Roach v Teldraw Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Roach v Teldraw Pty Ltd [2023] NSWPIC 445
APPLICANT:	David Roach
RESPONDENT:	Teldraw Pty Ltd
MEMBER:	Jill Toohey
DATE OF DECISION:	4 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted psychological injury; claim for permanent impairment; applicant assessed by Medical Assessor as having 9% whole person impairment; application for reconsideration of Certificate of Determination; applicant claimed deterioration in psychological condition since the Medical Assessment Certificate; consideration of principles in Samuel v Sebel Furniture Limited; whether discretion in section 57(1) should be exercised; whether new evidence that could not with reasonable diligence have been obtained at the time of the determination; Held – application refused.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s request for reconsideration of the Certificate of Determination dated 1 November 2021 is refused.

STATEMENT OF REASONS

BACKGROUND

The applicant, David Roach, sustained a psychological injury in the course of his employment with the respondent, Teldraw Pty Limited, for which the respondent accepted liability.
On 15 July 2021, Mr Roach commenced proceedings in the Personal Injury Commission (Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). He relied on a report of psychiatrist, Dr Glen Smith, who assessed him as having 19% whole person impairment as a result of his injury. The respondent’s independent assessor, Dr Clayton Smith, assessed Mr Roach as having 6% whole person impairment.
The matter was referred to a Medical Assessor, Dr Douglas Andrews, who issued a Medical Assessment Certificate (MAC) on 27 September 2021 assessing Mr Roach as having 9% whole person impairment as a result of his injury.
By a Certificate of Determination (COD) issued on 1 November 2021, the Commission determined that Mr Roach suffered 9% permanent impairment as a result of his psychological injury and that he had no entitlement to lump sum compensation because he did not reach the threshold required by s 65A(3) of the 1987 Act.
By letter to the Commission dated 30 August 2022, Stacks Goudkamp, solicitors for
Mr Roach, requested reconsideration of the MAC on the basis of reports of his treating psychologist, Dr David Gunn, that his condition had since deteriorated. On 1 September 2022, the solicitors withdrew that request.
By letter dated 9 May 2023, Mr Roach’s solicitors again requested reconsideration of the MAC pursuant to s 329 of the Workers Compensation and Workplace Injury Management Act 1998 (1998 Act). They relied on reports from Dr Gunn, treating psychiatrist Dr Augustus Pusic, and Dr Glen Smith that Mr Roach’s condition had deteriorated since the MAC on
27 September 2021.

PROCEDURE BEFORE THE COMMISSION

On 29 May 2023, the respondent filed a written outline of submissions opposing the request for reconsideration.
On 21 June 2023, an outline of written submissions in support of the request was lodged on behalf of Mr Roach.
Parties attended a telephone conference on 6 July 2023 before a different Member, and the matter was set down for a conciliation conference and arbitration hearing on 22 August 2023.
Mr Bill Carney of counsel, instructed by Ms Anna Tavianatos, appeared for Mr Roach at the conciliation conference and arbitration hearing. Mr Fraser Doak, instructed by Ms Olivia Sommerton, appeared for the respondent.
Although the applicant’s request was for reconsideration and written submissions concerned reconsideration of the MAC pursuant to s 329 of the 1998 Act, parties made oral submissions in relation to reconsideration of the of the COD pursuant to s 57(1) of the Personal Injury Commission Act (PIC Act) and reconsideration of the MAC. The principles are essentially the same.

EVIDENCE

The following documents were before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    the MAC dated 27 September 2021;
(d)    request for reconsideration dated 3 March 2023 and attached documents;
(e)    the applicant’s written outline of submissions, and
(f)    the respondent’s written outline of submissions.
In support of his application for lump sum compensation, Mr Roach provided a statement describing his injury, treatment and ongoing symptoms.[1] It is not necessary for present purposes to recount his statement. The doctors’ reports detail his accounts of the injury and its effects, and the respondent does not take issue with them.
[1] ARD page 1.
In determining the MAC, Dr Andrews referred to a report from Mr Roach’s then treating psychiatrist, Dr Selwyn Smith,[2] a report from Dr Gunn dated 14 October 2020[3] and a report from Dr Glen Smith dated 11 March 2021.[4] He also referred to the report of the respondent’s independent medical assessor, Dr Clayton Smith.[5]
[2] ARD page 89.
[3] Attachment to request for reconsideration letter, 9 May 2023.
[4] ARD page 63.
[5] Reply page 1.
In support of his request for reconsideration, Mr Roach relies on additional reports of
Dr Gunn dated 7 June 2022 and 3 August 2022, a report of Dr Pusic dated 9 January 2023, and a report of Dr Glen Smith dated 30 March 2023.[6] (Mr Roach’s general practitioner,
[6] Attachments to request for reconsideration letter, 9 May 2023.
Dr Mohammad Shahabi, referred him to Dr Pusic after Dr Selwyn Smith died in January 2022.)

