Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ramsey v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2024] NSWPIC 281
APPLICANT:	Michael Ramsey
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Parramatta
MEMBER:	John Turner
DATE OF DECISION:	28 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application for reconsideration to revoke a Certificate of Determination (COD) so that the worker can be assessed for impairment for worker with “highest needs”; applicant has undergone spinal surgery since the issue of the previous Medical Assessment Certificate (MAC); previous MAC had been confirmed on appeal; applicant now has higher assessment of whole person impairment then assessed under previous MAC; respondent did not consent to the recission of the COD or referral; consideration of sections 322A and 329 of the 1998 Act and section 57 of the Personal Injury Commission Act 2020; consideration of Hochbaum v RSM Building Services Pty Limited, Whitton v Technical and Further Education Commission t/as TAFE NSW, Gusavac v GPC Asia Pty Ltd, Bunfield v State of New South Wales (NSW Police Force), BEX v Koskela Pty Limited, Lazio Formwork Pty Ltd v Kelly, Kelly v Lazio Formwork Pty Ltd, Sleiman v Gadalla Pty Ltd, Samuel v Sebel Furniture Limited, Railcorp NSW v Registrar of the WCC of NSW; Held – COD rescinded; matter remitted to the President to determine whether it can be referred for a further assessment of permanent impairment as provided for by section 329(1).
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination dated 27 February 2019 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020. 2. The matter is remitted to the President for a determination as to whether the applicant may be referred for a further assessment of permanent impairment (by Dr Kalev Wilding if available), as an alternative, to an appeal, pursuant to s 329(1) of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

Michael Ramsey, the applicant, was employed by the Trustees of the Roman Catholic Church for the Diocese of Parramatta, the respondent, as an IT Manager.
The applicant filed an Application to Resolve a Dispute with the former Workers Compensation Commission (WCC) which was registered on 5 March 2018. The applicant alleged that he sustained injury to his neck and lower back:
(a) on 16 November 2013 when whilst in the course of his employment he was required to undertake excessive heavy lifting, awkward bending and reaching, as he connected and disconnected computer workstations and servers whilst manually shuffling and transporting computer workstations and servers to another work site in Blacktown, and
(b) on the deemed date of 18 April 2016 due to the nature and conditions of his employment with the respondent, including awkward lifting of heavy computer and server hardware, loading and unloading this hardware, connecting and disconnecting of computer equipment, and computer parts which caused, aggravated, accelerated and/or precipitated the applicant's injury.
The applicant claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for impairment of the cervical and lumbar spine.
The medical dispute was referred to an Approved Medical Specialist (AMS) and the applicant was examined by Dr Kalev Wilding on 14 August 2018.
On 29 August 2018, the Medical Assessment Certificate (MAC) of Dr Wilding was issued by the WCC in which Dr Wilding assessed due to injury 16 November 2013 and 18 April 2016 (deemed) 27% whole person impairment (WPI) as a result of injury to the cervical spine.
Dr Wilding assessed 0% WPI in respect to the lumbar spine and for scarring.
The applicant lodged an appeal against the MAC which was considered by a Medical Appeal Panel (MAP).
On 22 January 2019, the MAP confirmed the MAC of Dr Wilding.
On 27 February 2019, the WCC issued a Certificate of Determination – Consent Orders (COD) which included an order that the respondent pay the applicant s 66 compensation for 27% WPI in accordance with the MAC of Dr Wilding in the sum of $59,510.
The applicant submits that there has been a deterioration in his condition since the COD was issued. The applicant seeks to have the COD dated 27 February 2019 set aside pursuant to s 57 of the Personal Injury Commission Act 2020 (PIC Act) and that he be referred back to Dr Wilding for reconsideration pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) as to the extent of WPI.
The applicant seeks the reconsideration so a determination can be made as to whether he is a worker of “highest needs” and therefore not required to undergo work capacity assessment every two years. The applicant does not pursue an additional claim for impairment compensation pursuant to s 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a) whether the COD dated 27 February 2019 should be reconsidered and rescinded (s 57 of the PIC Act), and
(b) whether the applicant may be referred for further assessment pursuant to s 329 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for an initial conference before me on 18 March 2024. Ms Jodie Magee, counsel, instructed by Ms Bianca Santoro, solicitor, appeared for the applicant.
Mr Thomas Murray, solicitor, appeared for the respondent. The parties confirmed that submissions had been lodged in accordance with Procedural Direction 7 and that the matter was suitable to be decided on the papers without the holding of a conciliation conference / arbitration hearing. It was confirmed that the matter would be decided on the papers.
There was some indication given that the parties were giving consideration to further written submissions. Following the initial conference a timetable was set for the lodging and serving of any further written submissions. No further written submissions have been received.

