Kan v Serco Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kan v Serco Australia Pty Ltd [2025] NSWPIC 358
APPLICANT:	Cengiz Kan
RESPONDENT:	Serco Australia Pty Ltd
MEMBER:	Mitchell Strachan
DATE OF DECISION:	29 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; section 57; application to revoke prior certificate of determination; Samuel v Sebel Furniture Limited considered and applied; Held – prior certificate of determination revoked.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination issued by the former Workers Compensation Commission dated 19 July 2019 is revoked in accordance with s 57 of the Personal Injury Commission Act 2020. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

The applicant sustained a psychological injury in the course of his employment with respondent while working within the Commonwealth Government’s immigration detention system, both on mainland Australia and Christmas Island, where he was exposed to numerous traumatic events.
The applicant previously made a claim for lump sum compensation in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act) however was assessed by Approved Medical Specialist (AMS) Hong on 13 June 2019 with 7% whole person impairment (WPI). As such, on 19 July 2019 a Certificate of Determination (the COD) was issued by the former Workers Compensation Commission (WCC) determining that the applicant had no entitlement to lump sum compensation.
The applicant asserts that since that time there has been a significant deterioration in his condition. The applicant seeks the Personal Injury Commission (Commission) exercise power under s 57 of the Personal Injury Commission Act 2020 (the PIC Act) to rescind the COD. This is to allow the applicant to pursue an appeal of the Medical Assessment Certificate (MAC) pursuant to s 327(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
For the reasons that follow I am satisfied that it is appropriate to exercise the Commission’s discretion and revoke the COD to enable the applicant to lodge an appeal of the MAC with the Commission.

ISSUES FOR DETERMINATION

The applicant seeks that the Commission exercise discretion under s 57 of the PIC Act to rescind the COD to enable an appeal pursuant to s 327(3)(a) of the 1998 Act because of a deterioration in the applicant’s condition.
An appeal of the MAC cannot occur while the COD is in force due to the operation of s 327(7) of the 1998 Act.
The parties accepted that where the appellant is seeking an order to rescinding the COD to allow an appeal under s 327(3)(a) there is no jurisdictional issue with the Commission revoking a COD issued by the prior WCC. This is consistent with prior decisions of the Commission (see Spokes v Mark Bristow Painting [2025] NSWPIC 62, and Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant lodged a reconsideration request on 7 May 2025 with supporting submissions and further evidence which had previously been served on the respondent on 14 April 2025. The respondent lodged a response dated 5 May 20205.
The matter was listed for conciliation conference and arbitration hearing on 26 June 2025 in Sydney. The applicant was unable to attend due to some confusion on his part however given the nature of the issue for determination, requiring an exercise of discretion by the Commission, it was agreed it was appropriate for the matter to proceed in his absence and the applicant agreed to this. The applicant was represented by Mr Morgan of counsel instructed by Ms Ireland. Mr Grimes of counsel appeared for the respondent instructed by
Mr Haydon.
I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    applicant’s reconsidertion application including writtem submissions and additional evidence;
(b)    respondnent’s response to reconsideration application including written submissions;
(c)    Medical Assessment Certificate of Dr Hong dated 13 June 2019;
(d)    Certificate of Determination of the prior WCC dated 19 July 2019;
(e)    original Application to Resolve a Dispute and attachments filed on 9 May 2019, and
(f)    original Reply and attachments filed 20 May 2019.

FINDINGS AND REASONS

The applicant seeks the Commission exercise discretion provided by s 57(1) of the PIC Act to rescind the COD for the purpose of the applicant then being able to appeal the MAC.
The parties have both provided written submissions supplemented by oral submissions during the arbitration hearing. These submissions were recorded and I have not repeated them in full.
In summary however, the applicant submitted that I would be satisfied that there has been a significant deterioration in the applicant’s impairment which could not have been anticipated at the time of the referral of the matter to an Approved Medical Assessor (as they then were). The applicant further submitted that the exercise of discretion requires a weighing up process taking into consideration the interests of justice, including the seriousness of the applicant’s injury and his long-term treatment and needs. The appellant submitted that the need for the applicant to be properly compensated outweighs the public utility in the finality of litigation. The applicant submitted that the effects of the applicant’s psychological condition need to be taken into account in considering the delay in bringing the application.
The respondent submitted that the applicant had not adequately explained the delay in bringing the reconsideration application. The respondent further submitted that I would have difficulty in accepting the evidence of the applicant generally due to significant inconsistencies between his statement evidence and histories taken by medical providers. The respondent submitted that the applicant had failed to differentiate between any deterioration in his psychological functioning due to his parallel physical injuries (which would not be assessable with respect to the primary psychological injury) and the primary psychological injury.

