Keshavarz v CPB Contractors Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Keshavarz v CPB Contractors Pty Ltd [2025] NSWPIC 77
APPLICANT:	Amin Keshavarz
RESPONDENT:	CPB Contractors Pty Limited
MEMBER:	10 March 2025
DATE OF DECISION:	Mitchell Strachan
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020 (PIC Act); rescind prior Certificate of Determination; section 57 of the PIC Act; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors, and Samuel v Sebel Furniture Limited considered; Held – the applicant’s application to rescind the Certificate of Determination dated 21 March 2024 is refused.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s application to rescind the Certificate of Determination dated 21 March 2024 is refused. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

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 prior Certificate of Determination dated 24 March 2024 (the COD).
There is no dispute that the applicant suffered a psychological injury resulting from the nature and conditions of his employment as a site engineer with a deemed date of injury of
12 January 2022, liability for which is accepted by the respondent.
On 9 August 2023 the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) asserting his whole person impairment was 26% relying on a report of Dr David Kumagaya dated 13 July 2023.
The respondent’s solicitors responded to the claim for lump sum compensation on
10 November 2023 offering to resolve the claim on the basis the applicant’s whole person impairment was 17% as assessed by Dr Saboor in a report dated 29 September 2023.
On 23 November 2023 the applicant commenced proceedings in the Commission seeking to refer the dispute to a Medical Assessor to determine the applicant’s degree of whole person impairment.
The applicant was assessed by Medical Assessor John Baker and a Medical Assessment Certificate (MAC) issued dated 13 February 2024 which assessed the applicant’s whole person impairment at 10%.
Neither party sought to appeal the MAC in accordance with s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and on 21 March 2024 the COD was issued by the Commission finding that the applicant’s whole person impairment was 10% and that the applicant had no entitlement to lump sum compensation due to the operation of s 65A(3) of the 1987 Act.

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.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The applicant initially wrote to the Commission on 8 November 2024 seeking reconsideration of the MAC dated 13 February 2024. The respondent provided submissions in response dated 28 November 2024. On or about 29 November 2024 the Commission advised the applicant by email that an application to rescind the COD needed to be made before the reconsideration application could be dealt with.
By letter dated 18 December 2024 the applicant made an application to rescind the COD. The respondent provided submissions in response on 16 January 2025.
The application was listed before me for preliminary conference on 3 February 2025.
During the preliminary conference, I used my best endeavours in attempting to conciliate the dispute however ultimately resolution of the applicant’s application requires the exercise of discretion by the Commission.
The parties agreed during the preliminary conference that the application should be determined based on the submissions already before the Commission and were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing. Both parties were asked whether they wished to put on any supplementary submissions. That invitation was declined.
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.

EVIDENCE

Documentary evidence

Following the preliminary conference, I issued a direction confirming the documents before the Commission that would be considered in making this determination:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply and attachments;
(c)    Medical Assessment Certificate dated 13 February 2024;
(d)    Certificate of Determination dated 21 March 2024;
(e)    applicant’s reconsideration request dated 8 November 2024 and attachments;
(f)    respondent’s submissions in response to reconsideration request dated
28 November 2024;
(g)    applicant’s request to rescind Certificate of Determination dated
18 December 2024, and
(h)    respondent’s submissions in response to applicant to rescind certificate of determination dated 16 January 2025.

