Pollard v Toll Helicopters NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530
APPLICANT:	Christopher Pollard
RESPONDENT:	Toll Holdings Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	24 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; applicant sustained laryngeal impairment; claim for section 66 compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor (MA) Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by MA Williams; MA Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by MA Burns; Appeal Panel dismissed the appeal finding that error was that MA Williams did not undertake the assessment; applicant filed further application pursuant to section 329(1)(a) alleging error by MA Williams and seeking reconsideration of his assessment as an alternative to an appeal; discussion of the nature of this application as an alternative to an appeal; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission discussed and applied; ground of appeal made out as medical dispute not fully assessed; explanation of delay accepted as special circumstances exist; Robertson v Registrar of the Workers Compensation Commission referred and applied; discussion of one appeal and concept of medical assessment; Sleiman v Gadalla Pty Ltd discussed; context of legislation and reliance on section 322A that worker entitled to only one medical assessment; clause 1.20 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021) and multiple medical assessors; Held – finding that process is one medical assessment; finding that applicant has exercised his one appeal against the medical assessment; claim for further assessment dismissed.
DETERMINATIONS MADE:	The Commission determines: Order 1. The application pursuant to s 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is dismissed.

STATEMENT OF REASONS

BACKGROUND

Mr Christopher Pollard (the applicant) was employed by Toll Holdings Pty Ltd (the respondent) and sustained injury on 18 October 2018. The applicant was involved in helicopter underwater escape training when one of the participants panicked and accidentally kicked him in the throat.
The applicant brought proceedings seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The application was set down before a Personal Injury Commission (Commission) Member who issued consent orders dated 1 November 2023. The orders relevantly provided:
“The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)Date of Injury: 18 October 2023
(b)Body system: nervous system (sleep and arousal disorder), respiratory disorder and ear, nose and throat related functions (larynx dysfunction).”
The orders otherwise specified the material to be forwarded as part of the assessment.
The assessment of permanent impairment is undertaken in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (the Guidelines).[1] The Guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5).
[1] The Guidelines are issued pursuant to s 376 of the 1998 Act.

MEDICAL ASSESSMENTS

The President remitted the medical dispute for determination to two Medical Assessors, Medical Assessor Williams and Medical Assessor Burns. The former assessed ear, nose and throat related functions and Medical Assessor Burns assessed the remaining body systems.
Medical Assessor Burns issued a medical assessment certificate dated 16 February 2024. The Medical Assessor assessed the nervous system, after a s 323 deduction of one-third, at 10% permanent impairment. The Medical Assessor found that the assessment of permanent impairment of the respiratory system was 0% as the shortness of breath was due to the injury to the larynx and not due to injury to the lungs.
Medical Assessor Burns stated:
“Mr Pollard sustained a severe injury to his larynx and has ongoing laryngeal impairment, which is being assessed by another Assessor.”
Medical Assessor Williams issued a medical assessment certificate dated 16 February 2024. After concluding that the applicant sustained an injury to the larynx, the Medical Assessor assessed permanent impairment due to the effects on speech at 11% and permanent impairment due to difficulty swallowing (deglutition) at 10%.
The medical assessment certificate provided by Medical Assessor Wiliams does not assess loss of breathing impairment due to larynx injury. This issue is discussed later in these reasons.
Medical Assessor Williams provided a combined medical assessment certificate assessing 27% whole person impairment (WPI).