Legal principles

It is appropriate to first set out the principles relevant to the exercise of the Commission’s discretion.
Section 57(1) of the PIC Act provides as follows:
“The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division or Police Officer Support Scheme Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
Section 57(1) of the PIC Act is in substantially the same terms as s 350(3) of the 1998 Act with respect to proceedings in the former WCC.[1]
[1] BEX v Koskela Pty Limited [2023] NSWPIC 174.
Procedural Direction WC7 (PD-WC7) is made by the President under s 21 of the PIC Act and sets out the matters which may be considered in deciding a reconsideration application under s 57 of the PIC Act as follows:
“(a) the objects of the Commission under ss 3 and 42 of the PIC Act;
(b)     the reason for and extent of delay in bringing the application;
(c)     any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker;
(d)     the public interest in finality of litigation;
(e)     that mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and
(f)     the interests of justice.”
The above matters for consideration in PD-WC7 are consistent with the principles set out by Deputy President Roche in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 which considered the exercise of the now repealed power under s 350(3) of the 1998 Act (which was substantially the same as the current s 57(1) of the PIC Act):
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsider applications under s 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) 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 s 354(3) of the 1998 Act).”

Deterioration - availability of additional evidence

Where the application to rescind the COD is made on the basis of a deterioration in the application’s condition it is essentially a submission that there is now additional evidence, demonstrative of a deterioration in the applicant’s condition, such that the application falls within category (c) of PD-WC7 and the 5^th category discussed by Deputy President Roche in Samuel.
Therefore, it is necessary to consider whether there is “new evidence” which had it been available would have likely led to a different result before the original decision maker, or fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker.
The applicant was assessed by AMS Hong on 4 June 2019 (resulted in MAC of 13 June 2019). AMS Hong expressed the view that the applicant’s condition was well stabilised and assessed his WPI in accordance with the PIRS assessment at 7%.
In the present matter there is fresh or additional evidence, with respect to the applicant’s condition post-dating the examination with the AMS (as they were then) which could not have been obtained prior to the assessment as its creation post dates the assessment.
This includes:
(a)    further statements of the applicant (setting out changes in his condition after the MAC was issued);
(b)    qualified reports of Dr Khan dated 5 August 2021 and 21 July 2023, and
(c)    updated treating records of Dr Khan, Workers Doctors and Ms Rangiah.
The concept of “deterioration”, to which the applicant says the further or additional evidence goes to, in s 327(3)(a) of the 1987 Act was explored in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 (Riverina Wines) at 94 where Campbell JA said (with Hodgson JA and Handley AJA agreeing):
“94. Considering that submission involves, first, construing section 327(3)(a). ‘Deterioration’ of a person’s condition is an inherently rational concept. It involves the condition in question having become worse that it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
The issue of a deterioration of a psychological injury, was considered in similar circumstances where the applicant was also seeking the recission of an earlier certificate of determination, by Member Toohey in Roach v Teldraw Pty Ltd [2023] NSWPC 445 at [92] – [93] where she stated:
“92. In Samuel, Acting Deputy President Roche cited at [47] the judgment of Judge O’Malley in Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192 in which there was medical opinion that applicant’s degenerative changes had progressed ‘with the effluxion of time’. Judge O’Malley said degenerative changes ‘inevitably and inexorably progress’ and the medical evidence could not accurately be described a ‘fresh evidence; it was more evidence.’ Even if it could properly be described as new evidence, it had to be evidence that was ‘not discoverable by the exercise of reasonable diligence’ and ‘would be at least a determining factor in the outcome of the case.’
93. It is arguable that degenerative physical changes which ‘inevitably and inexorably progress’ are different from a psychological condition which might fluctuate and eventually improve. However, Mr Roach’s worsening condition was documented by Dr Gunn well before the MAC. It was open to his solicitors to ask Dr Gunn whether he thought the condition would continue to deteriorate and the same could have been asked of Dr Glen Smith.”
I consider the circumstances are different in the present application and distinguishable.
