Sleiman v AGR Tyres Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Sleiman v AGR Tyres Pty Ltd [2022] NSWPIC 496
APPLICANT:	Ali Sleiman
RESPONDENT:	AGR Tyres Pty Ltd
Member:	Carolyn Rimmer
DATE OF DECISION:	6 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Court of Appeal held that the applicant should be granted leave to appeal and the matter remitted to the Personal Injury Commission to determine the application on the basis it was an application to reconsider the 2017 decision of the Appeal Panel; Held – that the Certificate of Determination of 21 July 2017 is rescinded pursuant to section 350(3) of the Workplace injury Management and Workers Compensation Act 1998 (1998 Act) and the matter is referred back to the Appeal Panel for reconsideration pursuant to section 378 of the 1998 Act.
determinations made:	1. The Certificate of Determination dated 21 July 2017 is rescinded pursuant to s 350(3) of the Workplace Injury Management and Workers Compensation Act1998. 2. The matter is to be referred back to the Medical Appeal Panel for reconsideration pursuant to s 378 of the Workplace Injury Management and Workers Compensation Act1998.

STATEMENT OF REASONS

BACKGROUND

Ali Sleiman (the applicant) was employed by AGR Tyres Pty Ltd (the respondent) as a tyre fitter and notified the respondent of a workplace injury on 14 May 2014. The respondent’s workers compensation insurer accepted liability and weekly payments of compensation and medical expenses were paid to the applicant.
In 2016 the applicant made a claim in respect of whole person impairment (WPI) of 46%. In a letter dated 5 October 2016, the insurer rejected the claim.
On 13 October 2016, the applicant lodged an Application to Resolve a Dispute (the application) in the Workers Compensation Commission (WCC). On 21 December 2016 the parties following a conciliation/arbitration hearing agreed that the claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) be referred to an Approved Medical Specialist (AMS) for assessment of WPI.
On 19 January 2017, an AMS, Dr Phil Truskett, certified that the applicant had suffered injuries resulting in a total of 2% WPI.
The applicant appealed from this decision and the matter was referred to a Medical Appeal Panel (MAP). The grounds of the appeal were those in s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), namely, that the assessment had been made on the basis of incorrect criteria or contained a demonstrable error. The applicant was re-examined by Dr Dixon, a member of the MAP, on 24 May 2017 and on 16 June 2017 the MAP determined that the earlier medical certificate should be revoked and a new medical assessment certificate (MAC) certifying 14% WPI be issued. On 21 July 2017 the WCC issued a Certificate of Determination ordering the respondent to pay the applicant the sum of $20,350 pursuant to s 66 of the 1987 Act in respect of 14% WPI resulting from the injury.
In 2019 the applicant claimed that his condition had deteriorated and obtained medical reports to that effect. By application on a ‘form 10’ dated 14 August 2019 he sought to bring another “appeal”. The medical assessment decision appealed against was that of Dr Drew Dixon, the member of the MAP who had examined the applicant two years earlier and was issued by the MAP on 21 July 2017. The submissions attached to the application stated that “The appeal is bought for the purposes of a work injury damages threshold dispute” and the applicant did not seek to undermine the payment of the s 66 compensation which had been based on an assessment of 14% WPI but merely sought to be permitted to commence proceedings for modified common law damages.
A notice of opposition was lodged which was confined to a request for a delay and did not address the question of the MAP’s jurisdiction.
On 18 September 2019, the Registrar’s delegate determined that the “Somewhat unusual appeal” was incompetent. The Registrar’s delegate stated that the appeal under s 327 was against a “medical assessment”, which was “specifically defined” to be an “assessment of a medical dispute by an approved medical specialist under Part 7 of Chapter 7” (original emphasis) and noted that an assessment was appealable under s 327(2) if an AMS provided the certificate. The delegate said that a matter was not appealable under s 327(2) where an Appeal Panel had issued a decision determining an appeal, whether or not that appeal included a further examination. The delegate rejected a submission that because the certificate issued by the MAP is the certificate for the purposes of s 322A, an appeal lay from that certificate. The delegate said that if an appeal were available, this “would be an affront to the finality of litigation and would open a never-ending right of appeal”. The delegate also said that “[t]he construction proposed by the appellant would also lead to an appeal being determined at the same level of authority, constituted in the same manner, as the decision maker”.
The applicant commenced proceedings in the Supreme Court claiming that the delegate’s decision disclosed a range of jurisdictional errors and errors of law on the face of the record. Harrison AsJ in her judgment dated 15 February 2021 (Sleiman v Gadalla Pty Ltd [2021] NSWSC 86) dismissed the summons with costs. Her Honour held at [97] that:
