Pollard v Toll Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 630
APPLICANT:	Christopher Pollard
RESPONDENT:	Toll Holdings Pty Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	11 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); applicant sustained laryngeal injury in 2018; claim under section 66 of the 1987 Act for compensation based on nervous system and larynx function referred to two medical assessors; Medical Assessor Burns assessed nervous system and found that breathing dysfunction was due to larynx injury which should be assessed by Medical Assessor Williams; Medical Assessor Williams assessed larynx dysfunction but did not assess breathing defect; appeal filed only against assessment made by Medical Assessor Burns; Medical Appeal Panel dismissed the appeal, finding that error was that Medical Assessor Williams did not undertake the assessment; applicant initially filed further application pursuant to section 329(1)(a) of the 1998 Act alleging error by Medical Assessor Williams and seeking reconsideration of his assessment as an alternative to an appeal; finding that process is one medical assessment, and that applicant has exercised his one appeal against the medical assessment, applicant filed reconsideration application seeking to rely on section 329(1)(b) of the 1998 Act; discussion of authorities; requirement to read section 329(1)(b) contextually; earlier authorities pre-dated commencement of section 322A of the 1998 Act and finding in Sleiman v Gadalla Pty Ltd that applicant has only one appeal; finding that section 329(1)(b) of the 1998 Act not available in present circumstances; discretion to reconsider previous decision; finality of litigation compelling factor when present argument raised and not pressed in previous proceedings; Held – claim for reconsideration dismissed.
DETERMINATIONS MADE:	The Commission determines: Order 1. The application to reconsider the decision in Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530 and to rely on s 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is dismissed.

STATEMENT OF REASONS

BACKGROUND

Mr Christopher Pollard (the applicant) was employed by Toll Holdings Pty Ltd (the respondent) and sustained injury on 18 October 2018. The applicant was involved in helicopter underwater escape training when one of the participants panicked and accidentally kicked him in the throat.
The applicant seeks a reconsideration of the decision in Pollard v Toll Holdings Pty Ltd.[1] The history of the matter and findings, which are not disputed in this application, are repeated as part of these reasons. However, for the purpose of understanding this application, I will repeat relevant portions of the background from Pollard.
[1] [2024] NSWPIC 530 (Pollard).
The applicant brought proceedings seeking compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
The application was set down before a Personal Injury Commission (Commission) Member who issued consent orders dated 1 November 2023. The orders relevantly provided:
“The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a)Date of Injury: 18 October 2023
(b)Body system: nervous system (sleep and arousal disorder), respiratory disorder and ear, nose and throat related functions (larynx dysfunction).”
The orders otherwise specified the material to be forwarded as part of the assessment.
The assessment of permanent impairment is undertaken in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (the Guidelines).[2] The Guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5).
[2] The Guidelines are issued pursuant to s 376 of the 1998 Act.

MEDICAL ASSESSMENTS

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

APPEAL

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

PREVIOUS APPLICATION

The applicant filed an application on 5 July 2024 relying on s 329(1)(b) of the 1998 Act. The applicant then requested that Medical Assessor Williams reconsider his medical assessment certificate on the basis that there was no assessment for shortness of breath due to the laryngeal injury under Table 6.2 of the Guidelines.
Those submissions asserted that the referral back for assessment under s 329(1)(b) was consistent with the objectives of matters heard before the Commission.[6]
[6] References were made to the just resolution of the real issues in the proceedings (s 42 of the Personal Injury Commission Act 2020 (PIC Act)) and the requirement by the Commission to act according to equity, good conscience and the substantial merits of the case (s 43).
That application was listed for a preliminary conference on 19 July 2024.
At the preliminary conference the applicant advised that he was relying on s 329(1)(a) of the 1998 Act in lieu of s 329(1)(b). The parties’ attention was then drawn to the decision of the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW[7] in the context of an application under s 329(1)(a) of the 1998 Act.
[7] [2007] NSWCA 149 (Riverina Wines).