SUBMISSIONS

The following written submissions were before the Personal Injury Commission (Commission):
(a) applicant’s submissions dated 30 January 2024 with attachments, and
(b) respondent’s submissions dated 21 February 2024.

EVIDENCE SERVED WITH APPLICANT’S SUBMISSIONS

MAC dated 29 August 2018 – Dr Kalev Wilding

The applicant was referred to Dr Wilding for assessment of impairment due to injury sustained on 16 November 2013 and from nature and conditions of employment with a deemed date of injury of 18 April 2016.
Dr Wilding recorded a history that Dr Abraszko performed an anterior cervical fusion at C5/6 and C6/7 on 7 February 2014. The applicant reported that the surgical procedure relieved the “shooting pain” down his left arm but he had persisting numbness in the tips of his left thumb, middle and ring fingers and numbness in the whole of his index finger. This had been present pre-operatively and persisted post operatively. The applicant remained off work for two months and then returned to work in a full-time capacity with a 5kg lifting limit. However, the applicant reported that he did not have any assistance at work and performed his normal duties which included lifting heavy items.
In October 2015 whilst in the course of his work duties the applicant had a recurrence of shooting pain down his left arm, and he also experienced low back pain.
On 18 June 2016 Dr Abraszko performed a cervical decompression and discectomy on the left at C4/5, C5/6 and C6/7. The applicant reported that the surgery relieved the shooting pain down his left arm however the numbness persisted in the fingers of his left hand. He was referred to physiotherapy for his lower back.
In respect to the cervical spine Dr Wilding diagnosed an aggravation of pre-existing degenerative changes and development of radicular pain down the left arm due to significant foraminal stenosis on the left at C5/6 and C6/7. In respect to the lumbar spine Dr Wilding diagnosed musculoligamentous strain and aggravation of pre-existing degenerative changes.
Dr Wilding assessed due to injury on 16 November 2013 and 18 April 2016 (deemed):
(a)    27% WPI cervical spine;
(b)    0% WPI lumbar spine, and
(c)    0% WPI scarring.
With a combined loss 27% WPI.

Medical Appeal Panel Statement of Reasons

The MAP issued its decision on 22 January 2019.
The applicant appealed the MAC on the following two grounds:
(a) that the assessment was made on the basis of incorrect criteria, and
(b) that the MAC contained a demonstrable error.
The applicant submitted that the AMS had assessed the applicant as falling within DRE Lumbar Category 1 on the basis of incorrect criteria and the assessment had been made on the basis of demonstrable error in the light of the history provided and the physical examination. The applicant also submitted that the assessment of scarring as 0% was made on the basis of incorrect criteria and was affected by demonstrable error.
The MAP confirmed the MAC of Dr Wilding issued on 29 August 2018.

Treating medical evidence

Dr Renata Abraszko, neurosurgeon and spinal surgeon, in a report dated 9 December 2022 records that on 28 October 2020 the applicant underwent L5/S1 anterior discectomy and fusion. On 22 November 2021, due to persisting radiculopathy and non-union of the previous fusion, he underwent L5/S1 posterior decompression and fusion surgery with pedicle screws and posterolateral bone graft.
Dr Abraszko reported that the applicant had previously undergone C4/5, C5/6 and C6/7 posterior foraminotomies and rhizolysis for cervical spine problems on 18 July 2016, which was later approved as being the result of work related injury. The applicant had undergone C5/6 and C6/7 anterior cervical discectomy and fusion in the Liverpool Hospital on
7 February 2014.
Dr Abraszko assessed 30% WPI in respect to the cervical spine and 26% WPI in respect to the lumbar spine. The doctor assessed a combined impairment of 48% WPI.

