Russo v Work Zone Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Russo v Work Zone Pty Ltd [2021] NSWPIC 355
APPLICANT:	Saverio Russo
RESPONDENT:	Work Zone Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	16 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker seeks recission of orders in a medical Certificate of Determination (COD) on the basis of the reconsideration power in the former section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1988 Act); purpose of recission is to permit a second appeal to a Medical Appeal Panel (MAP) based on deterioration of his condition resulting in an increase in WPI (section 327(3)(a) of the 1998 Act); increased WPI attributable to consequential medical condition in contralateral upper extremity which developed after the issue of the COD; O’Callaghan v Energy World Corporation considered and applied; Held - as right upper extremity was not part of the medical dispute between the parties deterioration of the condition of that limb could not be the subject of an appeal; application for reconsideration dismissed on the ground of futility.
DETERMINATIONS MADE:	1. Decline to reconsider the Certificate of Determination of 8 September 2017 and dismiss the Application.

STATEMENT OF REASONS

INTRODUCTION

Saverio Russo (the applicant) suffered injury to his dominant left hand in the course of his employment as a carpenter with Work Zone Pty Ltd (the respondent) on 23 March 2015. The respondent accepted liability for the injury in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act).
In 2017, the applicant made a claim for permanent impairment compensation in respect of his left upper extremity pursuant to s 66 of the 1987 Act. The claim was based on the opinion of Dr Lai, a plastic and reconstructive surgeon, who assessed 18% whole person impairment (WPI). As the respondent disputed the quantum the claim, he commenced proceedings in the former Workers Compensation Commission.
As the issue between the parties was a “medical dispute” as that term is defined by s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), it was referred to a Medical Assessor (MA, formerly an Approved Medical Specialist) to determine the quantum of WPI resulting from the injury.
On 10 May 2017, the MA, Dr Paul Curtin, issued a Medical Assessment Certificate (MAC) by which he certified that the applicant suffered 11% WPI of the left upper extremity (hand and wrist). On 4 August 2017, a Medical Appeal Panel (MAP) confirmed the determination of the MA.
On 8 September 2017, an arbitrator of the former Commission issued a Certificate of Determination (COD) by which the respondent was ordered to pay the applicant the sum of $15,400 in respect of 11% permanent impairment resulting from injury on 23 November 2015.
It is the applicant’s case that there has been a deterioration of his condition that results in an increase in the degree of permanent impairment. There are two aspects of the deterioration. First, the condition of the applicant’s left upper extremity (hand and wrist ) has deteriorated so that he now suffers 14% WPI as a result of the injury.
Secondly, by reason of overuse of his non-dominant right upper extremity, he suffers a consequential injury/medical condition that results in 8% WPI in that limb. These impairments were assessed by Dr Lai. In a report dated 6 April 2020, Dr Lai assessed WPI resulting from the injury of 23 March 2015 at 21%.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant seeks a reconsideration of the orders made in the COD dated 8 September 2017 for the purpose of rescinding the order that the applicant suffered 11% WPI as a result of the injury of 23 March 2015. The applicant argues that a rescission of that order would permit him to bring a further medical appeal against the MAC dated 10 May 2017. The applicant specifically disclaims any further entitlement to permanent impairment compensation pursuant to s 66 of the 1987 Act.
The purpose underlying the application for reconsideration and appeal is to provide the applicant with an opportunity to bring a “threshold” dispute, which, if successful, might permit him to commence proceedings at common law or, alternatively, to be treated as a worker of “higher needs” as that term is used in s 32A of the 1987 Act. If he surpassed the threshold of 15% imposed by s 151H of the 1987 Act, he could commence proceedings for modified common law damages against the respondent. If he could obtain an assessment of more than 20% WPI, he would be entitled to weekly compensation until one year after his retirement age and to the cost of medical treatment for his injury for life. These are potentially valuable rights.
The applicant argues that, if the COD dated 8 September 2017 is set aside, s 327(3)(a) and (b) of the 1998 Act permit him to make an application to the President to bring a second appeal from the determination of the MA on the basis of a deterioration resulting in an increase in permanent impairment. If successful, the conditions of both the applicant’s upper limbs could be assessed by a medical appeal panel.
The respondent contests each of the applicant’s assertions. First, it denies that the applicant suffers a consequential injury/medical condition of his right upper limb as a result of the injury of 23 March 2015. Secondly, it asserts that the merits of the application do not justify the Commission exercising its reconsideration power to rescind the certificate of determination of 8 September 2017. Thirdly, it submits that the application for reconsideration must fail as there is no legal basis for an appeal panel to consider the impairment of the applicant’s right upper extremity as that “body part” was not the subject of the initial referral to the MA in 2017. Only aspects of the “medical dispute” referred to the MA for assessment are capable of forming the basis of an appeal pursuant to s 327(c) of the 1998 Act.
The matter has a long procedural history which I will not repeat. It was referred to me to conduct a telephone conference on 24 May 2021. At the telephone conference, the matter was fixed for an arbitration hearing on 5 July 2021. At that hearing, Ms Grotte, of counsel, represented the applicant and Ms Roberts, of counsel, represented the respondent. Both counsel spoke to the written submissions which had been filed in the matter.
At the arbitration hearing, I granted leave to the applicant to lodge a supplementary report from Dr Lai clarifying his earlier reports. As a corollary, I directed that the respondent have the opportunity to lodge any additional submission addressing the supplementary report by 26 July 2021. Prior to that time, however, the parties sought leave to address the decision of the Court of Appeal in Skates v Hills Industries Ltd [2021] NSWCA 142 (14 July 2021) (Skates). Those submissions have now been received. I should note that while the parties lodged their submissions in the time limited by my Direction, they were “lost” by the Commission. They were relodged and provided to me on 3 September 2021.