APPEAL

The applicant filed an appeal on 15 March 2024 restricted to alleging error in the assessment of Medical Assessor Burns based on s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2]
[2] I have adopted the common submission of the parties (see respondent’s submissions, paragraph 3 and applicant’s submissions in reply, paragraph 3).
The Appeal Panel provided reasons dismissing the appeal.[3] In relation to the grounds alleging error by Medical Assessor Burns for the assessment of the respiratory system, it noted that Table 11-6 of AMA 5 rates impairment due to shortness of breath where there is partial obstruction of various body parts including the laryngopharynx and larynx. The Panel noted that this view was consistent with the opinion expressed by Dr Johnson.[4]
[3] Pollard v Toll Helicopters NSW [2024] NSWPICMP 466 (Appeal Panel reasons).
[4] Appeal Panel reasons at [73].
The Panel noted that Medical Assessor Burns assessed the respiratory system under Chapter 5 of AMA 5 and Chapter 8 of the Guidelines and found no assessable impairment for those systems. After reviewing the medical opinions and the findings of Medical Assessor Burns, the Panel stated:
“77. Medical Assessor Burns’ MAC shows that he undertook his assessment in accordance with Table 5-12 and chapter 8 of the Guidelines. He made clear that he considered that Mr Pollard had a separate problem with his larynx, which was not part of the respiratory system and therefore not an impairment he was required to assess.
78. Addressing some of the submissions specifically, we do not agree that Medical Assessor Burns misdirected himself. He was aware of the distinction between breathing and lung function in AMA 5. The various test results show that Mr Pollard does not have a problem with lung function but that he has a significant and genuine problem with breathing due to the condition of his larynx. The submissions prepared for Mr Pollard merge breathing, respiratory disorder and lung function but those are separate concepts, particularly for assessment under AMA 5.
….
80. Medical Assessor Burns anticipated that Medical Assessor Williams would assess Mr Pollard’s impairment due to laryngeal dysfunction. That is what the parties contemplated by the consent orders. The fact that Medical Assessor Williams did not do that does not mean that Medical Assessor Burns’ assessment was in error. Medical Assessor Burns assessed the matters that were referred to him by the consent orders and his assessment of them does not disclose error.”
The Panel’s reasons correctly note that Medical Assessor Burns thought that Medical Assessor Williams was assessing shortness of breath due to laryngeal injury. This is clear from the reasons of Medical Assessor Burns when he stated:
“Mr Pollard sustained a severe injury to his larynx and has ongoing laryngeal impairment, which is being assessed by another Assessor.”

APPLICATION

The applicant filed an application on 5 July 2024 relying on s 329(1)(b) of the 1998 Act. The application requested that Medical Assessor Williams reconsider his medical assessment certificate on the basis that there was no assessment for shortness of breath due to the laryngeal injury under Table 6.2 of the Guidelines.
Those submissions asserted that the referral back for assessment under s 329(1)(b) was consistent with the objectives of matters heard before the Commission.[5]
[5] References were made to the just resolution of the real issues in the proceedings (s 42 of the Personal Injury Commission Act 2020 (PIC Act)) and the requirement by the Commission to act according to equity, good conscience and the substantial merits of the case (s 43).
This matter was listed for a telephone conference on 19 July 2024 following an email from the respondent’s solicitor describing the process as “incredibly improper”.[6]
[6] Respondent’s email dated 10 July 2024.
At the telephone conference the applicant then advised that he was relying on s 329(1)(a) of the 1998 Act. The parties’ attention was then drawn to the decision of the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW[7] in the context of an application under s 329(1)(a) of the 1998 Act. The relevance of that decision to the application of s 329(1)(a) is explained later in these reasons.
[7] [2007] NSWCA 149 (Riverina Wines).
Written submissions were then directed, and the following notations were made:
“1. The name of the respondent is amended for all purposes to read ‘Toll Holdings Pty Ltd’.
2. This application is brought pursuant to s 329(1)(a) of the 1998 Act as an alternative to an appeal from the Medical Assessment Certificate of Dr Williams dated 16 February 2024.
3. The material before me is the brief to the Medical Assessors, the medical assessments certificates, the Appeal Panel decision, and any submissions.”
The parties filed written submissions in accordance with the direction. The respondent was directed to file further written submissions in response.
The name of the respondent is corrected in light of these orders.

REASONS

A brief statement is required for the reasons for determination.[8]
[8] Section 294(2) of the 1998 Act.

