with section 74 to say, as the insurer said in its notice dated 11 March 2008 (as an alternative defence), that there was a dispute as to ‘whether any psychological injury that you suffer from is due to reasonable action taken or proposed to be taken by The Healthy Snack People Pty Ltd pursuant to section 11A’. What is necessary is clear and precise statement of the reason the insurer disputes liability and the issues relevant to the decision to dispute liability. If an insurer relies on a defence under section 11A it must identify the factual basis on which it intends to rely as grounding that defence. That is, it must indicate, in clear and plain language, exactly which action or actions it alleges were the whole or predominant cause of the psychological injury and the issues relevant to the decision.”
And in St Andrews Village Ballina Limited v Mazzer [2010] NSWWCCPD 99 (Mazzer), the Deputy President stated (at [36]):
“If an insurer disputes liability in respect of a claim, it ‘must give notice of the dispute to the claimant’ (emphasis added) (s 74(1) of the 1998 Act). The notice must contain a statement of the reason the insurer disputes liability and of the issues relevant to the decision.”
These cases dealt with notices issued pursuant to the now repealed s 74 of the 1998 Act. However, in my opinion, there is no material difference in the application of the principles referred to in the cases to notices issued by respondents pursuant to s 78 of the 1998 Act.
When a claim for a benefit under the 1987 Act is disputed by a respondent, the notice disputing the claim must make it clear exactly which issues are in dispute and why.
The applicant’s claim for lump sum compensation pursuant to s 66 of the 1987 Act was formally (see paragraph 12(a) above) made by a letter dated 30 August 2023, which attached a claim form specifically alleging his date of injury to be in August 2023.
In my opinion, if that specific allegation was not accepted by the respondent, it needed to advise as such in its notice pursuant to s 78 of the 1998 Act. Instead, its notice dated
25 January 2024 (see paragraph 12(b) above) ignored that allegation. The notice solely disputed liability in relation to the applicant’s claim pursuant to s 66 of the 1987 Act on the basis of the level of his permanent impairment.
I reject the respondent’s submission at paragraph 25(a) above. Section 289A(1) refers to the need to notify “matters” that a dispute is concerned with. This is a wide description, and in my opinion includes disputes as to quantum and disputes as to the appropriate date of an applicant’s injury.
I also reject the respondent’s submission at paragraph 25(b) above. In my opinion:
(a) the recording of a date of injury in the title sections of the respondent’s notice pursuant to s 78 of the 1998 Act is not sufficient notice that the respondent was disputing the date of injury alleged by the applicant in the claim form sent by the letter from his solicitors dated 30 August 2023 – that recording is not “in the body of the document” and it is therefore left to the applicant “to work out exactly which issues are disputed” - see the extract quoted from Mateus at paragraph 51 above, and
(b) the settlement offer made by the respondent’s solicitors’ letter dated
11 April 2024 (see paragraph 12(e) above) did not refer to a date of injury at all - further, although the respondent submits that the offer (an amount of $31,920) was calculated in accordance with a date of injury of 13 March 2020, the respondent now concedes (see paragraph 13(a) above) that the appropriate calculation should have been $31,803.09 in relation to such a date of injury – again, the letter making the offer could not be considered to contain a “clear and precise statement” that the respondent was disputing the date of injury alleged by the applicant in the claim form sent by the letter from his solicitors dated
30 August 2023.
The respondent’s submissions in this regard are somewhat disingenuous, as the contents of its solicitors’ letter dated 18 October 2024 (see paragraph 12(i) above), which explains in detail the reasons for its dispute regarding the correct date of the applicant’s injury for the purpose of his claim pursuant to s 66 of the 1987 Act, are precisely the contents that should have been in its original notice pursuant to s 78 of the 1998 Act, providing the information necessary to make it clear to the applicant that the date of injury alleged by him was disputed, and the reasons why. This information however was of course only provided to the applicant well after the ARD was lodged. No such information was provided prior to 18 October 2024.