EVIDENCE

The documents before the Commission have been lodged in an unfortunately haphazard manner. Documents relevant to the application for reconsideration have periodically been added to a core component of the documents in the original claim by the applicant for permanent impairment compensation. It would be preferable if reconsiderations were commenced by an application attaching all of the documents on which the applicant sought to rely in the reconsideration application. The respondent should be obliged to lodge a reply attaching all of the documents on which it seeks to rely on the reconsideration.
The documents before the Commission in this matter are as follows:
(a)    Referral for permanent impairment 28 March 2017;
(b)     MAC 10 May 2017;
(c)     the Statement of Reasons for the decision of the appeal panel dated 4 August 2017;
(d)     a Reply dated 19 November 2020 and the documents attached;
(e)    an Application dated 23 November 2020 and the documents attached;
(f)    an Application to Admit Late Documents dated 25 May 2021 and the documents attached;
(g)     an Application to Admit Late Documents dated 8 June 2021 and the documents attached;
(h)     an Application to Admit Late Documents dated 6 July 2021 and the documents attached; , and
(i)     an Application to Admit Late Documents dated 19 July 2021 and the documents attached.
There was no objection to any of this material at the arbitration hearing. There was no application to adduce further evidence other than the applicant’s application to obtain and tender a supplementary report from Dr Lai clarifying his earlier reports.

RECONSIDERATION

The applicant relied on the former s 350(3) of the 1998 Act to rescind the MAC of 8 September 2017. That subsection is as follows:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 350 was repealed by the Personal Injury Commission Act 2020 No. 18 (PIC Act) as from 1 March 2021. It was assumed at the arbitration hearing that s 350(3) was preserved so as to apply to this case. I believe this approach is correct. The transitional provisions to the PIC Act provide that unexercised rights, pending proceedings, and part-heard proceedings before the Commission on 1 March 2021 should be determined in accordance with the law then in force as if the PIC Act had not been enacted. Clause 14D of Sch 1 of the PIC Act, insofar as it is relevant, states:
“(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”

SUBMISSIONS

The submissions of counsel are recorded or in writing. It is, therefore, unnecessary to reiterate each of the arguments made by counsel in these short reasons. I will address the main thrust of counsel’s arguments in resolving each of the issues in dispute.
It is common ground that it is open to the Commission in the exercise of its reconsideration power to rescind the COD dated 8 September 2017. It was not suggested that
the reasoning of Principal Member Harris in Galea v Colourwise Nursery (NSW) Pty Ltd [2019] NSWWCC 262 (Galea) was wrong. In Galea, a COD dated 25 January 2017 ordered the respondent to pay the worker compensation pursuant to s 66 in respect of 11% WPI in respect of injuries to both upper extremities (shoulders). Subsequent to the issue of that COD, the worker’s bilateral shoulder condition deteriorated and medical practitioners expressed the opinion that her WPI had increased since the COD. In setting aside the COD, the Principal Member said this:
“I have concluded that the applicant has a proper legal basis for filing an application to appeal the MAC based on s 327(a) and (b) of the 1998 Act. Had the applicant not identified a legal basis to appeal the MAC then I would have dismissed the application on the basis of lack of utility.
I have considered the applicant’s delay and the principles concerning finality of litigation. However, given the applicant has real and strong prospects of establishing a deterioration in the assessment of her permanent impairment, I accept, in the interests of justice, that there should be reconsideration of the COD so that she have the right to prosecute an appeal against the MAC.”
The recission of the COD in Galea was solely for the purpose of permitting the worker to prosecute an appeal from the MAC which would enable her to surpass the threshold of 15% for modified common law damages in s 151H of the 1987 Act. That is the relief which is sought by the applicant in this case. The submissions of the parties go to whether it is legally permissible to exercise the reconsideration power in the peculiar circumstances of this case and, if so, whether it is appropriate to do so in the interests of justice. I propose to approach the matter on this basis.