Applicant’s further evidence

The applicant filed the following additional evidence with his application to rescind the COD:
(a)    Referral from Dr Miah, general practitioner to Dr Dominic Paul at Kellyville Private Hospital which recorded the following:
“Thank you for seeing Amin Keshavarz, H/O severe anxiety and depression due to workplace harassment, unable to sleep at night, having ideation of self harm, no intention or plan, requesting for your review, assessment and further management as soon as possible.”
(b)    A certificate of capacity dated 28 June 2024 from Dr Miah which certificated the applicant unfit for work from 30 June 2024 to 26 July 2024 and noted:
“On going severe anxiety and depression, booked for review with Dr Dominic Paul, psychiatrist, on 8/8/2024, on going psychology sessions with Simon Port, therapist and treating with medications for anxiety and depression.”
(c)    A further certificate, also dated 28 June 2024 although it appears to be from an earlier appointment as it covers the period 1 June 2024 to 29 June 2024 and also certifies the applicant as unfit for work and records:
“On going psychology sessions with Simon Port, therapist and treating with medications for anxiety. Reviewing Dr Roxanis, psychiatrist.”
(d)    Report of Dr Shana Chapagain, consultant psychiatrist, dated 21 August 2024. The report records that the applicant is known to the doctor from a previous episode of care at The Hills Clinic in January 2023. The applicant was quite distressed and anxious. The applicant told the doctor “he hasn’t been able to have a proper sleep for the last 2 ½ years. He gets nightmares and flashbacks as if he is replaying his traumatic memories as a movie.”
Dr Chapagain noted the applicant presented with a history of chronic post-traumatic stress disorder and comorbid major depressive disorder. He increased the applicant’s medication and recommended weekly sessions with his psychologist. He also recommended a period of inpatient care which the applicant agreed to.
(e)    Letter from EML to Dr Chapagain dated 2 September 2024 approving a 1-21 day inpatient admission.
(f)    Discharge summary from Kellyville Private Hospital (which is undated) and records:
“patient admitted to KPH with worsening depressive and anxiety symptoms of approx. 2 year duration with associated suicidal ideation and associated neurovegetative features eg low energy & concentration, insomnia.”
(g)    Report from Dr Chapagain to Dr Miah dated 1 October 2024. The report confirmed the applicant was being discharged on 1 October after a three week inpatient stay. His medications had been optimised and the therapeutic group programme was found to be helpful. During his admission his physical symptoms of anxiety have improved and he has been able to manage his suicidal thoughts. The doctor noted however that he continued to remain low and anxious with ongoing depressive symptoms and post-traumatic stress disorder symptoms. The doctor noted a diagnosis of chronic post-traumatic stress disorder and major depressive disorder with anxiety symptoms.
(h)    A medical certificate was provided for the period 10 September 2024 to
13 September 2024 on the basis he remained an inpatient.
(i)    A handwritten discharge summary dated 1 October 2024 which is difficult to decipher but appears to reflect the typed undated discharge summary and the report by Dr Chapagain of 1 October 2024.

Respondent’s further evidence

The respondent does not seek to rely on any further evidence.

Medical assessment certificate dated 21 March 2024

The Medical Assessor took a history of the circumstances leading to the applicant’s injury and initial treatment. He noted the applicant’s treating psychologist treated him for depression and anxiety and that the applicant had symptoms in common with post-traumatic stress disorder.
The Medical Assessor noted that in August 2022 the general practitioner confirmed a diagnosis of “generalised anxiety state and depression”. He noted the prior admission to a private psychiatric hospital.
The Medical Assessor noted that the applicant’s depressed mood with anxious distress persisted unabated and he had difficulty finding work he could perform.
The Medical Assessor recorded that the applicant trailed a number of medications and his persistent depressive disorder with anxious distress failed to fully remit.
The Medical Assessor noted that at the time of the assessment the applicant had a depressed mood for most of the day for more days than not for at least two years, a poor appetite, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, feelings of hopelessness, difficulty concentrating because of worry and a fear that something awful may happen.
On mental state examination the Medical Assessor recorded the following:
“The claimant presented as an unkempt man who looked his stated age. His hair was uncombed and unkempt. He appeared sullen and depressed. He was anxiously distressed throughout the assessment. He complained of distressing intrusive thoughts of what had happened to him whilst employed with this employer.
Talking about the injury caused the claimant to have poor concentration as he would experience anxious distress. He required time to re-compose himself. His concentration was poor. He could remain on topic without assistance during this assessment. He would avoid eye contact whilst talking about how he felt shamed and unable to support his wife and family.
He felt he failed his wife. He stated his self-esteem was broken and he had lost his workplace resilience due to the constant bullying and harassment he had endured whilst employed with this employer. He was unable to persistent with his employment with this employer. He reported irritability and agitation when reminded of his employment as a site engineer.
The claimant reported that he would suffer from anxiety and a persistent depressed mood most days. He had hope and was interested in attempting a new small business of photography. He had completed a standard course in this new field of interest. The claimant spoke with a normal volume of speech. His rate and rhythm of speech were normal. He did not report delusional ideas, psychotic symptoms or suicidal thoughts or plans. He was insightful into his condition. His judgement was normal.”
The Medical Assessor was of the opinion that the applicant’s injury was best defined as a persistent depressive disorder with anxious distress.
The Medical Assessor assessed the applicant’s impairment in accordance with the psychiatric impairment rating scale (PIRS) categories as follows:
“In my medical opinion the claimant suffered from a mild impairment of functioning in his activities of daily living as assessed by the psychiatric impairment rating scale, at the time of this assessment. His level of functioning had improved from when he was assessed by Dr Kumagaya and documented in the report dated 13 July 2023.
Dr Kumagaya scored a Class 3 at the time of his July 2023 assessment. The claimant was independent in his living at the time of this assessment in January 2024. He had cared for himself and attended public spaces to train and casually work in his photography. I assessed the claimant as class 2 for self-care and personal hygiene.
The claimant had returned to parttime work in photography prior to this assessment. He was assessed as moderately impaired as Class 3. I note that Dr Kumagaya assessed the claimant as “totally impaired whilst using the descriptor, ‘severely impaired’. Neither the class nor the descriptor assessed by Dr Kumagaya was present at the time of this assessment.
The claimant was assessed by Dr Kumagaya as Class 3 for concentration, persistence and pace. The claimant had completed a standard course in photography. The class of impairment for a claimant capable of completing a standard course was Class 2 mild impairment.
The claimant had returned to church at Hill Song. He would participate in worship services. A Class 2 impairment is appropriate using current guidelines for this level of functioning in the table social and recreational activities. He had remained psychiatrically symptomatic for over 2 years. He had lost trust in his employer. He was hopeful of commencing a new small business in photography. He planned to photograph retail products.
The claimant had no pre-existing psychological or psychiatric condition.
The treatment effect of his primary psychological injury was large with the claimant being able to return to work in a less stressful role in photography. The effect of treatment was adjusted by 3% WPI for this ongoing treatment effect.
The claimant was assessed as having 7% WPI plus 3% for treatment effect resulting in a total of 10% whole person impairment.
I made no deduction for pre-existing condition or subsequent condition.”
The Medical Assessor ultimately assessed the applicant’s whole person impairment at 10%.