“In my view, this construction of the statute is unworkable. The operation of ss 4 and 326 to 328 of the 1998 Act does not permit the certificate of an appeal panel to be considered a ‘medical assessment’ as defined under the Act. As the defendant has submitted, s 328(5) provides that an appeal panel may revoke the certificate appealed against and issue a new certificate. The provision in s 328(5) for the application of s 326, which concerns the status of ‘medical assessments’, to such a certificate indicates the difference between the appeal panel’s certificate and the medical assessment of an AMS under Part 7 of Chapter 7.”
After Harrison AsJ gave her decision, and before the appeal to the Court of Appeal was determined, the NSW WCC was abolished. The matter became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) by operation of the Personal Injury Commission Act2020 (the 2020 Act) from 1 March 2020. The 2020 Act amended certain parts of the 1998 Act. Relevantly, the AMSs of the former WCC became Medical Assessors (MA). However, as at the time of the various orders made in the proceedings, the decision makers bore the title of AMS, in this decision they will be referred to by their former titles.
The applicant appealed from the dismissal of his application for judicial review.
The Court of Appeal issued a judgment on 30 September 2021 (Sleiman v Gadalla Pty Ltd [2021] NSWCA 236) allowing the appeal and setting aside the orders made on
15 February 2021, and, in lieu thereof, set aside the decision of the Registrar’s delegate on 18 September 2019 and remitted the application to the Commission for determination in accordance with law. Leeming JA held that a further appeal under s 327(a) or (b) was not available and said at [30]:
“Thus the first limb of this ground challenged the restriction imposed by s 327(2), and the second challenged that imposed by s 327(7). As will be seen below, on the face of the section, both prohibitions applied: the first by reason of the appeal being from the decision of the Appeal Panel, and the second by reason of the fact that the Commission had issued a certificate awarding compensation under s 66 to Mr Sleiman in respect of a permanent impairment of 14%.”
At [82] – [83] Leeming JA said:
“82. The answer to the submissions based on harshness is that there should only be an assessment of permanent impairment when the specialist bodies involved are satisfied that an assessment can appropriately be made, the right of appeal on the ground of deterioration addresses errors that have occurred, and if there is further deterioration after an assessment of permanent impairment by the Appeal Panel, then those cases would, at least under the regime which obtained in 2019, be cases where a relatively powerful case for reconsideration would be available.
83. Earlier this year (after the decisions of the Registrar’s Delegate and the Associate Judge), ss 350 and 378 were repealed. As is also noted below, their repeal does not affect Mr Sleiman’s rights. The analysis of the position in relation to applications filed after April 2021 will differ from that summarised above…”
Leeming JA noted that in accordance with directions made at the conclusion of the hearing of the appeal, the applicant filed a proposed amended notice of appeal and amended summons in the Common Law Division, both of which maintained that the Registrar’s delegate fell into jurisdictional error by rejecting his application and failing to treat it as an application that the Appeal Panel reconsider its 16 June 2017 decision pursuant to s 378.
Leeming JA noted that it was common ground that the effect of the transitional provisions was that the applicant continued to be able to apply for reconsideration, notwithstanding the repeal of s 378.
At [95] Leeming JA said:
“The position is a fortiori in the Commission, to which s 354(1) and (3) applied.
Mr Sleiman’s solicitor filed a document and attached submissions which sought to exercise a review of the 2017 decision of the Appeal Panel on the basis of deterioration. The invocation of a right of appeal was wrong, but it was plain that Mr Sleiman was applying for a different decision as to the degree of his permanent impairment based on his claimed deterioration between 2017 and 2019. There was an avenue available to Mr Sleiman for his application to be considered on the merits, and as it happens, it was the only avenue available. A body which is commanded to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms should have addressed the substance of the application. It is not necessary to determine whether (a) there was error in the nature of a breach of procedural fairness to dismiss the application without hearing whether Mr Sleiman wanted it to be treated as a reconsideration application, or (b) whether without more the application should have been so treated. Either way, it has failed to address the substance of the application.”
At [96] Leeming JA said:
“96 For those reasons, Mr Sleiman’s primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar’s Delegate’s decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by
Mr Sleiman is unnecessary, but the Delegate’s decision dismissing his application should be quashed and the application remitted for determination in accordance with law.”

