Phan v Elcon Cables Pty Ltd t/as Elcon Cable Processors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Phan v Elcon Cables Pty Ltd t/as Elcon Cable Processors [2024] NSWPIC 634
APPLICANT:	Thi Le Tien Phan
RESPONDENT:	Elcon Cables Pty Ltd t/as Elcon Cable Processors
MEMBER:	Kathryn Camp
DATE OF DECISION:	8 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020 (PIC Act); Workers Compensation Act 1987 (1987 Act); section 57 of the PIC Act; reconsideration application; applicant sustained a lumbar spine injury which was assessed at 12% whole person impairment in a Medical Assessment Certificate (MAC); the applicant appealed the MAC to a Medical Appeal Panel which confirmed the MAC; the former Workers Compensation Commission (WCC) issued a Certificate of Determination (COD) confirming the MAC and entitlement to section 66 of the 1987 Act; the applicant’s condition deteriorated post-establishment of the Personal Injury Commission (Commission); jurisdiction of the Commission to reconsider former WCC decisions for the limited basis of a threshold dispute; Secretary, Department of Communities & Justice v Cannell considered and applied; Held – the applicant’s application for reconsideration of the COD dismissed.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s application is dismissed.

STATEMENT OF REASONS

INTRODUCTION

This matter concerns an application for reconsideration, pursuant to s 57(1) of the Personal Injury Commission Act 2020 (PIC Act), of a Certificate of Determination (COD) of the former Workers Compensation Commission (WCC). In particular, it concerns an application for reconsideration to allow for a further medical assessment by a Medical Assessor in circumstances where the original medical assessment was subject to a Medical Appeal Panel (MAP) decision and a COD giving effect to that decision.
For the reasons discussed below, the application is dismissed.

BACKGROUND

On 20 May 2011, the applicant injured her lower back in the course of her employment with the respondent as a factory worker.
On 17 October 2014, the applicant underwent L4/5 partial laminectomy at the hands of Dr Papantoniou. It is accepted that this surgery was a result of the accepted injury in 2011. The costs of surgery was paid by the respondent.
On 10 March 2016, the former WCC issued a Medical Assessment Certificate (MAC) of the applicant’s whole person impairment in respect of injury on 20 May 2011. The assessment was undertaken by Dr Meakin. Dr Meakin assessed the applicant with 12% whole person impairment in respect of the injury, comprising of 12% for her lumbar spine and 0% for scarring.
On 6 April 2016, the applicant appealed the MAC pursuant to s 327 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The basis of the appeal concerned an alleged application of incorrect criteria and a demonstrable error in the MAC, in relation to the assessment of scarring. A delegate of the Registrar of the WCC issued a decision allowing the appeal to proceed to a MAP.
On 21 June 2016, the MAP issued a decision confirming the MAC.
On 26 July 2016, Deputy Registrar and Arbitrator Annette Farrell through the WCC issued a COD. The COD was issued in accordance with the MAC. It ordered the respondent to pay the applicant compensation in respect of 12% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act).
On 2 September 2022, the applicant underwent further lumbar spine surgery.
On 6 June 2024, the applicant lodged an application for reconsideration of the COD and MAP decision.
On 26 July 2024, the respondent lodged a reply opposing the application.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the Personal Injury Commission (Commission) should exercise its discretion to reconsider the COD of 26 July 2016, pursuant to s 57 of the PIC Act, and
(b) whether the matter should be referred for further assessment.
The following matters were agreed:
(a)    That there were no pending non-court pre-establishment proceedings. That cls 14B, 14C and 14E of Div 4A of Sch 1 of the PIC Act are not relevant.
(b)    That the applicant seeks that the COD is rescinded, to give way for a further medical assessment for permanent impairment for the purpose of a threshold dispute. That is:
(i)to determine whether the applicant meets the threshold for a worker of “high needs” for the purpose of weekly benefits pursuant to ss 32A and 39 of the 1987 Act;
(ii)to determine the threshold for domestic assistance pursuant to s 60AA of the 1987 Act, and
(iii)to determine the threshold for work injury damages pursuant to s 314 of the 1998 Act.
(c)    That the matter would proceed based only on the oral submissions provided during the arbitration hearing, given that the position of the applicant had substantially changed during the course of different sets of written submissions lodged prior to the conciliation conference and arbitration hearing.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Each party filed submissions in relation to the reconsideration application.
The parties requested that the matter be listed for a preliminary conference. On
16 August 2024, the matter was listed for a preliminary conference. During the preliminary conference, it became clear that the position of the applicant and the purpose of the reconsideration application had changed.
In view of the nature of the issues and the change in scope of the application, I issued a direction. I directed, amongst other things, that the applicant lodge and serve submissions articulating the basis for the reconsideration application. I also granted the parties’ request that the matter be listed for a conciliation conference and arbitration hearing so that the legal issues could be ventilated by counsel.
On 1 October 2024, the matter was listed for conciliation conference and arbitration hearing. Mr Stephen Hickey, of counsel, appeared for the applicant instructed by Mr Danny Lam of Longton Compensation Lawyers. Ms Sarah Warren, of counsel, appeared for the respondent instructed by Ms Jennifer Parkes, of Hicksons Lawyers.
The parties were unable to reach a resolution of the dispute during the conciliation phase of proceedings.
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

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application for reconsideration, and documents in support, dated 6 June 2024;
(b)    Reply to Application for reconsideration, and documents in support, dated
26 July 2024;
(c)    Direction dated 16 August 2024;
(d)    Amended Application for reconsideration, and documents in support, dated 30 August 2024, and
(e)    Further reply dated 13 September 2024.

