Kari v David Jones Ltd

[2025] NSWPIC 26

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Kari v David Jones Ltd [2025] NSWPIC 26

APPLICANT:

Mary Rose Kari

RESPONDENT:

David Jones Limited

MEMBER:

John Wynyard

DATE OF DECISION:

29 January 2025

CATCHWORDS:

WORKERS COMPENSATION - Personal Injury Commission 2020 (2020 Act); claim by worker for reconsideration of Medical Appeal Panel decision and Certificate of Determination (COD) dated 16 January 2016 and 19 February 2016 respectively; whether pursuant to clause 14 of Schedule 1 of the 2020 Act the applicant had an unexercised right in the form of the deterioration of her lumbar spine; whether subsequent COD permitting lumbar fusion which occurred prior to the PIC establishment date sufficient evidence of deterioration; whether discretion to permit reconsideration should be exercised; Held – deterioration concept examined; fusion procedure warranted 20-30% whole person impairment against 0% certified in 2016; deterioration established as an unexercised right; interests of justice principle applied in exercising discretion; observations on the effect of such a reconsideration on applicant’s rights, which applicant undertook not to pursue; COD of 19 February 2016 rescinded and matter referred to Medical Appeal Panel for reconsideration.

DETERMINATIONS MADE:

The Commission finds:

1.     The applicant has an unexercised right to re-assessment by a Medical Panel due to the deterioration in her condition since the Medical Appeal Panel determination of
14 January 2016, as evidenced by the fusion surgery she underwent on 6 November 2020.

2.     The interests of justice are such that I should exercise my discretion in the applicant’s favour.

The Commission orders:

1.     The Certificate of Determination issued by the Workers Compensation Commission dated
19 February 2016 is rescinded.

2. I direct the President (who now performs the functions of the Registrar) pursuant to s 378(1) as preserved, to refer this matter to a Medical Appeal Panel for re-consideration. I note the provisions of cl 14B(b)(2)(b) of Schedule 1 of the Personal Injury Commission Act 2020 in that regard.

STATEMENT OF REASONS

BACKGROUND

1. Mary Rose Kari, the applicant, originally sought a reconsideration of a Medical Assessment Certificate (MAC) dated 21 August 2015. She was employed by David Jones Limited, the respondent, and suffered injuries on 26 August 2008 and 11 June 2010. The application was subsequently amended to seek a reconsideration of the decision of a Medical Appeal Panel on 14 January 2016, which confirmed the above MAC.

2. In order to achieve such reconsideration, the applicant seeks the recission of a Certificate of Determination (COD) dated 19 February 2016, which determined her claim for lump sum payment.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    is there an “unexercised right” available to the applicant, and

   (b)    if so, should the Personal Injury Commission’s (Commission) discretion be exercised in the applicant’s favour?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. This matter was heard in the Commission on 11 December 2024.  Mr Bryan Brown of counsel, instructed by Mr Stephen Legzdin of Messrs AC Lawyers appeared for the applicant. Mr Fraser Doak of counsel, instructed by Ms Naomi Tancred of Messrs Hicksons Lawyers appeared for the respondent.

2. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

1. The following relevant documents were in evidence before the Commission and considered in making this determination:

   (a)    Reconsideration application and attached documents dated 5 August 2024, and

   (b)    Response to reconsideration application and attached documents.

2. On 14 October 2024, following a preliminary conference on that day, the Commission issued the following directions:

   “1.     I direct the applicant to lodge and serve further written submission by 11 November 2024.

   2.     I direct the respondent to file and serve written submissions in reply by 25 November 2024.”

3. Written submissions were lodged pursuant to those directions.

Oral evidence

1. No application was made with regard to oral evidence.

FINDINGS AND REASONS

1. The MAC issued on 21 August 2015 certified that the applicant had sustained whole person impairment (WPI) in respect of two injuries. The first occurred on 26 August 2008, in respect of which assessments were given for impairment to the cervical spine and left shoulder. The second injury occurred on 11 June 2010 and assessments were given for impairment to the lumbar spine, digestive system (pelvis) and scarring.

