Kapp v St Josephs Village Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kapp v St Josephs Village Limited [2023] NSWPIC 685
APPLICANT:	Griselda Kapp
RESPONDENT:	St Joseph’s Village Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - The applicant suffered a psychological injury in 2013; in 2015 the applicant was assessed at 6% by a Medical Assessor; an appeal to an Appeal Panel as successful increasing the impairment to 7%; in 2019 the applicant filed a further appeal relying on further deterioration; in May 2022 the applicant requested the Appeal Panel to reconsider its decision pursuant to the former section 378 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) as saved by the transitional provisions; the delegate rejected that application; consent orders were made in the Supreme Court quashing the decision of the delegate finding that the applicant section 378 as saved by reason of the applicant’s prior application; the respondent objected to the matter proceeding to the Appeal Panel for reconsideration as it asserted there as a gatekeeper role and that the Certificate of Determination (COD) entered following the Appeal Panel decision prevented the matter from proceeding; the applicant did not request that the COD be rescinded pursuant to section 350 of the Workers Compensation Act 1987 (1987 Act); Held – an application for reconsideration under section 378 of the 1998 Act did not require a gatekeeper role; no basis for reading words into the 1998 Act (Taylor v The Owners-Strata Plan No 11564 applied) nor any judicial basis for creating such a power; observations in Sleiman v Gadalla Pty Ltd did not support the respondent’s argument; section 350(1) of the 1987 Act provided that the COD was final and binding; COD based upon MAP; discussion of Martinovic v Workers Compensation Commission of New South Wales; reconsideration application cannot proceed until COD set aside; application to refer to an Appeal Panel refused as no application made to set aside the COD.
DETERMINATIONS MADE:	The Commission finds and orders: Findings 1. There is no gatekeeper role when considering whether an Appeal Panel should reconsider its determination. 2. The certificate of determination is final and binding pursuant to s 350 of the Workplace Injury Management & Workers Compensation Act 1998. The matter cannot be remitted to an Appeal Panel for reconsideration until the certificate is rescinded. Order 3. The application to refer the matter to the Appeal Panel is refused.

STATEMENT OF REASONS

BACKGROUND

These proceedings have a lengthy history. In this application Ms Kapp (the applicant) requests the Medical Appeal Panel (the MAP) to reconsider its decision dated
[1] Reconsideration application, p 26.
22 June 2016.[1]
In 2015 the applicant commenced proceedings in the former Workers Compensation Commission alleging psychological injury deemed to have occurred on 25 October 2013 due to various behaviour in the workplace.
On 14 December 2015 the parties entered consent orders disposing of the claim for weekly payments of compensation and remitting the matter for assessment of the claim for permanent impairment to an Approved Medical Specialist.[2]
[2] Reply to reconsideration application, p 117.
On 18 March 2016 an Approved Medical Specialist assessed the applicant at 6% permanent impairment. This was issued in a Medical Assessment Certificate (the MAC).[3]
[3] Reconsideration application, p 23.
On 22 June 2016 the Appeal Panel revoked the MAC and assessed the applicant at 7% permanent impairment.
On 27 July 2016 the Commission issued a certificate of determination consistent with the terms of the MAP (the COD).[4]
[4] Reply to reconsideration application, p 145.
On or about 5 September 2019 the applicant filed a further appeal against the MAP based on the grounds of deterioration of the applicant’s condition and the availability of further evidence. That further evidence included the reports of Dr Westmore dated 12 March 2018 and Dr Conrad dated 23 April 2018.[5]
[5] Reply to reconsideration application, p 1.
At some point the applicant did not pursue the second appeal considering the decision of the Court of Appeal in Sleiman v Gadalla Pty Ltd.[6] However, on 31 May 2022 the applicant requested the Appeal Panel to reconsider its decision pursuant to s 378 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).[7]
[6] [2021] NSWCA 236 (Sleiman).
[7] Reply to reconsideration application, p 1.
The application for reconsideration was rejected by the President’s delegate on the basis that the power to reconsider had been repealed and there were no pending pre-establishment proceedings.[8]
[8] Reconsideration application, p 227. The delegate’s reasons are not before me, and this summary is taken from the summons filed in the Supreme Court.
The applicant then commenced proceedings in the Supreme Court seeking judicial review of the decision of the President’s delegate.[9]
[9] Reconsideration application, p 227.
On 20 December 2022 the parties entered “Consent Orders” in the Supreme Court quashing the decision of the President’s delegate dated 23 August 2022.[10] Below the consent orders there was a note that the second defendant “retained the discretion to exercise the power to refer the matter to an appeal panel for reconsideration pursuant to section 378” of the 1998 Act.
[10] Reconsideration application, p 233.
The fact that an administrative decision was quashed by consent without determination by the Court is unusual to say the least. What the Court otherwise “noted” in the consent orders was not reasoning by the Court, but the parties then agreed position.

