Pollard v Toll Holdings Pty Ltd - [2025] NSWPICPD 58

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pollard v Toll Holdings Pty Ltd [2025] NSWPICPD 58
APPELLANT:	Christopher Pollard
RESPONDENT:	Toll Holdings Pty Ltd
INSURER:	Toll Holdings Ltd
FILE NUMBER:	A1-W6366/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	6 August 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 24 September 2024 is rescinded. 2. The matter is remitted to the Division Head of the Workers Compensation Division to make orders consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – NSW workers compensation guidelines for the evaluation of permanent impairment 4th Edition – provisions at [1.17]–[1.20] relating to multiple impairments, Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095; Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781; statutory construction – Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; exercise of discretionary power in the Commission – application of the ‘objects’ and the ‘guiding principle’ in the Personal Injury Commission Act 2020; appeal regarding a matter not raised at first instance – Watson v Qantas Airways Ltd [2009] NSWCA 322; Brambles Industries Ltd v Bell [2010] NSWCA 162; reconsideration of orders – Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532; appeal from a medical assessment – Sleiman v Gadalla Pty Ltd [2021] NSWCA 236; Scone Race Club Ltd v Cottom [2024] NSWCA 34; Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWSC 377; abuse of process – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38; Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
AC Lawyers
Respondent:
Ms S Warren, counsel
Colin Biggers & Paisley
DECISION UNDER APPEAL:	Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530
PRINCIPAL MEMBER:	Mr J Harris
DATE OF PRINCIPAL MEMBER’S DECISION:	24 September 2024

INTRODUCTION AND BACKGROUND

Christopher Pollard (the worker/appellant) was employed by Toll Holdings Pty Ltd (the employer/respondent) from 2016. His primary role was to provide, develop and deliver emergency aviation diving and medical courses.[1] At the time of his injury on 18 October 2018, the appellant was providing training in helicopter underwater escape at a training pool located in a training facility at Bankstown Airport.[2] The appellant suffered injury when one of the participants panicked and accidentally kicked him in the throat. He was an inpatient at Liverpool Hospital from 18 to 25 October 2018. The Hospital Discharge Summary stated that the principal diagnosis was “blunt laryngeal trauma with laryngeal oedema and laryngeal nerve paresis”. The appellant required temporary tracheostomy and developed pulmonary embolism and DVT during the admission.[3] The appellant’s entitlement to workers compensation was not disputed.
[1] Reply to Application to Resolve a Dispute (Reply), p 48; Application to Resolve a Dispute (ARD), p 28.
[2] Toll Incident Investigation, ARD, pp 58–61.
[3] Liverpool Hospital Discharge Summary, ARD, pp 70–72.
The appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) on 18 November 2022.[4] The sum claimed was $469,050 in respect of 66 per cent whole person impairment. The body systems described as being affected were the “Respiratory System”, the “Central and Peripheral Nervous System” and “Ear, Nose Throat and Related Structures”. The respondent responded in correspondence dated 28 April 2023.[5] In that letter the respondent stated that on 21 November 2022 it had notified the appellant’s solicitors “of the objection we held to you relying on Dr Howison’s IME opinion”. The respondent relied on medical assessments it had arranged that yielded a sum of $91,150 in respect of 32 per cent whole person impairment. It made an offer in that amount. The letter dated 28 April 2023 stated that Dr Howison’s report dated 7 November 2022 was “OBJECTED TO”. It is necessary to recount the procedural history.
[4] ARD, pp 8–17.
[5] ARD, pp 18–21.
On 1 November 2023 the Personal Injury Commission (Commission) issued a “Certificate of Determination – Consent Orders”. These orders were made by Member Drake, in the claim for lump sum compensation brought by the worker, and 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 2018
(b)     Body system: nervous system (sleep and arousal disorder), respiratory disorder and ear, nose and throat related functions (larynx dysfunction).
(c)     Method of assessment: whole person impairment
(d)     Documents to be referred: ARD and attachments (excluding the report of Dr Howison at page 22 of the attachments) and the Reply and attachments (excluding the reports of Dr Howison at page 103 and 108 of the attachments)”.
The matter was remitted to Medical Assessor Williams (who was asked to assess “ENT related structures”) and Medical Assessor Burns (who was asked to assess the “nervous system and respiratory system”).[6] Medical Assessor Burns assessed permanent impairment in respect of the nervous system. After a deduction of one third pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) Medical Assessor Burns assessed permanent impairment in respect of the nervous system at 10 per cent. He assessed permanent impairment in respect of the respiratory system at 0 per cent as the worker’s shortness of breath was due to injury to the larynx, and was 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.”[7]
[6] Medical Appeal Panel Statement of Reasons, 5/6/24, [8]–[9].
[7] Dr Burns’ Medical Assessment Certificate, 16/2/24, p 5.
Medical Assessor Williams assessed permanent impairment, due to effects on speech, at 11 per cent, and due to difficulty swallowing (deglutition), at 10 per cent. The medical assessment certificate (MAC) issued by Dr Williams responded to a question in the certificate, on whether there was any body part outside his expertise, in the affirmative, inserting “Nervous System and Respiratory System assessed by Dr M Burns”.[8] Dr Williams did not assess permanent impairment in respect of breathing impairment due to the injury to the larynx.
[8] Dr Williams’ Medical Assessment Certificate, p 6.
Medical Assessor Williams, who was the ‘lead assessor’, issued a “Consolidated Medical Assessment Certificate” dated 31 January 2024. It assessed whole person impairment of 11 per cent, (ENT Related Structures – Voice), 10 per cent (ENT Related Structures – Swallowing), 10 per cent (Nervous System) and 0 per cent Respiratory System, a total of 27 per cent on the Combined Table. This did not include any assessment of permanent impairment in respect of the laryngeal injury.
The appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. This medical appeal was brought in respect of Medical Assessor Burns’ assessment only.[9] The Medical Appeal Panel (MAP/the Panel) issued a decision dated 5 June 2024.[10] The Panel said the referral prepared by the Commission for the Medical Assessors was “manifestly inadequate and failed to reflect the consent orders agreed to by the parties”. The Panel noted the usual practice that the referral is forwarded to the parties for comment before the file is sent to the Medical Assessor/s. The Panel said the opportunity for the parties “to clarify the terms of the referral, and to bring it into line with the consent orders was not taken”.[11] The Panel said that Medical Assessor Burns’ obligation extended to reading and comprehending the consent orders, “[w]e are satisfied that Medical Assessor Burns did that”.[12]
[9] MAP decision, [2].
[10] MAP decision, 5/6/24 (MAP decision).
[11] MAP decision, [28].
[12] MAP decision, [30].
The Panel commented that the medical evidence in the file “highlights the difference between lung function (measured by reference to the respiratory system) and the breathlessness suffered by Mr Pollard as a result of the injury to his larynx”. The Panel summarised the medical evidence in the file, and the MAC of Medical Assessor Burns, at some length.[13] The Panel said:
“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.”
[13] MAP decision, [31]–[66].
The Panel concluded:
“For these reasons, we have determined that the assessment made by Medical Assessor Burns was open to him. In the absence of an appeal with respect to Medical Assessor Williams’ assessment, the MAC issued on 16 February 2024 should be confirmed.”[14]
[14] MAP decision, [98].
The appellant then filed an application on 5 July 2024, requesting that Medical Assessor Williams reconsider his medical assessment certificate, on the basis there was no assessment of shortness of breath due to the laryngeal injury under Table 6.2 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, fourth edition (the Guidelines). This application relied on s 329(1)(b) of the 1998 Act. Following discussion at a telephone conference the appellant elected to pursue the application pursuant to s 329(1)(a) (rather than s 329(1)(b)) of the 1998 Act. The matter was determined by Principal Member Harris in a Certificate of Determination dated 24 September 2024.[15] This is the decision the subject of the current Presidential appeal.
[15] Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530 (reasons).