Dr Gunn’s reports

In a report to the insurer on 9 March 2020,[7] Dr Gunn said Mr Roach met DSM-5 criteria for an adjustment disorder. His symptoms included difficulty sleeping, nightmares, tearfulness, racing heart, difficulties concentrating and social withdrawal. Dr Gunn noted similar symptoms in a report to the insurer on 24 March 2020.[8]
[7] ARD page 122.
[8] ARD page 127.
In a further report to the insurer on 9 November 2020,[9] Dr Gunn said Mr Roach’s symptoms “were becoming progressively worse over time” and he now met the DSM-5 criteria for
[9] ARD page 129.
post-traumatic stress disorder. He reported nightmares, flashbacks, intrusive thoughts, low motivation, low mood, tearfulness, difficulties concentrating, hypervigilance, social withdrawal, and increased anger.

Report dated 14 October 2020

Dr Gunn referred Mr Roach to Dr Selwyn Smith on 14 May 2020 for an opinion as to diagnosis.[10] In a report to Dr Smith on 14 October 2020, Dr Gunn said Mr Roach reported symptoms including nightmares, flashbacks and intrusive thoughts which had been worse since he started attending an anxiety group recommended by Dr Smith. Dr Gunn said he “strongly agreed” with the group presenter that “exposure therapy is an important treatment component of PTSD” and Mr Roach was willing to continue with the group “knowing that it will benefit his PTSD”.
[10] ARD page 264.

Reports dated 7 June 2022 and 3 August 2022

In a referral letter to Dr Pusic on 7 June 2022, Dr Gunn said Mr Roach was originally diagnosed with adjustment disorder following the workplace injury. Due to his “ongoing decline”, Dr Gunn said he believed Mr Roach met the DSM-5 criteria for post-traumatic stress disorder. He said both he and Dr Shahabi diagnosed Mr Roach with post-traumatic stress disorder in late 2020. He referred to three assessments of Mr Roach’s whole person impairment during 2021, noting that only one assessed him as exceeding 15%. He said Mr Roach’s mental health had worsened in the previous six months but, with therapy, he was now “able to discuss the trauma related to his injury”. Dr Gunn requested Dr Pusic’s opinion of his injury and the “possibility of him being reassessed for WPI”.
On 3 August 2022, Dr Gunn reported to Dr Pusic with “an update of [Mr Roach’s] condition”. He said Mr Roach’s “PTSD symptoms continue to worsen, which has seen a decline in his everyday functioning”. He reported symptoms including difficulties sleeping, nightmares, difficulties concentrating, verbal aggression with his family, poor personal hygiene, poor memory, social withdrawal and increased anxiety.