2. With respect to the injury of 26 August 2008, the assessor, Dr Paul Myers, found 7% WPI for the left shoulder, and 0% WPI for the cervical spine. Dr Myers also found 0% WPI for the injuries to the lumbar spine and scarring with regard to the injury of 11 June 2010, but found 2% WPI for the digestive system (pelvis).

3. The applicant appealed to a Medical Appeal Panel which confirmed the MAC on
   14 January 2016.

4. On 19 February 2016 a COD was issued determining that the applicant had sustained the impairments found by Dr Myers. The statement of reasons by the Workers Compensation Commission noted that the applicant had previously been compensated in respect of 12% permanent impairment resulting from the injury of 26 August 2008 and that therefore she had no further entitlement to lump sum compensation, and that she did not reach the threshold for entitlement in respect of the injury of 11 June 2010.

5. On 20 September 2020, Arbitrator Rachel Homan, as she then was, issued a COD declaring that proposed surgery consisting of an L3 – L5 decompression and fusion was reasonably necessary as a result of the injury on 11 June 2010.

6. The applicant underwent this procedure on 6 November 2020.

WRITTEN SUBMISSIONS

Applicant’s submissions

1. Mr Brown clarified the original application for reconsideration by stating that the applicant sought:

   (a)    a rescission of the COD dated 19 February 2016 pursuant to s 350(3) of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act), and

   (b)    a reconsideration of the decision of the Medical Appeal Panel (MAP) of the Workers Compensation Commission constituted by Arbitrator Bell, AMS Ashwell and AMS Harvey-Sutton dated 14 January 2016 pursuant to s 378 of the 1998 Act.

2. Mr Brown submitted that the power to reconsider these decisions was given by cl 14D of Schedule 1 of the Personal Injury Commission Act 2020 (the 2020 Act) and s 378 of the 1998 Act as preserved prior to 1 March 2021. The purpose of the application was to permit Ms Kari to pursue a threshold dispute, and Mr Brown gave an undertaking that the applicant would not pursue any further claim for lump sum compensation pursuant to s 66 of the 1987 Act, were the application to be granted.

3. Mr Brown referred to decisions of Arbitrator Harris (as he then was) in Galea v Colourwise Nursery (NSW) Pty Ltd[1] and Lizdenis v Central Pty Ltd[2] submitting that the application was consistent with the Arbitrator’s reasoning.

   [1] [2019] NSWWCC 362.

   [2] [2016] NSWWCC 21.

4. The basis of the application was that there had been a deterioration in the applicant’s condition since the issue of the MAP on 14 January 2016.

5. Mr Brown submitted that the deterioration gave rise to an “unexercised right” as at the “establishment day” as defined in cl 14A of Schedule 1 of the 2020 Act. He referred to Baker v Southern Metropolitan Cemeteries Trust[3] and Barnett v Ingenia Communities Holdings Ltd[4] in that regard. Mr Brown submitted further that the provisions of s 350(3) of the 1998 Act as preserved would also enable there to be a reconsideration due to the unexercised right.

   [3] [2023] NSWPIC 593 at [15].

   [4] [2024] NSWPIC 72 at [16].

6. Mr Brown relied on Dimos v Gordian Runoff Ltd[5] to submit that pursuant to cl 14D a medical assessment could be reconsidered, but only on the grounds of a deterioration, or that additional relevant information had become available, or by a court or the President. There was an added condition, Mr Brown said, that the grounds had to be present before the establishment date. (It was common ground that the establishment day was 1 March 2021).

   [5] [2023] NSWSC 1151.

7. As to deterioration, Mr Brown noted that the MAP had confirmed that whilst the applicant had suffered an injury to the lumbar spine, it had not caused any WPI, as it had been assessed as a DRE lumbar spine category 1.

8. Mr Brown submitted that the COD issued by Arbitrator Homan on 25 September 2020 constituted proof that, prior to 1 March 2021, there had been a deterioration of the lumbar spine condition and a consequent increase in her entitlement to WPI.

