Rootsey v Gofurn Pty Limited ATF Gofurn No. 2 Trust
[2022] NSWPIC 303
•16 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Rootsey v Gofurn Pty Limited ATF Gofurn No. 2 Trust [2022] NSWPIC 303 |
| APPLICANT: | Ian Rootsey |
| RESPONDENT: | Gofurn Pty Limited ATF Gofurn No. 2 Trust |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 16 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Application for reconsideration to permit a medical appeal on the ground of deterioration or reconsideration of a Medical Appeal Panel decision; consequential condition in lumbar spine not referred to by Approved Medical Specialist (AMS); O’Callaghan v Energy World Corporation Ltd, Russo v Work Zone Pty Ltd; reconsideration; Samuel v Sebel Furniture Ltd; Held– that worker suffered a consequential condition in his lumbar spine but application for reconsideration declined. |
| DETERMINATIONS MADE: | 1. The applicant suffered a consequential condition in his lumbar spine resulting from the injury to his left knee on 9 July 2014. 2. I grant liberty to apply in writing if s 59A of the Workers Compensation Act 1987 (the 1987 Act) permits an order for s 60 expenses in respect of the applicant’s lumbar spine. 3. The application for reconsideration of the Certificate of Determination dated 24 January 2018 is declined. |
STATEMENT OF REASONS
BACKGROUND
Ian Rootsey was employed by Gofurn Pty Ltd (Gofurn) and worked as a driver and warehouse worker at the Harvey Norman warehouse in Goulburn. He suffered an injury to his left knee on 9 July 2014 for which Gofurn accepted liability. Mr Rootsey claimed permanent impairment compensation in the Workers Compensation Commission. On 23 May 2017 he was examined by an Approved Medical Specialist (AMS) who assessed 13% whole person impairment (WPI) as a result of the injury to his knee and scarring.
Mr Rootsey lodged a medical appeal and on 10 January 2018, an Appeal Panel confirmed the assessment of 13% WPI. The Workers Compensation Commission issued a Certificate of Determination (COD) on 24 January 2018.
Mr Rootsey’s solicitors filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (the Commission) and an application for reconsideration of the COD. In the ARD, he seeks a determination as to whether her suffered a lumbar spine injury on 9 July 2014 and/or consequential condition in his lumbar spine. He also seeks s 60 expenses. Mr Rootsey seeks that the COD be reconsidered so that he can claim permanent impairment compensation in respect of the injury to or condition in his lumbar spine on the basis of a deterioration which results in the increase of permanent impairment. He relies on a report by Dr Bodel dated 1 November 2019 to say that he now suffers 24% WPI.
Gofurn opposes the relief that Mr Rootsey seeks.
PROCEDURE BEFORE THE COMMISSION
When the ARD was filed, Mr Rootsey relied on an injury to his left lower extremity and an injury to his lumbar spine. Mr Rootsey was represented by Mr John Wilson of counsel at the telephone conference on 25 January 2022. At his request, the ARD was amended:
(a) to delete the last sentence of the injury description and to substitute
“On 9 July 2014 the worker also suffered an injury within the meaning of s 4 (b)(ii) of the Workers Compensation Act 1987 being the aggravation of a disease in his lumbar spine as well as a consequential condition in his lumbar spine which was further aggravated by the workers persisting left sided limp which was caused by the injury to his left lower extremity in the subject incident” and,
(b) to claim s 60 expenses of and incidental to spinal injections proposed by Dr Rao.
The relief sought was payment of permanent impairment compensation in respect of 24% WPI. It was clear that that order could not be made because of the 2018 COD. I made an order that Mr Rootsey file an application for reconsideration at the telephone conference. The legislative basis for that order was r 9 of the Personal Injury Commission Rules which permits a non-presidential member of the Commission to whom proceedings have been referred to make any order as to procedure which could be made by the President.
The claim was listed for conciliation conference and arbitration hearing on 8 April 2022 when Mr John Wilson of counsel appeared for Mr Rootsey and Ms Roberts of counsel appeared for Gofurn.
Counsel spoke to written submissions they had prepared. Mr Wilson sought leave to prepare further submissions considering matters on which Ms Roberts had addressed. Submissions were provided in accordance with orders made.
I am satisfied that the parties to the dispute understand the nature of the applications and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(c) ARD and attached documents;
(d) Mr Rootsey’s Application to Admit Late Documents dated 1 March 2022 attaching an Application for Reconsideration;
(e) Reply, and
(f) Gofurn’s Application to Admit Late Documents dated 5 April 2022.