Dr Glen Smith’s reports

Report dated 11 March 2021

Dr Glen Smith reported to Mr Roach’s solicitors on 11 March 2021 following a video conference with Mr Roach on 2 March 2021. Dr Smith took a history of the injury and presenting complaints which is not controversial.
Dr Smith noted a report dated 31 July 2020 from Madhu Misra, treating psychologist at
St John of God Hospital, in which she documented that Dr Selwyn Smith had referred
Mr Roach with a diagnosis of adjustment disorder with depression and anxiety due to work related experiences.
Dr Smith noted a report of Dr Selwyn Smith dated 20 May 2020 in which he concluded that Mr Roach presented with “clear and convincing symptomatologies of Adjustment Disorder with Mixed Depressed and Anxious Mood, chronic in duration”.
Dr Smith noted that Dr Gunn reported on 14 May 2020 that he had diagnosed Mr Roach with an adjustment disorder but he believed his symptoms “were more akin with trauma”. He noted a further report from Dr Gunn dated 15 September 2020 in which he concluded that
[11] This date may be incorrect. The reference to provisional diagnosis of post-traumatic stress disorder appears in Dr Gunn’s clinical notes dated 9 November 2020.
Mr Roach met the criteria “for the provisional diagnosis of post traumatic stress disorder”.[11]
Dr Smith also noted Dr Shahabi’s records, a report from psychologist Thomas O’Neil, and a summary of reports compiled by independent psychiatrist, Dr Anwar.
Under “Current symptoms”, Dr Smith noted that Mr Roach said he was “irritable, angry, sad and anxious”, he felt “worse when exposed to triggers reminding him of the incident”, he had reduced interest and motivation for activities and often struggled to get out of the bed in the morning, he had difficulty sleeping although he denied nightmares, he had reduced interest and motivation for activities, he had difficulties thinking and concentrating, and he described anxiety and avoiding going out alone.
Dr Smith made a provisional diagnosis of Major Depressive Disorder, with Anxious Distress according to the criteria in DSM-5. Under “Justification of Diagnosis” he referred to the criteria by which he reached his diagnosis. He stated:
“In my opinion Mr Roach’s condition did not fulfil criteria for the diagnosis of PTSD as he was not exposed to a Criterion A stressor. In my opinion, the anxious distress he described with avoidance related to triggers reminding him of the events in the workplace can be considered part of the condition of Major Depressive Disorder with Anxious Distress. In my opinion, due to Mr Roach’s condition satisfying criteria for the diagnosis of Major Depressive Disorder the diagnosis for Adjustment Disorder is not warranted as the DSM-5 Criterion C for Adjustment Disorder states that criteria for another mental disorder are not met.”
Dr Smith set out the psychiatric impairment rating scale (PIRS) criteria by which he assessed Mr Roach as having 19% whole person impairment.

Report dated 3 March 2023

On 3 March 2023, Dr Smith reported to Mr Roach’s solicitors following a video conference with Mr Roach on 20 March 2023. He listed the documents provided to him, including the MAC.
Dr Smith noted Dr Shahabi’s referral to Dr Pusic on 5 May 2022 in which he said Mr Roach had been “suffering from mood disorder and PTSD” due to his work injury. He noted
Dr Gunn’s reports of 7 June 2022 and 3 August 2022, and Dr Pusic’s report of
9 January 2023.
Dr Smith took a history from Mr Roach that there had been a deterioration in his anxiety and depressive symptoms over the past 12 months “with significantly impaired functioning”. He noted that Mr Roach presented with “more significant symptoms” compared to his assessment in 2021 and this was “consistent with the documentation from his treating practitioners”.
Dr Smith diagnosed Mr Roach with Persistent Depressive Disorder, with Persistent Major Depressive Episode, with Anxious Distress.
Under “Justification of Diagnosis”, Dr Smith said Mr Roach described “persistent anxiety and depressive symptoms for over two years since the workplace issues … (Criterion A)”. He detailed his reasons by reference to the remaining criteria in DSM-5.
With respect to the diagnosis of post-traumatic stress disorder by Mr Roach’s treating practitioners, Dr Smith said:
“… in my opinion, there was no Criterion A stressor and his anxious distress can be appropriately considered as part of his Persistent Depressive Disorder. I previously diagnosed Mr Roach with Major Depressive Disorder, with Anxious Distress because he fulfilled criteria for that condition but because his symptoms have been present continuously for over two years, the diagnosis of Persistent Depressive Disorder is warranted.”
With reference to the PIRS, Dr Smith assessed Mr Roach’s whole person impairment as 26%.

Dr Selwyn Smith’s report

Dr Selwyn Smith reported to Dr Shahabi following a consultation with Mr Roach on
[12] ARD page 271.
20 May 2020.[12]
With respect to diagnosis, Dr Smith said Mr Roach “presented with clear and convincing symptomatology of Adjustment Disorder with mixed depressed and anxious mood, chronic in duration. He reveals heightened levels and anxiety and depression”.

Dr Clayton Smith’s report

Dr Clayton Smith reported to the insurer on 26 April 2021.[13] He diagnosed Mr Roach as having an Adjustment Disorder with mixed anxiety and depressed mood by reference to DSM-5. He said Mr Roach “does not meet Criterion A for post traumatic stress disorder”. Although he had some symptoms consistent with post-traumatic stress disorder, “in the absence of the Criterion A stressor” the appropriate diagnosis was an adjustment disorder.
[13] Reply page 1.