ISSUES FOR DETERMINATION

The parties agree that the following issues were previously notified as disputed and remained in dispute:
(a) whether the certificate of determination dated 21 July 2017 should be reconsidered and rescinded, and
(b) whether the matter is to be referred back to the MAP for reconsideration pursuant to s 378 of the 1998 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The parties attended a telephone conference on 14 February 2022. The applicant was represented by Mr Luke Power of Turner Freeman Lawyers. The respondent was represented by Mr Richard Orr of Turkslegal. Ms Gamlath from the insurer also attended the telephone conference. In that conference, the following directions were made:

“1.     Applicant to file and serve submissions and any late documents in respect of the application to reconsider the decision of the Appeal Panel dated 16 June 2017 by 5pm on 14 March 2022.
2.     Respondent to file and serve submissions and any late documents in respect of the application to reconsider the decision of the Appeal Panel dated 16 June 2017 by 5pm on 4 April 2022.
3.      Matter to be remitted to the President to determine whether the application for reconsideration is to be referred to the Appeal Panel for reconsideration of the decision of the Appeal Panel dated 16 June 2017.”

On 24 February 2022 an amended direction was issued altering the dates by which the parties were required to file submissions. In that direction the applicant was required to file submissions by 5pm on 29 April 2022 and the respondent was required to file submissions by 5pm on 20 May 2022.
On 11 March 2022 an amended direction was issued altering the dates by which the parties were required to file submissions. In that direction the applicant was required to file submissions by 5pm on 13 May 2022 and the respondent was required to file submissions by 5pm on 10 June 2022.
On 2 May 2022 an amended direction was issued altering the dates by which the parties were required to file submissions. In that direction the applicant was required to file submissions by 5pm on 30 May 2022 and the respondent was required to file submissions by 5pm on 27 June 2022.
On 30 May 2022 an amended direction was issued altering the dates by which the parties were required to file submissions. In that direction the applicant was required to file submissions by 5pm on 29 June 2022 and the respondent was required to file submissions by 5pm on 27 July 2022.
On 26 July 2022 an amended direction was issued altering the dates by which the parties were required to file submissions. In that direction the applicant was required to file submissions by 5pm on 30 June 2022 and the respondent was required to file submissions by 5pm on 24 August 2022. I also directed that I would then determine on the papers whether the application for reconsideration is to be referred to the Appeal Panel for reconsideration of the decision of the Appeal Panel dated 16 June 2017.
The applicant filed written submissions dated 30 June 2022. The respondent filed written submissions dated 24 August 2022 and the applicant filed written submission in reply dated 25 August 2022. I note that the respondent neither consented nor opposed the filing of the applicant’s submissions in reply. I have considered all of the submissions in making this determination.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have 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.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Form 10 Application dated 7 February 2022 and attached documents;
(c)    annexures to the submissions filed by the applicant dated 30 June 2022;
(d)    Reply and attached documents;
(e)    Form 10A Notice of Opposition dated 7 February 2022 and attached submissions, and
(f)    report of Dr Machart dated 17 August 2022.