FINDINGS AND REASONS

Consideration and findings

The applicant seeks to have the COD dated 27 February 2019 set aside pursuant to s 57 of the PIC Act and that he be referred back to Dr Wilding for reconsideration pursuant to s 329 of the 1998 Act as to the extent of impairment due to injury.
The applicant is not seeking to appeal the MAC of Dr Wilding, which has already been the subject of an unsuccessful appeal. The applicant submits, a submission which the respondent accepts, that he has no entitlement to appeal the MAC of Dr Wilding.
The respondent opposes the applicant’s application.
Section 57 of the PIC Act states:
“(1) The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)alter the decision to correct the error, or
(b)direct a registrar to alter the decision to correct the error.
(3) Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)issue a replacement certificate with the error corrected, or
(b)direct a registrar to issue a replacement certificate with the error corrected.
(4) If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) Examples of obvious errors in a decision are where—
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c) there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
Section 329 of the 1998 Act states:
“(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by—
(a) the President as an alternative to an appeal against the assessment as provided by section 327, or
(b)a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”
The respondent disputes that s 329 of the 1998 Act permits the applicant a further assessment of impairment. The respondent submits that pursuant to s 322A of the 1998 Act the applicant was entitled to one assessment, that the applicant has had that one assessment and that assessment is the only assessment to which the applicant is entitled for any purpose in respect to permanent impairment.
Section 322A of the 1998 Act states:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(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).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
In the respondent’s submission the fact that the applicant is not seeking to claim further permanent impairment compensation pursuant to s 66 of the 1987 Act is immaterial.
In the respondent’s submission it is critical that s 329 of the 1998 Act has not been specifically excepted from the operation of s 322A in the same way as ss 327 and 352 of the 1998 Act have been by s 322A(4).
In the respondent’s submission the clear legislative intent is that s 329 cannot act as an exception to the one assessment provision in s 322A.
The respondent in support of its submissions referred to Hochbaum v RSM Building Services Pty Limited;Whitton v Technical and Further Education Commission t/as TAFE NSW (2020) NSWCA 113 (Hochbaum) and in particular to an obiter dicta comment at footnote 31 in which Brereton JA said:
“... I do not accept the submission that an assessment by an approved medical specialist of the degree of permanent impairment may be subject to reconsideration under s 350(3); that provision is concerned with decisions of the Commission constituted by an Arbitrator or a Presidential member, not assessment by approved medical specialists. While a decision of an Appeal Panel in respect of a medical assessment certificate can be reconsidered under s 378; that does not mean that the degree of permanent incapacity changes, it means that upon reconsideration, a correct degree is determined and substituted. Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A.”
The respondent also relied on the decision of Member Perry in the matter of Gusavac v GPC Asia Pty Ltd [2022] NSWPIC 123 (Gusavac). Referring to the above mentioned comment of Brereton AJ in footnote 31 of Hochbaum Member Perry was of the opinion that it would be futile to set aside the Certificate of Determination in Gusavac for the purposes of employing the s 329 power because it would offend s 322A which in his opinion is the dominant provision.
I do not accept the respondent’s submission.
In Bunfield v State of New South Wales (NSW Police Force) [2023] NSWPIC 492 (Bunfield) Member Haddock considered the operation of ss 322A and 329 of the 1998 Act in the wake of the decisions of Member Isaksen in BEX v Koskela Pty Limited [2023] NSWPIC 174 (BEX) and Snell DP in Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork Pty Ltd [2023] NSWPICPD 40 (Lazio).
Member Haddock at [159] concluded that s 322A of the 1998 Act did not prevent a further permanent impairment assessment being made.
Member Haddock observed that Member Isaksen in BEX at [21] concluded that where there is a Certificate of Determination the effect of s 322A(3) is that an applicant is barred from seeking a further assessment as provided for by s 329 of the 1998 Act unless the Certificate of Determination is revoked or set aside. In coming to this opinion Member Isaksen referred to the decision of Harrison AsJ in Sleiman v Gadalla Pty Ltd [2021] NSWSC 86 (Sleiman). In Sleiman at [115] Harrison AsJ said:
“Section 294 of the 1998 Act unequivocally requires the Commission to issue a certificate of determination as soon as practicable after the determination has been made. Although the provision made for an appeals process s 327 is generally remedial in character, s 327(7) clearly states that there is no appeal from a medical assessment after such a certificate has been issued. In my view, these provisions evince an intention to provide for finality in the resolution of medical disputes. This intention is reflected elsewhere in the legislation, such as in 322A of the 1998 Act, which limits an injured worker to one assessment of his or her degree of permanent impairment.”
However, Harrison AsJ went on to state at [120]-[121]:
“For the reasons I have given in relation to the previous grounds of review, the plaintiff in these proceedings could not have availed himself of the application for further assessment process under s 329, because the decision of the Appeal Panel was not a ‘medical assessment’. However, this avenue provides a pathway by which an applicant may seek a reassessment of his or her medical assessment on the basis of a deterioration of his or her condition even after the certificate of determination has been issued.
Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s 350(3) provides a “broad” discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic at [91].”