Dr Pusic’s report

Dr Pusic reported to Dr Shahabi on 9 January 2023. He said Dr Shahabi “would be aware that Mr Roach has suffered from significant symptoms of post traumatic stress disorder following him being threatened and intimidated … in September 2019.” He noted that Mr Roach had received “appropriate intensive intervention” from Dr Gunn and was seen by Dr Selwyn Smith until he passed away.
Dr Pusic stated that he first saw Mr Roach on 8 June 2022 and last reviewed him on
18 November 2022. He continued to display “significant symptoms of post traumatic stress disorder ” which fluctuated in intensity but were “ever present”. Mr Roach reported recurrent intrusive recollections of the incident at work and he became “overwhelmed and acutely distressed” when referring to his manager.
Dr Pusic said Mr Roach described “ongoing symptoms of severe depression”. He described “emotional lability” and “pervasive dysphoria, anergia, lack of motivation and difficulty to obtain any pleasure from his environment”. He had experienced acute anxiety attacks and he described “irritability and low frustration tolerance”, conflict with his immediate family and others, difficulty with concentration and attention, and his sleep was disturbed. He described “significant deterioration in all aspects of his personal, social and occupational functioning”. He had become increasingly socially isolated and could neglect his personal hygiene.
Dr Pusic said he had read the reports of Dr Clayton Smith and Dr Glen Smith, and
Dr Andrews’ MAC. He said taking into account his “ongoing severe psychiatric symptoms” and his “self reported deterioration in his personal and social functioning” together with his wife’s “corroborative evidence”, he would say there had been a marked deterioration in Mr Roach’s overall functioning since Dr Andrews’ assessment, and a reconsideration of his whole person impairment was “well warranted due to further deterioration”.

The MAC

Dr Andrews took a history of the injury consistent with other doctors. He noted that Mr Roach had been treated by Dr Shahabi, Dr Gunn and Dr Selwyn Smith. He noted presenting symptoms broadly consistent with the other doctors.
Dr Andrews stated that he made his diagnosis reliant on the criteria in DSM-5. He diagnosed Mr Roach with Adjustment Disorder with Mixed Anxiety and Depressed Mood – chronic. He stated:
“He does not meet the full criteria for a major depressive episode. He has not had an experience that meets Criterion A for a diagnosis of PTSD.”[14]
[14] Dr Andrews does not identify Criterion A and there is no evidence before the Commission specifically about this. However, Mr Doak agreed that it relates to exposure to a threat of serious harm and there was no dispute from Mr Carney about this.
Dr Andrews set out where he differed from the other medical opinions. He noted that Dr Gunn diagnosed an adjustment disorder in September 2020 and, later, post-traumatic stress disorder. He noted that Dr Selwyn Smith diagnosed an adjustment disorder with mixed depressed and anxious mood, chronic in duration. He noted Dr Glen Smith’s diagnosis in March 2021 of major depressive disorder with anxious stress and Dr Clayton Smith’s diagnosis in April 2021 of adjustment disorder with mixed anxiety and depressed mood. He set out where his assessment of whole person impairment differed from that of
Dr Glen Smith and Dr Clayton Smith.

THE APPLICANT’S SUBMISSIONS

The applicant’s written outline of submissions stated that reconsideration is sought of the MAC “and the resultant [COD] issued on 1 November 2021”. It was submitted that reconsideration of the COD pursuant to s 57(1) of the PIC Act “follows the reconsideration of the MAC”. The submissions addressed the principles in Samuel, in particular regarding new evidence. It was submitted that, once the MAC is reconsidered, there would be an inconsistency between the COD and the MAC, thereby invoking s 57(6)(d).
For the most part, Mr Carney did not pursue this line of argument in oral submissions. He submitted that the COD should be reconsidered pursuant to s 57(1) to allow for further assessment under s 329 of the 1998 Act.
The written outline of submissions asserted that the deterioration in Mr Roach’s condition was evidenced by the findings by Dr Glen Smith, Dr Gunn and Dr Pusic that Mr Roach now meets the criteria for post-traumatic stress disorder. At the hearing, Mr Carney corrected this statement. He acknowledged that Dr Glen Smith did not make that diagnosis. Rather,
Dr Smith diagnosed Mr Roach with symptoms of persistent depressive disorder, with persistent depressive episode, with anxious distress.
That said, Mr Carney submits there is nevertheless clear evidence of deterioration in
Mr Roach’s condition. Mr Carney refers to Dr Glen Smith’s report that Mr Roach reported a deterioration in his condition in the previous 12 months and that he presented with more significant impairments compared to when he saw Mr Roach in early 2021. Dr Smith noted this was “consistent with the documentation from his treating practitioners” and he assessed Mr Roach as having increased whole person impairment of 26%.
Mr Carney refers also to Dr Pusic’s report dated 9 January 2023 to Dr Shahabi in which he stated that Dr Shahabi “would be aware that Mr Roach has suffered from significant symptoms of post traumatic stress disorder” as a result of events at work. Dr Pusic said he had received “appropriate intensive intervention” from Dr Gunn, and that he had also seen Dr Selwyn Smith. Dr Pusic noted that Mr Roach’s mental health had worsened over the previous six months; he “continues to display significant symptoms of post traumatic stress disorder” and he also “does describe ongoing symptoms of severe depression”.
Mr Carney refers to Dr Pusic’s report that there had been a “marked deterioration in
Mr Roach’s overall functioning” since the MAC, in particular in his social and recreational activities, his capacity to travel independently, and in his overall social functioning and involvement with familiar others. In Dr Pusic’s view, reconsideration of Mr Roach’s whole person impairment was “well warranted due to further deterioration” in his condition.