9. Mr Brown referred to dicta of Campbell JA in Riverina Wines v Workers Compensation Commission of New South Wales[6] at [94] in that regard.

   [6] The citation was omitted, but is [2007] NSWCA 149.

10. As to whether the Commission should exercise its discretion regarding the application of ss 350 and 378 of the 1998 Act as preserved, Mr Brown referred to Samuel v Sebel Furniture Ltd[7] and the principles enunciated therein by ADP Bill Roche (as he then was).

    [7] [2006] NSWWCCPD 141 at [58].

11. It was submitted that the deterioration of the applicant’s lumbar spine could not be known to either the applicant or her legal advisors at the time the Medical Appeal Panel issued its determination. Mr Brown submitted that the interests of justice dictated that the reconsideration be permitted, as failure to do so would create substantial and irreversible prejudice to the applicant, part of which was her inability to make a work injury damages claim, and part of which was to deprive her of the right to weekly compensation beyond the 260 weeks permitted by s 39 of the 1987 Act.

12. Mr Brown submitted that delay should not cause the application to be refused as the “applicant underwent a series of before being assessed in a medicolegal contest and bringing this application” [sic]. There would, it was submitted, be no prejudice to the respondent.

Respondent’s submissions

1. Mr Doak referred to the factual background, noting that the applicant’s first MAC assessment occurred on 16 September 2010, in relation to injuries to the cervical spine and left shoulder. The date of injury for that assessment was 26 August 2008. Mr Doak noted that the injury to the lumbar spine was dated 11 June 2010, and that there had been a 0% assessment for the lumbar spine, which resulted, inter alia, in the COD dated 19 February 2016 finding that the applicant had no entitlement to lump sum compensation from injury on 11 June 2010.  

2. Mr Doak reproduced the Medical Appeal Panel’s reasons for confirming the 0% WPI finding regarding the lumbar spine.

3. Mr Doak referred to an email exchange between the respondent and the applicant regarding whether the applicant was entitled to s 60 expenses for the remainder of her life. Mr Doak indicated an email from the respondent dated 30 March 2022 that advised that the s 60 liability would extend only to one year after the applicant had reached retirement age.

4. Mr Doak observed that in paragraph 3 of the original reconsideration application dated
   5 August 2024, the applicant advised that the deterioration in her lumbar spinal condition now greatly exceeded the 20% WPI threshold, the significance of which was relevant to the application of s 59A of the 1987 Act. Mr Doak then referred to Mr Brown’s submission that there would be irreversible prejudice if the application was refused because the applicant would not be able to bring a work injury damages action nor obtain the benefit of s 39(2) of the 1987 Act which provides an exception to an applicant’s 260-week entitlement to weekly compensation.

5. Mr Doak advised that “at no stage during the progress of the applicant’s claim, has an intention to pursue work injury damages, and a concession of the threshold prescribed by section 39 (2) of the (1987 Act) been conveyed.”

6. As to the mechanism by which the applicant could succeed, Mr Doak agreed that she had to establish that she had an unexercised right prior to 1 March 2021 pursuant to cl 14D.

7. Mr Doak accepted the applicant’s interpretation of Dimos, also citing Baker and Barnett in that regard. Thus, he submitted, the applicant could only rely on evidence available to the parties prior to 1 March 2021.

8. Mr Doak accepted, unremarkably, that the respondent did not refute the finding of Arbitrator Homan of 25 September 2020 that the proposed surgery of an L3 to L5 fusion procedure, which was undertaken on 6 November 2020, was reasonably necessary. He noted the applicant’s undertaking not to prosecute any further claim for lump sum compensation, which Mr Doak submitted she was unable to do in any event because of the terms of s 66(1A) of the 1987 Act. Mr Doak referred to Cram Fluid Power Pty Ltd v Green[8] in that regard.

   [8] [2015] NSWCA 250.

9. The power to reconsider was broad and discretionary, Mr Doak submitted, also citing Samuel, and referring to Railcorp NSW v Registrar of the WCC of NSW.[9]

   [9] [2013] NSWSC 231.