In those circumstances, and specifically relying upon the extracts which I have quoted from Mateus, Cannon and Mazzer, I find that prior to the lodging of the ARD, the respondent had not notified the applicant adequately as to a “matter” in dispute, being the correct date of his injury for the purpose of his claim pursuant to s 66 of the 1987 Act. Pursuant to s 289A(1) of the 1987 Act, the respondent therefore cannot raise that disputed matter in these proceedings unless I allow it to be raised (despite it being a “previously unnotified” matter) in accordance with s 289A(4) of the 1998 Act.

Should leave be granted to the respondent (in accordance with s 289A(4) of the 1998 Act) to dispute the applicant’s deemed date of injury as being 30 August 2023, as referred to in the COD

Section 289A(4) of the 1998 Act allows me to grant leave in this regard if, in my opinion, it is in the interests of justice to do so.
As with s 57(1) of the 2020 Act, I am certainly given a wide discretion in this regard, which I consider needs to be exercised in accordance with the Commission’s duties under ss 42 and 43 of the 2020 Act (see paragraph 37 above).
In widely quoted passages from Mateus, Roche DP stated (at [38]):
“In exercising her discretion under section 289A(4) the Arbitrator considered the following factors at paragraph 18 of her Reasons:
(a) the degree of difficulty or complexity to which the unnotified issues give rise;
(b) when the insurer notified that it wished to contest any unnotified issue/s;
(c) the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability;
(d) any prejudice that may be occasioned to the worker, and
(e) any other relevant matters arising from the particular circumstances of the case.”
And (at [48]):
“In determining whether it was “in the interests of justice” to allow the Respondent Employer to dispute injury, the Arbitrator correctly identified at paragraph 18 of her Reasons the matters relevant to the exercise of the discretion (see [38] above). To those matters I would add the following observations:
(a) a decision by an insurer to dispute a claim for compensation should not be made lightly or without proper and careful consideration of the factual and legal issues involved;
(b) any insurer seeking to dispute an unnotified matter is seeking to have a discretion exercised in its favour and, accordingly, must act promptly to bring the matter to the attention of the Commission and all other parties;
(c) any unreasonable or unexplained delay in giving notice of an unnotified matter will be relevant to the exercise of the discretion;
(d) in exercising its discretion the Commission may have regard to the merit and substance of the issue that is sought to be raised;
(e) in assessing prejudice to the worker it will be significant to consider when and in what circumstances the worker was first made aware of the unnotified issue that is sought to be raised;
(f) though it will be relevant to the exercise of the discretion to keep in mind that the Commission must act according to equity, good conscience and the substantial merits of the case, those matters will not be determinative, and
(g) the general conduct of the parties in the proceedings will also be relevant to the exercise of the discretion.”
The respondent (see its submission at paragraph 25(c) above) largely relies upon an alteration in the state of the law (following the decisions in Haddad and Razmovski, both of which were determined after the lodging of the ARD but before the issuing of the COD) in requesting that I grant it leave to dispute the correct date of the applicant’s injury. For reasons that I outline later, I agree that those decisions altered the state of the law as to how deemed dates of injuries were to be fixed in relation to claims pursuant to s 66 of the 1987 Act, in accordance with s 15(1)(a) or s 16(1)(a) of the 1987 Act. Put simply, the respondent was unable to rely upon those decisions prior to the lodging of the ARD, in order to dispute the date of injury alleged by the applicant in the claim form sent by the letter from his solicitors dated 30 August 2023.