Submissions

Applicant’s submissions

I do not propose to repeat the submissions of the parties in full. However, I note that the applicant submitted that the additional medical material (the reports of Dr Giblin and
Dr Mellick) as well as the applicant’s statement showed that the applicant's condition has now deteriorated so that he is being found to have lumbar spine symptomology consistent with at least a DRE Category 2 or 3 on four occasions over a period of the past four years. The applicant submitted that this was in stark contrast to the prior assessment of 0% previously provided by the MAP.
The applicant submitted that there has been deterioration in the right upper extremity, left upper extremity and lumbar spine and the matter should be referred to a MA to assess the current level of impairment with respect to the lumbar spine and bilateral shoulders. The applicant argued that the findings of the Court of Appeal in Sleiman v Gadalla Pty Ltd had spoken to the merits of the applicant’s reconsideration application stating "The position is a fortiori in the Commission to which Section 354(1) and (3) applied… There is an avenue available to Mr Sleiman for his application to be considered on the merits and as it happens, is the only avenue available”.
The applicant submitted that in accordance with s 327 it was clear and undisputed that evidence of substantial deterioration and additional information has been provided and accordingly, s 327(3)(a) and s 327(3)(b) have been made out, requiring the Commission to make orders consistent with the relief sought.
The applicant submitted that the Court of Appeal determined in Riverina Pines Pty Ltd v Workers Compensation Commission (2007) NSWCA at 94 to the effect that deterioration as used in s 327(3)(a) means a deterioration from the degree of permanent impairment certified by a MAC since the examination on which it was based and that the circumstances described above comfortably fit within the definition of a deterioration such that the MAC provided by the MAP should be set aside and the injured worker re-assessed.

Respondent’s submissions

The respondent submitted that an entitlement to reconsideration is “not available as of right but is discretionary”. The principles under which a reconsideration power is exercised were addressed in Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 (Martinovic) at [91] – [101]. The respondent also referred to Railcorp NSW v Registrar of the Workers Compensation Commission (NSW) [2013] NSWSC 231 in which the principles in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel) were found to be applicable to s 350 of the 1998 Act.
The respondent’s submissions are further summarised below.
Section 378 provided for a power of quite a different nature from the power of appeal, which is not “as convenient or satisfactory”: Cook v City of Sydney [2015] NSWSC 1904 (Cook), [32]. Section 378 provided for a discretionary power to correct error (among other things) and does “not confer any right or entitlement”: ibid. Unlike the appeal power, it “does not, by its terms, incorporate any independent review” (Cook, [33]).
The respondent submitted that, having regard to the evidence prepared since the MAP decision (the merits of which were not before the Court of Appeal to consider), the Commission should conclude that its discretion to reconsider the decision should not be exercised.
The applicant relied on a personal statement, as well as reports from Dr Giblin, orthopaedic surgeon, and Dr Mellick, consultant neurologist. The respondent relied in its opposition to reconsideration on a report of Dr Machart, orthopaedic surgeon dated 17 August 2022, prepared following an assessment of the applicant on 27 May 2022. Dr Machart had previously assessed the applicant in 2016 and provided two earlier reports.
Dr Machart noted particularly firstly that neither Dr Giblin nor Dr Mellick provided reasons for deterioration in the applicant’s condition (page 4). Secondly, the objective pathology of the applicant’s injury has not changed (page 6). Thirdly,
“the pathology of injury did not display reasons for deterioration in all or any alleged injured areas. I looked at the IMEs presented by Dr Giblin and Dr Mellick. In relation to deterioration, there was no clear-cut objectively defined medical evidence of pathology that could be linked to the injury causing deterioration as a result of the injury.”