THE PRINCIPAL MEMBER’S REASONS

The Principal Member said the application pursuant to s 329(1)(a) could only be referred “by the President as an alternative to an appeal against the assessment as provided by s 327”. He said the power of the President to refer a matter for further assessment under s 327(6) of the 1998 Act and s 329(1)(a) can only exist if there is a right to appeal. He described this as consistent with the decision of the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW.[16] The Principal Member said that accordingly, the application pursuant to s 329(1)(a) could only succeed if the appellant was entitled to appeal the MAC of Medical Assessor Williams.[17]
[16] [2007] NSWCA 149; 4 DDCR 607.
[17] Reasons, [24]–[30].
Following discussion regarding the availability of an appeal, the Principal Member said the following in his reasons:
“43. I accept the [appellant’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.
44. I accept that, in accordance with s 327(4), a ground of appeal has been made out as the [appellant] 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.”
The Principal Member accepted that ‘special circumstances’ were shown such that an increase in the appeal period pursuant to s 327(5) of the 1998 Act was justified.[18]
[18] Reasons, [45]–[56].
The Principal Member then referred to the question of whether the 1998 Act permitted only one appeal from a medical assessment. He referred to Sleiman v Gadalla Pty Ltd[19] and Scone Race Club Ltd v Cottom.[20] The Principal Member described the issue as whether the appellant had separate rights of appeal from the different medical assessments or only one right of appeal. He set out s 322A(2) of the 1998 Act. He quoted cl 1.20 of the Guidelines which deals with the role of a ‘lead assessor’ where different medical assessors are required to assess different body systems.[21]
[19] [2021] NSWCA 236 (Sleiman).
[20] [2024] NSWCA 34 (Cottom).
[21] Reasons, [64]–[76].
The Principal Member noted that Medical Assessor Williams was the lead medical assessor and calculated the final degree of permanent impairment. The certificates of both assessors bore the same date. The Principal Member acknowledged “some doubt as to the competing views” and concluded the appellant had “exercised his one appeal right under s 327 of the 1998 Act”. Section 322A provides there is only one assessment of the degree of permanent impairment. The Principal Member said this should be read contextually with the procedure in the Guidelines, that multiple assessors may assess different body systems. Section 322A(4) is expressed as being “subject to the appeals rights under s 327”, this must refer to the “one medical assessment provided by s 322A”. The Principal Member concluded the appellant had exercised his one right of appeal in the appeal that was filed in March 2024 and determined by the Appeal Panel. He said that grounds of appeal against the medical assessment certificate of Medical Assessor Williams could have been included but were not. The Principal Member referred to the decision of Sleiman; he said the analysis by Leeming JA at [50] to [69] and [73] to [75] supported this view. There was no separate entitlement to appeal the medical assessment of Medical Assessor Williams.[22]
[22] Reasons, [78]–[85].
The Principal Member briefly referred to other submissions made before him. He accepted that a reconsideration of a decision under s 329 of the 1998 Act would not necessarily be contrary to s 322A, for example if a medical assessor had failed to determine the entirety of the medical dispute that was referred. He said that ss 42 and 43 of the Personal Injury Commission Act 2020 (the 2020 Act) and s 325 of the 1998 Act enabled reconsideration in appropriate circumstances but did not create remedies where none were available. The Principal Member referred to s 325 of the 1998 Act, which provides for referral of a medical assessment certificate to the President for the correction of obvious error. He said there was no obvious error as it was not apparent from the face of the medical assessment certificate.[23] The Principal Member ordered that the application pursuant to s 329(1)(a) be dismissed.
[23] Reasons, [86]–[91].

THE PARTIES’ STEPS FOLLOWING THE PRINCIPAL MEMBER’S DECISION

The Principal Member’s decision was dated 24 September 2024. On 27 September 2024, the appellant’s current solicitors advised the Commission that they had commenced acting in the matter. The appellant sought a referral to Medical Assessor Williams for re-assessment on the basis Medical Assessor Williams had failed to assess the appellant’s laryngeal dysfunction. The appellant stated that he relied on the decision of the Principal Member dated 24 September 2024 and the reasons of the Medical Appeal Panel dated 5 June 2024. The appellant requested that the Commission refrain from issuing a Certificate of Determination in respect of permanent impairment and requested that a telephone conference be arranged.
The appellant lodged an application for reconsideration dated 2 October 2024. It sought a referral back to Medical Assessor Williams for “further assessment of permanent impairment arising from larynx dysfunction”. It stated that this application relied on s 329(1)(b) of the 1998 Act. Put simply, the appellant submitted that, in light of Principal Member Harris’s decision dated 24 September 2024, a right of appeal did not exist to remedy the “clear error in the assessment by Medical Assessor Williams … a reconsideration is not only appropriate but required to ensure that the [Commission] does justice between the parties”.[24] A Presidential appeal, against the Principal Member’s decision dated 24 September 2024, was lodged on 22 October 2024. On 4 November 2024 the President’s delegate issued a Direction that the Presidential appeal be stayed until the reconsideration application had been dealt with.
[24] Appellant’s submissions, 2/10/24, [26]–[27].
On 11 November 2024, the Commission issued the Principal Member’s decision dealing with the reconsideration requested in the appellant’s correspondence dated 2 October 2024.[25] The Principal Member noted this reconsideration application was pursuant to s 329(1)(b) of the 1998 Act. The Principal Member recited something of the history of the matter and his earlier decision. He referred to the appellant’s submission that s 329(1)(b) was intended to provide a remedy where the dictates of justice required a further referral for assessment. The Principal Member referred to comments in Presidential decisions which commented on the interrelationship between s 329(1)(a) and s 322A since the insertion of s 322A into the 1998 Act.[26]
[25] Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 630 (Pollard reconsideration).
[26] Pollard reconsideration, [1]–[30].
The Principal Member’s references to authority included reference to a footnote in the decision of Brereton JA in Hochbaum v RSM Building Services Pty Ltd, where his Honour said that “Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A”.[27] The Principal Member said that reconsideration under s 329 would not necessarily be contrary to s 322A. He said an example would be where a medical assessor had failed to determine the entirety of a dispute, in failing to assess scarring, such that the reconsideration was necessary to complete the original assessment or as an alternative to appeal.[28]
[27] [2020] NSWCA 113, footnote [31].
[28] Pollard reconsideration, [32]–[34].
The Principal Member declined to follow some earlier Presidential authorities which suggested that s 329 has wide application, given the “contextual changes in the legislation particularly with respect to the introduction of s 322A”. He referred to Sleiman and Cottom which held there “was only one entitlement to appeal from a medical assessment”. The Principal Member referred also to the repeal of s 378 of the 1998 Act, which the Court of Appeal in Sleiman described as having “removed the ‘safety valve’ to reconsider a decision of an Appeal Panel”.[29] The Principal Member said the appellant had “exhausted his appeal rights” and he did not accept that the appellant had a further right to challenge the medical assessment on the basis of s 329(1)(b).[30]
[29] Sleiman, [77].
[30] Pollard reconsideration, [35]–[39], [42]–[43].

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision is not submitted to be interlocutory. If it were, this would clearly be a matter where leave pursuant to s 352(3A) of the 1998 Act would be appropriate, on the basis that determining the appeal is necessary for the proper and effective determination of the dispute.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3, the documents that are before me and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act. I note the recent decision of the Court of Appeal in State of New South Wales v Culhana[31] regarding appeals pursuant to s 352 of the 1998 Act. Subsection (5) of s 352 provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
[31] [2025] NSWCA 157.

THE GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Principal Member made an error of law in determining that a right of appeal did not exist from the medical assessment certificate of Medical Assessor Williams – paragraphs [67] to [84] of the decision (Ground No. 1).
(b) The Principal Member made an error of law by failing to apply the definition of ‘Medical Assessment’ contained in s 4 of the 1998 Act (Ground No. 2).
Additionally, the appellant has sought, in his submissions dated 7 May 2025, to add two further grounds of appeal. These are referred to below.