Mr Carney submits that reconsideration of the COD pursuant to s 57(1) of the PIC Act should be allowed. He relies on Samuel v Sebel Furniture Ltd.[15]
[15] Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141 (Samuel).
With respect to reconsideration of the MAC, Mr Carney submits that s 329 of the 1998 Act is in terms wider than s 57 of the PIC Act. Mr Carney refers to the principles set out by (then) Acting Deputy President Roche in Samuels, in particular the principle that reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and which, if before an Arbitrator in the first hearing, would likely have led to a different result.
Mr Carney submits that the medical evidence of Dr Pusic, Dr Gunn and Dr Smith constitutes new evidence. At the time of the MAC, Dr Andrews made a diagnosis of major depressive disorder with mixed anxiety and depressed mood. Mr Carney submits that Dr Pusic’s report of diagnosis of post-traumatic stress disorder was not available at the time of the MAC because he has only seen Mr Roach since 9 June 2022, after Dr Selwyn Smith died.
Mr Carney submits there is clear evidence that Mr Roach’s condition has deteriorated, his diagnosis has changed, his PIRS rating has increased, and reconsideration of the MAC should be allowed under s 329 of the 1998 Act. Mr Carney submits that, had that evidence been available, Dr Andrews may well have given a higher rating.
Further, Mr Carney submits, it is in the public interest that a worker in changed circumstances should have the benefits of reconsideration.
Mr Carney submits that, once the MAC, which forms the basis of the COD, is reconsidered,
s 57(6)(d) of the PIC Act would be applicable because there would be “an inconsistency between the stated decision and the stated reasons”.
With respect to the interplay between ss 322A and 329 of the 1998 Act, Mr Carney submits that the reconsideration provision is broader than s 57 of the PIC Act. He refers to Sleiman v Gadalla Pty Ltd[16] in which the NSW Court of Appeal held that the Registrar should not have dismissed an application for a further appeal to a Medical Appear Panel without considering whether it should be treated as an application for reconsideration (a course which the respondent acknowledged was available to the applicant.) Mr Carney submits that s 329 still has application to the reconsideration of a MAC.
[16] Sleiman v Gadalla Pty Ltd (2021) NSWCA 236 (Sleiman).
Mr Carney refers also to the decision of Member Burge in Valesini v Startrack.[17] Mr Carney acknowledges that the worker in that case required further surgery and the Member found there was significant material change in his condition. Relevantly, the COD was revoked under s 57(1) and the matter remitted to the President to decide whether to refer the worker for assessment. Mr Carney submits this decision demonstrates that s 322A of the 1998 Act does not preclude reconsideration.
[17] Valesini v Startrack [2023] NSWPIC 271 (Valesini).
Mr Carney submits that reconsideration is available and the discretion should be exercised in Mr Roach’s favour.