Present proceedings

Section 378 of the 1998 Act previously provided that an Appeal Panel may “reconsider any matter that has been dealt with” by the Appeal Panel. The section was repealed on
[11] Sch 6, cl 6.11 of the Personal Injury Commission Act 2020 (PIC Act).
1 March 2021.[11]
Various rights that were repealed by the Personal Injury Commission Act 2020 (PIC Act) were saved by the transitional provisions. Specifically, the parties agree, pursuant to the Supreme Court orders, that the reconsideration application was a pending non-court pre-establishment proceedings pursuant to cl 14B of Sch 1 of the PIC Act.
The application was listed for hearing on 20 November 2023. Mr McManamey then appeared for the applicant and Mr Saul appeared for the respondent. The following material was admitted subject to the objection discussed below:
(a) Application for reconsideration and attachments (Application), and
(b) Response to reconsideration and attachments.
The ambit for the reconsideration application, articulated in a short outline of submissions filed in advance of the hearing,[12] was substantially amended and restricted at the hearing.
[12] Reconsideration application, p 1.
The applicant ultimately submitted that she was not seeking leave to amend the pleadings to add consequential injuries and only requested the Review Panel to reconsider its decision pursuant to s 378 of the 1998 Act based on a deterioration in the applicant’s psychiatric condition previously diagnosed by the original Approved Medical Specialist. That diagnosis was post-traumatic stress disorder and major depressive disorder.[13]
[13] Reconsideration application, p 24.
The applicant also advised that she was not relying on a diagnosis of conversion disorder for the purposes of a change in psychiatric diagnosis but submitted that the impairment could be assessed provided the accepted work injury was contributing to the current impairment. In that respect the applicant appeared to be relying on principles discussed in Secretary, New South Wales Department of Education v Johnson,[14] Ozcan v Macarthur Disability Services Ltd[15] and State Government Insurance Office v Oakley.[16]
[14] [2019] NSWCA 321.
[15] [2021] NSWCA 56.
[16] (1990) 10 MVR 570.
The respondent objected to the admission of Dr Conrad’s report based on relevance and a breach of cl 44(3) of the Workers Compensation Regulation 2016. The applicant was unable to identify a treating specialist with the same qualifications as Dr Conrad. Subject to the admission of the report on history only, the opinion of Dr Conrad is not admissible.
I reject the respondent’s objection based on relevance. If the matter was to be reconsidered by the Appeal Panel, then what is accepted as relevant should be considered by that body.
Subsequent to the hearing a direction was issued in the following terms:
“1. The following is only relevant to the issue of whether the Certificate of Determination must be rescinded pursuant to s 350 of the 1998 Act.
2.     The applicant’s written submissions (Application, p 51) note that this application is restricted to a threshold claim and not one pursuant to s 66 of the 1987 Act. The submissions referenced the decision of Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21 (Lizdenis).
3.      A relevant portion of Lizdenis was referenced by the Court of Appeal in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [13].
4.      No oral submissions were made by the applicant at the hearing of the above matters. To enable a decision to be issued prior to the Commission break, I direct the following:
(a)The applicant is to confirm [by] close of business 14 December 2023 whether the claim for reconsideration is restricted to a threshold claim; and
(b)The respondent can file any submissions in response by close of business, 18 December 2023.
5.     The parties have liberty to list the matter for an urgent telephone conference if they cannot comply with the above timetable.”
The applicant subsequently advised that the reconsideration application was limited to a threshold claim. The respondent filed further submissions responding in accordance with the direction.