The applicant submits that at the time of the original MAC and COD the available evidence including the assessment by Dr Teoh of 24 October 2019 and the MAC of AMS Hong in March 2019 confirmed that the applicant’s symptoms were well stabilised. This is evident from their opinions. The records of Dr Khan also indicate a period of stability and improvement in the applicant’s symptoms prior to the issue of the MAC. Whereas in Roach there was evidence of a worsening condition, in the present matter it is difficult to see how any further enquiries would have demonstrated a likely deterioration in the applicant’s condition to the extent now demonstrated in the subsequent treating records and reports of Dr Khan.
The applicant submits that the further opinions of Dr Khan and the increase in his impairment assessment is demonstrative of the deterioration.
The respondent submits that the applicant had significant parallel physical complaints which impact on his psychological functioning and which cannot form part of an assessment of impairment resulting from the primary psychological injury.
The respondent noted ongoing physical complaints set out by the applicant in his statement including complaints with his knees and difficulty sleeping. The respondent submits that when you take the context provided by the applicant’s history of physical complaints it should be concluded that the psychological impairment is significantly inhibited by his physical condition. The respondent submits that this has not been considered by Dr Khan in his assessment and this would cause concern as whether any deterioration is due to the primary psychological condition or the impact of his physical conditions on his psychological functioning.
I accept that the applicant’s physical injuries impact on many of the same domains of function as his psychological condition.
However, this is something that was known to Dr Khan when he provided his opinion. An injured worker may be equally prevented from engaging in employment or other areas of daily function, due both to their psychological condition and the limitations of their physical injuries.
In his report of 5 August 2021 Dr Khan confirmed a diagnosis of post-traumatic stress disorder and major depressive disorder and expressed the following opinion:
“Mr Kan’s condition has deteriorated significantly since 13 June 2019. His symptoms of trauma, depression and anxiety have deteriorated and further impacted on his social, occupational and other important areas of functioning. Despite comprehensive mental health treatment with a general practitioner, psychologist and psychiatrist as well as adherence with numerous psychotropic medications, Mr Kan’s mental state has declined. His relationship with his wife had been affected and his irritability and agitation resulted in police intervening and issuing an AVO against him… Mr Kan has lost contact with most of his friends and he does not engage in any social and recreational activities. Apart from a brief attempt to return to work as a truck driver, he has not been able to return to work in any capacity for an extended period of time now.”
Dr Khan also discussed the effect of his psychological condition had on his mood regulation, anxiety, motivation, energy, attention, concentration, memory, coping skills, self confidence, self-identity and trust in interpersonal relationships. Dr Khan was aware of the applicant’s work related injury to his knee and back and had available to him the report of Dr Berry dated 16 April 2019.
Dr Khan, while providing qualified medical opinions at the request of the applicant’s solicitor, also has the benefit of a long-term treatment relationship with the applicant.
Following a number of reviews through 2018 and 2019 where the applicant’s psychological condition had been stable, in a report to the general practitioner of 25 September 2019,
Dr Khan noted that the applicant’s trauma related symptoms had impacted significantly on his psychosocial functioning. He noted from a psychological perspective the applicant did not have capacity for work.
On 23 October 2019 Dr Khan noted “Of particular concern was his low mood, anhedonia, agitation, anxious ruminations, amotivation, impaired concentration and feelings of hopelessness” and on 24 June 2020 “He continued to experience pervasive trauma and depressive cognitions - the latter being perpetuated by financial stressors”.
I am satisfied that Dr Khan had a sufficient history and background in the applicant’s condition to make the assessment that he did with respect to the relevant domains of function and was aware of the applicant’s physical limitations.
I do not accept the respondent’s submission that because there may have been more than one condition affecting the applicant’s impaired function in the relevant domains that this was something Dr Khan was required to “untangle”. Dr Khan’s assessment is with respect to the impairment in function resulting from the primary psychological injury which he had diagnosed being post-traumatic stress disorder.
This is not to say that an Appeal Panel on re-examination, if that is to occur, may not consider all the evidence and reach a different assessment on this issue.