10. In the present circumstances Mr Doak submitted that the discretion ought not be exercised. He submitted that in finding on 25 September 2020 that the proposed fusion was reasonably necessary, Arbitrator Homan was applying a lower threshold requirement than that required by the principles for reconsideration. Mr Doak relied on Sutherland Shire Council v Baltica General Insurance Co Ltd[10] to submit that the test regarding an application for a declaration that the surgery was reasonably necessary, was whether the injury “materially contributed” to that need.

    [10] (1996) 12 NSWCCR 716.

11. Mr Doak referred to Arbitrator Homan’s reasons in that regard, and submitted that evidence of deterioration was not of itself sufficient grounds for the exercise of a discretion to reconsider. He referred to Roach v Teldraw Pty Ltd[11] in that regard. He also referred to the findings of the Assessor in the MAC of 21 August 2015 regarding the injury to the lumbar spine.

    [11] [2023] NSWPIC 445.

12. Mr Doak submitted that the pathology found in the applicant’s lumbar spine by the Assessor was no more than a non-specific degenerative condition that Arbitrator Homan had accepted would have naturally deteriorated the 10 years since the injury (as at the date of her decision, 20 September 2020).

13. Mr Doak submitted that a reconsideration in the circumstances “would defeat the purpose of the principles of the finality of litigation by permitting any worker who sustained an aggravation of a naturally degenerative condition, to seek …further compensation… as the condition deteriorates.”

14. Further, Mr Doak submitted that Arbitrator Homan’s declaration that the proposed surgery was reasonably necessary and her direction that the respondent should meet the associated costs did not extend to a concession by the respondent that the relevant thresholds for ss 151 H, 32A or 59A of the 1987 Act had also been met.

15. Mr Doak submitted that a further problem for the applicant arose in the form of s 322A of the 1998 Act. Mr Doak referred to the Supreme Court decision in Sleiman v Gadalla Pty Ltd[12] in arguing that in any event the applicant did not have a further right of appeal. The applicability of s 329 of the 1998 Act was in some doubt, Mr Doak said, referring to O’Callaghan v Energy World Corporation Limited[13] and Hadipour v The Bread and Butter Project.[14]

    [12] [2021] NSWSC 86. This decision was appealed to the Court of Appeal: [2021] NSWCA 236 – see below.

    [13] [2016] NSWWCCPD 1 at [87].

    [14] [2020] NSWWCC 41 AT [55].

16. Finally, Mr Doak raised the question as to whether the applicant was seeking to rescind only one part of the COD (and, presumably, one part of the Medical Appeal Panel decision) and if so, whether such a recission was legally possible.

ORAL SUBMISSIONS

1. At the hearing Mr Brown spoke to his written submissions, summarising that he relied on the decision of Arbitrator Homan and the subsequent surgery to establish the applicant’s deterioration, which was her unexercised right.

2. Mr Doak noted the Court of Appeal decision in Sleiman[15] and submitted that the issues were accordingly whether the applicant had an unexercised right, as the evidence was insufficient to establish the alleged deterioration that could be so described, and whether proper reasons had been advanced to explain the delay in bringing the application.

DISCUSSION

[15] [2021] NSWCA 236.

1. In Sleiman the Court of Appeal (Leeming JA, Gleeson and Payne JJA agreeing) confirmed that the legislation as currently framed prevents any further appeal being made to a Medical Appeal Panel on the basis that an injured worker’s condition had deteriorated since the Panel’s determination.[16]

   [16] Per Leeming JA at [84].

2. There had however been a constructive failure to exercise jurisdiction by the Registrar’s delegate (as she was then) as she did not regard the application to further appeal as an application for reconsideration.[17] Leeming JA from [85] held that there was a “fallback” position available to the applicant. At [90] he said:

   “90. It was common ground that the effect of the transitional provisions was that Mr Sleiman continued to be able to apply for reconsideration, notwithstanding the repeal of s 378. The parties disagreed as to precisely how this occurred. It is not necessary to resolve that point, which is not free from difficulty, although I favour Mr Sleiman’s submissions, which turn on the 2019 application being a ‘pending non-court pre-establishment proceeding’ within the meaning of cl 14B of Schedule 1 of the Personal Injury Commission Act 2020(NSW).”