In Department of Environment, Climate Change & Water v J [2010] NSWWCCPD 56 (Department of Environment), a respondent failed in its notice pursuant to the now repealed s 74 of the 1998 Act to rely upon certain transitional provisions (made following amendments to the 1987 Act). Roche DP granted leave to the respondent pursuant to s 289A(4) of the 1998 Act to rely on these transitional provisions as providing a ground on which to dispute the applicant’s entitlement to compensation pursuant to s 66 of the 1987 Act. The relevant leave was granted on the basis that (at [114]):
“I grant leave to the Department under section 289A(4) of the 1998 Act to rely on the transitional provisions as providing a ground on which to dispute Ms J’s entitlement to lump sum compensation. I do so because there is no prejudice to Ms J and because the transitional provisions raise legal issues that can be met without any additional evidence (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 8). Further, the Commission must determine cases according to the terms of the applicable legislation (Electricity Commission of New South Wales v Yates (1993) 30 NSWLR 351). It is therefore in the interests of justice that the Department be permitted to rely on the transitional provisions.”
I propose to grant leave to the respondent to raise and dispute in these proceedings the correct deemed date of the applicant’s injury for the purpose of his claim pursuant to s 66 of the 1987 Act. In accordance with Department of Environment, I am required to determine these proceedings according to the terms of the relevant legislation (in these proceedings – s 15(1)(a) or s 16(1)(a) of the 1987 Act, as now interpreted by Haddad and Razmovski). I cannot apply the legislation correctly without having regard to the dispute raised by the respondent.
Further, in accordance with Mateus, I find:
(a)    the dispute does not give rise to complex or difficult issues – indeed, the applicant conceded that I would be bound by Razmovski if I considered the dispute;
(b)    as a result, the applicant is not prejudiced in its ability to make submissions regarding the dispute;
(c)    the respondent acted promptly in my opinion (by 18 October 2024), in advising the applicant of the dispute;
(d) although it did not refer to this particular dispute as to the applicant’s date of injury, the respondent’s notice pursuant to s 78 of the 1998 Act (see paragraph 12(b) above) otherwise complied with its obligation to notify the applicant why it was disputing liability with respect to his claim pursuant to s 66 of the 1987 Act, and
(e)    the dispute raised has merit.
The applicant submits (see paragraphs 30 and 33 above) that the respondent’s conduct in initially agreeing with him as to his date of injury being 30 August 2023, should be a factor to be taken into account when considering whether to grant the leave requested by the respondent to be able to dispute that date of injury. I do not however propose to give that submission significant weight. Not only does the respondent dispute that such an agreement was made by it, but even if an agreement could be inferred, it would have to be considered to be an agreement made without knowledge of the significant alteration to the state of the law following the decisions in Haddad and Razmovski.

What is the correct deemed date of injury in relation to the applicant’s claim pursuant to s 66 of the 1987 Act, pursuant to s 15(1)(a) or s 16(1)(a) of the 1987 Act

Section 15(1)(a) of the 1987 Act reads as follows:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury”.
Section 16(1)(a) of the 1987 Act in almost identical terms reads as follows:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this Act, be deemed to have happened--
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury”.
Prior to Haddad and Razmovski, it was in my opinion well-established that there could be more than one deemed date of injury applicable to an occupational disease depending upon the type of compensation claimed – see particularly GIO Workers Compensation (NSW) Limited v GIO General Limited (1995) 12 NSWCCR 187 (GIO) and Alto Ford Pty Limited v Antaw [1999] NSWCA 234 (Antaw). In Stone, Antaw was discussed and held by Handley JA ([at 8]) to be:
“authority for the proposition that s 16 may fix different dates for incapacity and impairment injuries.”
In Stone, the worker was pursuing a claim pursuant to s 66 of the 1987 Act in relation to a skin cancer condition, which was considered to be an occupational disease within s 16 of the 1997 Act. The trial judge found that he had been treated for the condition in 1987 and that each treatment would have led to at least a short period of incapacity. He only however made his claim pursuant to s 66 in 2003 following a medical assessment of his permanent impairment in that year. The Court of Appeal found that there could therefore be no incapacity from the permanent impairment (which was itself an injury pursuant to s 16(3) of the 1987 Act) until the impairment had been assessed and a claim for it made. Hodgson JA stated ([at 36-8]):
“In my opinion, the decision in GIO shows that one must relate the question of the time of death or incapacity under s.16(1)(a)(i) to what is being claimed. Where, as in GIO itself, what is being considered is not a worker's claim based on incapacity, but a dependant's claim based on death, the fact that there was incapacity prior to the worker's death is irrelevant. The relevant time for the purposes of s.16(1)(a)(i) is the time of death.