SUBMISSIONS

Applicant’s submissions

The applicant refers to the history of the proceedings.
The applicant also refers to her medical history and progression of symptoms after the COD, including her second lumbar spine surgery on 2 September 2022. The applicant asserts that her condition deteriorated from 2017 and certainly changed when she had surgery in September 2022. However, the applicant concedes the only evidence demonstrating a change in the assessment of the degree of permanent impairment when compared to the MAC is Dr Guirgis’ report of 27 February 2024.
The applicant submits that if it is accepted that there has been a deterioration, then it is necessary to consider the application under s 57 of the PIC Act and whether the principles in Samuel v Sebel Furniture Limited (Samuel v Sebel)[1] have been made out. The applicant submits that Samuel v Sebel considered former s 350 of the 1998 Act which is reflective of the current s 57 of the PIC Act. The applicant refers to and relies on the decision in Kingham v White, Executive Director of Catholic Schools and Representatives from Catholic Education Office Sydney (Kingham).[2]
[1] [2006] NSWCCPD 141.
[2] [2024] NSWPIC 500.
The applicant asserts that it is necessary to look at the transitional provisions of the PIC Act. The applicant refers to cl 14F of Div 4A of Sch 1, in particular, sub-cl (3). The applicant asserts that “[i]t’s saying that in a reconsideration under s 57 that clause 14F applies”. The applicant contends that the new legislative provisions under the PIC Act are to be exercised by the new decision-maker in respect of the completed pre-establishment proceedings. The applicant adds that there is “no doubt that the proceedings which the worker seeks relief were completed before the establishment date” which is 1 March 2021.
The applicant concedes that her condition did not deteriorate on the evidence until post the Commission’s establishment date. The applicant did not have any firm evidence of the extent of the deterioration until after surgery on 2 September 2022 and then early 2024 when maximum medical improvement was obtained and Dr Guirgis provided a further report on assessment.
The applicant refers to cl 14F(3) and states that the new review provisions, namely s 57 of the PIC Act, may be applied to rescind the 2016 COD. The applicant conceded that the recission “must take place if there is to be a further medical assessment of the worker based on that deterioration” which the applicant submits is available on application of the Samuel v Sebel test and the evidence.
The applicant also refers to the definition of decisions and decision-makers in the PIC Act, under cl 14A. The applicant adds that cl 14F allows the new decision-maker to apply the new s 57 of the PIC Act in relation to the proceedings. The applicant asserts that she is “not addressing unexercised right because … that’s not the worker’s case here”.
The applicant contends that original decision-maker includes the Approved Medical Specialist and a MAP because the original decision-maker in relation to the proceedings fits the definition of “pre-establishment of proceedings” as defined. The applicant submits:
“So the new decision-maker in the first instance, a Commission or yourself in determining this matter and secondly, dealing with the pre-establishment proceedings you can reconsider and for the purposes of a medical appeal as sought ultimately rescind or revoke for the purpose of that application but not only the - because you’re doing this as a new decision-maker under the current law of section 57 you can rescind or revoke not only the Certificate of Determination but also the decision in the proceedings being the prior proceedings, the pre-establishment proceedings being the Medical Assessment Certificate determining the worker’s section 66 rights at that time and if needs be, and I submit should be any decision of the MAC if it had effect also.
…
when one looks at clause 14F it prescribes invoking the new - the new law which is section 57 for decisions that are not - sorry, for decision-makers looking at matters that are not otherwise caught by clause 14D which are unexercised right-type issues.”
The applicant further submits that s 57 of the PIC does not limit the words “the Commission” to a Member of the Commission. The force and definition of decision and decision-maker in cl 14F (when read with the definitions in cl 14A) allows for the broad interpretation to extend to a decision of a MAP and Approved Medical Specialist under the former WCC. The applicant adds that the definitions:
“…brings into the ring all of those as alternative decision-makers because we’re looking at the definition of original decision-maker in relation to proceedings or an unexercised right means the person, court or other body having that function of dealing with the proceedings or the exercise of the right immediately before the establishment date.
…
Cl 14F together with the definition section provides for including a reconsideration and thus a decision for the purposes of going forward with a medical- a further medical assessment of the worker whether it be by way of section 327, subsection (a) or subsection (b) or section 329 and I wanted to submit that in this case as the Medical Appeal Panel simply ..(not transcribable 01:11:32).. confirmed the decision of the Medical Assessor - sorry, the Approved Medical Specialist we’re really dealing with an application to - by way of appeal or reconsideration of the medical assessor’s certificate or MAC.”
The applicant then sought to rely on s 329(1)(a) of the 1998 Act as a basis for a further assessment, but conceded that there was no appeal on foot.
The applicant refers to s 322A(4) of the 1998 Act, which provides that that provision does not affect the operation of s 327 of the 1998 Act (an appeal against a medical assessment). The applicant then conceded that case law provides that s 329 does not extend to permanent impairment because of s 322A but that is why she does not advance a claim or an outcome under s 66 for payment of compensation in this case.
The applicant submits that even if it were found that the MAP decision could not be rescinded, s 329 does not restrict her from referral for a further assessment. Alternatively, the relevant assessment is the MAC not the MAP decision which counts because the MAP’s assessment is the assessment by the Approved Medical Specialist. There was no further assessment by way of reduction or increase, the MAP just confirmed the MAC and the Approved Medical Specialist’s decision. It is the Approved Medical Specialist’s decision that is in issue; the original MAC.
The applicant then refers to the principles in Samuel v Sebel. The delay is explained on the history, as proceedings could not have been commenced until the applicant’s condition had stabilised and properly assessed. This ought not prejudice the respondent’s position. Having regard to all that she has endured, the discretion should be exercised as the greater prejudice would fall to the applicant. The applicant refers to the public interest that litigation should not be indefinite and that this should be set against the provision in ss 322A(4) and 327(3)(a) and (b) of the 1998 Act to allow the assessment under s 329 of the 1998 Act if there is a deterioration or fresh evidence. The applicant submits there are no estoppel issues and the evidence on deterioration could not have been obtained until the surgery occurred post the COD.
The applicant sought that the COD and MAP be rescinded pursuant to s 57 of the PIC Act and the matter referred to a Medical Assessor for further assessment of whole person impairment in respect of injury on 20 May 2011 pursuant to s 329 of the 1998 Act or alternatively the applicant may pursue an appeal pursuant s 327(3)(a) or (b) of the 1998 Act. The applicant also sought that the MAC and MAP decision be rescinded until the further assessment is undertaken, and, if there is no further assessment of increase the MAC and MAP decision would stand.