SUBMISSIONS ON GROUND NO. 1

Appellant’s submissions

The appellant refers to the Principal Member’s finding the appellant lost the right to appeal the assessment of Medical Assessor Williams, on finalisation of the appeal against the assessment of Medical Assessor Burns. The appellant refers to the reasons at [68] which stated: “The issue is whether the [appellant] has separate rights of appeal from different medical assessments or only one right of appeal”. The appellant refers to the definitions in the 1998 Act of ‘medical dispute’, ‘medical assessment’ and ‘medical assessor’, together with cl 1.40 of the Guidelines. The appellant submits a medical assessor conducts assessments within their field of expertise, for example an orthopaedic surgeon assesses orthopaedic injuries.[32]
[32] Appellant’s submissions, [14]–[23].
The appellant sets out s 328 of the 1998 Act. The appellant submits the procedure on appeal:
(a)    requires two medical assessors and one member of the Commission;
(b)    is by way of review of the original medical assessment (which does not suggest there could be multiple medical assessments), and
(c)    the appeal panel may confirm the certificate appealed against or revoke that certificate and issue a new certificate.
The appellant submits that by operation of s 4 of the 1998 Act, s 33 of the 2020 Act, reg 6 of the Personal Injury Commission Regulation 2020 and cl 1.40 of the Guidelines, the medical assessors constituting the appeal panel must have “qualifications, training and experience relevant to the body system being assessed”. The appellant submits:
“The interpretation adopted by the Principal Member (that is a single right of appeal from multiple certificates as opposed to a right of appeal from each certificate) is inconsistent with the proper interpretation and operation of Pt 7 of the 1998 Act.”[33]
[33] Appellant’s submissions, [24]–[27].
The appellant quotes from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[34] Project BlueSky Inc v Australian Broadcasting Authority,[35] Certain Lloyd’s Underwriters v Cross,[36] CIC Insurance Ltd v Bankstown Football Club Ltd[37] and Baker v The Queen.[38] The appellant submits that the statutory construction adopted by the Principal Member would create “absurd, capricious, curious, extraordinary, inconvenient, irrational, obscure, unjust, unlikely and unreasonable consequences from the operation of Part 7 of the 1998 Act”. If a single appeal were lodged alleging error on the part of both Dr Burns (a respiratory physician) and Dr Williams (an ear nose and throat surgeon) the appeal panel would have to be constituted by two medical assessors and one member. Should the medical assessors have expertise as respiratory physicians or ENT surgeons? Section 328 of the 1998 Act does not permit two appeal panels to be constituted. It would be “irrational, unjust and unreasonable for the medical assessors to be given any power to determine any appeal (or dispute) outside the areas in which they have appropriate qualifications, training and experience”. The appellant asks rhetorically how the appeal panel would be constituted if the alleged injuries involved both psychiatric and physical injuries.[39]
[34] [2009] HCA 41; 239 CLR 27.
[35] [1998] HCA 28; 194 CLR 355 (Project Blue Sky).
[36] [2012] HCA 56; 248 CLR 378.
[37] [1997] HCA 2; 187 CLR 384.
[38] [2012] HCA 27.
[39] Appellant’s submissions, [28]–[34].
The appellant submits that if a referral involved multiple assessors in different specialities, encapsulated in a single appeal, it would not be possible to constitute an appeal panel within the procedure mandated by s 328, unless the medical specialists had no expertise in some of the fields in which they were asked to determine the appeal. The appellant argues the proper construction of s 327 is that there is a right of appeal from each medical assessment certificate. The appellant submits this is consistent with the “plain and ordinary meaning of the definition of ‘medical assessment’ contained in s 4 of the 1998 Act”.[40]
[40] Appellant’s submissions, [35]–[39].

Respondent’s submissions

The respondent submits the appellant made a forensic decision to limit the grounds of the appeal to an appeal against the assessment of Medical Assessor Burns, going to the assessment of respiratory impairment. He now seeks to appeal the assessment of Medical Assessor Williams, going to impairment of the ENT structures. The respondent additionally submits the challenge to Dr Williams’ assessment is on a basis that was not claimed by the worker. It submits a claim was made for 5 per cent whole person impairment (voice/speech impairment), 10 per cent whole person impairment (sleep impairment) and 60 per cent whole person impairment (respiratory impairment). It submits Dr Howison’s report was objected to, and the claim proceeded on the basis of Dr Payten. Dr Payten assessed 16 per cent (voice impairment) and 12 per cent (dysphagia [swallowing]). The respondent submits there was no claim for impairment for air passage defects due to the laryngeal injury and no medical evidence to support such a claim.[41]
[41] Respondent’s submissions, [10]–[12].
The respondent submits, citing Sleiman, that the 1998 Act allows only one appeal from a medical assessment. An appeal under s 327 having been unsuccessful, s 329(1)(a) does not provide any additional right of appeal. It submits the reasons of the Principal Member are consistent with this.[42]
[42] Respondent’s submissions, [13]–[14].
The respondent refers to the appellant’s submission that there is a right of appeal from “each medical assessment certificate”. The respondent submits there was only one medical assessment certificate issued pursuant to s 325 of the 1998 Act, being the certificate that combined the assessments of Dr Burns and Dr Williams. The respondent refers to s 65 of the 1987 Act and s 322 of the 1998 Act. It submits there is a clear legislative intention that there be only one medical certificate that “incorporates the impairment of all body systems together as one injury into one medical assessment certificate”. It submits the only exception to this is where there is physical injury and primary psychological injury arising out of the same incident/injury, a situation dealt with in s 65A of the 1987 Act.[43]
[43] Respondent’s submissions, [15]–[20].
The respondent refers to ss 322A, 326 and 328 of the 1998 Act. There can only be one assessment of a worker’s degree of permanent impairment, which is conclusively presumed to be correct. If the assessment is successfully appealed, any new certificate issued by the appeal panel becomes the one assessment which is binding. The respondent refers to s 328(5) of the 1998 Act.[44]
[44] Respondent’s submissions, [21]–[24].
The respondent refers to the position where more than one medical assessor is required. A lead assessor consolidates the assessments and issues “a medical assessment certificate” (emphasis in original submission) under s 325. The respondent submits the Guidelines provide for nomination of a lead assessor who calculates the final degree of permanent impairment. Only the certificate issued by the lead assessor is a ‘medical assessment certificate’ pursuant to s 325 of the 1998 Act. “The assessments are viewed as one.” The respondent submits there is only one ‘medical assessment certificate’ issued pursuant to s 325, being the certificate issued by the lead assessor.[45]
[45] Respondent’s submissions, [27]–[33].
The respondent submits the appellant had the right to appeal the medical assessment of Medical Assessor Williams and Medical Assessor Burns, which were combined in the medical assessment certificate issued pursuant to s 325. The appellant exercised that right in March 2024. He has exhausted his right to appeal the medical assessment.[46]
[46] Respondent’s submissions, [34].
The respondent refers to the hypothetical situations raised in the appellant’s submissions. One of these goes to situations involving a primary psychiatric injury. These are dealt with differently pursuant to s 65A of the 1987 Act. Psychiatric and physical injuries are assessed separately and not combined. The respondent submits the ‘hypotheticals’ raised by the appellant do not assist in the applicable interpretation in the current matter. It submits the construction adopted by the Principal Member did not create an absurd consequence and was consistent with “the intentions and purpose of the scheme”. It was consistent with the objectives in s 3 of the 1998 Act. It was efficient and effective for the appeal against a medical assessment to be limited to one appeal dealing with the medical dispute. The respondent submits the appellant has not, in Ground No. 1, identified error within the meaning of s 352(5) of the 1998 Act.

SUBMISSIONS ON GROUND NO. 2

Appellant’s submissions

The appellant sets out the definition of ‘medical assessment’ in s 4 of the 1998 Act:
“medical assessment means assessment of a medical dispute by a medical assessor under Part 7 of Chapter 7.”
The appellant submits that if s 327(1) of the 1998 Act is read as if this definition were incorporated into its text, it is clear there is a right of appeal from each assessment by a medical assessor. The appellant submits it was an error of law for the Principal Member to have done otherwise.

Respondent’s submissions

The respondent submits s 327 of the 1998 Act should be reviewed as a whole, rather than looking at subs (1) in isolation. Even where there are multiple medical assessors, there is only one ‘medical assessment certificate’ issued pursuant to s 325 of the 1998 Act, the consolidated certificate issued by the lead assessor. In this case that was the medical assessment certificate issued by Dr Williams, which combined the assessment of Medical Assessor Burns.[47]
[47] Respondent’s submissions, [40]–[43].
The respondent submits subs (2) of s 327 limits an appeal to a matter certified in a ‘medical assessment certificate’, which can only mean the certificate issued pursuant to s 325 by the lead assessor. The respondent submits it is clear there is only one right of appeal, which arises after a ‘medical assessment certificate’ is issued. The appellant’s submissions would be consistent with a right of appeal arising separately after each assessment by a medical assessor. The respondent submits that Ground No. 2 is not made out.

THE FURTHER SUBMISSIONS, PROPOSED FURTHER GROUNDS AND NOTICE OF CONTENTION

(i) The submissions and further grounds pursuant to the directions dated 30 April 2025 and 14 May 2025

On 10 April 2025 the Commission issued a Presidential decision in a matter of Inner West Council v McQuade.[48] Its subject matter included the Commission’s power to refer a permanent impairment dispute for reassessment or reconsideration pursuant to s 329. In a Direction dated 30 April 2025, the parties were given leave to make further submissions with respect to that decision. Further submissions were lodged on 7 May 2025 (by the appellant) and on 13 May 2025 (by the respondent). The appellant seeks leave to rely on two further grounds of appeal, as Grounds Nos. 3 and 4. The respondent seeks leave to rely on a notice of contention. The President’s delegate, in a Direction dated 14 May 2025, noted that the applications for leave to rely on the further grounds and the notice of contention would be dealt with by the Presidential member to whom the matter was allocated.
[48] [2025] NSWPICPD 32 (McQuade).