I also note that the respondent has not sought to put any competing evidence with respect to these issues before the Commission.
The respondent also submitted that there were further issues with respect to the applicant’s statement evidence which cause concern as to its validity and thus the weight I would place on it. This includes that he lives with his parents and is reliant on his parents where there is evidence in other records that his father is deceased and his mother is in a coma and that he was travelling to Türkiye to visit his mother and he is living independently. I accept that the applicant has been on notice of these issues and had the opportunity to address these with further statement evidence and has not done so.
While I accept that these inconsistencies are problematic, I don’t consider they significantly undermine the assessment by Dr Khan. Part of the difficulty may be explained by the delay and a change in circumstances over time.
I note that as at July 2023 when Dr Khan provided an impairment assessment, the only reference to the applicant’s mother was that she visited him “sometimes” to help him with domestic tasks such as cleaning and a class 2 assessment was provided. In terms of travel, Dr Khan assessed a class 2 and noted that the applicant was able to travel to familiar places on his own although experiences anxiety and hypervigilance. This is not entirely inconsistent with an ability to travel to Türkiye if needed or to drive.
Having regard to the evidence now available that was not available at the time of the assessment by the AMS, I am satisfied that there is evidence of a deterioration in the applicant’s level of permanent impairment, which had it been available at the time of the AMS would have likely led to a different result. Particularly with respect to employability.
This additional evidence with respect to deterioration is an important factor in the need to due justice between the parties according to the substantial merits of the case.

Delay

The reasons for and extent of any delay is something that I must consider when exercising the discretion fairly. There is no dispute that there has been a significant delay in bringing this application. The applicant held evidence of the deterioration in his condition as early as August 2021. While further evidence was obtained in 2023, the foundational basis for the current application was known to the applicant in 2021. The applicant submitted that the applicant’s psychological condition and its effects on his ability to engage with his lawyers and take steps in his own interest provided an explanation for the delay. However, the applicant provided statements dated 19 January 2022 and 1 March 2024. The reconsideration application was made to the respondent’s insurer on 14 April 2025.
While I accept, as a general proposition, that psychological conditions can prevent someone from taking steps in their own interests, in the present matter the applicant has attended the medical assessment with Dr Khan and engaged with his lawyers in the preparation of his statement. There is no statement evidence from the applicant explaining the delay. This does not explain why the application was not made before 14 April 2025. The delay in bringing the application is essentially unexplained on the evidence currently before the Commission.
The unexplained delay weighs heavily against an exercise of discretion in favour of the applicant.
While delay is only one consideration. The respondent has not relied on evidence as to any specific prejudice the delay in bringing the application has caused it, other than to say that had they known of the application they may have sought their own evidence. They have been on notice of the application since April and could have done so.

Finality of litigation

In its written submissions the respondent noted that there is a public interest in litigation not proceeding indefinitely and to rescind the COD would not promote this purpose and lead to further litigation. The appellant submitted that the concept of finality of litigation is incompatible with the statutory compensation scheme.
There is clear legislative intent that an injured worker can make only one claim for lump sum compensation and have one assessment of their WPI and that that assessment be used for all threshold purposes. There is clear public utility in the determination of disputes being conclusive and the finality this brings both parties. Exercise of the Commission’s discretion, as sought by the applicant in this application is at odds with this principle.
This must weigh against the exercise of discretion in the applicant’s favour.

Summary

I am satisfied that there has been a deterioration in the applicant’s condition. The evidence of Dr Khan is that such a deterioration is significant, the applicant previously having been assessed with 7% WPI and now having evidence from Dr Khan of a WPI of 24%.
The applicant’s entitlement to not only lump sum compensation but also ongoing statutory payments for weekly compensation and medical and treatment expenses is significantly curtailed by an assessment of 7% WPI. It limits the support and treatment to which he is entitled (and if Dr Khan’s assessment is correct he is in significant need of).
The substantial merits of the applicant’s case in this regard weigh heavily in favour of exercising discretion in favour of the applicant, allowing him to appeal the original MAC.
I have found that the delay and the public interest in finality of litigation however weigh against the exercise of discretion.
While finality is an important consideration, supported by the terms of s 66(1A) of the 1987 Act and s 322A(1) of the 1998 Act, this sits in tension with the terms of s 322A(4) and the s 327(3)(a) of the 1998 Act. As it is only a consideration in the exercise of the discretion, it is not necessary that I resolve the tension. As I have discussed above, while there has been significant delay, there is no evidence the delay has resulted in significant actual prejudice to the respondent.
It is for these reasons that I consider, given the evidence of significant deterioration that in the extent of the applicant’s impairment and the impact that this has on his entitlements, in order to do justice between the parties it is necessary to exercise the Commission’s discretion to revoke the COD. This need is not outweighed by the delay and need for finality.

SUMMARY

For the above reasons, I make the orders set out in the attached Certificate of Determination.

[2025] NSWPIC 358

29 July 2025