By way of explanation as to why he did not consider there to have been any deterioration in Mr Sleiman’s condition, Dr Machart wrote at page 6:
“The non-organic illness behaviour corrupted the physical signs. I was inclined to accept the objective pathology of injury, which had not changed. The objectively defined injury pathology cannot be responsible for the plethora of symptoms, the severity of the subjectively obtained range of movement, or the severity of impact on ADLs, as self-reported. My assessment does not alter. I did not see objective evidence of change in the MAC appeals panel outcome.”
The absence of any explanation for deterioration in Dr Giblin’s reports was highlighted by the indication in each that the assessment is “permanent” – see page 2 of the 13 March 2018 report (indicating that an 18% WPI was permanent), page 3 of the 14 January 2019 report (indicating that 21% WPI was permanent) and page 1 of the 13 April 2022 (indicating that a 25% WPI was permanent). No reason was given to explain the deterioration over this period or since the Appeal Panel’s decision or why, given what appears on Dr Giblin’s evidence to be continuing deterioration between 2018 – 2022, Dr Giblin had nevertheless felt able on each occasion to give evidence of permanence.
Dr Mellick’s report of 27 June 2022 reported an improvement in Mr Sleiman’s condition since his 26 June 2019 report (the latter report assessing 32% WPI, the earlier report assessing 39% WPI). This difference arises from ulnar nerve and cervical spine impairments being included in the earlier, but not the later report.
Dr Mellick noted in his 27 June 2022 report that history taking had proved difficult with “the history and descriptions of symptoms” being “highly variable” (at page 1). Dr Mellick’s most recent report also noted at page 3 that there “have been no further investigations since the time of my last assessment” (ie 2019).
In contrast, Dr Machart’s evidence clearly explained why there was no objective basis for concluding that there has been any deterioration in Mr Sleiman’s condition, with the significant benefit of Dr Machart also having himself assessed the applicant at an earlier time. His evidence should be preferred.
No reason is advanced by the applicant or in the reports of Dr Giblin and Dr Mellick as to why there was now said to have been a deterioration in his condition, whereas Dr Machart has provided a compelling explanation of why the evidence does not support a finding of any deterioration.
The respondent submitted before the Court of Appeal that Mr Sleiman’s failure to articulate his application as one seeking reconsideration, despite clear guidance at the relevant time in a Guideline dated February 2010 entitled “Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998”, weighed against the applicant being permitted to do so now. The Court of Appeal ultimately found that while Mr Sleiman had sought to invoke a right of appeal and he had clearly intended to seek reconsideration (J [91] – [95]). It was however unfortunate and unhelpful that, even following the Court of Appeal’s guidance, Mr Sleiman’s 30 June 2022 submissions did not address ss 350 and 378.
For these reasons the Commission should, having considered Mr Sleiman’s application as an application for reconsideration (as directed by the Court of Appeal), decline to exercise its discretion to reconsider the Appeal Panel’s earlier decision.
For the reasons set out below the respondent submits that the Commission should find that this is not a case in which reconsideration is appropriate.

Applicant’s submissions in reply

The applicant submitted in reply that it was accepted by the parties that ss 350 and 378 of the 1998 Act continued to apply to the applicant in this case and the avenue available to the applicant in s 329(1A) of the 1998 Act permitted a matter to be referred for reconsideration. This section enlivens the (now repealed but still available) s 350(3) of the 1998 Act, which permits the Commission to rescind, alter or amend any of its decisions.
As referred to by the Court of Appeal in this matter's prior history, the Guideline issued by the Commission entitled 'Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the Workplace Injury Management and Workers Compensation Act 1998' noted that there was no specific form that an application should be made under the above sections.
As such, the applicant sought in his original submissions of 30 June 2022 to refer as closely as possible to that Guideline. In particular, the applicant sought to clarify why a reconsideration was necessary in the circumstances. References made in the applicant's original submissions to s 327 of the 1998 Act were therefore relevant to the extent that they indicated that a reconsideration of the matter is necessary to the applicant.
Whilst the respondent was correct to assert that the applicant has no further right of appeal available to him under s 327 of the 1998 Act, it failed to characterise the ground relied upon in requesting a reconsideration of the original assessment. Whilst s 327 of the 1998 Act is unavailable to the applicant, the criteria in sub-s (3) fall squarely within the ambit of the powers in ss 350 and 378 of the Act, as they provide that additional relevant information may enliven the powers available in those sections.
The ground upon which the applicant relies in this matter in bringing his request for a reconsideration are ss 329(1A) and 350(3) of the 1998 Act. Sub-sections 327(3)(a) and (b) are plainly relevant to considerations of the relied-upon sections as they provide that previously unavailable information will support a request for reconsideration. It was made clear by the Court of Appeal in the procedural history of this matter that this avenue was available to the applicant.
As such, given that the applicant has a right to seek to have his matter reconsidered by the Registrar, he seeks that the President exercise the discretion to reconsider the MAP's earlier decision.