Basis of application

As noted, the application is brought pursuant to s 329(1)(a) of the 1998 Act which relevantly provides that the matter referred for assessment may be referred “by the President as an alternative to an appeal against the assessment as provided by section 327”. Section 329(1)(a) by its express terms refers back to the appeal procedure contained in s 327 of the 1998 Act.
Section 327(6) of the 1998 Act notes that the President may refer the matter for further assessment as an alternative to an appeal. The power in s 327(6) assumes that there is an appeal because the sub-section refers to the “President” exercising the power as “an alternative to an appeal” and otherwise is contained within provisions relating to an appeal against a medical assessment.
Accordingly, the power of referral back for further medical assessment under s 327(6) and s 329(1)(a) can only exist if there is a right to appeal.
This reasoning is consistent with that what was stated by the Court of Appeal in Riverina Wines. At that time the power of the Registrar (now President) to refer an appeal to an Appeal Panel was expressed differently as s 327(4) then required a ground to “exist”. This has since been amended to a ground of appeal being “made out”. Those differences do not affect the comments made concerning the nature of the application pursuant to s 329(1)(a).
Campbell JA discussed the pre-condition of referring for further medical assessment when he stated that the Registrar (now President) was required to be satisfied that the gateway in s 327(5) had to be met. His Honour stated:[9]
“88 In my view, the intention of section 327(6) is that the Registrar can refer a medical assessment for further assessment as an alternative to an appeal against the assessment proceeding. Any question of an appeal proceeding (as opposed to being ‘made’) arises only if the appeal survives the exercise of the Registrar's gatekeeper function.
89 Nor do I accept the second of these submissions. Construing the section as a whole, and assuming, as one is entitled to take the legislature to have assumed, that the Registrar will act sensibly rather than irrationally, the Registrar would refer the medical assessment for further assessment only in circumstances where it appeared to the Registrar that at least one of the grounds specified in sub-section (3)(a) or (b) existed.”
[9] Riverina Wines at [88]-[89]; Hodgson JA agreeing.
Section 327(6) was otherwise described in Sleiman v Gadalla Pty Ltd as not expanding the elements of the appeal.[10]
[10] Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 (Sleiman) at [63].
Accordingly, this application can only succeed if the applicant is entitled to appeal the medical assessment of Medical Assessor Williams. There are various matters which may prevent an appeal from proceeding including that a ground of appeal has not been made out (s 327(4)), an appeal is filed out of time and special circumstances to extend time do not exist (s 327(5)) and/or when the one appeal right has been exercised.[11]
[11] Sleiman.
It is in the context of these observations concerning the nature of an application pursuant to s 329(1)(a) that the various submissions addressing whether the applicant is entitled to appeal the medical assessment of Medical Assessor Williams are analysed.
The written submissions did not follow a sequence identifying the various issues. The following headings and reasons discuss the issues raised in the written submissions.