Issues

The respondent submitted that the matter could not be referred to the Appeal Panel to enable it to reconsider the MAP for two reasons. First, the applicant had not moved to set aside the COD which prevented the application from proceeding. Secondly, there was “a gatekeeper” role which restricted an Appeal Panel from reconsidering its decision until the gatekeeper had determined that function.
The respondent otherwise submitted that the opinion of Dr Westmore did not support an arguable basis for deterioration for a variety of reasons.
The applicant submitted that there was no gatekeeper function, and she was not required to set aside the COD. The transcript records, on several occasions, that the applicant was asked and made no application to set aside the COD.
I advised the parties that I was hearing the matter both as a Member and the President’s delegate.[17] The applicant accepted that course. The respondent “reserved” its position but did not articulate any proper objection.
[17] See cl 9 of the Personal Injury Commission Rules 2021.

The gatekeeper role

Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President at least one of the grounds for appeal specified in s 327(3) has been made out.
This power is delegated and is colloquially known as the gatekeeper role. Despite comments made during submissions that the term does not appear in the Workers Compensation Act 1987 (1987 Act) or the 1998 Act, it is well-known and has been used in the Court of Appeal.[18]
[18] See for example Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2007] NSWCA 149 at [72].
During submissions the respondent disavowed reliance on s 327(4) as the source of the power for the gatekeeper role. The applicant correctly submitted that the gatekeeper role in
s 327(4) related to an appeal pursuant to that section, the reconsideration power in s 378 was wider and could not be limited by the grounds of appeal in s 327(3).
The respondent ultimately submitted that the test for the President’s delegate to refer the matter to the Appeal Panel for a reconsideration of its decision, was that he or she had to be satisfied “whether it is a matter that the Appeal Panel has dealt with” or whether “what the Appeal Panel is being asked to reconsider is a matter that the Appeal Panel has dealt with”.
The source of this power was said to be the words in s 378. The respondent submitted that the delegate had various powers that were “barriers” to a matter proceeding to an Appeal Panel, and that this was a similar barrier. When pressed on this submission the respondent could not identify any other “barriers”.
The test for reading words into a statutory provision is articulated in Taylor v The Owners-Strata Plan No 11564[19] where the plurality of the High Court stated:[20]
“The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ’too big, or too much at variance with the language in fact used by the legislature’.”
[19] [2014] HCA 9 (Taylor).
[20] At [38].
The principles set out in Taylor have been applied by the Court of Appeal in two appeals concerning the construction of the 1987 Act and the 1998 Act: State of NSW v Chapman-Davis[21] and Cram Fluid Power Pty Ltd v Green.[22]
[21] [2016] NSWCA 237 at [1] and [49].
[22] [2015] NSWCA 250 at [1], [12], [88] and [131].
The respondent’s submission does not require reading words into a provision but rather the creation of an additional power. I am unaware of any legislative basis or any judicial authority which supported the respondent’s position. I was not referred to any authority in support of the creation of a power other than what it submitted was stated in various passages in Sleiman.
The respondent otherwise did not address its submission by reference to the test enunciated in Taylor.
The respondent submitted that passages in Sleiman supported its submission that the delegate had a gatekeeper function when a reconsideration application was made pursuant to s 378 of the 1998 Act. Accordingly, it is necessary to analyse that decision.
In Sleiman the worker was initially assessed by an Approved Medical Specialist at 2% permanent impairment. An appeal to an Appeal Panel was successful resulting in an assessment of 14% permanent impairment.
Two years later the worker claimed his condition had deteriorated and sought to bring a further appeal. The delegate, exercising the function under s 327(4) of the 1998 Act, rejected the application on the basis that no appeal lay from a decision of the Appeal Panel.
The reasons of the Court of Appeal were given by Leeming JA. [23] The Court accepted that no appeal lay from an Appeal Panel but accepted that s 378 provided a “safety valve” and “empowered the Appeal Panel to reconsider its decision”.[24]
[23] Gleeson and Payne JJA agreeing.
[24] Sleiman at [77].
Leeming JA stated:[25]
“It is true that the right to apply for reconsideration is not available as of right but instead is discretionary, and that may be disadvantageous to the worker. However, there is a sound basis in the legal system generally for there to be a single appeal as of right, with any further appeal being discretionary. That is seen in a wide variety of situations, most obviously by the avenue of further appeals by way of special leave to the High Court from this Court. Double appeals have long been perceived to be an evil, as was noted in this Court in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [27].”
[25] Sleiman at [78].
The Court then noted Mr Sleiman’s “fallback submission” that the application made to the delegate should have been “treated as an application to reconsider”.[26]
[26] Sleiman at [85].
Leeming JA then noted:[27]
“For those reasons, Mr Sleiman’s primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar’s Delegate’s decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by
[27] Sleiman at [96].
Mr Sleiman is unnecessary, but the Delegate’s decision dismissing his application should be quashed and the application remitted for determination in accordance with law.”
The respondent relied on the above passages as suggesting that the Court determined that the delegate had an unexercised gatekeeper role.
I do not accept the respondent’s submission. The Court did not state or suggest that, and the conclusion is not reasonably open from the various passages referenced by the respondent. None of these passages support the respondent’s contention nor support a test as the respondent articulated.
The first sentence in the passage quoted at paragraph 40 above, is otherwise consistent with the discretion existing with the Appeal Panel.
Various factors must be considered when determining whether the power to reconsider should be exercised. The existence of the power to reconsider does not mean that the Appeal Panel should exercise it.
I accept the applicant’s submission that there is no gatekeeper role exercisable by the delegate as articulated by the respondent.