Those of the appellant

The proposed further grounds of appeal are as follows:
(a) The Principal Member made an error of law in determining that the power contained within s 329 of the 1998 Act was restrained by the existence of a decision of the Appeal Panel. (proposed Ground No. 3)
(b) The Principal Member erred in determining the application for reconsideration only in regard to s 329(1)(a) of the 1998 Act without giving proper consideration to the substance of the application, its merit and the power contained within s 329 globally. (proposed Ground No. 4)
The appellant’s further submissions are dated 7 May 2025.
In relation to the proposed Ground No. 3, the appellant submits the power in s 329 of the 1998 Act is not extinguished by a decision of an appeal panel. It refers to McQuade at [83], and [90] to [94]. The appellant submits the Principal Member’s statements at [26] and [30] of the decision dated 24 September 2024 involve error of law.
In relation to the proposed Ground No. 4, the appellant submits the Principal Member should have considered the power under s 329 of the 1998 Act, not limiting himself to the power in s 329(1)(a). The appellant submits this is consistent with ss 3, 43(1) and 43(3) of the 2020 Act and with the decision in Sleiman.[49]
[49] Appellant’s submissions, 7/5/25, [3]–[11].

Those of the respondent

The respondent’s further submissions are dated 13 May 2025. It opposes the grant of leave to add further grounds. It submits the proceedings at first instance were limited to the application of s 329(1)(a) of the 1998 Act and the decision in McQuade did not deal with s 329(1)(a). It submits the decision in McQuade did not raise a basis for the appellant’s application to add two further grounds. It is improper to raise, at appellate level, a new dispute that was not raised at first instance or in the appeal and does not impact the decision being appealed.[50]
[50] Respondent’s submissions, 13/5/25, [1]–[6].
In relation to the proposed Ground No. 3, the respondent submits McQuade has no impact on the legal position in respect of s 329(1)(a) of the 1998 Act. It submits the proposed Ground No. 3 does not identify appealable error and this ground should fail.[51]
[51] Respondent’s submissions, 13/5/25, [9]–[13].
In relation to the proposed Ground No. 4, the respondent submits the appellant made a “legal forensic decision” to pursue the reconsideration on a basis limited to s 329(1)(a). A Direction was issued confirming that position. The case was presented and argued on that basis. It would have been improper for the Principal Member to determine the dispute on a basis not argued by the parties. The respondent submits the Principal Member determined the application based on how it was brought. This was not legal error and the proposed Ground No. 4 should fail.[52]
[52] Respondent’s submissions, 13/5/25, [14]–[21].
The respondent additionally includes submissions in support of its proposed notice of contention. In short, it submits there was not a valid dispute between the parties in respect of laryngeal dysfunction, and the appellant did not have an assessment of laryngeal dysfunction by an appropriate assessor that accorded with the requirements of the legislation. It submits such a claim was not truly available until there was evidence to support it. It submits the claim made pursuant to s 66 of the 1987 Act did not include impairment of laryngeal function. The respondent sets out the various assessments of permanent impairment on which the appellant relied. These did not include laryngeal function. The respondent refers to Skates v Hills Industries Ltd and quotes from the reasons of McCallum JA at [82], where her Honour said “the medical dispute referred must be the medical dispute the parties have sought to have resolved”.[53]
[53] [2021] NSWCA 142 (Skates), [82].
The respondent submits the reconsideration application before the Principal Member should have been dismissed on the basis no claim was made for the injury that was “purported to be excluded by the medical assessment”.[54]
[54] Respondent’s submissions, 13/5/25, proposed notice of contention.

(ii) The further submissions relating to Lovelee

A potentially relevant decision, Lovelee v Sydney International Container Terminals Pty Ltd,[55] was issued on 24 April 2025. It is a decision of Payne JA in which his Honour, sitting in the ‘Common Law – Administrative Law’ Division, dealt with an application for judicial review. I note that Gleeson and Payne JJA sat as members of the Court of Appeal in Sleiman, in which their Honours agreed with the reasons of Leeming JA. The parties’ submissions in the current matter were filed shortly after the decision in Lovelee was issued and did not refer to that decision. The Commission issued a Direction dated 11 June 2025 giving the parties leave to make submissions with respect to the decision in Lovelee. The further submissions of the appellant are dated 18 June 2025 and those of the respondent are dated 23 June 2025.
[55] [2025] NSWSC 377 (Lovelee).

Those of the appellant

The appellant submits that Payne JA in Lovelee distinguished Sleiman on the following bases:
(a)    The medical assessment certificate in Lovelee was confirmed by the original medical appeal panel, unlike Sleiman, in which it was revoked.
(b)    The second appeal in Lovelee was from the original medical assessment certificate issued by the original Medical Assessor. In Sleiman the second appeal sought to challenge the medical assessment issued by the appeal panel.
(c)    In Sleiman a certificate of determination was issued following the first appeal. In Lovelee no such certificate was issued following the first appeal, as the worker discontinued the proceedings before a certificate could be issued.
The appellant submits the effect of the matters raised in (a) and (b) above was that s 327(2) of the 1998 Act did not preclude the worker from his second appeal. He submits the effect of the matter in (c) above was that s 327(7) of the 1998 Act did not prevent the second appeal. Reference is made to Lovelee at [37] to [39]. The appellant submits that Payne JA in Lovelee found the worker could pursue a second appeal under s 327. The appellant also refers to obiter comments in Lovelee that there may be a right to seek a reconsideration of the original medical assessment certificate pursuant to s 329(1A). Reference is made to Lovelee at [36] to [52].
The appellant submits that:
(a)    The medical assessment certificate of Dr Burns was confirmed, that of Dr Williams was not considered by the Medical Appeal Panel.
(b)    While a second appeal was not filed, a reconsideration application as an alternative to an appeal was filed.
(c)    A certificate of determination was not issued by the Commission following the determination of the Medical Appeal Panel.

The appellant submits his “claim is on all fours with Lovelee and distinguishable from Sleiman”. He submits that, applying Lovelee, ss 327(2) and 327(7) do not prevent a further appeal proceeding against either of the medical assessment certificates. He submits there was an error of law in the decision of Principal Member Harris at [84], “[c]onsistent with Lovelee, Mr Pollard did have an entitlement to appeal”.[56]
[56] Appellant’s second further submissions, 18/6/25, [1]–[9].

Those of the respondent

The respondent notes the appellant presses that the medical assessment of Medical Assessor Williams was not the subject of consideration by the Medical Appeal Panel. The respondent submits the appellant made a forensic legal decision with respect to the appeal in February 2024. The appellant has since pursued two reconsideration applications. The current appeal arises from a reconsideration, not from an appeal of a medical assessment certificate. The respondent submits the appellant made a forensic decision regarding appeal against the medical assessment and now seeks to ventilate issues that were not pursued at that time. The respondent submits these issues were not part of the medical dispute between the parties in any event (referring to its notice of contention). The protracted legal proceedings should be seen as an abuse of process.[57]
[57] Respondent’s second further submissions, 23/6/25, [4]–[6].
The respondent quotes from the reasons of Payne JA in Lovelee:
“It is no doubt correct that there is a need to guard against a course of action which has the deliberate effect of circumventing a ‘prescribed process’. I agree that that it is undesirable to permit ‘multiple attempted claims through the method of discontinuance in the event of dissatisfaction’ with assessments or appeals.”[58]
[58] Lovelee, [55].
The respondent submits the appellant seeks to circumvent the prescribed process and undertake multiple attempts to litigate the medical dispute. This is in circumstances where the issues raised were not the subject of a valid claim. It “ought to be found to be undesirable”.[59]
[59] Respondent’s second further submissions, [7]–[8].

CONSIDERATION OF GROUNDS NOS. 1 AND 2

It is convenient to deal with these grounds together.

(i) Whether there was an entitlement to a separate medical appeal in respect of each of Dr Burns and Dr Williams – the statutory regime