Demonstrable error in not assessing laryngeal injury affecting breathing

As noted earlier, the application can only proceed if the applicant has shown relevant error within the meaning of s 327(4) of the 1998 Act, that is, that at least one of the grounds of appeal has been made out.
The applicant alleged that Medical Assessor Williams failed to assess impairment in respect of larynx-related dyspnea.[12] In its reply submissions the applicant described the error in the following terms:[13]
“The current application for reconsideration is made on the basis that the omission by Dr Williams is obvious and readily correctable, and that the reconsideration is preferable and more appropriate than proceeding with an appeal on the basis of demonstrable error. It is an omission that should be remedied by the Medical Assessor who was responsible for attending to assessment of impairment resulting from the applicant’s laryngeal dysfunction, not by a Medical Appeal Panel in circumstances in which that primary task of assessment has not been attended to.”
[12] Applicant’s submissions, paragraph 18.
[13] Applicant’s submissions in reply, paragraph 17.
This submission describes the appeal ground “on the basis of demonstrable error”.
A Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[14] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales,[15] a “demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist”.[16]
[14] [2018] NSWCA 324 (Vannini) at [91].
[15] [2008] NSWCA 101.
[16] Vannini at [86].
Medical Assessor Burns clearly stated that he was not assessing impairment of lung capacity as this was caused by “laryngeal injury with laryngeal spasm”.
The respondent in its submissions in reply noted that Medical Assessor Williams was aware of Medical Assessor Burns’ assessment and submitted:[17]
“As such it is clear the [sic] Dr Williams was fully aware that the applicant had suffered an injury to the larynx and had ongoing symptoms in the upper airway.
In addition to the history of injury to the larynx, Dr Williams recorded a history of the applicant’s symptoms and complaints of disability.
…
The fact that Dr Willams did not find permanent impairment under AMA 5, Table 11.6, which addresses air passage defects, does not mean that the doctor did not assess or consider laryngeal dysfunction. The relevant criteria for air passage defects set out in Table 11.6 relevantly requires (in addition to other factors) a finding on examination of partial obstruction of the larynx. Dr Williams did not make that finding on examination to permit him to make such an assessment.”
[17] Respondent’s submissions in reply, paragraphs 4-6.
There is little, if any basis, for the respondent to have made this submission. It did not refer to any factual matter or specific finding supporting the submission. The respondent made these submissions without referencing any portion of the findings of Medical Assessor Williams. It otherwise adopted the error made by the Appeal Panel and incorrectly referred to the wrong Table. This is because Table 6.2 of the Guidelines replaced Table 11-6 of AMA 5.[18] Class 1 of Table 6.2 of the Guidelines requires, amongst other matters, “partial obstruction” of certain body parts including the laryngopharynx and/or larynx for an assessment to be made due to air passage defects.
[18] Clause 6.8 of the Guidelines.
Medical Assessor Williams did not make any findings on whether there was partial obstruction of the larynx. It cannot be assumed, as the respondent suggested in its submissions, that the absence of a finding equates with a finding that there was no partial obstruction. There is otherwise no doubt, and is clear from every medical opinion, that the applicant has significant laryngeal dysfunction. The only issue is whether that dysfunction has resulted in permanent impairment under Table 6.2 of the Guidelines.
There was no assessment of laryngeal dysfunction resulting in air passage defect. The finding of Medical Assessor Burns contradicts the insurer’s submission concerning the impact of the injury on the air passage.
The detailed reasons of the Appeal Panel are contrary to the respondent’s submission. The Appeal Panel stated that the various test results show that the applicant “has a significant and genuine problem with breathing due to the condition of his larynx.”[19] The respondent has ignored these findings when submitting otherwise.
[19] Appeal Panel reasons at [78].
I accept the applicant’s submission that he was entitled to be assessed for laryngeal dysfunction causing passage defect under Table 6.2 of the Guidelines. This did not occur as Medical Assessor Burns assumed that Medical Assessor Williams was undertaking that task. The extent of any impairment, if any, should have been assessed by Medical Assessor Williams.
I accept that, in accordance with s 327(4), a ground of appeal has been made out as the applicant has shown demonstrable error by the failure of Medical Assessor Williams to assess any impairment of breathing due to the injury to the larynx. The demonstrable error arises as the impairment resulting from the laryngeal injury was referred but not fully assessed.[20]
[20] See the discussion of the scope of the medical dispute in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [46]-[48].

Explanation for the delay

The applicant is required to show, pursuant to s 327(5) of the 1998 Act, that there are “special circumstances” to justify an increase in the appeal period.
The meaning of “special circumstances” in s 327(5) of the 1998 Act was considered in Robertson v Registrar of the Workers Compensation Commission[21] citing the Full Court of the Federal Court decision in Jess v Scott.[22] Smart AJ stated (at [47]):
“The appellate courts have emphasised that in deciding whether an extension of time should be granted and special circumstances exist or some other criterion be met attention should focus on the facts of the particular case. Jess v Scott at 196 warned against reasoning from particular facts in a previous case without paying sufficient regard to the different situation before the decision maker on a later occasion. There is valuable guidance in Jess v Scott at 195 where it is pointed out how the concept of ‘special reasons’ should be approached. I would apply this approach to ‘special circumstances’ in s 327(5). The Full Court pointed out that the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. The Courts have held and urged Tribunals to hold that a solicitor's mistake takes the case out of the ordinary. See Mehta and Jess v Scott.”
[21] [2008] NSWSC 918 (Robertson).
[22] (1986) 12 FCR 187.