Evidence previously before the Commission

I have considered the evidence attached to the Application to Resolve a Dispute and Reply which were before the Medical Assessor however have summarised the evidence as it is relevant in my findings and reasons below. I note that this evidence was not specifically referred to in submissions on the current application by either party and I am not required to have regard to it.[1]
[1] Personal Injury Commission Rules 2021, r 67D(2).
However, I consider the applicant’s statement evidence as to his condition when he commenced proceedings for lump sum compensation is of particular relevance. In making his claim for permanent impairment compensation in the Commission, the applicant relied on a statement dated 21 November 2023. This is the only statement evidence of the applicant before the Commission and no further statement has been served with respect to the application to rescind the COD.
The applicant describes the circumstances of his injury, which are not in dispute. He sought treatment from his general practitioner and was provided with medication. He was also referred to a psychologist, Ms Mason and attended regular psychological sessions.
He underwent two weeks of inpatient treatment between 12 January and 24 January 2023. At the time of his discharge he was prescribed duloxetine 90mg, diazepam 5mg and mirtazapine 30mg. At the time he made his statement he was taking 10mg lumin daily.
The applicant provides a significant list of disabilities which I will not repeat in full but include nightmares, broken sleep pattern and insomnia.
The applicant detailed the difficulties he had with selfcare requiring his wife and children to assist when showering and dressing. His wife assisted with taking off his clothes and socks. He detailed lacking motivation to maintain his personal appearance.