THE RESPONDENT’S SUBMISSIONS

Mr Doak submits that request for reconsideration of the MAC must fail. He submits that
Mr Roach has made his one claim for permanent impairment compensation pursuant to
s 66(1A) of the 1987 Act and that claim has been determined. He has had one assessment of the degree of permanent impairment pursuant to s 322 of the 1998 Act, and there is no valid basis for reconsideration of the MAC pursuant to s 329 of the 1998 Act.
With respect to reconsideration of the COD, Mr Doak submits there is no suggestion that it contains an obvious error. It follows that any application must be under the general power in s 57(1) of the PIC Act which is substantively in the same terms as s 350(3) of the 1998 Act, which was considered by Acting Deputy President Roche in Samuel.
Mr Doak submits that the applicant’s only contention relies on the fifth principle enunciated by Acting Deputy President Roche in Samuel regarding new evidence. Mr Doak submits that, if that new evidence consists in the diagnosis of post-traumatic stress disorder, Dr Andrews considered that diagnosis and specifically rejected it because Mr Roach did not satisfy Criterion A for that diagnosis.
Mr Doak submits that Dr Andrews diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood. He specifically rejected a diagnosis of post traumatic stress disorder on the basis that Criterion A was not satisfied, and he also rejected a diagnosis of Major Depressive Disorder. Mr Doak submits the rejection of post-traumatic stress disorder is clearly correct.
Mr Doak submits that the diagnosis of post-traumatic stress disorder by Dr Gunn and Dr Pusic can have no relevance here; Dr Andrews considered it and specifically rejected it. Nothing has changed but, even if it had, it would make no difference because there is no additional evidence that would satisfy Criterion A for a diagnosis of post-traumatic stress disorder. Further, Dr Pusic has not identified specific instances of deterioration and his report is not “new” evidence.
With reference to the principles in Samuel, Mr Doak submits that the fifth principle refers to material before an Arbitrator (now Member) of the Commission.
Mr Doak submits that there has been no appeal against the COD and the applicant’s attempts to obtain a further MAC is prohibited by s 322A. Mr Doak submits the question arises how to reconcile the discretions in s 57(1) of the PIC and s 329 of the 1998 Act with s 322A.
Mr Doak refers to O’Callaghanv Energy World Corporation Ltd[18] in which Deputy President Roche said it is difficult to see how s 329 could operate with s 322A. Mr Doak submits there is clearly a tension between the two and the decision in Samuel does not assist because it predates the 2012 amendment which introduced s 322A.
[18] O’Callaghanv Energy World Corporation Ltd [2016] NSWWCCPD 1.
Mr Doak submits that reconsideration cannot be permitted simply because of further medical opinion; if it were, s 322A would have no work to do because a worker could simply say that his or her condition has changed. Mr Doak submits that the better view is that s 322A superseded the former, wider, s 350 (now s 57) and to read it otherwise would be to subvert s 322A.
Mr Doak submits that Dr Glen Smith diagnosed Mr Roach as now meeting the criteria for Persistent Depressive Disorder, with Persistent Major Depressive Episode, with Anxious Distress. He noted Mr Roach’s report of worsening symptoms and changed his diagnosis because they had persisted for more than two years. Mr Doak submits this is a temporal aspect and not enough to enliven the discretion because anyone would be entitled to a further assessment on the basis of a deterioration in their condition. Mr Doak submits that would render s 322A unnecessary and redundant.
Mr Doak submits that Sleiman is not contrary to his submissions, and that I am not bound by the Member’s decision in Valesini. He submits that I would be more assisted by considering the wording of ss 322A and 329.