Whether the applicant is required to set aside the COD

The respondent referred to the COD which is “final and binding” pursuant to s 350 of the 1998 Act and prevented the Appeal Panel from reconsidering its previous determination. It otherwise generally relied on the discussion in Martinovic v Workers Compensation Commission of New South Wales[28] which it submitted, decided this issue adversely to the applicant.
[28] [2019] NSWSC 1532 (Martinovic).
The applicant submitted that a decision of the Appeal Panel was not a decision of the Commission referencing “Vegan”. She also submitted that Martinovic, to the extent that it stood for any proposition, is inconsistent with the legislation, wrong in law, and otherwise was not an issue in that case. The relevant passages relied upon by the respondent in Martinovic were described by the applicant as “obiter and not even considered obiter” and that the reference at paragraph 44 of that decision was probably the delegate’s opinion as opposed to a finding of the Court.
The applicant noted that s 327(7) of the 1998 Act prevented an appeal from proceeding if there had been a determination by a court or the Commission. She submitted that this provision did not prevent a reconsideration, which was a different application from an appeal as evidenced by the decision of Sleiman.

Martinovic v Workers Compensation Commission of New South Wales

The respondent placed reliance on Martinovic in support of its submission that the applicant was required to set aside the COD. This decision is discussed in detail given the respective submissions.
Mr Martinovic suffered a lumbar spine injury and underwent surgical decompression of the L4/5 disc. He was assessed by an Approved Medical Specialist at 8%. An appeal to an Appeal Panel was successful and the worker was assessed at 12%. The differences in the assessment were that the Appeal Panel found no deduction pursuant to s 323 of the 1998 Act and allowed a further 2% for the effects on the activities of daily living.