The history relevant to Mr Rootsey’s claim began in the Workers Compensation Commission. I have therefore used the nomenclature appropriate to the period when the events occurred – an AMS before the introduction of the Personal Injury Commission Act 2020 (the 2020 Act) and an Medical Assessor since.
Mr Rootsey had suffered an injury to his lumbar spine with a previous employer in 2005 and did not work for four years. He began his statement dated 5 November 2019 by describing that injury. He provided some details about the injury site and mentioned a site inspection with an expert engaged by his lawyers in September 2017.
Mr Rootsey described the three operations on his left knee undertaken by Dr Smith. He said that the back pain he suffered before the injury in 2014 was not serious enough to prevent him working. He said the back pain is now so severe that he cannot perform work duties. He said that his back began to “play up” after the third surgery to his left knee on 16 June 2016. He told his general practitioner, Dr Thangavelu about the back pain as well as his physiotherapist, Karen Waters. He also told his orthopaedic surgeon, Dr Smith, who recommended he see a pain management specialist. During 2017, 2018 and 2019, he continued to complain of back pain to Dr Thangavelu, who prescribed medication.
Mr Rootsey prepared a further statement dated 1 March 2022. He said that the main focus of his pain in 2014 was his knee, though he had had back pain since the injury. He said that he mentioned the back pain to Dr Deveridge when he saw him on 10 May 2016, before the last surgery, though his pain was bearable at that time. He said that the AMS, Dr Stubbs, did not ask any questions about his back in May 2017 and the pain became worse after the consultation.
Mr Rootsey said that in 2019 Dr Thangavelu recommended that he have a foraminal steroid injection which was approved by Gofurn’s insurer. Mr Rootsey underwent an MRI scan on 19 November 2020 following which Dr Thangavelu referred him to see Dr Rao. The insurer funded the consultation with Dr Rao. Dr Rao recommended further investigation’s including sacroiliac joint diagnostic injections. Liability for further treatment to Mr Rootsey’s back was declined.
Medical evidence
Mr Rootsey’s first claim for permanent impairment compensation was supported by Dr Deveridge’s report dated 10 May 2016. The report was attached to the ARD filed on 22 March 2017 which appears in the Reply. Dr Deveridge described the injury to Mr Rootsey’s left knee and the surgery undertaken by Dr Smith. Dr Deveridge described Mr Rootsey’s then current condition and said that “as a consequence of limiting weight bearing on the injured left leg he had developed some left sided lumbar pain and some clicking in the right knee.” Dr Deveridge did not mention the lumbar spine condition again and he did not assess any permanent impairment resulting from it.
Notes from Mr Rootsey’s physiotherapist, Ms Waters, confirm that he said he suffered back pain in July 2016. She recommended gait retraining. She noted a complaint of right-sided low back pain after the second operation. Other physiotherapists recorded complaints of back pain in 2016.
On 15 November 2016 Dr Smith wrote to Dr Thangavelu and said that Mr Rootsey was suffering episodes of shooting pain in his left leg but his clinical examination and most recent arthroscopy did not reveal any intra-articular pathology consistent with his level of symptoms. Dr Smith said that raised the possibility of a disease or pain syndrome and recommend a referral to a “pain management rehab specialist”.
The notes from Dr Thangavelu begin in 2017 and are incomplete. The first page of the notes indicates that Mr Rootsey may have consulted the practice at the time of the injury. The first relevant reference is on 28 May 2018 when Mr Rootsey complained of pain in his left hip due to limping. On 27 August 2018 Mr Rootsey complained of pain in his hip and back from limping. There were no further complaints before the last recorded consultation on 19 June 2019.
Mr Rootsey’s solicitors asked him to see Dr Bodel who reported on 1 November 2019. Dr Bodel listed the injury to the left knee in his summary of injuries. He said that Mr Rootsey said he has had back pain from “day dot” though “it was not a major feature in the documentation that I have seen.” Mr Rootsey said the back pain had become increasingly troublesome because of the persisting left-sided limp. Dr Bodel noted the previous claim for a back injury. He accepted that Mr Rootsey had suffered an injury to his back though he later described it as an aggravation of a long-standing pre-existing condition. Dr Bodel assessed 12% WPI with respect to the back injury, 11% WPI for the left lower extremity and 2% for scarring, resulting in an assessment of 24% WPI. He did not make a reduction under s 323 because there was no indication of the medical records that Mr Rootsey’s back was symptomatic at the time of the knee injury.
Mr Rootsey’s solicitors served Dr Bodel’s report and made a claim for permanent impairment compensation on 25 November 2019.[1] They said that they were instructed that the complaint of back pain from “day dot” was factually incorrect and the injury is a consequential condition arising from the changing gait following left knee surgery.
[1] ARD p 15.