FINDINGS AND REASONS

Section 57 of the PIC Act provides:
“(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 57(1) is in substantively the same terms as s 350(3) of the 1998 Act with respect to the proceedings in the former Workers Compensation Commission.
It is common ground that the principles in Samuel are applicable to any exercise of the discretion in s 57(1).
In Samuel, the worker submitted before an Arbitrator that a determination of the Commission based on a MAC should be rescinded and the matter should be referred to an Approved Medical Specialist for further assessment. The original Approved Medical Specialist had found that Mr Samuel did not have a hernia or any other work-related condition. At surgery following the MAC, he was found to have a hernia. The Arbitrator found for the respondent.
On appeal, Acting Deputy President Roche considered the circumstances in which a reconsideration under s 350(3) should be conducted. He reviewed authorities and relevant legislative provisions and said at [58]:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsider applications under s 350(3) of the 1998 Act:
‘1.     the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.     whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 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’);
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’);
5.     reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.     given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
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) 147 CLR 589 (‘Anshun’) 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 (‘Anshun’);
8.     a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.     the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and s 354(3) of the 1998 Act).”
Acting Deputy President Roche decided, in the circumstances of the case, that the power to reconsider the decision should be exercised. After the MAC, Mr Samuel had continued to experience significant groin pain. Further medical advice culminated in surgery “which revealed certain pathology”. Having considered the medical evidence, Acting Deputy President Roche decided that Mr Samuel suffered an injury to which his employment was a substantial contributing factor and he rescinded the COD.
In my view, while the principles apply, the facts in Samuel can be distinguished from the present case because of the evidence of the nature and extent of the change in Mr Samuel’s condition. Mr Samuels was found to have a condition which was not evident at the time of the MAC.
The respondent does not suggest that there has been any delay in Mr Roach’s application or any prejudice to the respondent in allowing the reconsideration. The respondent submits that the request relies on evidence which does not satisfy the fifth criteria in Samuel, that there is a public interest in finality of decision-making, and that reconsideration of the COD (and, from there, of the MAC) should not be allowed simply on the basis of deterioration of a worker’s condition.
Mr Roach relies, essentially, on the fifth principle in Samuel. He submits that the evidence of deterioration documented by Dr Gunn, Dr Pusic and Dr Glen Smith could not have been obtained at the time of the MAC and would likely have had a material effect on the outcome. Mr Carney also submits that it is in the public interest for a worker in Mr Roach’s situation to have the benefit of the workers compensation legislation.
Mr Carney acknowledges that Dr Glen Smith did not diagnose Mr Roach with post-traumatic stress disorder in his report of 3 March 2023. Dr Smith specifically considered that diagnosis on both occasions and rejected it. Dr Clayton Smith and Dr Andrews also rejected that diagnosis, for the same reason. Dr Selwyn Smith did not refer to post-traumatic stress disorder.
Dr Gunn diagnosed Mr Roach with post-traumatic stress disorder before the MAC and maintains that diagnosis in his recent reports. His opinion is not “new evidence”. Dr Pusic also diagnosed post-traumatic stress disorder. However, neither he nor Dr Gunn explains his diagnosis specifically in terms of DSM-5 and neither addresses the question of a Criterion A stressor which was clearly raised and rejected by Dr Andrews in the MAC.
To the extent that Mr Roach relies on Dr Gunn’s and Dr Pusic’s diagnosis of post-traumatic stress disorder as evidence of deterioration as “new evidence”, the evidence is clearly against that diagnosis.
Dr Glen Smith previously diagnosed Mr Roach with Major Depressive Disorder with Anxious Distress. He rejected the diagnosis of Adjustment Disorder by reference to DSM-5.
In his recent report, Dr Smith diagnosed Mr Roach with Persistent Depressive Disorder, with Persistent Major Depressive Episode, with Anxious Distress. Although he noted a deterioration in Mr Roach’s anxiety and depressive symptoms over the previous 12 months “with more significant symptoms” and “with significantly impaired functioning”, he stated that he altered his diagnosis to one of Persistent Depressive Disorder, with Persistent Major Depressive Episode, with Anxious Distress “because [Mr Roach’s] symptoms have been present continuously for over two years, the diagnosis of Persistent Depressive Disorder is warranted”. Dr Smith’s diagnosis was based on the duration of Mr Roach’s symptoms rather than anything new in his condition itself.
Mr Roach has not provided a further statement of evidence about his worsening symptoms but I accept that his condition has deteriorated since the MAC. Dr Gunn has treated him over several years, and Dr Glen Smith has seen him before, and since, the MAC. Both document his worsening condition. It is true they rely on Mr Roach’s “self-report” but that is largely true of any psychological or psychiatric diagnosis.
The question becomes whether the more recent reports constitute “new evidence that could not with reasonable diligence have been obtained” before the MAC and which, if available, would likely have led to a different result. Mr Doak submitted that the principle refers to information which if put before an Arbitrator would likely have led to a different outcome but I do not think that materially alters the application of the principle.
Mr Doak submits that Dr Gunn is a psychologist with a doctorate, not a medical doctor, and not qualified to assess permanent impairment. Further, that Mr Roach’s “self-reporting of symptoms” is essentially the same as when the medical assessment was conducted and when he previously saw Dr Gunn.
Leaving aside whether Dr Gunn is qualified to assess Mr Roach’s condition, in his report of
7 June 2022 to Dr Pusic, he referred to Mr Roach’s “ongoing decline” and that his “mental health has worsened” in the previous six months. In his report of 3 August 2022, he said
Mr Roach’s “PTSD symptoms” continued to worsen and he outlined Mr Roach’s current symptoms. The symptoms he describes are essentially the same as those Dr Gunn reported to the insurer in 2020, and in his report of 14 October 2020 to Dr Selwyn Smith in which he refers to Mr Roach’s “nightmares, flashbacks and intrusive thoughts” having been worse since starting the anxiety group recommended by Dr Smith. In other words, Dr Gunn reported a decline in Mr Roach’s symptoms before he was assessed by Dr Andrews for the purposes of the MAC. Dr Andrews had the benefit of his reports.
Mr Doak submits that the same can be said of the “self-reporting” of Mr Roach’s symptoms to
Dr Pusic. I agree. The symptoms reported by Dr Pusic were essentially the same as those Mr Roach had reported to his doctors and to Dr Andrews.
Dr Smith increased the PIRS ratings for Self-Care and Personal Hygiene; Social Functioning; Concentration, Persistence and Pace, from 2 to 3. For the remaining categories, he assigned the same ratings as in his previous report.
In Samuel, Acting Deputy President Roche cited at [47] the judgment of Judge O’Malley in Galea v Ralph Symonds Pty Ltd[19] in which there was medical opinion that applicant’s degenerative changes had progressed “with the effluxion of time”. Judge O’Malley said degenerative changes “inevitably and inexorably progress” and the medical evidence could not accurately be described a “fresh evidence; it was more evidence.” Even if it could properly be described as new evidence, it had to be evidence that was “not discoverable by the exercise of reasonable diligence” and “would be at least a determining factor in the outcome of the case.”
[19] Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192 (Galea).
It is arguable that degenerative physical changes which “inevitably and inexorably progress” are different from a psychological condition which might fluctuate and eventually improve. However, Mr Roach’s worsening condition was documented by Dr Gunn well before the MAC. It was open to his solicitors to ask Dr Gunn whether he thought the condition would continue to deteriorate and the same could have been asked of Dr Glen Smith.
I am not persuaded that the reports submitted in support of the application for reconsideration comprise “new evidence that could not with reasonable diligence have been obtained” prior to the MAC. To the extent that they document a deterioration in
Mr Roach’s condition, only Dr Glen Smith identified the deterioration by reference to increased PIRS ratings. Neither Dr Gunn nor Dr Pusic identified how Mr Roach’s condition had deteriorated or referred to deterioration by reference to the PIRS categories that would support a change in impairment rating.
Even accepting that Mr Roach’s condition has deteriorated since the MAC and the resulting COD, I am not persuaded that the discretion in s 57(1) should be exercised in his favour. I agree with the respondent’s submission that evidence of deterioration is not of itself sufficient grounds for reconsideration. If that were so, reconsideration would be available to any worker whose condition deteriorates following assessment. That is not supported by the decision in authorities or by the scheme of the legislation.