   [17] Per Leeming JA at [3].

3. Accordingly the question at issue is whether the transitional provisions entitle the applicant to have her case reconsidered.

4. Clause 14A of Schedule 1 of the 2020 Act provides, relevantly:

   "‘unexercised right’ means a right, including a right exercisable only with leave or other permission, that-

   (a) was available to be exercised immediately before the establishment day, and

   (b) had not yet been exercised before that day.”

5. “Establishment day” by virtue of ss 5 and 6 of the 2020 Act is the date of the establishment of the Commission, 21 March 2021.

6. Clause 14B of Schedule 1 provides relevantly:

   “(1)    This clause applies in relation to pre-establishment proceedings if they are pending proceedings before an original decision-maker other than a court.

   (2)     Unheard proceedings are taken on and from the establishment day--

   (a) to have been commenced for determination by the new decision-maker, and

   (b)may be determined by the new decision-maker instead of the original decision-maker.”

7. Whilst Mr Sleiman was able to rely on this clause because the application had been made to the Registrar prior to the establishment day, Ms Kari relies on cl 14D of Schedule 1, which provides relevantly:

   “(1)    This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.

   (2)     A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.

   (3)     The following provisions apply to the commencement of proceedings under this clause-

   (a)the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings,

   (b)the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply…”

1. The question of whether a deterioration subsequent to the issue of a MAC constitutes an unexercised right has been before the Commission on other occasions, and each claim depends on the evidence in support.

2. In Baker, Principal Member John Harris rejected the application on the basis that the evidence before him that pre-dated the establishment date did not provide any causal link between the alleged deterioration and the work injury. There was accordingly no unexercised right.

3. In Barnett Principal Member Harris found that the expert evidence was deficient, in that it did not, as at the establishment date, prove that the change in the applicant’s psychiatric condition was permanent.

4. In Galea Principal Member Harris found that an applicant was entitled to seek a reconsideration for the purposes of “any threshold issue.”[18]

   [18] At [71].

5. The Principal Member in the above cases[19] applied the definition of deterioration by Campbell JA in Riverina at [94], Hodgson JA agreeing:

   “‘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. 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.”

   [19] And in Sleiman, where Principal Member Harris also presided at first instance level.

6. This definition was adopted by the parties herein. Thus the first question for determination is whether there has been a deterioration within the terms of this definition.

7. In the first place, there is no expert evidence relied on by the applicant that speaks of a deterioration. Rather, Mr Brown submitted that an inference was available from the reasons given by Member Homan in declaring that the L3 – L5 decompression and fusion surgery was reasonably necessary, which surgery occurred on 6 November 2020 – relevantly before the establishment date.

8. This led, it was argued, to a probability that the applicant’s entitlement would now be in the range of 20% - 30% WPI when the appropriate guidelines were consulted. This proposition was not challenged by the respondent.[20]

   [20] Table 15-3 of AMA5 at page 384 provides that this range is assessable where there had been, relevantly, a complete or near complete loss of motion segment due to a successful or unsuccessful attempt at surgical arthrodesis.

9. Arbitrator Homan, with respect, gave a thorough and considered statement of reasons in which she analysed the evidence before her and gave cogent reasons for her determination, which I adopt. Relevantly, she noted the respondent’s submissions at [75]:

   “75.   Mr Barter submitted that the applicant was a 65 year old woman with relatively minor injury 10 years ago. The applicant had widespread degenerative changes in her lumbar and cervical spine. Taking a commonsense approach, consistently with the authority in Kooragang Cement Pty Ltd v Bates (reference omitted), Mr Barter submitted that the Commission would not be satisfied that, if there was a need for surgery, that need resulted from the minor injury 10 years ago.”