Respondent’s submissions

The respondent did not concede that the applicant suffered a deterioration of her lumbar spine injury, but did not provide any submissions on deterioration.
The respondent submits that the applicant seeks to rely on cl 14F to enliven a jurisdiction under s 57 of the PIC Act. The applicant does not rely on cl 14D. The respondent contends that cl 14F does not apply and s 57 does not provide jurisdiction to interfere with a decision of the WCC or a MAC or MAP decision issued in 2016.
The respondent contends that s 57 of the PIC Act should not be unduly extended in order to fit the proposition being put by the applicant. Section 57 is limited to a decision of the Commission, because s 5 defines the Commission to include the Commission established by the PIC Act. The former WCC was established under the 1998 Act. Section 57 does not extend to the WCC, which existed prior to 1 March 2021.
The respondent also submits that Medical Assessors and Members of the MAP do not form part of what is determined as the Commission and defined as the Commission. The respondent refers to ss 8 and 9 of the PIC Act. Even if it was a decision of the Commission, the decision-makers are not Members of the Commission. The respondent relies on the decision in Kapp v St Joseph’s Village Limited[3] and Campbelltown City Council v Vegan.[4]
[3] [2023] PIC 685, [71].
[4] [2006] NSWCA 284, [53].
The respondent acknowledges principles of comity but submits that the decision in Kingham is not binding as it does not provide any details or any reasoning for finding that cl 14F applies. The respondent adds that the Member unduly extended and constrained cl 14F in order for the jurisdiction in s 57 of the PIC Act to apply.
The respondent refers to the principles of statutory construction, relying on Alcan. The respondent submits that the interpretation of legislation should not go beyond the ordinary and grammatical sense of the statutory words. Before any principles of statutory construction can be taken an anomaly or ambiguity must exist.
The respondent submits that cl 14F(1) limits the application of the clause to apply in two specific types of proceedings; (a) pending proceedings completed under subdivision 2 and (b) proceedings commenced and completed under subdivision 3. The prior proceedings were completed through the WCC, not the Commission, and before the establishment of the Commission. The COD does not fit within either of those types of proceedings.
In terms of cl 14F(1)(b), the respondent submits this needs to be read with cls 14D and 14E in subdivision 3. These were not proceedings that were brought under subdivision 3. The applicant cannot get past cl 14F(1), because the ordinary and grammatical meaning of the words used provide a definition and provide what that clause applies to. There is no ambiguity in the wording used. It does not refer to proceedings that were completed prior to the establishment of the Commission as a whole. It is limited to those two types of proceedings. If the applicant’s position is to be accepted there would be “no meaningful subdivision 3 to exist because they would all be part of pre-established – completed pre-establishment proceedings or pre-establishment proceedings”. There is work to do in cls 14D and 14E, and they are the type of proceedings contemplated under subdivision 3. The COD does not fit within those provisions.
The respondent refers to cl 14(2) where it refers to the “new review provisions”. The respondent submits that the ordinary and grammatical terms of the words used makes it clear that that refers to proceedings that have carried across to when the Commission exists.
There is no jurisdiction to make the orders that the applicant seeks. A reconsideration of the COD is not available under s 57 of the PIC Act. This was confirmed in the decision of Cannell.[5]
[5] Department of Communities & Justice v Cannell [2024] NSWPICPD 32, [286]-[289].
The respondent submits that s 329 of the 1998 Act cannot be used to reconsider appeal panel decisions. The respondent relies on the decision in Myers v Andrew Miedecke Motors Pty Ltd.[6] The repeal of s 378 of the 1998 Act which provided a safety valve to reconsider a decision of an appeal panel was removed. Even if the power were enlivened under s 378 of the 1998 Act it would not be exercised by a Member.
[6] [2024] NSWPIC 357, [26].
The respondent submits that the applicant is only allowed one appeal under s 327 of the 1998 Act. The applicant has not made a subsequent appeal under s 327. That one appeal occurred in 2016. The applicant has exhausted her entitlement to an appeal. The respondent relies on the decision in Sleiman v Gadall Pty Ltd.[7]
[7] [2021] NSWCA 236, [96].