Dr Thangavelu ordered an MRI scan and the report is dated 19 November 2020. It showed multilevel spondylosis with facet arthropathy, mild congenital canal narrowing and moderate canal narrowing at L2/3 through L3/L4. Dr Thangavelu referred Mr Rootsey to Dr Rao, neurosurgeon, on 18 December 2020, noting that he had been limping since high tibial osteotomy surgery and had developed low back pain.
In a report to Dr Thangavelu dated 11 February 2021, Dr Rao described the fall and the knee surgery and said that “the whole process” created severe problems with lower back pain and radicular pain down the leg up to the foot.” He said that Mr Rootsey has a typical antalgic gait, walking with a straight left knee and a bent right knee to compensate. He said that the likely cause of sacroiliac joint dysfunction was from the injury “and also” from the abnormal gait he has developed because of his knee, which put more stress on his buttocks and sacroiliac joint as well as the muscles surrounding. He recommended a bone scan and sacroiliac joint diagnostic injections. He prepared a quote for the injections dated 8 February 2021.
A bone scan was undertaken on 22 March 2021 which showed mild to moderate degenerative change in the left sacroiliac joint and minor arthritis in the left hip.
Dr Rao saw Mr Rootsey on 21 February 2022 and reported on 24 February. He noted that Mr Rootsey was in severe pain with back and radicular pain and numbness. He referred Mr Rootsey for an MRI scan, bone scan and X-rays before recommending further treatment.
Dr Machart, orthopaedic surgeon, has seen Mr Rootsey four times on behalf of Gofurn. He reported on 5 May 2015, 27 September 2016 (two reports), 24 July 2019 and 4 April 2022. In his report dated 27 September 2016, Dr Machart observed that Mr Rootsey walked with a considerable limp. He also considered that Mr Rootsey’s complaints were out of proportion to the examination findings.
Dr Machart did not obtain any history of back pain until the last report. He said that it was not feasible that Mr Rootsey had suffered an injury to his back when there was no pain for several years. Dr Machart said that the sacroiliac joint is a large joint and it is difficult to injure through walking or limping, particularly as Mr Rootsey complained of limited walking capacity. He said that there was a mismatch between the severity of the osteoarthritis and the level of pain and disability. Dr Machart said that he did not observe nerve root compression concordant with radiculopathy.
With respect to the proposed treatment, Dr Machart said that if Dr Rao’s diagnosis of sacroiliitis was accurate, then injection into that joint was appropriate. However, Dr Machart said that he was unable to diagnose sacroiliac inflammation related to the left knee injury.
Procedural history
The documents which confirm the history of the previous proceedings are attached to the Reply. The ARD was filed on 21 March 2017 and contained Dr Deveridge’s report.
Gofurn filed a Reply and a referral made to an AMS in respect of the left lower extremity and scarring.
Dr Stubbs, as the AMS, prepared a Medical Assessment Certificate dated 23 May 2017. The present symptoms included some clunking of the right hip but Dr Stubbs did not record a complaint of back pain. Dr Stubbs recorded that Mr Rootsey had no previous injuries other than some forearm fractures as a teenager. Dr Stubbs assessed 11% WPI in respect of Mr Rootsey’s left knee and 2% for scarring, resulting in an assessment of 13% WPI.
Mr Rootsey’s solicitors lodged a medical appeal on 16 July 2017 relying, in summary, on the failure by the AMS to include an assessment in the impairment arising from his knee for degenerative joint disease or arthritis. A Medical Appeal Panel determined that a re-assessment was required and it was undertaken. The Panel found on 5 October 2017 that the criteria for an allowance in respect of arthritis had not been made out.
The COD was issued on 24 January 2018, ordering Gofurn to pay permanent impairment compensation in respect of 13% WPI.
A letter from Gofurn’s insurer dated 5 August 2019 informed Dr Thangavelu that, under s 39 of the Workers Compensation Act 1987 (the 1987 Act), Mr Rootsey’s entitlement to weekly compensation ended “on or around” 26 January 2020 and that his entitlement to s 60 expenses terminated up to two years after that date.
Mr Rootsey commenced previous proceedings in 2021 which were discontinued.
SUBMISSIONS
The oral submissions made by counsel were recorded and the written submissions remain on the file.
Mr Rootsey
In his written submissions, Mr Wilson set out the history of the proceedings and the medical evidence. He relied on the former s 350 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) with respect to the power of the Workers Compensation Commission to reconsider its decisions and referred to the decision of Roche DP in Samuel v Sebel Furniture Limited[2] (Samuel).
[2] [2006] NSWWCCPD 141.