10. At [89] Arbitrator Homan referred to Murphy v Allity Management Services Pty Ltd,[21] noting the dicta of DP Roche:

    “… a condition can have multiple causes (authorities omitted). The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

    Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates …) that the treatment is reasonably necessary ‘as a result of’ the injury (authority omitted). That is,

    she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v BalticaGeneral Insurance Co Ltd (1996) 12 NSWCCR 716).”

    [21] [2015] NSWWCCPD 49 at [57].

11. Arbitrator Homan said at [90]:

    “The dispute between the parties in the present case centres predominantly around the causal relationship between the need for the surgery proposed by Dr Rosenberg and the work injury in 2010. As both parties’ submissions concede, there is no dispute that there was an injury to the applicant’s lumbar spine on 11 June 2010. There is also broad consensus that the injury involved an aggravation of pre-existing degenerative pathology in the applicant’s lumbar spine.”

12. Arbitrator Homan accepted that the applicant had experienced back pain prior to the work injury some 10 years before the applicant’s injury, but noted that there had been no treatment or investigation of the lumbar spine injury over that period of 10 years. At [93] Arbitrator Homan found there were consistent complaints of significant lower back pain in the treating medical evidence from the time of the subject injury onwards. At [112] she stated:

    “I do accept, however, that there would have been some natural deterioration or progression of the pre-existing degenerative pathology in the 10 years since the injury. It is accepted by all the doctors involved in this case that the surgery proposed by Dr Rosenberg would treat the degenerative pathology. That does not, however, preclude a finding that the work injury materially contributed to the need for surgery. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.”

13. The respondent submitted that Arbitrator Homan’s decision could be distinguished as the test of whether the injury materially contributed to the need for surgery constituted a lower threshold than that required for reconsideration. A declaration that a certain treatment was reasonably necessary did not equate with a finding, or a concession, that the thresholds in the 1987 Act had been met.

14. In Roach Member Jill Toohey declined an application pursuant to s 57 of the 2020 Act (which she found was substantively in the same terms as s 350(3) of the 1998 Act), for a reconsideration of a MAC for psychological injury on the grounds of deterioration. Member Toohey held that the medical evidence did not establish deterioration. However in the course of her reasons, she said at [95]:

    “Even accepting that Mr Roach’s condition has deteriorated since the MAC and the resulting COD, I am not persuaded that the discretion in s 57(1) should be exercised in his favour. I agree with the respondent’s submission that evidence of deterioration is not of itself sufficient grounds for reconsideration. If that were so, reconsideration would be available to any worker whose condition deteriorates following assessment. That is not supported by the decision in authorities or by the scheme of the legislation.”

15. In Galea, Arbitrator John Harris, as he then was, stated:

    “32. As the plurality stated in Military Rehabilitation Commission v May, the ‘question of construction is determined by reference to the text, context and purpose of the Act’; citing Project Blue Sky Inc v Australian Broadcasting Authority and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue.

    33. In Grain Growers Limited v Chief Commissioner of State Revenue (NSW)20 Beazley P stated that ‘the starting point and end point is with the text of the provision’. Her Honour cited the comments of the High Court in Alcan when the plurality stated:

    ‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Footnotes omitted)

    See also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012)250 CLR 503; [2012] HCA 55 at [39]’.”

16. In Le Twins Pty Ltd v Luo[22] ADP Geoffrey Parker SC, in dealing with an appeal as to whether a consequential condition had been properly found, said, referring to the dicta of the High Court in Comcare v Martin:[23]

    “… The High Court identified the controlling principle in the following terms:

    ‘42 Causation in the legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm. Nevertheless, the majority in the Full Court construed the phrase ‘as a result of’ in s 5A(1) as importing a ‘common sense’ notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose’.”

    [22] [2019] NSWWCCPD 52.

    [23] [2016] HCA 23.

17. The current text of the legislation includes the following sections.

18. Section 66 of the 1987 Act provides relevantly:

    “(1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.

    Note: No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.

    (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.

    …”

19. Section 322A of the 1998 Act provides:

    “(1)    Only one assessment may be made of the degree of permanent impairment of an injured worker.

    (1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.

    (2)     The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).

    (3)     Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of-

    (a) assessment and a medical assessment certificate under this Part, or

    (b) a determination by the Commission under Part 4.