The appellant refers to the Principal Member’s reasons at [68], where it was said the issue was whether the appellant had separate rights of appeal from different assessments or only one right of appeal. It is relatively common for assessment of whole person impairment to involve more than one area of medical expertise. Section 322 of the 1998 Act requires that the assessment of the degree of permanent impairment be made in accordance with the Workers Compensation Guidelines.[60] The ‘NSW workers compensation guidelines for the evaluation of permanent impairment’ (4^th edition, 1 March 2021) deal with ‘Multiple impairments’ at [1.17] to [1.20]. Paragraph [1.17] relevantly provides:
“Impairments resulting from more than one injury arising out of the same incident are to be assessed together to calculate the degree of permanent impairment of the claimant.” (emphasis added)
[60] Sleiman, [33].
Section 322(2) of the 1998 Act is in similar terms and provides:
“Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.”
Paragraph [1.20] of the Guidelines 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.” (emphasis added)
Section 325 of the 1998 Act provides that the medical assessor to whom a dispute is referred is to give a medical assessment certificate as to the matters referred for assessment.
In the current matter, two medical assessment certificates, both dated 16 February 2024, were issued. Dr Burns was not the lead assessor. Dr Williams’ assessment (unlike that of Dr Burns) had attached to it a “Consolidated Medical Assessment Certificate” which listed the assessments made by each of these Medical Assessors and set out the “Total % WPI (the Combined Table values of all sub-totals)”. The total figure on the Combined Table was 27 per cent. The Consolidated Medical Assessment Certificate, which formed the final page of Dr Williams’ Certificate, provided “This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.” There was no equivalent notation on the document issued by Dr Burns.
Section 328 of the 1998 Act deals with the procedure on medical appeals. Section 328(5) provides:
“The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.” (emphasis added)
Subsections (1) and (2) of s 322A of the 1998 Act provide:
“322A One assessment only of degree of permanent impairment
(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
…
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).”
Rule 111 of the Personal Injury Commission Rules 2021 (the Rules) provides:
“111 Medical assessment certificate for multiple assessments of permanent impairment
(1)     If different medical assessors are required to conduct different assessments of permanent impairment, the President is to appoint a lead assessor.
(2)     The President is to inform the medical assessors selected to undertake the assessments as to who is the lead assessor.
(3)     An assessor who is not the lead assessor must provide the assessor’s assessment to the lead assessor.
(4)     The lead assessor must consolidate the lead assessor’s assessment with the assessments of other assessors for the purposes of giving—
(a) a combined certificate under section 61 of the [Motor Accidents Compensation Act 1999] or section 7.23 of the [Motor Accident Injuries Act 2017], or
(b)a medical assessment certificate under section 325 of the 1998 Act.”
The various statutory and other provisions quoted above in these reasons, dealing with Grounds Nos. 1 and 2, are consistent with the requirement that an assessment be made in accordance with the Guidelines. They are consistent with the requirement that impairments that result from more than one injury arising out of the same incident be assessed together. In the case of a ‘complex injury’ (involving assessment by more than one medical assessor) the provisions discussed above are consistent with the requirement that the nominated lead assessor calculate the final degree of permanent impairment resulting from the individual assessments. They are consistent with the lead assessor (in a workers compensation matter) consolidating the assessments of other assessors for the purpose of giving a single medical assessment certificate under s 325 of the 1998 Act. They are not consistent with the existence of two medical assessment certificates being issued in a ‘complex injury’ matter, which can each be the subject of separate medical appeals.
The above summary depends in part on the status of the Guidelines.
In Kempe v Complete Community Services Pty Ltd Griffiths AJ said:
“Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA. They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an ‘instrument’ to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines.”[61]
[61] [2022] NSWSC 1095 (Kempe), [30].
In Botha v Secretary, NSW Department of Customer Service, Stern JA quoted and applied the above passage from Kempe with apparent agreement,[62] her Honour saying:
“… consistent with the approach to construction of the Guidelines set out in Kempe and Heise,[63] it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel.”[64]
[62] [2024] NSWSC 781 (Botha), [21].
[63] Heise v Employers Mutual Ltd [2022] NSWCA 283.
[64] Botha, [67].
The legislation, Guidelines and Rules are not consistent with the appellant being able to pursue two medical appeals separately, each involving one of the medical assessors who assessed him. The discussion above, dealing with the statutory provisions, Guidelines and Rules, is essentially consistent with the respondent’s submissions on Ground No. 1. Where there are multiple assessors in a case, there is only one medical assessment certificate issued pursuant to s 325 of the 1998 Act. This is consistent with reading the relevant sections of the 1998 Act as a whole. It is consistent with the Guidelines and r 111 of the Rules. I do not accept the appellant’s submission that two separate medical appeals are available in the circumstances, simply on the basis that different body systems were assessed by more than one medical assessor.

(ii) How an appeal panel is constituted

The appellant’s submissions deal with how an appeal panel is to be constituted where there is an injury requiring assessment by two or more medical assessors. The appellant argues that, unless separate appeals are available in respect of each speciality, it would not be possible to properly constitute an appeal panel within the procedure mandated by s 328 of the 1998 Act, with medical specialists who have expertise in the fields they are required to deal with.
Section 327(4) of the 1998 Act provides (in part):
“An appeal is to be made by application to the President.”
Section 328(1) of the 1998 Act provides:
“(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—
(a) 2 medical assessors,
(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.”
The term ‘medical assessor’ is defined in s 4 of the 1998 Act:
“medical assessor means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act.”
The appellant’s submissions ask rhetorically how an appeal panel would be constituted if the alleged injuries were both psychiatric and physical (see [31] above). The respondent correctly submits that this situation is subject to s 65A of the 1987 Act.
The appellant submits the members of an appeal panel must have qualifications, training and experience relevant to the body system being assessed. This is true, consistent with cl. 1.40 of the Guidelines. The appellant refers in a general sense to this proposition being supported by s 4 of the 1998 Act, s 33 of the 2020 Act, reg 6 of the Personal Injury Commission Regulation 2020 and cl 1.40 of the Guidelines. The appellant’s fundamental argument is that he was entitled to appeal separately against the assessments, from each of Dr Burns and Dr Williams, which were combined to produce the result in Dr Williams’ Consolidated Medical Assessment Certificate dated 16 February 2024. I cannot see that the various provisions on which the appellant relies provide specific support for the proposition they are called in aid of. The appellant notes the current matter involved assessments by Dr Burns, a respiratory physician, and Dr Williams, an ear, nose and throat surgeon. The appellant asks rhetorically whether, in those circumstances, the medical assessors on a medical appeal panel should have expertise as respiratory physicians or ENT surgeons.
Paragraph 1.40 of the Guidelines provides:
“An assessor will be a registered medical practitioner recognised as a medical specialist.
• ‘Medical practitioner’ means a person registered in the medical profession under the Health Practitioner Regulation National Law(NSW) No. 86a, or equivalent Health Practitioner Regulation National Law in their jurisdiction with the Australian Health Practitioner Regulation Agency.
• ‘Medical specialist’ means a medical practitioner recognised as a specialist in accordance with the Health Insurance Regulations 1975, Schedule 4, Part 1, who is remunerated at specialist rates under Medicare.
The assessor will have qualifications, training and experience relevant to the body system being assessed. The assessor will have successfully completed requisite training in using the Guidelines for each body system they intend on assessing. They will be listed as a trained assessor of permanent impairment for each relevant body system(s) on the State Insurance Regulatory Authority website at sira.nsw.gov.au.” (emphasis added)
The appellant’s submissions on Ground No. 1 are based on an underlying assumption that each of the doctors, who might potentially be members of an appeal panel, practise (and are relevantly qualified) in a single speciality. This assumption is not accurate. There are medical practitioners who have the expertise and training to be assessors in respect of more than one body system. The appellant’s submissions also reflect an incorrect assumption that an appeal panel involving, for example, appeal from an ENT surgeon, would necessarily be constituted by one member and two ENT surgeons. The appellant’s submissions based on s 328(1) of the 1998 Act do not assist him on Ground No. 1. The text of the legislation, the Rules and the Guidelines does not support the appellant’s construction.

(iii) The definition of medical assessment in s 4 of the 1998 Act

The appellant submits his construction, which would in the current matter permit the separate appeal of two separate medical assessments, is consistent with “the plain and ordinary meaning” of the definition of ‘medical assessment’ in s 4 of the 1998 Act. In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation Mason and Wilson JJ said:
“The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.”[65]
[65] [1981] HCA 26; 147 CLR 297 (Cooper Brookes), [23], applied in Project Blue Sky, [69].
It does not assist to consider these issues simply by reference to the definition of ‘medical assessment’ in s 4 of the 1998 Act. I have sought above to consider these grounds by broader reference to the language in the 1998 Act.
For reasons given above, the Grounds of Appeal Nos. 1 and 2 fail.
I note that the appellant seeks to raise further grounds of appeal by leave, which are dealt with below as additional Grounds Nos. 3 and 4; the additional Ground No. 3 succeeds. The further submissions flowing from the decision of Lovelee could potentially also have been made in respect of Ground No. 1, which is expressed broadly. I have dealt with Lovelee and associated issues as part of Ground No. 3, rather than Ground No. 1.
I also note there is potential room for doubt regarding whether the certificate issued by Dr Burns constituted a ‘medical assessment certificate’ within the meaning of s 325 of the 1998 Act. The parties’ submissions do not approach the case on this basis and this point is not considered further.