Noting the authorities provided that the reconsideration power should be used to remedy a manifest injustice, Mr Wilson said that the symptoms in Mr Rootsey’s lumbar spine did not manifest themselves until a time when the referral had been made to the AMS for an assessment of permanent impairment. He said that the refusal to allow a “reassessment” of the lumbar spine would give rise to an injustice because Mr Rootsey would not be able to have his injuries fully assessed.
Mr Wilson said that Mr Rootsey did suffer some lumbar spine symptoms when he saw Dr Deveridge on 10 May 2016 but they were insufficient to warrant an assessment of permanent impairment.
Though not explicitly stated in the submissions, it is apparent that Mr Rootsey seeks to bring a medical appeal under either sub-s 327 (3)(a) or (b) of the 1998 Act – that there has been a deterioration in his condition which results in an increase in the degree of permanent impairment or the availability of additional relevant information which was not available and could not reasonably have been obtained before the medical assessment.
Mr Wilson noted Bishop CCJ’s decision in Maksoudian v J Robins & Sons Pty Ltd[3] (Maksoudian), also referred to in Samuel and said that new evidence may be relied on if it could not, with reasonable diligence have been obtained before the first hearing and may have led to a different result. He said that Mr Rootsey must show there has been a deterioration in his condition since the previous Medical Appeal Panel decision before the previous COD can be reconsidered.
[3] [1993] NSWCC 36, (1993) 9 NSWCCR 642.
Mr Wilson referred to the Court of Appeal decision in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission[4] (Riverina Wines) with respect to the meaning of deterioration. He said that the condition of Mr Rootsey’s lumbar spine had deteriorated as a result of his left sided limp and that was fresh evidence which was not available and could not have been obtained before the previous assessments.
[4] [2007] NSWCA 149.
Mr Wilson said that the interests of justice dictated that the Commission use its wide discretionary powers to set aside the COD so that a claim can be brought in respect of Mr Rootsey’s lumbar spine injury, noting that he is presently precluded from investigating a claim for work injury damages.
In his oral submissions, Mr Wilson summarised the medical evidence. He confirmed that the evidence in support of a consequential condition was stronger than that supporting an injury. He highlighted that Mr Rootsey had undergone an MRI scan of his lumbar spine after a steroid injection was approved but that the second injection was declined.
Mr Wilson said that there was ample evidence in the file to support the need for the injections proposed by Dr Rao and a consequent order for the payment of s 60 expenses.
In respect of the application for reconsideration, Mr Wilson said that the appropriate power was found in s 57 of the 2020 Act.
Gofurn
Ms Roberts prepared submissions on behalf of Gofurn. She summarised the history between the parties and said that the application for reconsideration need only proceed if I find that Mr Rootsey suffered an injury to his lumbar spine, noting that liability for that injury was disputed, based on Dr Machart’s reports.
With respect to the application for reconsideration, Ms Roberts said that Mr Rootsey’s submissions did not set out why the former s 350(3) of the 1998 Act might be available. She noted that the discretion to reconsider is now in s 57 of the 2020 Act and is subject to Practice Direction 17. She observed that the transitional provisions in Sch 1, Pt 2, Division 4A of the 2020 Act were described as “not free from difficulty” by Leeming JA in Sleiman v Gadalla Pty Ltd (Sleiman).[5] Ms Roberts provided an explanation of those provisions.
[5] [2021] NSWCA 236 at [90].
Ms Roberts said that Gofurn maintained that the application for reconsideration must fail regardless of the Commission’s finding with respect to the injury to the lumbar spine.
Ms Roberts said that the utility of rescinding the COD was a principal consideration in the use of the reconsideration power. She said that the case had factual parallels with the decision of Member Sweeney in Russo v Work Zone Pty Ltd[6] (Russo) in which he declined to set aside a COD because an appeal does not lie in respect of a body part which was not the part of the medical dispute assessed by the AMS and recorded in the Medical Assessment Certificate (MAC). Ms Roberts said that Mr Rootsey’s submissions did not set out the basis on which he asserted that he may be entitled to introduce a matter not part of the original medical dispute. She said that his submissions did not explain why the approach taken in O’Callaghan v Energy World Corporation Ltd[7] (O’Callaghan) should not be followed.
[6] [2021] NSWPIC 355.
[7] [2016] NSWWCCPD 1
With respect to the factors generally relevant to whether the reconsideration power should be exercised, Ms Roberts submitted that there had been considerable delay in bringing the application, noting that Mr Rootsey relied on a report obtained in 2019 and that many of the documents evidencing reports of back pain were in existence before the Medical Appeal Panel decision in January 2018.
Ms Roberts said in summary that there was no basis for granting the relief sought and that there was no mechanism for the lumbar spine to be included in any further assessment of permanent impairment.