The legislation sets out the scheme for claims for, and assessments of, permanent impairment.
Section 66 of the 1987 Act provides for compensation for permanent impairment. By
s 66(1A), only one claim can be made in respect of permanent impairment that results from an injury.
Section 322 of the 1998 Act provides for assessment of the degree of permanent impairment.
Section 322A of the 1998 Act provides:
“(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).”
Section 329 of the 1998 Act provides:
“(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.”
Mr Doak submits there is some tension between s 57(1), s 322A and s 329 and that a determination having been made by the Commission, no further assessment is available to Mr Roach because of the operation of s 322A. Mr Doak submits that s 322A was enacted after the decision in Samuel.
I agree with Mr Doak that the decision in Sleiman is not contrary to the respondent’s submissions but I do not see that it advances Mr Roach’s case either. The issue there was whether a further appeal to an Appeal Panel was available on the ground that the worker’s condition had deteriorated; if it was not, whether the Registrar should have treated the worker’s application as one for reconsideration of the Appeal Panel’s earlier decision, which the respondent acknowledged was available. The Court held that no further appeal was available but the application should not have been dismissed without the Registrar considering whether it should be treated as one for reconsideration.
I agree with Mr Doak that I am not bound by the Member’s decision in Valesini but nor do I see that it assists Mr Roach. In that case, application was made to revoke a COD pursuant to s 57(1) and to remit the matter to the President to determine whether to refer the worker for further assessment of permanent impairment. The Member found there was “significant material change” in the worker’s condition as a result of undergoing surgery after the MAC. The Member found that constituted fresh evidence which could not with reasonable diligence have been obtained at the time of the MAC. He set aside the COD which reflected the MAC and referred the matter to the President for consideration of referral for further assessment.
I have not been referred to any authority specifically on the interaction between s 57(1),
s 322A and s 329. However, I do not agree that s 322A operates to override the wide discretion in s 57(1). If that were so, a worker could never have the benefit of reconsideration under s 329.
Considering the principles enunciated in Samuel and the scheme of the legislation, I am not persuaded there is relevant “new evidence” or that the evidence is sufficient to displace the public interest in finality of decision-making. I am not persuaded that the discretion in s 57(1) should be exercised in Mr Roach’s favour.

CONCLUSION

For the reasons set out above, the application for reconsideration of the COD is refused.

[2023] NSWPIC 445

4 September 2023