The parties were directed to this authority[23] and provided no submissions contesting it.
[23] See direction dated 28 August 2024.
The applicant provided detailed submissions explaining the delay.[24] Relevantly these are summarised as:
(a)    the applicant was mistaken in confining the appeal to a challenge against the assessment provided by Medical Assessor Burns;
(b)    this application was lodged within 30 days of the Appeal Panel decision when the real issue was identified as Medical Assessor Williams failing to assess the relevant impairment due to laryngeal dysfunction;
(c)    there is no dispute that the applicant has significant laryngeal dysfunction;
(d)    there was no just, equitable and merit based objection to Medical Assessor Williams attending to the assessment of laryngeal dysfunction, and
(e)    the failure by the applicant to address the failure of Medical Assessor Williams was a procedural mistake which invoked the Commission’s guiding principle of dealing with the matter in accordance with the “merit, good conscience and the substantial merits of the case”.
[24] Applicant’s further submissions, paragraphs 33-42.
The respondent submitted that the applicant has not provided any evidence in support of the delay and repeated its submission that Medical Assessor Williams made no error. It submitted:[25]
“The applicant has not given any explanation for the circumstances that led to the decision to appeal only the Medical Assessment Certificate of Dr Burns, when what is now said to be the real issue would have been quite apparent at the time the applicant’s appeal was brought.”
[25] Respondent’s reply submissions, paragraph 12.
The respondent submitted that it is prejudiced by reason of the incursion of costs in meeting the application and that the allowance of this procedure is contrary to the finality of litigation.
The applicant has, for the reasons outline above, clearly shown demonstrable error. His claim for the breathing defect has not been assessed and there is evident confusion shown by the Medical Assessors as to who was undertaking that task.
The explanation provided in the written submissions, whilst not evidence, is consistent with the underlying facts and what has occurred in the matter. That is, the applicant’s appeal was restricted to the medical assessment of Medical Assessor Burns and that this application arose following the Appeal Panel’s decision.
The explanation is consistent with the facts, that is, the applicant incorrectly appealed the medical assessment of Medical Assessor Burns. This was not an error by the applicant personally.
The respondent submitted that a factor in its favour was the principle of “finality”. However, a medical assessment certificate which is conclusively presumed to be correct (see s 326(1) and s 327(2) of the 1998 Act) is subject to a right of appeal in accordance with s 327 which can be filed out of time if special circumstances are shown. Indeed, the one assessment process contained in s 322A of the 1998 Act is expressly subject to a right of appeal pursuant to s 327 (s 322A(4)).
The delay is short and otherwise explained by the applicant’s realisation once the Appeal Panel provided its reasons. I consider the cost imposed on the respondent and the loss of the finality principle are of a modest nature when compared to the applicant’s loss of entitlement to have his case fully determined and his appeal right exercised. In that respect I accept the applicant’s submission that:[26]
“The extent of impairment resulting from the applicant’s laryngeal dysfunction is unquestionably a substantial and real issue in the proceedings. Its substantive importance is borne out by the fact that if impairment has resulted from the applicant’s laryngeal dysfunction, he would be entitled to further lump sum compensation, and would qualify for the rights and protections that are available to a worker with highest needs.”
[26] Applicant’s further submissions, paragraph 27.
I am satisfied that, based on the strength of the applicant’s claim for this body system, the failure to appeal the medical assessment of Medical Assessor Williams which was not the applicant’s personal fault, the importance of an increase in further lump sum compensation and the explanation for the modest delay, special circumstances are shown in this matter.

Applicant’s reliance on portions of Sleiman

The submissions showed error in respect of the reconsideration power which was the subject of a successful order in Sleiman.
The applicant relied on passages in Sleiman as supporting its position that “the appropriate avenue for determination of the worker’s claim on its merits [was] the reconsideration avenue[27] and that the “principles enunciated in Sleiman … confirms that the reconsideration avenue remains available in order to ensure substantive justice”.[28]
[27] Applicant’s further submissions, paragraphs 8 – 14.
[28] Applicant’s further submissions, paragraph 45.
This submission is incorrect.
The Court of Appeal in Sleiman held that there was only an entitlement of one appeal from a medical assessment. At that time, s 378 of the 1998, which is now repealed, provided that a party could request an Appeal Panel to reconsider its determination. It was that power, which the Court held provided the worker with an opportunity to request the Appeal Panel to reconsider its decision.[29]
[29] See Sleiman at [85]-[86].
The applicant’s submission (which is not repeated) relied on paragraph 95 of Sleiman and incorrectly equated the now repealed power under s 378 with the power under s 329.
The repealed right under s 378 of the 1998 Act for an Appeal Panel to reconsider its decision is saved pursuant to cl 14D of Sch 1 to the PIC Act which refers to an unexercised right to commence non-court proceedings. That provision was discussed in Dimos v Gordian Runoff Ltd[30] which found that the unexercised right is only available to be exercised when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party.[31]
[30] [2023] NSWSC 1151 (Dimos).
[31] Dimos, [69]-[70] and [77].
I have previously discussed the savings provisions for s 378 which apply in limited circumstances.[32] The timing of the present factual circumstances means that the savings provisions for s 378 are not available. That portion of Sleiman where the Court allowed a reconsideration pursuant to s 378 does not assist the applicant.
[32] See Baker v Southern Metropolitan Cemeteries Trust [2023] NSWPIC 593 and Barnett v Ingenia Communities Holdings Ltd [2024] NSWPIC 72.