REASONS IN POLLARD

In Pollard I delivered reasons on 24 September 2024 holding:
(a)    the applicant had shown demonstrable error by the failure of Medical Assessor Williams to assess any impairment of breathing due to the injury to the larynx;
(b)    the applicant had shown, pursuant to s 327(5) of the 1998 Act, that there were “special circumstances” to justify an increase in the appeal period, and
(c)    the applicant was not entitled to file a second appeal from the medical assessment. In the circumstances of the case this prevented the matter from succeeding in that application.
I otherwise discussed principles relevant to the operation of s 329(1)(a) of the 1998 Act and noted that if I was wrong on the third issued,[8] then the applicant would have been granted the relief he sought.
[8] In paragraph 21 herein.
At the end of the reasons I noted:
“It is unnecessary to address the initial application based on s 329(1)(b) of the 1998 Act as the applicant clarified at the telephone conference that the application was brought pursuant to s 329(1)(a) of the 1998 Act.”

PRESENT APPLICATION

This application is brought within days as a reconsideration of the decision in Pollard and pursuant to s 329(1)(b) of the 1998 Act.
The applicant referred to the error in the medical assessment of Medical Assessor Williams in failing to assess laryngeal dysfunction and the short delay in making this application. It was noted that the present application was made within a short period of the decision being issued in Pollard.
The applicant noted the reasoning in Pollard that no second appeal existed and submitted that “a reconsideration is not only appropriate but required to ensure that the PIC does justice between the parties”.
The applicant submitted that s 329(1)(b) is not limited as an alternative to an appeal and referenced the observations of Snell ADP in Adriaansen v Dungog Retirement Living Ltd,[9] and the general observations in other cases such as Milosavljevic v Medina Property Services Pty Ltd which held that the provision was intended to provide a remedy where “the dictates of justice require a further referral for assessment”.[10]
[9] [2016] NSWWCCPD 36 at [81].
[10] See Milosavljevic at [58d] and Read v Liverpool City Council [2007] NSWSC 320.
The applicant did not submit in this application that Pollard was wrongly decided.
The respondent referred to s 322A of the 1998 Act noting that it was subject to s 327 and s 352 of the 1998 Act but was not subject to s 329. It noted that the decisions of Mansour, Read and Milosavljevic predated the commencement of s 322A. Reference was made to the observations of Roche AP in O’Callaghan v Energy World Corporation Ltd[11] where he doubted that “the reconsideration power in s 329 can work with s 322A”.[12]
[11] [2016] NSWWCCPD 1 (O’Callaghan).
[12] O’Callaghan at [87].
The respondent referred to the observations of Snell DP in Singh v B & E Poultry Holdings Pty Ltd[13] where it was noted that the comments of s 329 in Milosavljevic were expressed to be subject to the context of the legislation. The Deputy President then observed that the exercise of the discretion in s 329 had to be considered in light of the one assessment in s 322A.
[13] [2018] NSWWCCPD 52.
The respondent otherwise referenced the observations of Coleman DCJ in Stines v The GEO Group Aust Pty Ltd[14] and the footnote in the decision of Brereton JA in Hochbaum v RSM Building Services Pty Ltd when his Honour stated:
“Section 329 (referral for further assessment) does not extend to permanent impairment, because of s 322A.”
[14] [2021] NSWDC 550 at [97]-[98] and [102].
With respect to the comments of their Honours, these latter decisions did not consider the power in s 329(1)(a) read with s 327(6) to allow a reconsideration, in lieu of an appeal. The exercise of that power does not breach the one assessment in s 322A because s 322A(4) provides that the one assessment is subject to the appeal provisions. Accordingly, the power to refer back in lieu of an appeal provided by s 327(6) and s 329(1)(a) does not contravene s 322A because it is an exercise of an appeal right by way of reconsideration of the original medical assessment.
I repeat what was stated in Meyers v Andrew Miedecke Motors Pty Ltd[15] on the issue of the continued application of s 329 when I stated:[16]