Berkeley Challenge shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s.16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation. Thus, in such a case, incapacity first occurs when the physical incapacity results in some loss of wages, even if there had previously been incapacity in the Arnotts sense, not resulting in any loss of wages.
In the present case, the claim for facial disfigurement is a claim for a loss of a thing as the result of an injury, within s.66(1), which loss is itself to be treated as an injury within s.16(1), as provided by s.16(3). The same applies to the claim in respect of bodily disfigurement. Each such loss or injury was the disfigurement assessed by Dr. Lobel on 5 March 2003, and included in the amended claim on 10 June 2003; and thus could not have caused incapacity prior to 30 June 1987: in my opinion, this plainly follows from Antaw at par [18]. For that reason, in my opinion the primary judge did make an error of law, and the appeal must be upheld.”
Prior to Haddad and Razmovski, it followed in accordance with Stone that the applicant’s deemed date of injury for the purpose of his claim for weekly benefits compensation could be different from his deemed date of injury for the purpose of his claim pursuant to s 66 of the 1987 Act, due to the effect of s 15(4) or s 16(3) of the 1987 Act treating his impairment as an injury by itself. Applying Stone, the applicant’s date of injury for the purpose of his claim for weekly benefits compensation would be his first date of incapacity for work, but his date of injury for the purpose of his claim pursuant to s 66 of the 1987 Act would not be before his permanent impairment was assessed by Associate Professor Courtenay (and would in all likelihood have been the date when he formally made that claim on 30 August 2023, in accordance with s 15(1)(a)(ii) or s 16(1)(a)(ii) of the 1987 Act).
In Haddad however, the unanimous judgment of the Court of Appeal (delivered by Davies AJA) determined (at [80-81]):
“As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.”
And (at [105]):
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
The extracts above seem to suggest that for s 15(1)(a)(ii) or s 16(1)(a)(ii) of the 1987 Act to deem a date of injury to be the date of a claim for a compensation entitlement, that entitlement needed to be unrelated to any incapacity. The extracts suggest that it does not matter in this regard as to whether the compensation entitlement was for weekly benefits compensation, medical expenses pursuant to s 60 of the 1987 Act, or lump sum compensation pursuant to s 66 of the 1987 Act. However, as Haddad involved a claim for medical expenses pursuant to s 60 of the 1987 Act, its applicability to lump sum compensation claims pursuant to s 66 of the 1987 Act was still questioned by some.
Razmovski however did involve a claim for lump sum compensation pursuant to s 66 of the 1987 Act. The facts in Razmovski are indeed quite similar to the facts in these proceedings. The worker had been employed by the employer for 31 years, and as a result of her general employment activities, she developed an occupational disease involving her bilateral wrists and hands, for which she was first incapacitated in 2017. She then underwent surgery in 2019 and had further time off work, before returning to working with the employer at a reduced capacity. She made her claim for lump sum compensation pursuant to s 66 of the 1987 Act in 2023.
At first instance, Razmovski was before Member Isaksen, and his pertinent findings were summarised by Snell DP (at [15-17]):
“The Member said it was apparent the appellant became incapacitated due to injury to her hands and wrists in September 2017 and continued to be incapacitated due to that work injury. He said this disease injury ‘also gives rise to other entitlements including a claim for permanent impairment compensation’. The impairment was both ‘relevant to’ and ‘related to’ the incapacity which dated from September 2017.