SUBMISSIONS

Applicant’s submissions

The applicant submits that due to the operation of s 322A(4) of the 1998 Act, the applicant is not prevented from bringing an appeal against a medical assessment pursuant to s 327 of the 1998 Act. I take this submission to mean that the “one claim” provision in s 322A(1) of the 1998 does not prevent an appeal under s 327 of the 1998 Act due to the “carve out” in s 322A(4) of the 1998 Act.
The applicant submits that it seeks to appeal the MAC to establish “a threshold injury and claim for compensation” in accordance with ss 39 and/or 151 of the 1987 Act.
The applicant referred to the Commission’s power to exercise discretion pursuant to s 57 of the PIC Act to rescind the COD.
The applicant submits that the application to rescind the COD is made on the grounds of a deterioration in the worker’s condition.
The applicant submits that he has suffered a further deterioration to his psychological condition since he was examined by the Medical Assessor on 30 January 2024.
The applicant refers to a report of 21 June 2024 from his general practitioner which notes ideation of self-harm and that he was unable to sleep at night which the applicant submits is in contrast with the Medical Assessment Certificate. The applicant submits this is supported by ongoing certificates of capacity.
The applicant also refers to a report dated 21 August 2024 from a treating psychiatrist which recommends a period of inpatient care which the applicant submits was ultimately funded by the respondent’s insurer.
The applicant submits that following discharge for the inpatient care on 1 October 2024 he provided his solicitor with “further medical records and correspondence” which demonstrate “the significant deterioration in the psychological injury suffered by the [applicant].”
With respect to the availability of additional relevant information, the applicant submits that the further evidence attached to the application to rescind the certificate of determination was only provided to his solicitor “some months after the initial conclusion of the matter” and as such there was no basis to appeal the MAC within the 28-day period. The applicant submits however that the further accumulated evidence demonstrates “a significant deterioration in his health”.
I have also considered the applicant’s submissions on reconsideration dated
8 November 2024 (which are substantially the same as the submissions to rescind the certificate of determination). I note that the application to reconsider the MAC is not before me for determination (and that the applicant now seeks the COD be rescinded to allow and appeal). The merits of any reconsideration or appeal are however a relevant consideration in the exercise of my discretion to rescind the COD.

Respondent’s submissions

The respondent opposed the application to rescind the COD.
The respondent refers to the decision of Member Isaksen in BEX v Koskela Pty Limited [2023] PIC 174 (BEX) where the Member held that the principles set out by Deputy President Roche in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 with respect to the application of the now repealed s 350(3) of the 1998 Act are applicable to the application of s 57(1) of the PIC Act.
The respondent submits that in exercise of the discretion in s 57 of the PIC Act, paramount consideration must be had to the principle of finality enunciated by DP Roche in Sebel and further discussed by the Court of Appeal in Sleiman v Gaddala Pty Ltd [2021] NSWCA 236 at [52]:
“Section 322A serves an important role in the administrative regime established for the determination of permanent impairment. A decision of a court after a final hearing will ordinarily determine that issue once and for all. A great many rules are associated with this aspect of finality (they include res judicata, issue estoppel, abuse of process, preventing re-litigation of the same issue), as well as substantive doctrines like the once-and-for-all rule…”

The respondent submits that to rescind the COD would depart from the principle of finality and would not be in the interests of justice.
Further, the respondent submits that it would be prejudiced if the COD was rescinded in circumstances where the COD had already determined the degree of permanent impairment and entitlement to compensation pursuant to s 66 of the 1987 Act.
The respondent submits that rescinding the COD would be inconsistent with the Commission’s statutory objective to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible” in accordance with s 3 of the PIC Act.
With respect to the applicant’s submissions that a further deterioration of his condition warrants the exercise of discretion to rescind the COD, the respondent relies on paragraphs 9 to 16 of the respondent’s submissions (with respect to finality).
With respect to the additional evidence the applicant seeks to rely on, the applicant submits that the additional evidence would not have likely led to a different result and that the applicant has failed to explain, with reference to the MAC or COD how the evidence would have produced a different result.
The respondent submits the report of Dr Chapagain dated 1 October 2024 suggests the applicant’s condition had improved and does not support the applicant’s submission of a “significant deterioration in the psychological injury”.
The respondent refers to the requirement of a Medical Assessor to assess impairment on the day of the assessment applying their own clinical judgment and they are not bound to agree with the findings of other assessors.
Finally, the respondent submits that it is not in the interests of justice to deprive the respondent of the orders made in the COD.