“First, I accept that any reconsideration application under s 329 of the 1998 Act may not necessarily be contrary to s 322A. A clear example is where a medical dispute has not been fully determined because a Medical Assessor has not decided the entirety of the medical dispute[17] such as failing to assess scarring. In those circumstances, the reconsideration application would be necessary to complete the original assessment, or, as an alternative to an appeal (s 329(1)(a) of the 1998 Act). This type of reconsideration would not be a breach of the one assessment under s322A as the assessment has not been completed or undertaken as an alternative to an appeal.”
[15] [2024] NSWPIC 357 (Meyers).
[16] Meyers at [35].
[17] See Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) at [46]-[48].
A reconsideration application of facts similar to that envisaged in the previous paragraph (failing to assess a body part) could arguably involve an application of s 329(1)(b) because, where the assessment is not completed, the Medical Assessor is being directed to complete the medical assessment.
I agree with the respondent’s submission that certain authorities referenced by the applicant either predated the introduction of s 322A and/or failed to consider the application of the one medical assessment to the application of the s 329. I decline to follow those authorities that suggest that s 329 has wide application given the obvious contextual changes in the legislation particularly with respect to the introduction of s 322A.
I also note that the Court of Appeal in Sleiman v Gadalla Pty Ltd[18] held that there was only one entitlement to appeal from a medical assessment
[18] [2021] NSWCA 236 (Sleiman).
In Scone Race Club Ltd v Cottom[19] Basten JA described the decision of Sleiman in the following terms:[20]
“The third case to be addressed is Sleiman v Gadalla Pty Ltd. The reasoning in that case is only indirectly relevant to the present matter. Leeming JA (with the agreement of Gleeson and Payne JJA) concluded that the statute allowed only one appeal from a medical assessment. The commencing point for the reasons was s 322A, introduced into the Workplace Injury Act in 2012, which provides that there is to be ‘only one assessment… of the degree of permanent impairment of an injured worker’: s 322A(1). The section does not limit the right of appeal under s 327: s 322A(4).”
[19] [2024] NSWCA 34 (Cottom).
[20] Cottom at [34], Gleeson and Mitchelmore JJA agreeing.
The decision in Sleiman post-dated the decisions referenced by the parties. That decision determined that a party was not entitled to a second appeal based on the contextual provisions of Part 7 of the 1998 Act (Medical Assessments). When s 329 is considered in the context of medical assessments under Part 7 of the 1998 Act, it must be construed in the context that the legislation provides for only one appeal.
The other relevant amendment to the legislation is the repeal of s 378 of the 1998 Act which allowed a reconsideration from decisions of Appeal Panels.
In Meyers[21] I further stated:
“The repeal of s 378 of the 1998 Act had removed the ‘safety valve’ to reconsider a decision of an Appeal Panel.[22] It would be an extraordinary distortion of the language in s 329 that a reconsideration application can be brought pursuant to that section following an appeal panel determination. The plain language in s 329 is that the provision relates to the determination by a Medical Assessor as opposed to an Appeal Panel. So much is clear from s 329(1)(a) which specifies that the power is an alternative to an appeal under s 327. Further, read contextually, the provision to reconsider a decision of an Appeal Panel was clearly provided by s 378, which, as noted, has been repealed.”
[21] Meyers at [26].
[22] Sleiman at [77].
In my view it would be a distortion of the language in s 329 to allow a further reconsideration in circumstances under s 329 where the appeal rights have been exhausted and the party is then seeking to reconsider the original medical assessment.
In the earlier decision I held that the applicant has exercised his one right of appeal and exhausted his appeal rights, and that conclusion meant that the relief sought under s 329(1)(a) was denied. Whilst the applicant has appealed that decision, no submission was made in this application that this issue was wrongly decided.[23] Accordingly I proceed on the basis in this application that the applicant has exhausted his appeal rights.
[23] See applicant’s submissions at [26].
For these reasons I do not accept that the applicant has a further right to challenge the medical assessment based on s 329(1)(b) of the 1998 Act.