Mr Rootsey
Mr Wilson prepared submissions in reply. He said that the Commission was asked to determine if there was a consequential condition in Mr Rootsey’s back and that the statutory scheme allowed him to seek a medical appeal under s 327(3)(a) of the 1998 Act and referral to a Medical Assessor for reconsideration under s 329(1)(a) of that Act. Mr Wilson expressly disavowed the claim that Mr Rootsey suffered an injury to his back in 2014.
He said that the appeal under s 327(3) was not seeking to challenge the previous assessment but to establish that there had been a deterioration. It was not necessary to establish error. Mr Wilson sought to distinguish the concepts of impairment and injury, saying there was no dispute about the nature of the injury. While injury is “restricted” to a body part, impairment is not. He sought to distinguish O’Callaghan on the basis that it concerned the referral of a body part rather than the impairment, relying on s 322 of the 1998 Act. He said that s 322A which permits only one assessment of permanent impairment should be read with s 327 and that s 327(3)(a) applied to deterioration of a worker’s condition.
Mr Wilson said that I am not bound to follow the decision of Member Sweeney in Russo. He said that a deterioration as described in s 327(3)(a) is a deterioration in the worker’s condition, not in a body part.
Mr Wilson said that s 322A of the 1998 Act should be read with s 329 which permits reconsideration of a MAC. Referring to Read v Liverpool City Council[8], Milosavljevic v Medina Property Services Ltd[9] and Pidcock Panel Beating Pty Ltd v Nicolia[10], Mr Wilson said that the dictates of justice warranted a reconsideration of the Medical Assessment Certificate under s 329.
[8] [2007] NSWSC 320.
[9] [2008] NSSWCCPD 56.
[10] [2017] NSWWCCPD 32.
Gofurn
Gofurn provided further submissions stating that it was simply too late to add a claim for a further condition. Ms Roberts said that the decision in Russo was directly on point and of assistance. Ms Roberts said that s 329 of the 1998 Act did not permit repeated and never ending referrals, citing Stines v the GEO Group Australia Pty Limited[11].
[11] [2021] NSWDC 550 at [98].
FINDINGS AND REASONS
Mr Rootsey asks that the Commission determine if he suffered a consequential condition in his lumbar spine for two reasons – to determine any liability for s 60 expenses and for the purpose of a further permanent impairment claim. It is relevant to consider if he suffered that condition before determining the reconsideration application.
Lumbar spine injury or condition
Mr Rootsey originally claimed that he suffered either an injury to his back on 9 July 2014 or a consequential condition which came on in about 2016 following surgery to his left knee.
There is no evidence which supports the conclusion that Mr Rootsey suffered an injury to his lumbar spine on 9 July 2014 apart from his own statements and history to Dr Bodel. In fact, there are no medical records in the file which concern the treatment immediately following the injury. That is a significant omission when he had an four year period of absence from work following a back injury in 2005. I am not satisfied that Mr Rootsey suffered an injury to his lumbar spine in 2016.
There is evidence to support the contention that he suffered a consequential condition in his lumbar spine from about the time of the third operation on his left knee. The parties agree that he told Dr Deveridge about back pain in 2016 but that Dr Deveridge did not make an assessment of permanent impairment resulting from Mr Rootsey’s lumbar spine. Nonetheless, Dr Deveridge directly attributed the pain to his limiting weight bearing.
Mr Rootsey provided a contemporaneous history of back pain to his physiotherapists also and he told Dr Thangavelu about the pain in 2018. He described the pain to Dr Bodel in 2019 who accepted that he suffered a consequential condition in his lumbar spine as a result of limping.
Dr Thangavelu referred Mr Rootsey to Dr Rao for treatment of back pain and Dr Rao accepted that he suffered a consequential condition which required treatment.
Dr Machart saw Mr Rootsey and prepared his first four reports before the issue of a consequential condition was raised. He saw Mr Rootsey again in 2022. On the basis that the consequential condition was sacroiliitis, Dr Machart did not support the connection with the knee injury, particularly as Mr Rootsey avoiding moving. He did consider that the treatment Dr Rao proposed was appropriate for sacroiliitis.
As set out in his report dated 11 February 2021, the treatment proposed by Dr Rao was diagnostic. While he described the condition as sacroiliac joint dysfunction, he accepted that the abnormal gait put more stress on the buttocks and surrounding muscles. In early 2022, Dr Rao requested further investigations before determining the appropriate treatment.