The respondent concedes that if jurisdiction was found, then the principles of reconsideration set out in the decision of Samuel v Sebel apply to s 57 of the PIC Act. The respondent refers to the principle of finality of litigation and the fact that the decision the subject of the reconsideration application is eight years old. There is a lack of clarity on the evidence on what occurred between 2017 and 2022, and there is no specific information in regard to when the applicant took steps to seek medical assistance during that period. There is no evidence as to when the applicant’s condition stabilised or what it was like between September 2022 and February 2024. There is no evidence as to what occurred between the report in February 2024 and the application in June 2024. This is part of the relevant considerations that must be taken into account when considering whether the discretion should be exercised. The matter was properly determined in 2016 and rescission of the COD will not bring finality to the proceedings but reopen litigation. The discretion under s 57 of the PIC Act should not be exercised in the circumstances.

Applicant’s submissions in reply

The applicant raises reliance on cl 14H, which she said sprung from the respondent’s submissions on cl 14F. If cl 14F does not assist the applicant, then cl 14H does because it cannot be said after establishment date that the existing order of the original decision-maker and decision-makers defined in cl 14A is not a decision taken to be an order made by the Commission in determining the present matter. The applicant submits:
“You are the new decision-maker and it’s taken to be your decision so you can revisit under section 57 a decision that is taken to be your decision because that gives you the power.”
The word “order” used in cl 14H includes a determination of a certificate or assessment, which when read with cl 14A, extend to the decisions of the WCC, including those of a medical specialist and appeal panel.

Respondent’s submissions in response

The applicant arguably raised a new issue, regarding the application of cl 14H. For reason of procedural fairness, I provided the respondent an opportunity to address the application of that clause in response to the applicant’s submissions.
The respondent submits that cl 14H does not apply. It unduly extends the meaning of the terminology used in that clause, because cl 14H(2) provides that this clause is subject to the other provisions of the schedule. Clause 14H is therefore restricted by the provisions in the schedule, including cl 14D.

Applicant’s further submissions in reply

The applicant had no further submissions in reply.

RELEVANT LAW

Section 57 of the PIC Act provides:
“57   Reconsideration of decisions of Commission
(1)     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.
(2)     If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)  alter the decision to correct the error, or
(b)  direct a registrar to alter the decision to correct the error.
(3)     Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)  issue a replacement certificate with the error corrected, or
(b)  direct a registrar to issue a replacement certificate with the error corrected.
(4)     If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)     If a replacement certificate is issued, the certificate prevails over any previous certificate.
…”
Schedule 1 to the PIC Act provides for savings and transitional provisions consequent on enactment of that Act. Division 4A of Sch 1 to the PIC Act is headed “Completion of existing proceedings”. It provides cls 14A-14H which provides savings and transitional provisions in respect of pending proceeding, unexercised rights concerning proceedings, review of completed pre-establishment proceedings, allocation of transitional proceedings and enforcement of existing orders.
Clause 14A of Div 4A of Sch 1 to the PIC Act provides:
“14A Interpretation(1)
In this Division—
commence, in relation to proceedings, includes lodge or file an application or a document seeking the exercise of a function.
decision includes a purported decision or a refusal or failure to make a decision.
new decision-maker, in relation to proceedings or an unexercised right, means the person, court or other body given the function, on and from the establishment day, of dealing with the proceedings or the exercise of the right instead of the original decision-maker because of amendments made to the motor accidents legislation or workers compensation legislation.
Example—
Schedule 6 makes amendments to confer or impose functions of the WCC under the workers compensation legislation on the Commission.
original decision-maker, in relation to proceedings or an unexercised right, means the person, court or other body having the function of dealing with the proceedings or the exercise of the right immediately before the establishment day.
…
pre-establishment proceedings means—
…
(b)
proceedings that, before the establishment day, were required or permitted under the workers compensation legislation to be dealt with by—
(i)    the WCC or a member of the WCC, or
(ii)     the Registrar of the WCC or a delegate of the Registrar, or
(iii) an approved medical specialist appointed under Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998, including a senior approved medical specialist, or
(iv) an Appeal Panel for a medical assessment constituted under Workplace Injury Management and Workers Compensation Act 1998, or
(v) a mediator appointed under section 318F of the Workplace Injury Management and Workers Compensation Act 1998.
…
proceedings includes an application for, or an appeal against, the exercise of a function.
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.
…”
Clause 14F of Div 4A of Sch 1 to the PIC Act provides:
“14F New law to apply to certain matters
(1)     This clause applies to the following proceedings (completed pre-establishment proceedings)—
(a) pending proceedings completed under Subdivision 2,
(b) proceedings commenced and completed under Subdivision 3.
(2)     The new review provisions, if any, apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings instead of the old legislation.
(3)     The new review provisions are the provisions of the new legislation applicable to appeals against or reviews of decisions of new decision-makers that correspond, or substantially correspond, to provisions of the old legislation for decisions of the same kind.
(4)     Without limiting subclause (2)—
(a) section 7.24 of the Motor Accident Injuries Act 2017, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3, and
(b) section 62 of the Motor Accidents Compensation Act 1999, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3.
(5)     In this clause—
new legislation means this Act and statutory rules under this Act, the motor accidents legislation and the workers compensation legislation, as in force on or after the establishment day.
old legislation means the motor accidents legislation and workers compensation legislation, as in force immediately before the establishment day.”
Clause 14H of Div 4A of Sch 1 to the PIC Act provides:
“14H Continuation of existing orders
(1)     An existing order of an original decision-maker made or issued under the motor accidents legislation or workers compensation legislation is taken, on and from the establishment day, to be an order made by the new decision-maker under the corresponding provision, if any, of this Act or the legislation as amended by this Act.
(2)     This clause is subject to the other provisions of this Schedule.
(3)     In this clause—
corresponding provision means a provision corresponding, or substantially corresponding, to the provision of the motor accidents legislation or workers compensation legislation under which the existing order was originally made.
existing order of an original decision-maker is an order made or issued by the decision-maker before the establishment day, and includes an order that would have come into effect on or after the establishment day.
order includes a determination, certificate or assessment.”
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.”