CONSIDERATION OF THE APPLICATIONS TO AMEND

Some general principles on the discretion to amend

Both parties have sought leave to amend, the appellant to add additional grounds of appeal nos. 3 and 4, the respondent to rely on a notice of contention. Leave to amend is discretionary and is subject to the statutory provisions which govern the Commission. The objects of the Commission are set out in s 3 of the 2020 Act, which provides:
“3      Objects of Act
The objects of this Act are as follows—
(a)     to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation, motor accidents legislation and legislation providing for the police officer support scheme and provide a central registry for that purpose,
(b)     to ensure the Commission—
(i) is accessible, professional and responsive to the needs of all of its users, and
(ii) is open and transparent about its processes, and
(iii) encourages early dispute resolution,
(c)     to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d)     to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e)     to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f)      to ensure that the Commission—
(i) publicises and disseminates information concerning its processes, and
(ii) establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g)     to make appropriate use of the knowledge and experience of members and other decision-makers.”
Section 4 of the 2020 Act provides:
“4      Interpretation and application of Act by reference to objects
(1)     In the interpretation of a provision of this Act, the Commission rules or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.
(2)     In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned.”
Section 42 of the 2020 Act provides in part:
“42    Guiding principle to be applied to practice and procedure
(1)     The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3)     Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.”
It is also appropriate to have regard to the decision of Aon Risk Services Australia Ltd v Australian National University,[66] to the extent that there is not inconsistency with the statutory environment in which the Commission operates.
[66] [2009] HCA 27; 239 CLR 175 (Aon).
In Kelly v Mina[67] the Court of Appeal (Barrett JA, Ward and Leeming JJA agreeing) referred to the judgment of Vickery J in Namberry Craft Pty Ltd v Watson,[68] which it described as a useful summary of “the combination of factors” identified in Aon.
[67] [2014] NSWCA 9.
[68] [2011] VSC 136, [38].

The appellant’s application for leave to amend to add further Grounds 3 and 4

The appellant seeks leave to add the following two further grounds of appeal:
“The Principal Member made an error of law in determining that the power contained within s 329 of the 1998 Act was restrained by the existence of a decision of the Appeal Panel.” (proposed Ground No. 3)
The Principal Member erred in determining the application for reconsideration only in regard to s 329(1)(a) of the 1998 Act without giving proper consideration to the substance of the application, its merit and the power contained within s 329 globally.” (proposed Ground No. 4)
The respondent opposes the grant of leave. This application for leave responded to the Presidential direction dated 30 April 2025, which invited submissions in respect of the decision in McQuade. The respondent submits the decision in McQuade had “no impact or binding effect on the current appeal proceedings”, and did “not raise additional legal issues that are relevant to the present appeal”. The respondent submits the proposed addition of grounds constitutes a “new dispute that was not dealt with by the Member at first instance, nor that was raised in the appeal, especially on the basis of a decision that has no legal impact on the decision being appealed”.[69]
[69] Respondent’s submissions, 13/5/25, [4]–[6].

(i) The proposed Ground No. 3

The proposed Ground No. 3 is expressed in general terms. The arguments ventilated in respect of Lovelee fall within the proposed Ground No. 3. They arguably also would fall within Ground No. 1. Viewed in the context of the Principal Member’s reasons, the proposed Ground No. 3 relates to the discussion at [64] to [84] of the reasons, under the sub-heading “Is this a second appeal prohibited by the legislation?” This is the passage of the reasons that raised the decisions of Sleiman and Cottom and the issue of the availability of reconsideration pursuant to s 329 of the 1998 Act. The Principal Member’s consideration of these matters was ultimately fatal to the appellant’s application before him. The parties have had the opportunity to address these issues in their further submissions dealing with Ground No. 3 and the decision in Lovelee.
It is appropriate to grant leave to the appellant to rely on proposed Ground No. 3. Having regard to the decisions of the Court of Appeal in Sleiman and Cottom, and that of Payne JA in Lovelee, Ground No. 3 deals with the legal principles that were central to the Principal Member’s reasoning. Allowing the amendment is consistent with the requirement in paragraph (c) of s 3 of the 2020 Act that the Commission “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”. In light of the decision in Lovelee the proposed ground is arguable and has good prospects of success. Leave is granted to the appellant to rely on the proposed Ground No. 3.

(ii) The proposed Ground No. 4

The Principal Member’s reasons at [16] to [22] described the background to how the matter was pleaded. The application was originally drafted as one that relied on s 329(1)(b) of the 1998 Act. Following complaint from the respondent that the process was “incredibly improper”, a telephone conference was held. At the telephone conference the appellant advised that he was relying on s 329(1)(a). The Principal Member said notations were made that the name of the respondent be amended. He described the material that was before him. He recorded that the application was 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. The Commission issued a Direction dated 19 July 2024 which incorporated these orders. The Principal Member’s reasons were consistent with this.
The matter was pursued before the Principal Member, from the time of the telephone conference, on the basis that it was brought pursuant to subs (a) (rather than (b)) of 329(1). A formal direction to this effect was issued. The proposed further Ground No. 4 alleges error in failure by the Principal Member to consider s 329 globally. Having regard to how the proposed ground is framed, and to the Principal Member’s reasons, this can only relate to an alleged failure to have regard to s 329(1)(b). The case before the Principal Member was not presented on the basis that the appellant relied on s 329(1)(b). In Watson v Qantas Airways Ltd Basten JA, dealing with the nature of an appeal pursuant to s 352 of the 1998 Act, said:
“… where a matter has not been decided by the Commission, for example because the issue was not raised by the parties, there will be nothing to constitute the subject of an appeal.”[70]
[70] [2009] NSWCA 322; 7 DDCR 113 (Watson), [105].
To similar effect McColl JA, in Brambles Industries Limited v Bell,[71] said:
“A tribunal such as the Workers Compensation Commission, sitting as the Deputy President was, which depends heavily on the parties’ written material for expeditious disposition of proceedings, must be entitled to rely upon the matters placed before it identified in the written submissions as the issues to be determined on a review pursuant to the [1998 Act]. More importantly, a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”
[71] [2010] NSWCA 162, [30].
The appellant at first instance did not ultimately rely on s 329(1)(b) of the 1998 Act; the Principal Member could not, in those circumstances, have erred in failing to deal with that issue. It follows that the proposed Ground No. 4 would not have reasonable prospects of success and it would be futile to grant leave for an amendment to add it. The application to amend to add the proposed Ground No. 4 is refused.