Dr Rao observed Mr Rootsey’s gait and considered that it was likely to cause a consequential condition. In order to find there is a consequential condition, I am required to determine the back condition resulted from the accepted knee injury[12]. I am satisfied on the evidence that it did. As Roche DP said in Kumar v Royal Comfort Bedding Pty Ltd[13] it is not necessary that I determine that there is significant pathology. That is relevant where Dr Rao considers that further investigation is required before treatment is undertaken.
[12] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
[13] [2012] NSWWCCPD 8 at [61].
However, that finding may be of little practical advantage for Mr Rootsey. While an entitlement to s 60 expenses would normally flow, the operation of s 59A of the 1987 Act may prevent that. I grant liberty to apply by email if orders are possible or required with respect to s 60 expenses.
Reconsideration power
The application for reconsideration was made under s 350 of the 1998 Act which had already been repealed on the commencement of the 2020 Act on 1 March 2021. Mr Wilson’s primary submissions assumed that it continued to apply. His subsequent submissions assumed that s 57 of the 2020 Act would apply and he did not engage with the transitional provisions in Sch 1 of the 2020 Act.
However, Gofurn did not argue that there was no right to seek reconsideration but rather that the power should not be exercised.
If reconsideration was granted, the previous proceedings would be reopened. The transitional provisions in Sch 1 of the 2020 Act define “unexercised right”:
“unexercised right means a right, including a right exercisable only with leave or other permission, that—
(a) was available to be exercised immediately before the establishment day, and
(b) had not yet been exercised before that day.”
Clause 14D of Sch 1 provides for the commencement of proceedings in respect of unexercised rights. Sub-clauses (2) and (3) relevantly provide:
“(2) A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.
(3) The following provisions apply to the commencement of proceedings under this clause—
(a) the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings,
(b) the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,
(c)…”
Section 57 of the 2020 Act is the same terms as the former s 350(3) of the 1998 Act. The considerations relevant to the exercise of the former provision apply to the current provision. Section 57 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.”
Mr Rootsey seeks reconsideration of the 2018 COD to permit a medical appeal on the ground of deterioration or a reconsideration of the decision of the Medical Appeal Panel. While it is appropriate to bear the merits of both of those potential applications in mind, the application before me is only the reconsideration of the COD.
In Samuel, Roche DP described the factors relevant to the exercise of the power to reconsider under s 350(3) and said (omitting citations):
“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] HCA 45; (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 section 354(3) of the 1998 Act).”
In Maksoudian, Bishop CCJ said:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
The passage from the decision of Street CJ in Hilliger v Hilliger[14] (Hilliger) to which Roche DP referred in Samuel reads:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.”
[14] (1952) 52 SR (NSW) 105, 108.
The emphasis in the latter quote was added by Roche DP and he formulated the last of the factors in his list by reference to that passage and to the former s 354(3) of the 1998 Act, now s 43(3) of the 2020 Act, which provides:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
Mr Wilson said that it was in the interests of justice that the COD be reconsidered.
The interests of justice cannot be considered independently of the merits of the case. As the passage from Hilliger highlights, it is the interests of justice between the parties that must be considered, not merely the interests of one party. There is no utility in setting the 2018 COD aside if the legislation does not permit a second medical appeal or a reconsideration of the MAC under s 329 of the 1998 Act.
Second Medical Appeal
Mr Rootsey seeks that the COD be set aside so that a medical appeal can be brought under s 327(3)(a) or (b) of the 1998 Act.
Medical dispute is defined in s 319 of the 1998 Act to include “the degree of permanent impairment as the result of an injury.”
Section 322A of the 1998 Act permits only one assessment of the degree of permanent impairment of an injured worker. Sub-section (4) says that the section does not affect the operation of s 327.
Section 327 relevantly provides:
“327 Appeal against medical assessment
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds—
(a)deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against), …
…
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
In O’Callaghan, Roche DP considered a challenge to a decision by an arbitrator of the Workers Compensation Commission refusing to set aside a consent COD under the reconsideration power. The worker sought the same relief as Mr Rootsey. Roche DP found that the monetary threshold for an appeal had not been met but, in doing so, considered the matter on the merits.
Ms O’Callaghan gave notice of an injury to several body parts, including her cervical spine. When she made a claim for permanent impairment compensation, it was only made in respect of her lumbar spine. Her permanent impairment was assessed by an AMS in respect of the lumbar spine only, a COD was issued and compensation was paid. Her cervical spine condition subsequently deteriorated. An assessment of permanent impairment was obtained and an application made for referral to an AMS. The application was defended, relying on s 322A.