DISCUSSION AND FINDINGS

There is no doubt that the caselaw concerning the reconsideration power establishes that it is of considerable width. The width of the power might be contrasted with the restraint demonstrated by courts and tribunals in its exercise. In the leading case of Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244, Owen and Walsh JJ said the following at 248:
“It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and Courts should not lose sight of the general rule that 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 to see that justice is done between the parties.”
More recently, in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141, Deputy President Roche set out at [158] some of the principles which may be relevant to the exercise of the Commission’s discretionary power. Omitting footnotes, he stated:
“Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 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] 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).”
It was accepted by Ms Grotte at the arbitration hearing that in order to succeed on the application for reconsideration it was necessary for the Commission to accept that the applicant had suffered a consequential medical condition of his right arm as a result of the accepted injury to his left arm. This is primarily because the presumed increase in the extent of WPI in the applicant’s dominant left upper extremity since the 2017 COD, standing alone, does not enable the applicant to obtain the common law threshold of 15%. Indeed, Dr Lai’s assessment of the left upper extremity does not necessarily suggest deterioration since the 2017 COD. He assessed to 18% WPI in 2017 and 14% in 2020.
Thus, it is necessary to determine the following issues in favour of the applicant if he is to be successful on the application:
(a)    that the medical condition of his right upper limb resulted from the employment injury of 23 March 2015;
(b)    that the statutory scheme permits the applicant to bring a second medical appeal from the MAC in respect of WPI of both upper limbs; and
(c)    that the circumstances are such that it is the interests of justice that the Commission should exercise its discretion and rescind the COD.
I have concluded that the applicant succeeds in establishing the first precondition, namely that the medical condition of his right upper extremity results from the employment injury. In my opinion, however, the statutory scheme does not permit the applicant to refer the issue of WPI of his right upper extremity to a MAP. It would, therefore, be futile to rescind the COD. Given my conclusion, I intend to address the first issue compendiously and to say very little in respect of the third issue.

Consequential medical condition/injury

In a report dated 30 September 2019, Dr Lai recorded the following history in relation to the applicant’s right upper extremity:
“With increasing dependency on his right hand, Mr Russo started to develop symptoms of right carpal tunnel syndrome in his right hand about a year ago.”
He opined that the applicant had developed carpal tunnel syndrome in his right upper extremity as a consequence of the work injury. He said this:
“It is my opinion that your client’s whole person impairment of 21% that has been assessed by myself has been substantially contributed to by your client’s employment with Harrisons Trade Centre Pty Ltd (Work Zone Pty Ltd).”
By his supplementary statement dated 20 May 2019, the applicant states that as a result of pain and loss of strength in his dominant left hand he “now had to rely upon the right hand to perform tasks due to the injury”.
The evidence in respect of “overuse” is obviously meagre and Dr Lai’s opinion evidence in relation to the nexus between injury is also tenuous. Nonetheless, there is no competing medical evidence. In those circumstances, I propose to accept the opinion of Dr Lai that the condition of the applicant’s right upper extremity results from the injury to his left upper extremity (hand and wrist).

Can the consequential injury/medical condition of the right arm be referred for assessment?

The respondent submitted that the applicant was only permitted to appeal in respect of the “body parts” which were the subject of an assessment by the AMS in the original MAC. After referring to Aircons Pty Ltd v Registrar of the Workers Compensation Commission (NSW) [2006] NSWSC 322, Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149 and O’Callaghan v Energy World Corporation Ltd [2006] NSWWCCPD 1 (O’Callaghan), the submission continued:
“The respondent submits that based on the authorities outlined above the applicant cannot pursue a reconsideration or appeal in respect of the right upper extremity, noting that a body part did not form the basis of the previous AMS referral or grounds of appeal before the Panel.
The AMS must provide a MAC on the matters referred for assessment in accordance with s 325(1) of the 1998 Act. The respondent submits that terms of sections 325, 326 and 327(2) of the 1998 Act make it clear that the certificate is conclusive with respect to what is referred and determined. Therefore s 327(3)(a) and (b) of the 1998 Act is clearly restricted to what has previously been referred and contrary to the applicant’s submissions, does not only apply to a matter where there is an error (under s 327(3)(c) or (d)).”