    (4)     This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”

20. Section 327 of the 1998 Act provides relevantly:

    “(1)    A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

    (2)     A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

    (3)     The grounds for appeal under this section are any of the following grounds-

    (a)deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

    (b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

    (c)the assessment was made on the basis of incorrect criteria,

    (d)the medical assessment certificate contains a demonstrable error.

    (4)     An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

    (5)     If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.

    (6)     The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

    Note: Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).

    (7)     There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

    …”

21. Section 329 of the 1998 Act provides:

    “329 REFERRAL OF MATTER FOR FURTHER MEDICAL ASSESSMENT OR RECONSIDERATION

    (1)     A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by-

    (a) the President as an alternative to an appeal against the assessment as provided by section 327, or

    (b) a court or the Commission.

    (1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.

    (2)     A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”

22. It can be seen that the statutory text, context and purpose of the current legislation is to limit the entitlement by a claimant to lump sum compensation to the one claim. Although s 327(3)(a) and (b) are not subject per se to a time limitation, s 327(7) provides that once the determination has been made, as it has in the present case, no appeal against a medical assessment can proceed. Sleiman has now held that since the establishment day, any deterioration subsequent to the issue of a Medical Appeal Panel determination is not justiciable.[24]  

    [24] From [71].

23. The relevant legislation however, is the transitional legislation. The statutory text, context and purpose of Division 4A of Schedule 1 of the 2020 Act is to allow for the “completion of existing proceedings,” as its title states. I have uplifted the relevant parts of this legislation above, and cl 14D enables a person, if he/she has an unexercised right, to proceed under the law that pertained prior to the establishment date.

24. This preserved s 350(3) of the 1998 Act, which provides:

    “350 Decisions of Commission

    (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

    (2) …

    (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.”

25. Section 387A of the 1998 Act was also preserved in as much as it provided power for an Appeal Panel to reconsider its decisions, which was abolished by the amendments. Relevantly it stated:

    “378 Reconsideration of decisions of Registrar or Appeal Panel

    (1)     The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.

    (2)     …

    (3)     Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).

    (4) ….

    (5) …”

26. Thus Ms Kari by virtue of the transitional provisions is entitled to seek that her unexercised right be reconsidered by the Appeal Panel that determined her case on 14 January 2016 (or a different Panel, vide cls 14B(b)(2)(b) and 14D(2) of Schedule 1 of the 2020 Act) which in turn requires the reconsideration of the COD dated 19 February 2016.

27. This entitlement is subject to the discretion of the Commission. The parties concur that the principles enunciated by DP Roche in Samuel apply to such an exercise. After considering the relevant authorities, DP Roche said:[25]

    [25] At [58].

    “58.   Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:

    1.the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);

    2.whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;

    3.whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);

    4.one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (‘Hilliger’);

    5.reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);

    6.given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;

    7.depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);

    8.a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and

    9.the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”

1. I note Mr Brown’s undertaking that no further claim for lump sum compensation pursuant to s 66 of the 1987 Act would be made.

2. Notwithstanding, it is conceptually difficult to find that a re-consideration ordered under these circumstances can be so limited at law. Section 322A(4) provides that the limitations set out in s 322A(2) do not affect Ms Kari’s appeal rights pursuant, relevantly, to s 327. The WPI found by the AMS would be revoked and, if the fresh certificate were over the 10% threshold (which in this case it would be), then there seems to be no reason why the lump sum entitlement should not also increase.

3. The respondent raised the issue of how the Medical Appeal Panel to which this reconsideration would be directed, was to approach the referral back to it when it had ruled on two separate claims involving two dates of injury and five anatomical regions.

4. The reconsideration permitted by s 378 empowers a Panel to rescind, alter or amend any decision previously made and whilst the re-referral could conceivably be drafted to limit the reconsideration to the effects of the deterioration on the lumbar spinal condition, the Panel may well be at liberty to amend its decision in other ways. The effect of a referral in those terms on a Panel may well be different from that usually directed to a Medical Assessor, the terms of which are usually binding.[26]

   [26] See Skates v Hills Industries Ltd [2021] NSWCA 142.