Is this a second appeal prohibited by the legislation?

The 1998 Act allows only one appeal from a medical assessment: see Sleiman.
In Scone Race Club Ltd v Cottom[33] Basten JA described the decision of Sleiman in the following terms:[34]
“The third case to be addressed is Sleiman v Gadalla Pty Ltd. The reasoning in that case is only indirectly relevant to the present matter. Leeming JA (with the agreement of Gleeson and Payne JJA) concluded that the statute allowed only one appeal from a medical assessment. The commencing point for the reasons was s 322A, introduced into the Workplace Injury Act in 2012, which provides that there is to be ‘only one assessment… of the degree of permanent impairment of an injured worker’: s 322A(1). The section does not limit the right of appeal under s 327: s 322A(4).”
[33] [2024] NSWCA 34 (Cottom).
[34] Cottom at [34], Gleeson and Mitchelmore JJA agreeing.
Whilst not clearly articulated and lacking detailed submissions from either party, the critical issue comes down to the following competing submissions.
The applicant submitted that he has not filed an appeal from the medical assessment certificate issued by Medical Assessor Williams.[35] The respondent submitted that the applicant has exercised his appeal rights and that s 329 did not provide an entitlement after the appeal has been exercised.[36]
[35] See applicant’s submissions in reply, paragraphs [16], [19], [22].
[36] Respondent’s submissions, paragraph [12]-[15].
The issue is whether the applicant has separate rights of appeal from different medical assessments or only one right of appeal.
Section 319 of the 1998 Act defines a medical dispute to include “the degree of permanent impairment of the worker as a result of an injury”.
Section 321 provides that a medical dispute is referred for assessment to a Medical Assessor. The process for the assessment of permanent impairment is described in s 322 and set out earlier in these reasons.[37]
[37] See at [5].
Section 322A, introduced in 2012, restricts a worker to only one assessment, subject to the appeal rights contained in s 327 (see s 322A(4)). Section 322A(2) provides:
“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).”
Section 322A(3) otherwise notes the distinction between the “assessment” and the “medical assessment certificate”.
Section 325 requires the Medical Assessor to provide a medical assessment certificate as to the matters referred for assessment. The assessment certified in the medical assessment certificate is conclusively presumed to be correct in some but not all matters defined as a medical dispute (s 326). That presumption applies to “the degree of permanent impairment of a worker as a result of an injury” (s 326(1)(a)).
Section 327(1) provides for an appeal against the “medical assessment” that is appealable under that section.
Section 327(2) provides that a matter is appealable if the certificate is “presumed to be correct”. That limit refers to those classes of disputes contained in s 326 that are narrower than those defined in s 319.
Clause 1.20 of the Guidelines recognises that there may be multiple impairments in the case of complex injury. The clause provides:
“In the case of a complex injury, where different medical assessors are required to assess different body systems, a ‘lead assessor’ should be nominated to coordinate and calculate the final degree of permanent impairment as a percentage of WPI resulting from the individual assessments.”
It is not unusual that there will be different medical assessments in complex injury cases such as the present.
Medical Assessor Williams was appointed the lead medical assessor and calculated the final degree of permanent impairment. His medical assessment certificate is dated the same as the reasons issued by Medical Assessor Burns. That procedure accords with the Commission’s practise of harmonising the different assessments to a particular date where there are multiple medical assessors so that there are no issues with the filing of an appeal within time.
Acknowledging some doubt as to the competing views I have determined that the applicant has exercised his one appeal right under s 327 of the 1998 Act.
Section 322A provides that there is only assessment of the degree of permanent impairment. That provision must be read contextually with the procedure provided by the Guidelines that there may be multiple assessors assessing different body systems. I favour the view, consistent with that section, that there is one medical assessment, albeit, in this situation undertaken jointly by the Medical Assessors and leading to the issuing of a combined medical assessment certificate by Medical Assessor Williams.
Section 322A(4) is expressed to be subject to the appeals rights under s 327. However, that appeal is against the “medical assessment” which must be the one medical assessment provided by s 322A.
The applicant exercised his one right of appeal when it was filed in March 2024 and ultimately determined by the Appeal Panel. The applicant could have, but did not, include any grounds of appeal against the medical assessment certificate issued by Medical Assessor Williams.
The reasons in Sleiman did not address this situation and is based on an assessment provided by a single Medical Assessor. Whilst I accept that the factual situation may make the comments in Sleiman distinguishable, the analysis by Leeming JA at [50]-[69] and at [73]- [75] favour the conclusion that there is one appeal from the assessment and that appeal right has been exhausted. To the extent that the reasons of the Court of Appeal in Sleiman are relevant and binding, they support the position advanced by the respondent.
The applicant’s entitlement to appeal was finalised when the appeal filed in March 2024 was determined. There is no further separate entitlement to appeal the medical assessment of Medical Assessor Williams.
If I am wrong on this conclusion then I would have granted the relief sought by the applicant.