The respondent’s application for leave – proposed notice of contention

The respondent’s submissions in support of the notice of contention describe it as being “on the basis that there was no valid dispute between the parties for an impairment of laryngeal dysfunction”. The appellant did not put on submissions opposing this application, nor did he consent to it. The respondent carries the onus of persuading the Commission that the amendment should be allowed.[72]
[72] Dye v Commonwealth Securities Ltd (No. 2) [2010] FCAFC 118, [17].
The appellant’s claim for lump sum compensation was made by his then solicitors’ letter dated 18 November 2022.[73] It was accompanied by a permanent impairment claim form dated 17 November 2022,[74] reports from Dr Freiberg (27 January 2022 and 20 August 2022), a report from Dr Howison (7 November 2022) and the material provided to those doctors “as listed in the Permanent Impairment Claim form”. The claim was for 66 per cent whole person impairment, the “body system affected” was described as “The Respiratory System”, “The Central and Peripheral Nervous System” and the “Ear, Nose, Throat and Related Structures”. The appellant, at that point, had done what was required of him to make a claim in respect of the nominated body systems. Dr Howison’s report dated 7 November 2022 contained an assessment of 5% whole person impairment for laryngeal dysfunction.
[73] ARD, pp 8–9.
[74] ARD, pp 10–17.
The respondent submits it was necessary that the worker make a claim for permanent impairment in respect of laryngeal dysfunction, in compliance with s 282 of the 1998 Act. It submits the appellant did not have an “assessment of laryngeal impairment by an appropriate assessor”.[75] It submits the application for reconsideration decided by the Principal Member “ought to have been dismissed on the basis that no claim was made for the injury that was purported to have been excluded by the medical assessment”.[76]
[75] Respondent’s submissions, 13/5/25, [2]–[4].
[76] Respondent’s submissions, 13/5/25, [14].
Dr Freiberg, a respiratory and sleep physician, reported to the appellant’s previous solicitors on 27 January 2022. The doctor’s history of injury was “blunt accidental trauma to [the appellant’s] larynx.” The recorded history included “chronic pain in his laryngeal area”. Dr Freiberg recommended a number of investigations.[77] The doctor reported again on 20 August 2022,[78] following various investigations. The doctor referred to:
“… extreme limitation to exercise and respiratory function that is consistent with Mr Christopher Pollard’s symptoms following the work related accident with severe laryngeal inlet obstruction.”
[77] ARD, pp 27–29.
[78] ARD, pp 31–35.
Dr Freiberg said, “I would therefore classify him as a 60% impairment of whole person due to his exercise test result”. The doctor assessed whole person impairment due to “sleep and arousal disorders” separately, at 13 per cent, from which he deducted 3 per cent on account of “mallampati class 3 airway which is preexisting to the then subsequent laryngeal trauma”. Dr Freiberg concluded:
“In summary the respiratory impairment is 60% of whole person and the sleep impairment is 10% of whole person. These impairments should be considered as separate.”
Dr Howison, an ear nose and throat surgeon, reported to the appellant’s then solicitors on 7 November 2022. Dr Howison diagnosed “Severe laryngeal trauma” and assessed “5% whole person impairment for laryngeal dysfunction”. Dr Howison noted there was a combined assessment of whole person impairment of 66% when his assessment was combined with that of Dr Freiberg, who had assessed a combined whole person impairment of 64 per cent.[79]
[79] ARD, pp 22–26.
Dr Howison had previously reported to Toll Group on 7 March 2019 and 30 August 2019. These reports were ultimately included in the respondent’s Reply, dated 22 September 2023. They did not deal with the assessment of permanent impairment. The respondent’s solicitors wrote to the appellant’s then solicitors on 21 November 2022.[80] That letter referred to the appellant’s solicitors’ letter dated 18 November 2022 as one that was “purporting to serve a section 66 claim”. It advised that the respondent had “retained” Dr Howison as a “Medico-legal” in 2019, and that it objected to the appellant relying on Dr Howison’s report dated 7 November 2022.The respondent also included the two earlier reports from Dr Howison in its Reply. It stated these reports were “not relied on for WPI proceedings, but included in REPLY to demonstrate breach of privilege and conflict of interest with Dr Kenneth Howison (ENT Surgeon).”[81] There is no indication the appellant or his solicitors were aware, when they qualified Dr Howison, that there would be objection to Dr Howison providing an assessment on the basis he was previously retained by the respondent. The respondent submits there is “no primary medical evidence to support any degree of permanent impairment of laryngeal dysfunction”. Dr Howison’s report to the appellant’s then solicitors, dated 7 November 2022, included an assessment of permanent impairment in respect of “laryngeal dysfunction”. I note the appellant’s claim for lump sum compensation was made by letter dated 18 November 2022.
[80] Reply, p 25.
[81] Reply, supporting Documentation Index.
Notwithstanding the above, the respondent then dealt with the claim in an orthodox fashion. It arranged for medical examination of the appellant by Drs Johnson and Payten.[82] Dr Payten, an ear, nose and throat surgeon, reporting to the respondent on 21 March 2023,[83] diagnosed “blunt trauma to the larynx causing dislocation of the right arytenoid cartilage to which the vocal fold is attached. There was also damage to the right superior laryngeal nerve and probable development of a neuroma of the superior laryngeal nerve.” In a letter to the appellant’s then solicitors dated 28 April 2023, the respondent noted its previous objection to the appellant relying on Dr Howison’s reports. In the same letter it referred to “your client’s claim for permanent impairment dated 18 November 2022” and made an offer of settlement in response to that claim.[84] On 12 July 2023 the respondent replied to the appellant’s counter-offer by reinstating its initial offer to resolve the lump sum claim.[85]
[82] Reply, pp 32–34.
[83] Reply, pp 91–99.
[84] ARD, pp 18–21.
[85] Reply, p 23.
The appellant instituted Commission proceedings on 29 August 2023. The pleaded injury was described as “Blunt trauma to the neck with injury to the right superior laryngeal.” The matter came before Member Drake by way of a preliminary conference on 1 November 2023. Notwithstanding the respondent’s previously stated objection to the appellant relying on his report from Dr Howison, the referral for assessment made by Member Drake on 1 November 2023 was made with the respondent’s consent (see [3] above). The matter was remitted to the President for referral to a medical assessor to assess permanent impairment. The body systems referred were the “nervous system (sleep and arousal disorder), respiratory disorder and ear nose and throat related functions (larynx dysfunction)”. The consent orders provided for documents attached to the ARD and the Reply to be part of the referral to a medical assessor, but excluding the reports of Dr Howison. This was consistent with the parties accepting the respondent’s claim for privilege in respect of Dr Howison’s reports and entering into the consent orders in those circumstances. It was consistent with the parties’ acceptance that there was a valid claim on foot that included the larynx dysfunction. Subsequent developments included the medical assessment involving Dr Williams and Dr Burns, the failed medical appeal, and two failed applications for reconsideration.
The respondent now seeks leave, in a notice of contention, to argue that the orders made by Member Drake, to which it consented, included an invalid referral of larynx dysfunction. This effectively seeks reconsideration of the consent orders made by Member Drake on 1 November 2023. The respondent dealt with the lump sum claim by arranging medical examinations to assess it, and then offering (and re-offering) lump sum compensation consistent with the assessments it had obtained from Drs Johnson and Payten. This was consistent with acceptance by the respondent that the claim had been made. The proposed late argument in the notice of contention does not depend on the discovery of previously unavailable evidence. No explanation is given for why the respondent seeks to raise the argument now, after previously consenting to the orders before Member Drake.
In Samuel v Sebel Furniture Ltd Roche ADP set out principles relevant to the exercise of the reconsideration power.[86] I note the discretion previously found in s 350 of the 1998 Act is now found in s 57 of the 2020 Act. In Martinovic v Workers Compensation Commission of New South Wales[87] N Adams J quoted the statements of principle collected in Samuel. Her Honour referred to a number of decisions from single justices of the Supreme Court where the principles collected in Samuel were applied. Her Honour said that a member exercising the reconsideration power has a “duty to do justice between the parties according to the substantial merits of the case”. Her Honour said:
“Both Mr Martinovic and Corporate Projects accepted that the principles in Samuel were applicable. Those principles include that an arbitrator [now a member] exercising his or her power under s 350 has a ‘duty to do justice between the parties according to the substantial merits of the case’. I am satisfied that the reference to the ‘merits of the case’ in this context of balancing competing interests necessarily implies that it is open, within the broad discretion conferred in s 350(3), to find error and yet dismiss the application.[88]
[86] [2006] NSWWCCPD 141 (Samuel), [58].
[87] [2019] NSWSC 1532 (Martinovic).
[88] Martinovic, [90]–[100].
I note the respondent originally consented, before Member Drake, to referral of the matter for medical assessment. The body systems referred included “respiratory disorder and ear, nose and throat related functions (larynx dysfunction)”. The way in which the respondent dealt with the claim was generally consistent with acceptance that the claim was properly on foot. The respondent proffers no reason why, if it argued to the contrary, it did not take the point at an appropriate time. The respondent’s submissions, on its proposed notice of contention, do not seek to offer any explanation for delay. I do not find that the consent orders dated 1 November 2023 were made in error. Even if the view were taken that the referral for medical assessment in 2023 was inappropriate, the duty to do justice between the parties does not favour reconsideration of the consent orders made on 1 November 2023. This view is also consistent with the ‘objects’ in subclauses (b) and (c) of s 3 of the 2020 Act, and with the ‘guiding principle’ in s 42 of the 2020 Act.
I decline the respondent’s application to rely on its notice of contention.

CONSIDERATION – GROUND NO. 3

The Principal Member’s reasons on this issue

The appellant refers to the Principal Member’s reasons at [26] and [30] which state:
“26. 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.”
“30. Accordingly, this application can only succeed if the [appellant] 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.”
The Principal Member said there was “no doubt, and [it] is clear from every medical opinion, that the [appellant] has significant laryngeal dysfunction”. The Principal Member referred to the statement of the Appeal Panel that the appellant “has a significant and genuine problem with breathing due to the condition of his larynx”. The Principal Member accepted that the appellant “was entitled to be assessed for laryngeal dysfunction causing passage defect under Table 6.2 of the Guidelines”. The Principal Member accepted that the “extent of any impairment, if any, should have been assessed by Medical Assessor Williams”. The Principal Member found that “in accordance with s 327(4), a ground of appeal has been made out as the [appellant] 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 laryngeal injury was referred but not fully assessed”.[89] The Principal Member, following analysis of the circumstances, concluded the appellant had demonstrated ‘special circumstances’ to explain delay, pursuant to s 327(5) of the 1998 Act.[90]
[89] Reasons, [40]–[44].
[90] Reasons, [45]–[56].
Against this background, the Principal Member said, “[t]he 1998 Act allows only one appeal from a medical assessment: see Sleiman”. The Principal Member referred to the decision of Cottom as supporting the same proposition.[91] The Principal Member’s analysis then proceeded on the basis that the remaining issue was whether the appellant had “separate rights of appeal from different medical assessments or only one right of appeal”.[92] The Principal Member concluded:
“79. Acknowledging some doubt as to the competing views I have determined that the [appellant] has exercised his one appeal right under s 327 of the 1998 Act.
80.    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.
81. 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.
82.    The [appellant] exercised his one right of appeal when it was filed in March 2024 and ultimately determined by the Appeal Panel. The [appellant] could have, but did not, include any grounds of appeal against the medical assessment certificate issued by Medical Assessor Williams.
83.    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.
84.    The [appellant’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.
85.    If I am wrong on this conclusion then I would have granted the relief sought by the [appellant].”[93]
[91] Reasons, [64]–[65].
[92] Reasons, [66]–[68].
[93] Reasons, [79]–[85].

The Principal Member had previously concluded, at [26] of his reasons, that “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”.