On 12 May 2016 the Commission issued a certificate of determination consistent with the finding of the Medical Appeal Panel that the worker had a 12% impairment. In 2017 the worker asserted that he was entitled to common law damages on the basis that his impairment was 15%. The insurer then denied the claim.
In March 2018 the worker engaged a new solicitor who made an application to the Appeal Panel for reconsideration of the MAC pursuant to s 378 of the 1998 Act. Shortly thereafter the Commission informed the worker that “s 378 was not applicable in circumstances where a COD had been issued.”[29]
[29] Martinovic at [44].
The respondent referred to this paragraph as a statement by the Court. When read in context, the paragraph in the Reasons is a repeat of a statement from the Commission given the date referenced in that paragraph.
The worker then moved to set aside the certificate of determination. Those proceedings were referred to an Arbitrator (now a Member) who refused to set aside the certificate of determination despite finding that the Appeal Panel had committed jurisdictional error in failing to consider several of the worker’s original appeal submissions.
The Arbitrator found that the Appeal Panel did not address the worker’s reliance on fresh evidence and the presence of radiculopathy. However, the Arbitrator concluded that the errors made by the Appeal Panel in failing to deal with specific matters raised in the appeal were not significant because the original Medical Assessor had addressed the issue of radiculopathy and the Panel would not have been swayed “by the arguments raised by the applicant to establish error”.
The parties in Martinovic assumed that the COD had to be set aside under s 350(3) of the 1998 Act so that the application for reconsideration could proceed to the Appeal Panel. So much is clear by their conduct in the way the case was run and argued, and the submissions made to the Supreme Court.
The Court appears to have assumed that it was the Arbitrator’s function to quash the Appeal Panel decision.[30] I observe that an Arbitrator (now a Member) is revisiting the certificate of determination under s 350 of the 1998 Act and has no statutory power to quash a decision of an Appeal Panel.
[30] Martinovic at [81].
Ultimately the Court held that the Appeal Panel had committed jurisdictional error because it had failed to consider portions of the worker’s submissions and that the decision of the “arbitrator cannot stand and is liable to be quashed as well”.[31]
[31] Martinovic at [126].
Paragraphs 17 and 18 are the critical passages in Martinovic otherwise relied upon by the respondent and provides:
“17. After the MAC is either confirmed or modified by the appeal panel, a certificate of determination (‘COD’) is issued. If the COD has not as yet been issued, the Registrar or the appeal panel may reconsider any matter and ‘rescind alter or amend’ any decision: s 378 of the 1998 Act.
18. If a COD has already been issued (as in the present case), then the statutory recourse is s 350 of the 1998 Act which provides as follows.”
I agree with the applicant’s submission that the issue was not argued in Martinovic. The parties accepted that the certificate of determination had to be set aside in order for the reconsideration application to proceed. Her Honour determined the matter based on the parties’ agreed assumption detailed by the statement from the delegate at paragraph 44 of the Reasons.
The respondent otherwise referred to that portion of Sleiman when Leeming JA stated:[32]
“Decisions referring to the principles under which a reconsideration power is exercised are collected in Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 at [91]- [101].”
[32] Sleiman at [77].
I reject the respondent’s submission that this passage purported to approve the entire reasoning in Martinovic. The Court did not state that, and such interpretation is not reasonably open.
In those circumstances I do not accept the respondent’s submission that the matter was authoritatively determined, and I accept the applicant’s submission that the observations at paragraph 17 of Martinovic are obiter.