Ms Grotte argued that to deny “reconsideration of the COD is to deny the Applicant an appeal on the basis of deterioration, which would be contrary to the interests of justice.” She pointed out that there was no time limitation set out in s 327(3)(a) and (b) and to import one would “negate the purpose and intention of the provision”.
On the question of whether an appeal from the MAC to a further medical appeal panel could lie in respect of a “body part” that had not been referred for assessment or assessed, she submitted:
“It is respectfully submitted that it can because the appeal ground of ‘deterioration’ does not require error to be established in respect of the assessment the subject of the MAC. It is not a usual appeal provision. All that needs to be established is evidence of deterioration in the worker’s condition. Its purpose is to address the deterioration of a condition, not to challenge the prior assessment.”
Accordingly, Deputy President Roche erred in O’Callaghan in stating that it was the conclusiveness of a MAC in respect of a “body part/system” that was crucial to the outcome. The conclusiveness of the MAC “is in respect of the degree of permanent impairment that has been assessed, not the body part that was the subject of the assessment”.
Further, contrary to the reasoning in O’Callaghan, the applicant argued that the language of s 327(3)(a) demonstrates an intention not to limit an appeal based on deterioration to the body part/system/injury which was previously assessed.
Alternatively, the applicant submitted:
“O’Callaghan is distinguishable from the facts of the present case because the applicant in that case sought to allege deterioration in respect of the neck, which was a body part that was a s4 injury, but which had not been referred to the AMS. In the present circumstances, the right hand/wrist is consequential on the left hand/wrist injury that has been assessed. There is evidence of deterioration of the left hand/wrist and also the right hand/wrist. The right hand/wrist is not a s4 injury and could not have been referred to the AMS or been subject to the MAC, because it formed part of the deterioration of the worker’s condition. It arose after the assessment and falls squarely within the scope of the provision. As Handley AJA and Campbell JA said, deterioration of a person’s condition ‘requires a comparison between the worker’s condition at an earlier date and his or her condition at a later date’”.
By their supplementary submissions, both counsel argued that there was support for their respective positions in the reasoning in Skates. Ms Roberts emphasised that the only “medical dispute” that had ever been referred for assessment was the condition of the applicant’s left upper extremity. Ms Grotte submitted that while the case was not strictly on point, the reasoning of the individual judges supported her argument to that it was not specific “body parts”, in this case the left upper extremity, that are referred for assessment but a “medical dispute”. I infer that this is a wider concept which encompasses the question of whether the applicant has permanent impairment as a result of the injury.
Part 7 of Div 5 of the 1998 Act deals with medical assessment which is defined to mean “the assessment of a medical dispute”. Section 319, insofar as it is relevant, defines a medical dispute as follows:
“a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim—
(c)     the degree of permanent impairment of the worker as a result of an injury,
(d)     whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(f)      whether impairment is permanent,
(g)     whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 321A(3) provides that a medical dispute concerning permanent impairment may be referred by a Court, the Commission or the Registrar either of their own motion or at the request of the parties to the dispute for assessment. Section 325 of the 1998 Act. provides that the Medical Assessor (formerly an AMS) is to give a MAC “as to the matters referred for assessment”.
Section 327, in the form that it took prior to the introduction of the PIC Act and insofar as it is relevant, is as follows

“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 an approved medical specialist 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),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.

(4)     An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that, on the face of the application and any submissions made to the Registrar, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5)     If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the Registrar is satisfied that special circumstances justify an increase in the period for an appeal.

(6)     The Registrar may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Note—Section 329 also allows the Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section)
(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.”

Plainly, the concept of a medical dispute is central to the scheme medical assessment. It was formerly thought that the referral was the critical document in identifying a “medical dispute” as the function of the Medical Assessor is to provide an assessment on “the matters referred for assessment”: Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW and Anor [2006] NSWSC 322 (28 April 2006) at [20]. The reasoning in Skates , however, suggests that a medical dispute is identified from correspondence between the parties, their medical evidence, and their pleadings.
Irrespective of how the medical dispute is identified, it is that dispute which is the subject of an assessment by a Medical Assessor and a MAC is given in respect of those matters assessed. It is in respect of the assessment of a medical dispute that a party can appeal on the grounds set out in s 327 (3).
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.
Certainly, that was the view of Deputy President Roche in O’Callaghan. At [70] and [71], he said this:
“The appeal available in s 327 is against “a medical assessment under this Part”. That is, it is an appeal against the medical assessment made by the AMS under Pt 7 of the 1998 Act. The only medical assessment made by Dr Ho was in respect of the permanent impairment resulting from the injury to Ms O’Callaghan’s lumbar spine (as noted earlier, it seems to have been accepted without challenge that the referral of the lumbar spine included the sacro coccygeal spine).