Exercise of discretion to reconsider the previous decision

If I am wrong in this conclusion, I deny the application to reconsider Pollard on discretionary grounds.
The respondent referred to the principles in Samuel v Sebel Furniture Ltd[24] which concerned the exercise of the discretion to reconsider orders of the Commission under s 350 of the 1998 Act (now s 57 of the PIC Act). Samuel was applied in Martinovic v Workers Compensation Commission of New South Wales[25] which in turn was referenced by the Court of Appeal in Sleiman when Leeming JA stated:[26]
“Decisions referring to the principles under which a reconsideration power is exercised are collected in Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 at [91]- [101].”
[24] [2006] NSWWCCPD 141 (Samuel).
[25] [2019] NSWSC 1532 (Martinovic).
[26] Sleiman at [77].
I will limit the discussion of the discretion to reconsider based on the matters raised by the parties rather than all factors discussed in Samuel.
In the earlier decision I agreed with the applicant’s submission that the larynx dysfunction should have been assessed in terms of breathing impairment. The Appeal Panel held that the applicant incorrectly pursued an appeal against the assessment undertaken by Medical Assessor Burns when it was clear from those findings that the impairment was not based on the respiratory system (assessed by Medical Assessor Burns) but due to partial obstruction of the larynx (assessed by Medical Assessor Williams). That decision has not been challenged.

I accept that the applicant’s legal practitioners have always moved expeditiously.
A relevant factor in the exercise of the discretionary power is the finality of litigation.[27] The respondent’s submissions relied on various authorities which support its position including the observations of the High Court in Burrell v The Queen[28] when the Court stated:
“It is that the principle of finality serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time‑consuming, and it is almost always costly.”
[27] See Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 117, [44]–[45] applying Hilliger v Hilliger (1952) 52 SR (NSW) 105 and Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244.
[28] [2008] HCA 34 at [16]
The comments of the High Court were made in the context of a superior court reopening proceedings and reconsidering the orders that had been made. However, I agree that the observations are otherwise consistent with the authorities that support the principles of the finality of justice in an application for reconsideration.
The applicant in this matter has pursued an appeal, applied for relief restricted to s 329(1)(a) when the previous application initially relied on s 329(1)(b). I agree with the respondent’s submission that what occurred in the original application is correctly described as “a legitimate forensic decision made under the guidance of legal advice”[29] and that the reliance on s 329(1)(b) “was abandoned in the prior proceedings”.[30] The process adopted by the applicant is grossly inconsistent with a timely and cost-effective resolution of these disputes.
[29] Respondent’s submissions, [49].
[30] Respondent’s submissions, [56].
Whilst I acknowledge the applicant’s submissions on the absence of delay and the absence of an assessment of a body part, the applicant had the right to correct this error when he filed an appeal. The applicant submitted that he:[31]
“[S]hould not be in a position where a clear has been identified but cannot be remedied”.
[31] Applicant’s submissions, [30].
That submission disregards the fact that the applicant had a clear remedy when the appeal was filed and did not exercise it in respect of the failure to assess breathing impairment from the laryngeal injury. The Medical Appeal Panel has determined the appeal, which, as previously noted, has not been challenged.
I do not accept that the change in legal representation assists the applicant. Different legal practitioners will often hold different views as to the presentation of a matter. The fact that different legal practitioners pursue different arguments does not provide a right to subsequently change representation and reagitate the matter on different grounds particularly when the issue was raised and not pressed in the original application.
The finality of litigation is a compelling argument in the rejection of the reconsideration application particularly where the applicant, though his legal representation, previously made a conscious choice in Pollard to not pursue the argument under s 329(1)(b). For these reasons I would decline the applicant’s application to reconsider the original decision.

ORDER

The order is set out in the Certificate of Determination.

[2024] NSWPIC 630

11 November 2024