Other submissions

Section 378 did not provide that the reconsideration cannot occur if a COD is in existence. The section provides:
“(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
…
(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concern may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).”
Section 327(7) of the 1998 Act prevents an appeal from proceeding if the dispute concerned has been the subject of the determination by a court or the Commission. That provision does not refer to an application for reconsideration, which, as the Court noted in Sleiman, is an exercise of a different power.
In Sleiman, Leeming JA noted:[33]
“Subsection (7) is a blanket prohibition on a certain class of appeals, turning upon there having been a determination by a court or the Commission or an agreement registered under s 66A. That is a qualification upon the statutory right of appeal of an entirely different nature. It aligns the process of assessment with the other ways in which a dispute may be resolved (curial determination, determination by the Commission, or consensual agreement registered under s 66A). It holds that in all of those circumstances there may be no further appeal.”
[33] Sleiman at [64].
The respondent otherwise relied on the binding nature of decisions of the Commission under s 350 of the 1998 Act. That section relevantly provides:
“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
…
(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
I accept that a decision of an Appeal Panel is not a decision of the Commission and the provisions of s 350 do not apply to a decision of the Appeal Panel. This is clear from the findings of Wood CJ at CL in Campbelltown City Council v Vegan.[34] Those findings were not contested on appeal.[35]
[34] [2004] NSWSC 1129 at [31]-[36].
[35] See Campbelltown City Council v Vegan [2006] NSWCA 284 at [53].
The provisions referenced by Wood CJ at CL have been amended insofar as the matters are now heard in the Personal Injury Commission and not the former Workers Compensation Commission. However, Medical Assessors are not members of the Personal Injury Commission[36] and are defined as a decision maker appointed by the President for the purposes of determining medical disputes under the 1998 Act.[37] A Medical Assessor is subject to the general control and direction of the President but not by the Personal Injury Commission.[38]
[36] Section 9 of the PIC Act.
[37] Sections 32 and 33 of the PIC Act.
[38] Section 36 of the PIC Act.
His Honour in Vegan also relied upon s 328 of the 1998 Act which concerns the constitution of the Appeal Panel. That provision remains in similar terms to when it was considered by his Honour.
The respondent stressed that the COD was final and binding pursuant to s 350. It referred to the terms of the COD which adopted the MAP. The terms of the COD were:[39]
“The Commission determines:
1. The applicant suffers 7% permanent impairment resulting from psychological injury deemed to have happened on 25 October 2013.
2. The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 25 October 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 Act 1998.
4. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987.”
[39] Reply to reconsideration application, p 145.
I accept that pursuant to s 350 of the 1998 Act, the COD is final and binding until it is rescinded pursuant to sub-section (3).
By its terms, the COD determined that the applicant has a 7% permanent impairment resulting from psychological injury deemed to have occurred on 25 October 2013. The COD is clearly based on the findings of the MAP and accords with the first sentence of paragraph 17 in Martinovic that:
“After the MAC is either confirmed or modified by the appeal panel, a certificate of determination (‘COD’) is issued.”
My view is that the Appeal Panel cannot reconsider its decision under s 378 of the 1998 Act because there is a decision of the Commission which is final and binding and is based on the findings of the MAP. If the Panel reconsidered and altered its decision, then that determination would be inconsistent with a binding decision of the Commission. This conclusion is consistent with s 350(3) of the 1998 Act which allows a decision to be rescinded, and the matter to be reconsidered.
I have reached this view rejecting the applicant’s submission that the COD could be rescinded after the Panel reconsidered its decision. In my view, not without some doubt, I accept the respondent’s submission based on s 350(1) of the 1998 Act that the reconsideration application cannot proceed until the COD is rescinded.
Accordingly, I have reached a similar conclusion to that reached in Martinovic although for slightly different reasons.
The applicant was clear in her submissions that she did not seek to reconsider and rescind the COD. In these circumstances, the reconsideration application cannot proceed to the Appeal Panel until the COD is rescinded.
The respondent otherwise submitted that the applicant’s contention would give rise to “thousands of applications” for reconsideration. The basis for this submission was unclear. It otherwise does not reflect a proper understanding of the nature of the reconsideration power.
The Appeal Panel can, for a variety of reasons, refuse to entertain the application. The submission otherwise fails to appreciate the distinction between “the existence of the power and the occasion of its exercise”.[40]
[40] See the observations of Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 applied in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 41.