Reconsideration principles

The factors relevant to the power to reconsider under s 350(3) of the 1998 Act was discussed by Deputy President Roche in Samuel v Sebel Furniture Limited.[8] It is accepted that these principles are applicable to the reconsideration power under s 57 of the PIC Act. These principles have been applied in several Commission decisions, applying s 57 of the PIC Act.[9]
[8] Samuel v Sevel Furniture Limited [2006] NSWWCCPD 141, [58].
[9] Department of Communities & Justice v Cannell [2024] NSWPICPD 32; Kapp v St Joseph’s Village Limited [2024] NSWPIC 406.

FINDINGS AND REASONS

The Commission has assumed the jurisdiction of the WCC, and has the power to reconsider former WCC decisions. However, the extent of that jurisdiction is constrained by the terms of Sch 1 to the PIC Act.
The parties accepted that the 2016 COD must be set aside, before any “further assessment” or appeal is considered or undertaken. This is to avoid inconsistent decisions and because of the application of ss 322A(3) and 327(7) of the 1998 Act, which provides that no appeal or further assessment may be made unless the COD is revoked or set aside.[10] Further, s 329(2) of the 1998 Act provides that a further certificate (MAC) is to prevail over any previous certificate. A further assessment may result in inconsistent assessments of the degree of permanent impairment (and therefore inconsistent decisions) where the COD and MAP decision are not set aside before any further assessment takes place.
[10] Sleiman v Gadalla Pty Ltd [2021] NSWSC 86, [115] (per Harrison AsJ).
During discussion about the Commission’s jurisdiction to hear the applicant’s application, the applicant confirmed that she only relied on the reconsideration power under s 57(1) of the PIC Act to set aside the COD.

Deterioration

I will first deal with the issue of deterioration briefly, as it provides context to the way in which the matter has been run, disputed and ultimately decided.
The respondent did not concede that the applicant has suffered a deterioration, but did not provide any submissions to support an argument that there was no deterioration. Having regard to the evidence, it must be accepted that at the very least the applicant’s condition in her lumbar spine deteriorated after she underwent a further spinal surgery on 2 September 2022 and after the issue of the COD.
The occurrence of the applicant’s spinal fusion surgery on 2 September 2022 would ordinarily attract an additional impairment rating in accordance with the SIRA NSW workers compensation guidelines for the evaluation of permanent impairment (4^th ed, March 2021) (Guidelines).[11] However, it must be accepted that the only evidence of a change in the applicant’s degree of permanent impairment is found in the report of Dr Guirgis, consultant orthopaedic surgeon qualified by the applicant, dated 27 February 2024.
[11] SIRA NSW workers compensation guidelines for the evaluation of permanent impairment (4^th ed, March 2021), 4.37.
Dr Guirgis opined that the applicant’s condition in her lumbar spine had stabilised and that she had attained maximum medical improvement, following her second surgery in September 2022. Dr Guirgis also opined that the applicant’s whole person impairment following the lumbar spine fusion surgery attracted DRE Lumbar Category IV, in accordance with the Guidelines. He assessed the applicant to have 27% whole person impairment in respect of the injury to the lumbar spine, which comprised of 25% for the lumbar spine (incl. 3% modifiers for surgery and effect of activities of daily living) and 2% for scarring - TEMSKI.
Whether the applicant’s surgery and symptoms thereafter resulted in a deterioration that increases the degree of overall permanent impairment assessed is a matter for a Medical Assessor and/or MAP. However, the available evidence demonstrates there is a deterioration. There is no evidence to the contrary. The main significance of this relates to the question of whether the discretionary power to reconsider should be exercised, where the applicant succeeds on the jurisdictional question.