Ms O’Callaghan’s solicitors said that the purpose of the claim was to establish the degree of permanent impairment for a work injury damages claim and that no further permanent impairment compensation was sought. The application was withdrawn and an appeal filed in respect of the assessment of the first AMS, relying on s 327(3)(a) and (b) – deterioration and the availability of additional relevant material. For the appeal to proceed, the COD awarding compensation for WPI assessed in respect of the lumbar spine had to be reconsidered. The application for reconsideration was declined and the worker appealed. Roche DP determined that the monetary thresholds for bringing an appeal were not satisfied but in doing so considered the merits of the claim, upholding the decision of the arbitrator.
The worker sought to argue – as Mr Rootsey does – that s 327(a) permitted an appeal if there was a deterioration in his overall medical condition rather than in the body parts previously assessed. Roche DP held, relying on Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW)[15], that the AMS was permitted only to assess the body parts referred to him and:
“s 327 does not contemplate a situation where a worker can continue to bring claims, under the guise of an appeal, for a deterioration in respect of parts of the body that were not previously the subject of a dispute or an assessment by an AMS.”
[15] [2006] NSWSC 322 at [21]-[22].
Roche DP said that the appeal under s 327(a) is an appeal against the medical assessment. The worker had not claimed permanent impairment in respect of the cervical spine injury and was not assessed for it.
The deterioration ground had been considered by the Court of Appeal in Riverina Wines. Campbell JA (with whom Hodgson JA and Handley AJA agreed) said, when construing s 327(3)(a):
“‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Roche DP said that the argument that a relevant deterioration was a deterioration in the worker’s overall medical condition was contrary to that binding authority. He said:
“The ‘condition in question’ in the present case is Ms O’Callaghan’s lumbar spine and sacro coccygeal spine, not her cervical spine. ‘Deterioration’, being ‘an inherently relational concept’, operates on or with respect to the deterioration of the degree of impairment of ‘a matter’ as to which the assessment of an AMS, certified in the MAC, is conclusively presumed to be correct (s 327(2)). As Dr Ho did not assess Ms O’Callaghan’s cervical spine, he provided no assessment of any ‘matter’ with respect to it that is conclusively presumed to be correct and no question of a deterioration in that condition arises in s 327(3)(a). As it was not assessed, it is not ‘a matter’ that is appealable under s 327(1)).”
Member Sweeney’s decision in Russo was given before the Court of Appeal decision in Sleiman. In Sleiman, the Court of Appeal considered whether a worker, who had already exercised the right of appeal against a medical assessment, could bring a further appeal on the ground of deterioration. Leeming JA, with whom Gleeson JA and Payne JA agreed, said that the decisions below had correctly concluded that a further appeal from the decision of the Appeal Panel was not available.
Though the decision of another member is not binding on me, I agree with the decision in Russo. Mr Russo sought to argue that O’Callaghan was wrongly decided.
Member Sweeney was also asked to reconsider a COD so that the worker could bring a medical appeal under s 327(3)(a), though the worker disclaimed any further entitlement to permanent impairment compensation. Member Sweeney said that it was necessary to determine that the additional medical condition resulted from the injury, whether the statutory scheme permits a second medical appeal and whether it was in the interests of justice that the Commission exercise its discretion to rescind the COD. He found that Mr Russo had suffered a consequential condition but declined to rescind the COD.
Member Sweeney said that the concept of a medical dispute is central to the scheme of medical assessment – the medical dispute is the subject of assessment, a MAC is given in respect of it and a party can appeal in respect of that medical assessment. He said:
“In that context, it is difficult to envisage how a body part/body system or injury that has not been identified by the parties, assessed by the Medical Assessor or addressed by the MAC can be the subject of an appeal pursuant to s 327, which limits the right to certain types of medical assessments which are conclusively presumed to be correct by s 326. To paraphrase in the context of this case, an appeal lies from the medical assessment of the degree of permanent impairment as a result of an injury, but only in respect of a specific medical dispute between the parties.[16]
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In my opinion, there is no substance in the appellant’s criticism of the reasoning in O’Callaghan. I appreciate that s 327 is an idiosyncratic provision that must be construed in accordance its language and context. Nonetheless, it provides for a right of appeal. It would be faintly absurd if the right of appeal was extended to encompass matters that were not put before the Medical Assessor and were not considered by him in the MAC. I am unable to find an intention to the contrary in the language of s 327 (3).”[17]
[16] At [42].
[17] At [46].
I agree with that construction.
Member Sweeney said it would be futile to set the COD aside because there was no medical appeal in respect of the body part which was not part of the original dispute. He said:
“Given this conclusion, it is unnecessary to consider all the discretionary matters which were canvassed by the parties. Obviously, there is some tension between the use of the reconsideration power to permit a referral for an appeal on the grounds of deterioration and the legislative policy expressed in s 322A of the 1998 Act, and in various provisions of the 1987 Act, that there should only be one assessment of the degree of permanent impairment for most, if not all, statutory benefits including the right to bring proceedings for modified common law damages. Resolution of the issue in the circumstances of an individual case will require consideration of a range of circumstances including whether the worker knew or ought to have known of the likelihood of deterioration.”