The decision in Lovelee

In Lovelee Payne JA described the factual background. Mr Lovelee was assessed by a medical assessor as having whole person impairment of 14 per cent. Subsequently Mr Lovelee appealed pursuant to s 327 of the 1998 Act. The appeal panel that dealt with that appeal found no error and confirmed the MAC. Mr Lovelee then discontinued the proceedings. A certificate of determination pursuant to s 294 of the 1998 Act was not issued. Mr Lovelee had subsequent surgery to his lumbar spine, and “recommenced his appeal against the MAC pursuant to s 327 of the [1998] Act”.[94]
[94] Lovelee, [3]–[6].
In Lovelee Payne JA said:
“36. It appears that the Appeal Panel proceeded on the basis that the decision in Sleiman was determinative of the present case. I do not agree.
37.    In Sleiman the clear words of s 327(2) and (7) applied to preclude a second appeal. Those subsections do not preclude the present appeal.
38.    As to s 327(2), the principal difference between this matter and Sleiman is that in Sleiman the first Appeal Panel revoked the MAC issued by an approved medical specialist and issued a new certificate: Sleiman at [17]; [30]; [57]–[58]; [60]; [70]–[76]. Mr Sleiman subsequently sought to appeal against the Medical Assessment Certificate issued by the Appeal Panel. In the present case, the appeal was framed as an appeal from a medical assessment certificate of a medical assessor: s 327(2). (emphasis in original)
39.   Sleiman is authority for two propositions:
(1) that s 327(2) does not permit an appeal from a medical assessment certificate issued by an Appeal Panel under s 328(5) because it is not a certificate issued by a medical assessor; and
(2) that s 327(7) does not permit an appeal after the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under s 66A of the Workers Compensation Act1987 (NSW).”
His Honour quoted s 328(5) of the 1998 Act:
“The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
His Honour said:
“Thus it is only when an Appeal Panel revokes a MAC that the power to ‘issue a new certificate as to the matters concerned’ is enlivened. No new certificate was ever issued here.”[95]
[95] Lovelee, [43].
His Honour also said that in Sleiman “it was clear that the conclusion of the Court that a second appeal was impermissible was based, at least in part, upon the application of s 327(7): Sleiman at [43]; [47]; [64]–[65]; [70]; [73]; [74] and [76].”[96] His Honour rejected a submission that an appeal panel decision was a decision of the Commission, and that it followed that the earlier appeal panel decision was a decision of the Commission, such that s 327(7) prohibited a further appeal. His Honour said that “[t]he decision of an Appeal Panel performing its function under Chapter 7 Part 7 of the [1998] Act is not a decision of the Commission”.[97] His Honour said:
“There was no determination made by the Commission within the meaning of s 327(7) of the [1998] Act following the 2021 Appeal Panel decision, as the proceedings were discontinued without any determination being made. Section 327(7) did not preclude Mr Lovelee’s 2024 appeal. Sleiman was not determinative of the present case.”[98]
[96] Lovelee, [44].
[97] Lovelee, [47].
[98] Lovelee, [48].
The appellant submits the facts of the current matter are similar to those in Lovelee, which resulted in that case being distinguished from Sleiman (see [55] to [58] above). The outcome in Lovelee was that the decision of the appeal panel, that “… no further Medical Appeal Panel determination is possible” was set aside. The matter was remitted to the President to be determined according to law. His Honour described this as being “to permit consideration by Mr Lovelee of whether he should take the opportunity of having a reconsideration conducted, rather than seek to prosecute an appeal before an Appeal Panel”.[99]
[99] Lovelee, [51], [63].
Section 327(7) of the 1998 Act provides:
“There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
In the current matter, as in Lovelee, there was no relevant determination of the dispute, or registration of an agreement, that would trigger the operation of s 327(7). The decision of the Medical Appeal Panel did not constitute a determination by the Commission: Lovelee at [43], [47] to [48]. In the current matter, as in Lovelee, the appeal brought is against an “assessment of a medical assessor certified in a medical assessment certificate under this Part [which] is conclusively presumed to be correct in proceedings before a court or the Commission”. Section 327(2) does not preclude appeal in the current matter, as it did not preclude the appeal at issue in Lovelee: Lovelee at [43].
The respondent’s submissions do not specifically challenge the proposition that the current matter can be distinguished from Sleiman for the reasons identified in Lovelee. Consistent with the reasoning of Payne JA in Lovelee, the appellant has a right of appeal against the (combined) medical assessment certificate of Medical Assessor Williams dated 16 February 2024. This is inconsistent with the Principal Member’s conclusion that the matter could not be referred back for further medical assessment under s 327(6) and s 329(1)(a) as there was not a right to appeal.[100]
[100] Reasons, [26].

The ‘abuse of process’ submission

The respondent’s submissions dated 23 June 2025 state that the appellant made “a forensic legal decision” in pursuing the medical appeal that led to the MAP decision in the current matter. It submits this resulted in “protracted legal proceedings” which “ought to be seen as an abuse of process”. It is appropriate that I deal with this submission.
In Michael Wilson & Partners Ltd v Nicholls the plurality said:
“As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW), ‘[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories’. In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings ‘instituted for an improper purpose’, and to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’. In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: ‘(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.”[101]
[101] [2011] HCA 48 (Nicholls), [89].
The appellant suffered serious injury, liability for which was accepted, and on the medical evidence he suffered from significant permanent impairment. He made a claim for lump sum compensation. His clear purpose was simply to have his permanent impairment assessed, in accordance with the workers compensation legislation, for the purposes of that claim. I cannot see that the current proceedings fall within any of the classes of case described in the passage from Nicholls quoted above.
In the ordinary course of events that assessment of permanent impairment would have occurred in compliance with the consent orders made by Member Drake on 1 November 2023. This did not occur through no fault of the appellant. A medical appeal then failed due to a deficiency in how it was framed. This involved no personal fault on the appellant’s part. There were then two unsuccessful reconsideration applications brought, in an attempt to have permanent impairment appropriately assessed when it had not been. I have found above that the first of these should have succeeded. The appellant has ultimately succeeded before me, in light of the explanation by Payne JA in Lovelee, of the reasoning of the Court of Appeal in Sleiman.
It cannot be validly suggested the procedures engaged by the appellant were for an illegitimate purpose, or that they would bring the administration of justice into disrepute. The applications brought by the appellant were not “unjustifiably oppressive” (emphasis added) to the respondent. The appellant was simply attempting to have his permanent impairment assessed for the purpose of the lump sum compensation claim that he was entitled to bring.
The reasons of Payne JA at [55] of Lovelee refer to a decision of Phillips P in Secretary, New South Wales Department of Education v Connolly[102]and of mine in Singh v B & E Poultry Holdings Pty Ltd.[103] In Connolly the President, referring to the employer’s submissions, said:
“If the Respondent is permitted to have the MAC reconsidered to include the assessment of additional body parts that did not form part of her claim nor the ‘medical dispute’ between the parties, it sets a precedent in which a worker, if dissatisfied with a MAC, could obtain a further medico legal report inclusive of additional body parts and then seek to have a further assessment. That course of action, if allowed, would avoid the application of s 66(1A) of the [1987] Act, which was specifically introduced to prevent situations such as those in the present matter.”[104]
[102] [2023] NSWPICPD 38 (Connolly), [74].
[103] [2018] NSWWCCPD 52 (Singh), [55].
[104] Connolly, [74].
This was the potential “course of action” referred to in Lovelee at [55], where Payne JA said:
“It is no doubt correct that there is a need to guard against a course of action which has the deliberate effect of circumventing a ‘prescribed process’. I agree that that it is undesirable to permit ‘multiple attempted claims through the method of discontinuance in the event of dissatisfaction’ with assessments or appeals.”
The warning in Connolly and Singh related to circumstances quite dissimilar to the situation in the current matter. In the current matter the appellant has never had his permanent impairment fully assessed for the purposes of his claim for lump sum compensation. He seeks to engage with that process. The respondent’s argument based on ‘abuse of process’ is rejected.
Ground No. 3 succeeds.

CONCLUSION

It follows from the above that the appeal succeeds. The Principal Member, in his careful reasons, said that he favoured “the conclusion that there is one appeal from the assessment and that appeal right has been exhausted”. He said if he was “wrong on this conclusion then [he] would have granted the relief sought by the [appellant]”.[105] The finding of error is in respect of that specific conclusion, for the reasons given above. I accept the correctness of the balance of Principal Member’s reasoning and findings in his decision dated 24 September 2024. It follows that the relief sought by the appellant should be granted.
[105] Reasons, [85].

DECISION

The Certificate of Determination dated 24 September 2024 is rescinded. The matter is remitted to the Division Head of the Workers Compensation Division to make orders consistent with these reasons

Michael Snell
DEPUTY PRESIDENT

6 August 2025