Jurisdiction of the Commission

It has been held that the Commission does not have power to reconsider former WCC decisions pursuant to s 57 of the PIC Act and, in other cases, not unless permitted by Sch 1 of the PIC Act.
In Secretary, Department of Communities & Justice v Cannell,[12] Acting Deputy President Nomchong SC considered the application of the reconsideration power and Sch 1 of the PIC Act. The Acting Deputy President said:
“The appellant correctly identified that the only statutory power available to the Commission to reconsider the COD dated 4 April 2019 was that in the repealed s 350(3) of the 1998 Act. As such, the appellant correctly identified that the respondent worker would be required to satisfy the savings and transitional provisions in Div 4A, Subdiv 3 of Sch 1 to the 2020 Act in order to proceed. This is because the COD dated 4 April 2019 was made prior to the establishment of the Commission and whilst s 57 of the 2020 Act permits the Commission to reconsider its own decisions, that power does not extend to a reconsideration of decisions made by WCC.”[13]
[12] [2024] NSWPICPD 32.
[13] Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32, [286].
Acting Deputy President Nomchong SC further stated that:
“By reason of the fact that s 350 was repealed by the 2021 amendments, in order for the Commission to have the power to deal with the respondent worker’s application, I must be satisfied that the provisions of Div 4A, Pt 2 of Sch 1 of the 2020 Act are met.”[14]
[14] Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32, [292].
The applicant confirmed that it did not press a case that she had an “unexercised right to commence these proceedings” under repealed s 350(3) of the 1998 Act, due to cl 14D of Div 4A of Pt 2 of Sch 1 of the PIC Act. This is understandable given that the applicant conceded that there was no evidence of deterioration in her condition until after the surgery in September 2022. Indeed, there was no evidence of a change in the applicant’s overall degree of permanent impairment until the report of Dr Guirgis on 27 February 2024. On both accounts, even if it were accepted that the applicant suffered a deterioration from the degree of impairment that was certified in the MAC (and confirmed in the MAP decision) that deterioration did not occur (or was not realised on the evidence) until after the establishment of the Commission.[15]
[15] See Riverina Wines Pty Ltd v Workers Compensation Commission of New South Wales [2007] NSWCA 149, [1] (per Hodgson JA) discussing what constitutes a “deterioration”.
It is also accepted that the present proceedings were completed through the WCC and before the establishment of the Commission. Indeed, the COD which finalised the proceedings was issued in 2016 over four years before the establishment of the Commission.
Notwithstanding the above and the applicant’s apparent concession that the proceedings do not involve “pending” proceedings under subdivision 2 of Div 4A to Sch 1 or “unexercised rights” under subdivision 3 of Div 4A to Sch 1, the applicant pressed the reconsideration application under s 57 of the PIC Act.
The applicant relied on cls 14H and 14F of Div 4A to Sch 1 of the PIC Act to enliven the Commission’s jurisdiction under s 57 of the PIC Act to set aside the 2016 COD. Whether or not the Commission has jurisdiction to entertain the applicant’s application requires an analysis of the construction of cls 14H and 14F.
It is well accepted that the question of construction is to be determined by reference to the “text, context and purpose of the Act”.[16] I must give effect to the plain terms of cls 14H and 14F of Div 4A to Sch 1 of the PIC Act and construe the provision so that it is consistent with the language and purpose of the statute.[17]
[16] Military Rehabilitation and Compensation Commission v May [2016] HCA 19, [10].
[17] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, [69], [71] (per Brennan CL, McHugh, Gummow, Kirby and Hayne JJ).
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Alcan),[18] 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.”[19] (footnotes omitted)
[18] [2009] HCA 41; 239 CLR 27.
[19] [2009] HCA 41; 239 CLR 27, [47].

Clause 14F

I do not accept that cl 14F, of Div 4A of Sch 1 to the PIC Act, has the construction contended by the applicant.
I accept the respondent’s submissions.
Clause 14F is headed “New law to apply to certain matters”. Clause 14F(1) provides that this clause is to apply to completed pre-establishment proceedings which are either “pending proceedings completed under Subdivision 2” or “proceedings commenced and completed under Subdivision 3”.
The applicant cannot satisfy the first condition of cl 14F(1). Firstly, the proceedings are neither “pending proceedings” completed under Subdivision 2. Secondly, the applicant did not have an “unexercised right” concerning the proceedings. Indeed, the applicant made clear that she did not seek to rely on cl 14D, “unexercised rights to commence non-court proceedings”.
It must follow that the applicant’s construction of cl 14F fails. I accept the respondent’s submission that any other interpretation, or the interpretation pressed by the applicant, would unduly extend the plain terms and intention of cl 14F(1). It would also arguably cause subdivision 2 and 3 to have no work to do. It would displace the substantive purpose of the transitional provisions which is to provide for how pending proceedings and unexercised rights concerning proceedings before the WCC are to be addressed in Commission proceedings.