Merits
While I agree that the COD cannot be set aside to permit an appeal on the ground of deterioration in the circumstances of Mr Rootsey’s case, the merits of the case are such that they preclude reconsideration in any event and therefore should be set out. They also preclude an application for reconsideration of the Medical Appeal Panel decision.
The consequence of that decision is significant because Mr Rootsey will not be able to investigate a claim for work injury damages. It is one of the factors to consider in the exercise of a broad discretion but it does not outweigh the other factors.
The decision under reconsideration was made in January 2018. The question of delay in bringing the application for reconsideration is an important factor. Delay should be explained when seeking the exercise of any statutory discretion. There is no specific evidence going to the question of delay and the factors which can be gleaned from Mr Rootsey’s are scant.
Mr Rootsey told Dr Bodel that he had back pain from “day dot”, though the claim in respect of a back injury was abandoned in Mr Wilson’s submissions in reply. Mr Rootsey was aware in 2016 that he had pain in his lumbar spine and that it was a consequence of his left knee injury. He told Dr Deveridge about it and he told his physiotherapists. He had minimal treatment.
Dr Deveridge accepted in his report dated 10 May 2016 that Mr Rootsey had lumbar pain as a consequence of his left knee injury, describing the mechanism as “limiting weight bearing”. There is no evidence about what Dr Deveridge was asked to assess and, in particular, whether he was asked to assess Mr Rootsey’s condition generally or merely his left knee.
Between the date of Dr Deveridge’s report and filing of the ARD nine months later, Mr Rootsey had complained to his physiotherapists about back pain. Despite those complaints, it does not appear that any consideration was given to whether a lumbar spine condition should be investigated and further evidence obtained before the ARD was filed. There is no evidence which explains why that did not occur. If Mr Rootsey had pain from “day dot” that omission is puzzling.
In 2017, according to his statement, Mr Rootsey visited the site with an expert engaged by his lawyers. That suggests that consideration was given to work injury damages proceedings at that time.
Mr Rootsey complained of back pain to Dr Thangavelu in 2018. Dr Thangavelu’s notes are incomplete and they stop before Mr Rootsey saw Dr Bodel in November 2019 when he did complain of back pain.
Previous proceedings seeking compensation on the basis of Dr Bodel’s report were filed and discontinued when listed for hearing before me in 2021. There is nothing in the evidence to explain the gap between the date of Dr Bodel’s report and 2021.
The ARD in these proceedings was filed on 3 December 2021 merely seeking compensation in respect of the impairment assessed by Dr Bodel. The application for reconsideration was not made until I directed that it be done at the telephone conference in January 2022.
Mr Rootsey’s 2022 statement does not deal with the question of delay. His statement that the back pain was bearable when he saw Dr Deveridge is not, of itself, an explanation why no claim for permanent impairment was considered until 2021. He said that the pain became unbearable in 2017 and 2018 and described his treatment. He said that his treatment requests were declined but no steps were taken to seek an order that medical expenses be paid.
The evidence which would support the claim that Mr Rootsey suffered a consequential condition in his back has been available for some time. It may be that Dr Deveridge would have assessed permanent impairment arising from Mr Rootsey’s back if he had been asked to do so. The basis for the introduction of fresh evidence set out in Maksoudian has not been made out. Reasonable diligence may have resulted in an assessment in respect of the lumbar spine in 2016.
There is no evidence from Mr Rootsey’s solicitor as to the management of the case or the reasons for delay. There is no positive basis to find that the requirement for reconsideration is a result of anything done or not done by any lawyers who have advised Mr Rootsey but there is considerable doubt as to what did happen in the management of his claim over the course of five years. However, as set out in Samuel, that is not a factor in favour of exercising the discretion to reconsider.
The question of utility is relevant. Even if it was possible to include a claim in respect of permanent impairment arising from Mr Rootsey’s back injury, he seeks to set the 2018 COD aside to bring a claim for permanent impairment compensation based on a report which predates the investigations undertaken by Dr Rao and the treatment that Dr Rao proposes. Dr Bodel’s assessment may well no longer be appropriate and he has not had the opportunity to consider the treatment Dr Rao proposes or what its outcome might be. There is at this stage no evidence that Mr Rootsey’s condition has reached maximum medical improvement to allow an assessment of permanent impairment to be made.
Taking all of those factors into account, it could not be said that it is in the interests of justice to reconsider the COD even if a further medical appeal was possible.
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