5. Whilst Mr Brown’s undertaking might be sufficient to prevent such an increase, there is no doubt that if the applicant overcomes the threshold of 15% (again, highly likely) she stands to benefit from a work injury damages verdict pursuant to s 151H of the 1987 Act.

6. Further, her fresh certificate would entitle her to receipt of weekly payments pursuant to s 39(2) of the 1987 Act without the 260-week limitation imposed by s 39(1). Section 59A would also apply if Ms Kari was found to be a person with high needs.

7. Section 329 of the 1998 Act has no relevance, as the reconsideration would be ordered pursuant to s 387(1) of the 1998 Act, and the respondent’s submissions in that regard may be put to one side.

8. It can thus be seen that the effect of ruling in Ms Kari’s favour would have the effect of prolonging litigation in this matter for some considerable period.

9. The further matter raised by Mr Doak is the proposition that the principles governing reconsideration represent a higher threshold than those governing whether proposed medical treatment is reasonably necessary pursuant to s 60 of the 1987 Act.

10. The principle incorporates the concept of material contribution, as has been seen above. In Le Twins DP Parker noted that a similar submission had been made to him. He said at [67]:

    “The appellant’s submission is that the decision’s authority is limited to claims for treatment expenses. For that purpose, a worker needs to establish that the treatment results from an injury that materially contributed to the need for that treatment even if the need for surgery arises from more than one cause. The appellant refers to [58] of the decision in Murphy.”

11. At [71] he said:

    “I do not regard the Arbitrator’s conclusion at [81] of her reasons that a condition may have more than one cause as incorrect. Most conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.”

12. The relevant statutory criterion is that governing the question of whether there is an unexercised right as defined in cl 14A of Schedule 1 of the 2020 Act. That turns on whether the right to a reconsideration under the preserved legislation accrued when Ms Kari came to surgery under circumstances that Member Homan held constituted a deterioration of
    Ms Kari’s condition.

13. I note the submissions by Mr Doak that the test for whether medical treatment is reasonably necessary is at a lower threshold than that required for the reconsiderations sought, but for the reasons given I am satisfied that the evidence of deterioration satisfies any relevant test. Ms Homan has found that the deterioration was materially contributed to by the injury, and that causation test also satisfied the question of whether an unexercised right was available to Ms Kari. In contrast to the cases I have referred to above, there can be no doubt that, given that finding as to causation, the permanent impartment caused by the fusion surgery qualifies for at least 20% WPI, and that therefore there has been a deterioration since the Medical Appeal Panel’s confirmation on 14 January 2016 of the assessment by the AMS on 21 August 2015, of 0%.

14. I am further satisfied that the application should be granted, in my discretion. As indicated above, the public interest factor is not satisfied by this application, as further litigation must occur as a result of these findings. A work injury damages claim may be envisaged, and perhaps ancillary litigation as to the application of ss 39 and 59A of the 1987 Act.

15. However, this aspect is subordinate to the context of the transitional provisions referred to above. It was clearly the intention of the legislature that persons who qualified under this specific and limited right, should have the full entitlements that would come with a successful reconsideration by the Medical Appeal Panel. An intention to permit subsequent litigation may accordingly be inferred.

16. The delay between the accrual of the entitlement following the fusion surgery of
    6 November 2020 has not been the subject of specific submissions, save that of Mr Brown, who unfortunately omitted the crucial point he was seeking to make (see [27] above).

17. The evidence accepted by Arbitrator Homan was that Ms Kari had made consistent complaints of significant lower back pain in the treating medical evidence and it may be accepted that Ms Kari’s condition was of first importance following her 2020 surgery. No prejudice has been established or alleged by the respondent as to the delay itself.

18. In the final analysis the discretionary principle as to the duty of the Commission to do justice between the parties according to the substantial merits of the case prevails. In view of the legislative context and the compelling nature of the proof of deterioration, the substantial merits of the case dictate that Ms Kari be successful.

19. The orders are set out above.