If I am wrong, I do not accept that the applicant’s construction permits a departure from the plain terms of cl 14F(1) when read with the remainder of that clause.
Clause 14(2) and (3) provides that the “new review provisions”, such as s 57 of the PIC Act, apply to a decision of a new decision-maker in completed pre-establishment proceedings instead of the “old legislation”.
The “new review provisions” are the provisions of the “new legislation” applicable to reviews of new decision-makers that correspond, or substantially correspond, to the provisions of the old legislation for decisions of the same kind.[20]
[20] 2020 Act, cl 14F(3) of Div 4A of Sch 1.
The “new legislation”, for the purposes of these proceedings, is the workers compensation legislation as in force on or after the establishment day.[21] That legislation is the PIC Act, 1987 Act and 1998 Act.
[21] 2020 Act, cl 14F(5) of Div 4A of Sch 1.
The “old legislation”, for the purposes of these proceedings, is the workers compensation legislation as in force immediately before the establishment day.[22] That legislation is the 1987 Act and 1998 Act, as it stood before 1 March 2021.
[22] 2020 Act, cl 14F(5) of Div 4A of Sch 1.
Having regard to cl 14(2), it is clear that s 57 of the PIC Act is the new reconsideration “review provision” that corresponds or substantially corresponds to former reconsideration power under repealed s 350(3) of the 1998 Act. However, s 57 is to apply in relation to a “decision of a new decision-maker in completed pre-establishment proceedings” which are completed proceedings set out under subdivision 2 or 3. For the reasons set out above, the present matter does not fall within either subdivision 2 or 3.
Applying the plain terms of cl 14F, it is clear that the clause does not extend to enliven the Commission’s jurisdiction to reconsider the 2016 COD pursuant to s 57 of the PIC Act. This is consistent with the approach adopted in the decision in Secretary, Department of Communities & Justice v Cannell, of which I am bound.[23]
[23] [2024] NSWPICPD 32.

Comity

I do not accept that I should adopt the decision Kingham, which applied cl 14F. The applicant does not explain in any detail her reliance on that decision or why it should be adopted.
I am not bound by the decision in Kingham, but accept that the doctrine of comity may apply in certain circumstances.[24] The decision considers a different factual matrix to the present proceedings. The proceedings in that matter did not involve an appeal to a MAP, unlike the present proceedings. Indeed, the Member rescinded the subject COD to allow for the applicant to bring an appeal pursuant to s 327 of the 1998 Act against the MAC.
[24] Secretary, Department of Education v Dawking, [2023] NSWPICPD 23, [111]-[112].
In the circumstances, even if principles of comity were to apply, I cannot follow this decision on the basis of the submission raised by the applicant.

Clause 14H

I do not accept that cl 14H of Div 4A of Sch 1 to the PIC Act has the construction contended by the applicant.
I accept the respondent’s submissions.
Clause 14H(1) provides that an existing order of an original decision-maker made or issued under the workers compensation legislation is taken, from establishment day of the Commission, to be an order made by the new decision-maker under the corresponding provision of the PIC Act or legislation amended by the PIC Act.
Clause 14H(2) provides that this clause is “subject to the other provisions of this Schedule”.
Clause 14H(3) defines “corresponding provision”, “existing order” and “order”. Corresponding provision is defined to mean a provision corresponding or substantially corresponding to the workers compensation legislation under which the existing order was originally made. An existing order is defined as an order of “an original decision-maker” made or issued before establishment day. Order is defined to include “a determination, certificate or assessment”.
Ther terms of cl 14H(1) provide that an existing order of an original decision-maker, such as the 2016 COD issued by Acting Registrar and Arbitrator, is taken to be an order made by a new decision-maker under the corresponding provision. In other words, the 2016 COD may be taken to be an order made by a Member of the Commission.
However, this interpretation does not permit the exercise of discretion under s 57 of the PIC Act to reconsider the 2016 COD or even a medical assessment certificate or appeal panel decision. That is because cl 14H(1) must be read with cl 14H(2) which provides that the clause is “subject to the other provisions of this Schedule”. In particular, cl 14F limits the application of the new law (that is, s 57 of the PIC Act) to apply to completed pre-establishment proceedings under subdivision 2 and 3. For the reasons set out above, the present proceedings do not fall into either category.
For the reasons set out above and also in respect of cl 14F, cl 14H does not enliven the Commission’s jurisdiction under s 57 of the PIC Act to reconsider the 2016 COD.

Reconsideration of the MAP decision (and MAC)

The applicant purported to contend that I had discretion to reconsider or rescind the MAP decision (and even the MAC) pursuant to s 57 of the PIC Act, on the basis of the application of cl 14F.
To the extent the applicant sought to argue that s 57 of the PIC Act may extend to decisions of MAPs or Medical Assessors, I do not accept that submission for the reasons that follow:
(a)    Firstly, for the reasons set out above, in the present circumstances, I do not accept that s 57 of the PIC Act is enlivened by the transitional provisions set out in Sch 1.
(b)    Secondly, for the reasons set out above, the 2016 COD cannot be reconsidered under s 57 of the PIC Act. It is accepted that the COD must first be rescinded before any reconsideration of the MAP decision or MAC or further assessment may be considered.
(c)    Thirdly, s 57 provides that the Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division. The words of that provision are plain. Notwithstanding cl 14F, s 57 does not extend to a decision of a Medical Assessor or MAP. That is because, the “Commission” is defined in s 5 of the PIC Act as the Commission of NSW established by the PIC Act. Section 8 of the PIC Act provides that the “Commission” is to consists of “members”. The membership of the Commission does not include Medical Assessors or MAPs. A Medical Assessor (or Approved Medical Specialist) is not a Member of the Commission. A MAP or MAC is not a matter which has been dealt with by a Member of the Commission, as defined. To the extent of any inconsistency between these terms and “decision” or “decision-maker” in Sch 1, the terms in s 57 as defined in s 5 and s 8 of the PIC Act must prevail.
(d)    Fourthly, I do not accept that the word “decision-maker” in cl 14A has a different meaning to “the Commission” in s 57 of the PIC Act or that “decision-maker” may be extended as the applicant submits. Decision-maker in Sch 1 means the person or body given the “function” of dealing with the proceedings before or on or after establishment of the Commission. There are no circumstances before, on, or after establishment of the Commission that provide that a Member of the Commission (or former Arbitrator) has the function of a Medical Appeal Panel or Medical Assessor to issue a MAC.[25] The applicant’s submission purport to suggest that a new decision-maker may overturn a decision of an original decision-maker, in circumstances where the new decision-maker does not have the same (or similar) power or function of the original decision-maker in entering the substantive decision. Such an interpretation is not well-founded and would result in unintended consequences.
(e)    Fifthly, s 378 of the 1998 Act which provided an avenue to reconsider a MAP decision was repealed with the commencement of the PIC Act.
(f)    Lastly, s 329 of the 1998 Act provides an avenue for reconsideration of a MAC but that provision is constrained where there is a final binding COD.
[25] 1998 Act, s 325.
There is no avenue to reconsider the MAP decision or the MAC in the present circumstances.