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 then being able to appeal the MAC.
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.”
The applicant has not made any submissions directed to the principles that apply in the exercise of the discretion provided in s 57(1) of the PIC Act.
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 Workers Compensation Commission.[2]
[2] BEX.
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).”[i]
While the applicant submits that the application to rescind the COD is made on the basis of a deterioration in the application’s condition it is really 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.
Consideration must therefore be given to 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 concept of “deterioration”, to which the applicant says the further 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.”
It is necessary to consider whether the evidence of Dr Miah’s referral back to Kellyville Private Hospital and subsequent inpatient treatment during September 2024, the outcome of which is recorded in the reports of Dr Chapagain is evidence of deterioration (of the type discussed in Riverina Wines), that had it been before the Medical Assessor would likely to have led to a different result.
I do not accept this for the following reasons.
Firstly, the additional evidence does not provide for an additional diagnosis from that which was available at the time the applicant was examined by the Medical Assessor.
Dr Chapagain in his 1 October 2024 report provided a diagnosis of chronic post-traumatic stress disorder and major depressive disorder with anxiety symptoms.
The Medical Assessor in the MAC of 30 January 2024 noted the applicant has symptoms in common with post-traumatic stress disorder but preferred the diagnosis of persistent depressive disorder with anxious distress. The Medical Assessor noted other opinions including that of Dr Saboor and commented:
“I note that Dr Saboor diagnosed “Major Depressive illness with anxiety and PTSD features.” I note that the claimant was not exposed to Criteria, A DSM5TR Posttraumatic Stress Disorder stressor. The claimant does not meet the MSW5TR diagnostic criteria for posttraumatic stress disorder.”
That is, the Medical Assessor explicitly turned his mind to the diagnosis and did not consider the applicant met the diagnostic criteria. It is not new evidence or additional evidence with respect to the applicable diagnosis.
Secondly, there is no evidence before the Commission from the applicant setting out his current functioning and symptoms. The applicant gave evidence in his original statement of 21 November 2023 of the various symptoms which he continues to complain of including difficulty sleeping and suicidal ideation. The Medical Assessor recorded in the MAC both a history of “work-related nightmares”, insomnia and prior suicidal thoughts. I accept that the applicant now expresses ideas of self-harm as opposed to suicidal ideation however there is no evidence to support this change amounts to an overall deterioration in the applicant’s condition. That is, it is not new or fresh evidence of additional symptoms. At its highest it is evidence of a period of time during which the applicant experienced an increase in symptoms. The Medical Assessor, from the qualified medical reports relied on by the applicant and respondent, was already aware of periods of greater symptoms.
Thirdly, the further evidence relied on by the applicant, does not demonstrate a deterioration in the applicant’s permanent impairment in the sense discussed in Riverina Wines. There is no further evidence from a qualified psychiatrist providing an opinion on the applicant’s overall functioning with reference to the PIRS criteria to allow an assessment of whether there has been a deterioration in his level of permanent impairment.
Fourthly, there is no evidence before the Commission that the applicant’s level of symptomology demonstrated by his in-patient admission in September 2024 is continuing and permanent. There is in fact evidence from Dr Chapagain that his condition was improving following that admission.
Finally, having regard to the medical evidence before him, the Medical Assessor was clearly aware of the propensity for change in the applicant’s condition over time given the assessments made by both Dr Kumagaya and Dr Saboor. Presumably aware of his level of psychological impairment at the time of seeking to have the matter referred to the Medical Assessor, it was open to the applicant to have obtained further evidence from Dr Kumagaya or his treatment providers as to the likelihood that his condition may deteriorate or oscillate between periods of higher and lower functioning into the future. If the applicant considered that there was an error in the assessment by the Medical Assessor it was open to him to appeal prior to the COD being issued in accordance with s 327(3) of the 1998 Act.
I do not consider that the further evidence relied on by the applicant supports weighs in favour of the exercise of discretion under s 57(1) of the PIC Act.
As submitted by the respondent, there are other considerations which always weigh against the exercise of the discretion.
The exercise of discretion under s 57(1) of the PIC Act requires a balancing of the competing criteria which I have discussed above.
I accept, as submitted by the respondent, that the objects of the Commission under ss 3 and 42 of the PIC Act and the principles with respect to public interest in the finality of litigation are important considerations.
The public interest in the finality of litigation is an important consideration in whether to exercise the discretion to rescind the COD. I further accept that the legislative scheme provides that there is to be one claim for lump sum compensation (s 66(1A) of the 1987 Act) and one assessment of whole person impairment and the one assessment should be used in any further medical disputes (s 322A of the 1998 Act).
It was not put to me that s 322A of the 1998 overrides the broad discretion in s 57(1) of the PIC Act however the legislative scheme is a relevant consideration.
Having considered the relevant principles set out above, the applicant’s additional evidence and the legislative scheme I do not consider the applicant’s additional evidence is sufficient to overcome the public interest in the finality.
I do not consider it appropriate to exercise the discretion under s 57(1) of the PIC Act to rescind the COD.

SUMMARY

For the above reasons, the applicant’s application to rescind the Certificate of Determination dated 21 March 2024 is refused.

[i] Samuel at [58].

[2025] NSWPIC 77

10 March 2025