Other submissions

I otherwise address portions of the respondent’s submissions which I do not accept.
The respondent submitted that Dr Westmore’s most recent assessment was the same as his original assessment and therefore the applicant had not established deterioration. The submission is contrary to the observations of Campbell JA in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of New South Wales that:[41]
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than 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.”
[41] [2007] NSWCA 149 at [94], Hodgson JA agreeing at [1].
Whilst the passage above refers to deterioration in s 327(3)(a), the underlying premise is the same. The applicant is relying on deterioration for the purposes of this application. The change is between the degree of impairment previously certified, in this case, by the Appeal Panel, and the application based on Dr Westmore’s opinion.
The respondent also submitted that this application was a breach of the one assessment limit provided by s 322A of the 1998 Act.
The one assessment limit in s 322A is expressly subject to the appeal process[42] and, by implication, a reconsideration of the appeal under s 378. The Court of Appeal in Sleiman otherwise allowed the reconsideration to proceed despite the existence of the earlier medical assessment and the Appeal Panel determination.
[42] Section 322A(4) of the 1998 Act.
The respondent’s submission that s 322A prohibited a reconsideration under s 378 is rejected.
The respondent further submitted that Dr Westmore’s opinion did not provide a basis for a reconsideration as the diagnosis proffered in that opinion had not been “dealt with” by the Appeal Panel. It was submitted that the opinion of Dr Westmore concerned an assessment of a conversion disorder which was not the psychiatric diagnosis found by the Appeal Panel.
In his further report, Dr Westmore stated:[43]
“In relation to the current psychiatric diagnosis I would indicate that this matter has now become quite complicated. When I originally examined her, I thought she had a chronic post-traumatic stress disorder complicated by depression and anxiety [but] another psychiatrist felt that she suffered from a discrete major depressive disorder.
If the diagnosis I offered at the particular time was correct, then it is probable she continues to suffer some symptoms arising from that particular condition and there does appear to be some evidence to indicate continuing symptoms of depression and anxiety.
Ms Kapp subsequently developed sudden onset total left-hand side weakness and she was subsequently diagnosed by a psychiatrist as having developed a conversion disorder. It will be a matter for the relevant authorities to determine whether or not a conversion disorder can be considered in the matter such as this.” (emphasis added)
[43] Reconsideration application, p 58.
I reject the respondent’s submission that Dr Westmore has diagnosed the applicant with only a conversion disorder. The above paragraphs establish that Dr Westmore opined that part of the applicant’s ongoing symptoms and impairment are due to the original diagnosis aggravated by the development of a conversion disorder.
I have referenced earlier the legal basis for the applicant’s claim provided the original injury dealt with by the Appeal Panel remains a material contribution to the current impairment.[44]
[44] See [18] herein.
The applicant has an arguable basis based on Dr Westmore’s opinion that the original psychological injury is a material contribution to the current impairment despite the development of a conversion disorder which is not assessable under AMA 5.
The respondent otherwise submitted that the present application was a new claim in breach of s 66(1A) of the 1987 Act.
The applicant’s initial written submissions, confirmed in a response to my recent direction, was that it was only pursuing the reconsideration application for the purposes of a threshold dispute. Reference was then made to a previous decision of mine in support of the distinction between a claim under s 66 and a claim for threshold purposes.[45]
[45] Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21 (Lizdenis).
In its most recent submissions, the respondent submitted that the applicant never made a threshold claim and she was never assessed for that purpose. It submitted that the applicant cannot now assert that the claim is limited to a threshold claim.
The respondent’s submission ignores that the assessment by the Medical Assessor (and the Appeal Panel) is of the degree of permanent impairment as a result of injury. The worker is limited to one medical assessment (subject to the appeal and reconsideration provisions) and how that assessment applies to a worker’s entitlements derives from the operation of the 1987 Act and the 1998 Act. The extent of the assessment made by Medical Assessor means that a worker may have other entitlements such as a right to bring a claim for common law damages. It is not to the point that the applicant did not specify that the claim was for threshold purposes as the original application has that effect.
I have discussed these principles in detail elsewhere[46] which have not been the subject of an appeal.
[46] See for example Habib v Glowmeat Pty Ltd [2016] NSWWCC114 at [92]-[124] and Galea v Colourwise Nursery (NSW) Pty Ltd [2019] NSWWCC362 at [41]-[53].
The respondent suggested that this issue somehow relates to s 378 being interpreted differently because this is a threshold claim as opposed to a s 66 claim. That issue discussed in Lizdenis, and related cases, have no bearing on “the manner in which s 378 should be interpreted and applied”.[47]
[47] Respondent’s further submissions, [8].
The respondent raised s 66(1A) of the 1987 Act as a defence to this claim proceeding. As the applicant is not pursuing a claim for s 66 compensation then that defence has no merit.

CONCLUSION

The findings and order are set out in the Certificate of Determination.

[2023] NSWPIC 685

20 December 2023