Further assessment

The applicant purported to press reliance on s 329 of the 1998 Act as an avenue to enliven a “further assessment”.[26] To the extent necessary, I will deal with this issue below.
[26] Kapp v St Joseph’s Village Limited [2024] NSWPIC 406, [50].
Section 329 of the 1998 Act does not permit a further assessment of the MAC, for the following reasons:
(a)    Firstly, for the reasons set out above, the 2016 COD cannot be reconsidered under s 57 of the PIC Act. It is accepted that the COD must first be rescinded before a further assessment may be considered.
(b)    Secondly, s 329 of the 1998 Act cannot be used for a further assessment in circumstances where there exists a COD and a MAP decision finally determining the rights of the parties. The decision of the MAP determined, conclusively, the applicant’s degree of permanent impairment of 12% in any proceedings before a court or the Commission.[27] The COD (and the proceedings) determined and finalised the applicant’s s 66 claim for lump sum compensation.[28] These decisions have not been set aside or revoked.
(c)    Thirdly, a “further assessment” could lead to inconsistent outcomes and decisions where the 2016 COD and MAP decision remain final and binding determinations of the Commission. There can only be one single assessment of the degree of whole person impairment, and, as a result, the COD must be set aside before any reconsideration by a MAP or further assessment.[29]
(d)    Fourthly, a “further assessment” in the circumstances is inconsistent with the intention of s 322A of the 1998 Act. That is, an applicant only has one opportunity for an assessment of permanent impairment. The applicant exercised that right when she made her claim for lump sum compensation, was assessed by an Approved Medical Specialist, which was later confirmed by a MAP and in the COD.
(e)    Fifthly, the applicant seeks to circumvent the finality of the COD and MAP decision by undertaking a “further assessment”. The applicant’s interpretation also suggests that the “further assessment” power under s 329 provides for what is in effect a reconsideration of a MAP decision. Such a course makes no logical sense. Further, the former MAP reconsideration power under s 378 of the 1998 Act was repealed. The applicant’s interpretation is clearly not what was intended by s 329, which is for a further assessment as an alternative to an appeal and/or where no appeal has been undertaken and there is no final binding COD.
(f) Lastly, the applicant has exhausted her one appeal right pursuant to s 327(3) of the 1998 Act as a method to address her deterioration.[30] Understandably, there is no further medical appeal application on foot.
[27] Sleiman v Gadalla Pty Ltd [2021] NSWCA 236, [10]-[11] (per Leeming JA).
[28] Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, [80]; Myers v Andrew Miedecke Motors Pty Ltd [2024] NSWPIC 357.
[29] Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE [2020] NSWCA 113, [55]. See also Meyers v Andrew Miedecke Motors Pty Limited [2024] NSWPIC 357, [29].
[30] See also 1998 Act, s 327(6).
There is no avenue for further assessment in the present circumstances.

SUMMARY

The plain words of the Sch 1 of the PIC Act are clear. In the present circumstances, cls 14F and H, when read with Sch 1, do not permit a reconsideration of the 2016 COD. In other words, the savings and transitional provisions under Sch 1 do not enliven the Commission’s jurisdiction under s 57 of the PIC Act to reconsider any relevant decision in the present proceedings.
While this construction may have an unfortunate result to limit the avenue for an injured worker to seek a remedy for a deterioration of their condition, the law must be applied according to its plain terms. Further, litigation should not continue indefinitely and there are sound reasons for a public interest in the finality of litigation. The applicant has had her one assessment of the degree of permanent impairment and exhausted her right to appeal that assessment certified in the MAC.
It follows that it is not necessary that I apply the general principles of reconsideration to the present matter.
As it is not permissible to reconsider the 2016 COD, it is not appropriate to entertain an application for reconsideration of the MAP decision or MAC or application for further assessment under s 329 of the 1998 Act. In any event, for the reasons set out above, I find that cls 14F and H do not extend to “decisions not otherwise caught by cl 14D”.
Accordingly, the application is dismissed.

[2024] NSWPIC 634

8 November 2024