As Dr Ho was not asked to do so, it was not open to him to assess any other body part (Aircons). It follows that it is not open to use s 327(3)(a) to appeal against an assessment that Dr Ho did not make, that is, an assessment of whole person impairment as a result of injury to the cervical spine. As the respondent submitted, 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.”
The Deputy President analysed the Guidelines for Claiming Compensation Benefits and noted that workers claiming permanent impairment compensation were required to lodge a Permanent Impairment Claim Form which required particulars of the “body system affected by the injury”. The claim form must be supported by the opinion of a medical specialist who was trained in a medical specialty relevant to the “body system” being assessed. Those documents form the basis of a potential “medical dispute”. These provisions remain essentially the same.
The applicant argued that O’Callaghan was wrongly decided. The language of s 327 (3)(a) was not consistent with the limitation of a right of appeal to the subject of the medical assessment. It is not clear whether I am bound by the reasoning in O’Callaghan. It may be that the case was decided on the basis that no compensation was at issue and, therefore, the monetary threshold to appeal was not satisfied. Nonetheless, the Deputy President dealt with the issue before the Commission in this case in great detail. At the very least it is seriously considered dicta that a member should follow unless there is cogent reasons to reach a contrary conclusion.
In my opinion, there is no substance in the appellants 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).
The applicant’s submission diminishes the importance of the phrase “medical dispute”. It emphasises the conclusiveness of the MAC in respect of “permanent impairment resulting from injury”. But permanent impairment resulting from injury is confined to the issues raised in the medical dispute. I accept that Skates is not directly on point, but it did reject an argument that it was inappropriate to refer “body parts/systems” to a Medical Assessor. At [29] to [30], Basten JA said:
“Medical reports enclosed with the application referred to specific injuries of the left wrist and hand; it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of permanent impairment calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports.

As the primary judge found, this material defined the proper scope of the referral.”
This and other passages in the judgments of the majority in Skates confirm the reasoning in O’Callaghan as to how a medical dispute is formulated and its central role in medical assessments.
Ms Grotte also argued that O’Callaghan was distinguishable. This case “concerned a consequential medical condition” namely that of the right arm whereas O’Callaghan precluded an appeal from the MAC on the basis of deterioration in respect of an “injury” as defined by s 4 of the 1987 Act. While an acceptance of that submission may ameliorate some of the disagreeable aspects of the amendments to permanent impairment compensation made by the Workers Compensation Legislation Amendment Act 2012, it does not fit comfortably with the statutory language. Irrespective of how one characterises the condition of the applicant’s right arm, it was not part of the medical dispute referred for assessment in this case. It cannot be introduced on appeal.
I also doubt whether the interpretation proposed by Ms Grotte would be practicable Consequential medical conditions form a substantial part of the Commission’s work. They often relate to overuse of a another joint in the same limb or in a contralateral limb by reason of the initial injury. They include, however, a wide range of conditions including hypertension, cardiac and the gastroenterological conditions to name but a few. These conditions often affect workers many years after the injury. In many cases, the medical specialists appointed to the initial appeal panel, should they still be practicing at the time assessment of the consequential medical condition is sought, would not have the appropriate expertise to determine the new dispute.
The respondent suggested a number of other reasons why an appeal was impermissible in the circumstances of this case. I will only address one. It argued that the reasoning in Sleiman v Gadalla Pty Ltd [2021] NSWSC 86 at [95]-[101] precluded an appeal to an appeal panel. That is probably correct. But I see no reason why, in an appropriate case, there cannot be consecutive appeals from a MAC to differently constituted medical appeal panels. It is plausible that while an appeal in relation to a demonstrable error or the application of incorrect criteria is being heard a worker’s condition might deteriorate. The language of Part 7 does not appear to prohibit the lodging of a second appeal to permit consideration of that deterioration by a second medical appeal panel. Obviously, such circumstances will be exceedingly rare.
In my opinion, it would be futile to set aside the COD of 8 September 2017, as an appeal does not lie in respect of the applicant’s right upper extremity. Part 7 of Div 5 of the 1998 Act does not permit an appeal in respect of a body part/system that was not part of the medical dispute between the parties and, therefore, not assessed by the Medical Assessor and incorporated in the MAC. In those circumstances, the applicant cannot obtain an assessment of permanent impairment which would surpass the threshold in s 151H of the 1987 Act.
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.
I propose to decline to reconsider the COD of 8 September 2017 and dismiss the Application.

[2021] NSWPIC 355

16 September 2021