The Member referred to Haddad at [81], where Griffiths AJA stated that the exception in s 15(1)(a)(ii) of the 1987 Act was only engaged where ‘neither aspect of s 15(1)(a)(i) is engaged’. The Member said that in the current case s 15(1)(a)(i) was engaged because incapacity resulted from the disease injury in September 2017. The Member concluded that 21 September 2017 became the date of injury for the claims for both incapacity and permanent impairment. The Member said that additionally the appellant continued to be incapacitated due to her work injury, contrary to the exception of ‘no further incapacity’ referred to in Haddad at [81].
The Member said that both Haddad (at [69]) and Sanders (at [109]) described the determination of a deemed date of injury as a question of fact to be made on the relevant evidence. The Member referred to the appellant’s submissions that there were decisions of the Court of Appeal which allowed for different dates of injury. The Member accepted he was obliged to apply the approach in Haddad at [80], that being the most recent relevant decision of the Court of Appeal. He found the deemed date of injury for the appellant’s permanent impairment claim was the same as that of the deemed date of injury, 21 September 2017.”
Snell DP then reviewed the evidence and the Member’s factual findings, and quoted from Haddad (at [80-81] – as extracted at paragraph 72 above). He concluded (at [60]):
“The Member’s finding, set out at [55] above, is consistent with ongoing incapacity resulting from the found injury to the upper limbs. It was necessary that the Member apply the principles set out in Haddad, in finding a deemed date of injury. His reasoning, and the result he reached, were consistent with him doing so. I do not accept that the Member erred in this regard. The appellant’s ground of appeal fails.”
In my opinion, Razmovski makes it clear that when a worker claims lump sum compensation pursuant to s 66 of the 1987 Act, the deemed date of his/her injury in this regard will be the date when he/she first sustained an incapacity giving rise to an entitlement to claim weekly benefits compensation, unless (in accordance with Haddad) incapacity is sustained, but then some time later, permanent impairment is sustained without any further incapacity.
I am required therefore to now apply the principles in Haddad and Razmovski to the facts in these proceedings. I find in this regard that the applicant has been incapacitated since
13 March 2020:
(a)    there are certificates of capacity between 13 March 2020 and 18 April 2024 (see paragraphs 22(a) and 22(c) above) all certifying that the applicant had at least a reduced work capacity;
(b)    there is the evidence from Associate Professor Courtenay as well as
Drs Poplawski and Yang (see paragraph 21 above) who all opine as to the applicant’s ongoing reduced work capacity;
(c)    there is the applicant’s statement evidence (see paragraphs 17-20 above) which details his periods off work since 13 March 2020, as well as his ongoing reduced work capacity, and
(d)    there is evidence (see paragraphs 22(b) and 22(d) above) as to the fact that the respondent has paid the applicant weekly benefits compensation between at least 16 March 2020 and 16 July 2023.
I therefore also find that the deemed date of injury in relation to the applicant’s claim pursuant to s 66 of the 1987 Act is to be determined in accordance with s 15(1)(a)(i) or s 16(1)(a)(i) of the 1987 Act, as the first date of his incapacity, being 13 March 2020.

SUMMARY

In the exercise of my discretion pursuant to s 57(1) of the 2020 Act, I reconsider and rescind the COD.
I determine that the respondent requires leave in accordance with s 289A(4) of the 1998 Act to dispute the applicant’s deemed date of injury as being 30 August 2023. I grant that leave.
I find the applicant’s deemed date of injury in relation to his claim pursuant to s 66 of the 1987 Act to be 13 March 2000 (being the first day of his incapacity due to the injury), in accordance with s 15(1)(a)(i) or s 16(1)(a)(i) of the 1987 Act.
Having regard to that finding, and in accordance with the agreement between the parties (see paragraph 13 above), I find the applicant is entitled to $31,803.08 pursuant to s 66 of the 1987 Act, with respect to the 13% permanent impairment found in the MAC, as a result of his injury deemed to have occurred on 13 March 2020 (taking into account the necessary 5% uplift applicable for the 12% lumbar spine permanent impairment found in the MAC). There will be an award in his favour accordingly.

[2025] NSWPIC 314

2 July 2025