Section 350(3) of the 1998 Act to which Harrison AsJ referred previously contained the “reconsideration” power which is now contained in s 57(1) of the PIC Act.
Whilst Sleiman was the subject of an appeal, the Court of Appeal did not alter or dismiss the above observations of Harrison AsJ.
At [158] Member Haddock concluded that Snell DP in Lazio “clearly considered that a referral pursuant to s 329 of the 1998 Act was a statutory exception to the operation of s 322A”. In coming to this conclusion Member Haddock observed that Snell DP said at [164] of Lazio:
“In my respectful opinion the construction by Keating P in Merchant, dealing with s 322A of the 1998 Act, is correct. The emphasis placed by his Honour on the word “any” in s 322A(2) highlights the emphatic language employed by the legislature in that sub-section. The words of the section do not suggest that there are exceptions to this prohibition. To read s 322A, in the way the worker submits, would involve a reading that conflicts with the plain, unlimited words of sub-s (1). His Honour’s reading of s 322A involves internal consistency within the section. I accept the employer’s submissions that the words in parentheses should be read as providing examples. They do not purport to be exhaustive. There are certain statutory exceptions to the prohibition in s 322A, for example medical appeals (ss 327 and 328 of the 1998 Act), referrals under s 329 of the 1998 Act, and Pt 2A of the 2016 Regulation. It is not argued that these have application in the current matter.”