Other submissions

The respondent referred to my earlier decision in MeyersvAndrew Miedecke Motors Pty Ltd[38] as supporting its position. That submission selectively referred to that decision and did not reference observations contrary to its submission. In Meyers I stated:[39]
“First, I accept that any reconsideration application under s 329 of the 1998 Act may not necessarily be contrary to s 322A. A clear example is where a medical dispute has not been fully determined because a Medical Assessor has not decided the entirety of the medical dispute[40] such as failing to assess scarring. In those circumstances, the reconsideration application would be necessary to complete the original assessment, or, as an alternative to an appeal (s 329(1)(a) of the 1998 Act). This type of reconsideration would not be a breach of the one assessment under s322A as the assessment has not been completed or undertaken as an alternative to an appeal.”
[38] [2024] NSWPIC 357.
[39] Meyers at [35].
[40] See Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [46]-[48].
I also stated the following in Meyers[41] which was referenced by the respondent:
“The repeal of s 378 of the 1998 Act had removed the ‘safety valve’ to reconsider a decision of an Appeal Panel.[42] It would be an extraordinary distortion of the language in s 329 that a reconsideration application can be brought pursuant to that section following an appeal panel determination. The plain language in s 329 is that the provision relates to the determination by a Medical Assessor as opposed to an Appeal Panel. So much is clear from s 329(1)(a) which specifies that the power is an alternative to an appeal under s 327. Further, read contextually, the provision to reconsider a decision of an Appeal Panel was clearly provided by s 378, which, as noted, has been repealed.”
[41] Meyers at [26].
[42] Sleiman at [77].
The unique difference from Meyers is that the applicant is seeking to appeal a medical assessment through the procedure provided under s 327(6) and s 329(1)(a). That course was not available in Meyers as the appeal was finalised. Indeed, what occurred in Meyers was not endorsed by me.[43] I then declined to order further s 66 compensation after the one medical assessment had been unsuccessfully appealed but then allowed by a Member to be further assessed pursuant to an order restricting the further medical assessment to a threshold dispute.
[43] Meyers at [26] and [29].
The applicant also referred to ss 42 and 43 of the PIC Act and s 325 of the 1998 Act “which enables reconsideration of decisions in appropriate circumstances”.[44]
[44] Applicant’s further submissions, paragraph 44.
Sections 42 and 43 of the PIC Act do not create remedies where none are available. I accept that they do clarify the situation if the remedy is otherwise available.
The applicant briefly referenced s 325 of the 1998 Act where a medical assessment certificate can be referred by the President for correction of an obvious error. I do not accept that this application raises an obvious error as it is not apparent from the face of the medical assessment certificate.

Initial application

It is unnecessary to address the initial application based on s 329(1)(b) of the 1998 Act as the applicant clarified at the telephone conference that the application was brought pursuant to s 329(1)(a) of the 1998 Act.

ORDER

The order is set out in the Certificate of Determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established