I do not accept that s 322A precludes the applicant from a further assessment being made of permanent impairment.
In Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel), Roche ADP considered the reconsideration power which at that time was contained in s 350(3) of the 1998 Act. The Acting Deputy President at [58] listed the following nine principles which he believed were applicable to reconsideration applications under the then s 350(3):
“(1)    the section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244);
(2)     in the view of Roche ADP ‘decision’ in s 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(3)     whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413);
(4)     one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (Hilliger v Hilliger (1952) 52 SR (NSW) 105);
(5)     reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained during the first proceeding is later obtained and that new evidence, if it had been put before the decision maker in the first hearing, would have been likely to lead to a different result (Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642);
(6)     given the broad power of ‘review’ in s 352 (which was not universally available in the Compensation Court of New South Wales) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by decision makers;
(7)     depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
(8)     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29); and
(9)     the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger v Hilliger (1952) 52 SR (NSW) 105 and s 354(3) of the 1998 Act).”
In the Supreme Court, Harrison AsJ in Railcorp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 referred to Samuel with approval and went on to state at [56]:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
In my view the discretion should be exercised in the applicant’s favour.
The respondent submits that the issue of delay weighs against the applicant with some five years having elapsed since the COD was issued.
In my view there has been no significant delay in the bringing of the application for reconsideration. Whilst the COD was issued on 27 February 2019 following the MAC of
Dr Wilding being issued on 29 August 2018 and the decision of the MAP on 22 January 2019 the applicant did not undergo the L5/S1 anterior discectomy and fusion until 28 October 2020 with the L5/S1 posterior decompression and fusion surgery with pedicle screws and posterolateral bone graft not being performed until 22 November 2021.
Time would have been required following the said surgical procedures for the applicant’s condition to reach maximum medical improvement so that an impairment assessment could be performed. Dr Renata Abraszko provided an impairment assessment under cover of a report dated 9 December 2022 which according to the applicant’s submissions at [20] was forwarded to the relevant insurer on 22 June 2023 with a request that it be conceded that the applicant is a worker of highest needs. The reason for the delay between the receiving of the report of Dr Abraszko and the provision of the report to the insurer is not explained but is not of such a duration as to affect my opinion. On 30 January 2024 the respondent was notified of the application for reconsideration and served with the applicant’s submissions.
In my view there is new evidence that could not with reasonable diligence have been obtained during the first proceeding and which, if it had been available would have been likely to lead to a different result. The applicant did not undergo the L5/S1 anterior discectomy and fusion until 28 October 2020 with the L5/S1 posterior decompression and fusion surgery with pedicle screws and posterolateral bone graft not being performed until
22 November 2021. The two surgical procedures were therefore performed after the MAC of Dr Wilding was issued on 29 August 2018, after the decision of the MAP on 22 January 2019 and after the COD was issued on 27 February 2019. The subsequent assessment of
Dr Abraszko that the applicant has a 48% WPI is therefore new and fresh evidence that could not have been obtained with reasonable diligence prior to the examination by
Dr Wilding.
Following the issuing of the MAC of Dr Wilding and the COD the applicant has undergone two significant surgical procedures to his lumbar spine. His lumbar spine was one of the body systems that was referred to Dr Wilding for impairment assessment. There has been a significant material change in the applicant’s condition following the assessment by
Dr Wilding and the issuing of the COD.
The respondent submitted that permitting an applicant to obtain evidence following the issuing of a relevant decision to then support an argument that the decision should be reviewed is not consistent with any principles of finality of litigation.
I do not accept the applicant’s submission. The legislative scheme clearly contemplates the bringing of a further claim in the event of deterioration. Pursuant to s 327(3)(a) deterioration of a worker’s condition resulting in an increase in the degree of impairment is a ground for an appeal against a medical assessment. Such an appeal is not subject to the limitation periods contained in s 327(5) and such an appeal would necessarily require evidence which post dates the MAC which is the subject of the appeal.
Harrison AsJ in Sleiman clearly envisaged the reconsideration power being used in circumstances where a worker has suffered a deterioration stating at [121]:
“Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s 350(3) provides a “broad” discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic at [91].”
It is difficult to envisage how the reconsideration power could be used in respect to a deterioration without evidence that post dates the decision being reconsidered.
The respondent submitted, in effect, that the fact that the applicant elected to prosecute his claim at the time that he did, that is prior to the deterioration, is not a basis on which the matter should be reagitated. I do not accept this submission. The degree of impairment is not to be assessed until it is fully ascertainable. Section 322(4) of the 1998 Act states:
“A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured worker until the medical assessor is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.”
The applicant is not a medical expert, and cannot be criticised for relying on expert medical opinion to the effect that the degree of permanent impairment was fully ascertainable at the time of the assessment.
I am of the view that the exercise of the discretion is warranted in the interests of doing justice between the parties in accordance with the substantial merits of the case. In the exercise of that discretion, I rescind the COD dated 27 February 2019.
As the applicant seeks an order pursuant to s 329 that the Registrar refer the applicant back to Dr Wilding I assume that the applicant is relying on s 329(1)(a) of the 1998 Act.
Having rescinded the COD I therefore remit this matter to the President to determine whether this matter can be referred for a further assessment by Dr Kalev Wilding (if available) of permanent impairment as an alternative to an appeal as provided for by s 329(1) of the 1998 Act.

[2024] NSWPIC 281

28 May 2024