FINDINGS AND REASONS

The MAP decision dated 21 July 2017

The MAP noted that in respect of the lumbar spine, the findings of the AMS on examination and as set out in the MAC placed the applicant within DRE – Category 1. The MAP under the heading “Lumbar Spine” wrote:
“22.   The AMS’s findings on examination as set out in the MAC places the Appellant within DRE – Category I.
23.    The AMS reported his examination findings as follows:
“On examining his back, there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding. There was, however, local tenderness in the lumbar region.
Straight leg raiding (sic) was only possible to 40 [degrees] bilaterally. This appeared to induce severe back pain. However, in the sitting position both legs could be elevated to 90 [degrees]. There was no distress on the right but he did describe distress on the left, but did not lean back, which is the usual mechanism to protect discomfort with true positive straight leg raising. There was no sciatica described, but there was back pain. This is both inconsistent and certainly not a positive straight leg raising test.
There was marked loss of sensation of the right leg which seemed to involve all of the right leg, except for a component in the medial aspect of the right calf. There was no anatomical explanation for this.
Mr Sleiman also experienced shooting pain with gentle palpation of the right heel. Once again, this was difficult to understand from an anatomical standpoint.
On examining back movements, there was virtually no flexion or extension, lateral flexion to the left or right, or rotation to the left and right, probably only about 10 [degrees] in anterior flexion and extension. This was far less when watching
Mr Sleiman being dressed and undressed. He had no explanation for this”
24.    The AMS reviewed the MRI scan taken on 6 May 2014. He reported upon it as showing some mild disc desiccation but no significant disc injury or nerve root compression.
25.    The Panel notes the AMS’s review of the MRI scan is similar to the findings of the radiologist, Dr Low.
26.    Dr Low reported his conclusion as follows:
“Mild disc changes. No focal protrusion or evidence of neural impingement is visible. The facet joints are well preserved. No cause for the patient’s lower limb radiculopathy is identified.”
27.    The Panel also notes the AMS set out his findings and calculations referenced to AMA5 and the Guidelines. The AMS’s reasons for assessment are as follows:
“Reason for assessment – A 0% whole person impairment has been assigned as there is no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.”
28.    The Panel finds the AMS provided adequate reasons for his assessment of placing the lumbar spine within DRE – category I based upon findings on clinical examination, review of the MRI scan and the documentary medical evidence.
29.    The Panel distils no demonstrable error by the AMS in respect of his clinical examination or his explanation of his calculations to find 0% WPI.
30.    The Panel finds the AMS’s assessment of the lumbar spine was not based upon incorrect criteria.
31.    The Panel also finds the MAC does not contain any demonstrable error in respect of the lumbar spine.
32.    The Panel confirms the AMS’s assessment of 0% WPI of the lumbar spine.”
While Dr Drew Dixon of the Appeal Panel re-examined the applicant, the re-examination was limited to the upper extremities (shoulders) and there was no re-examination of the lumbar spine.
With respect to the upper extremities (shoulders), Dr Drew Dixon of the Appeal Panel re-examined the applicant and assessed impairment of the applicant's bilateral shoulder injuries on 24 May 2017. It was determined by the MAP that as at the time of assessment the applicant was suffering 8% WPI of the right upper extremity and 6% WPI of the left upper extremity, which was converted to an assessment of 14% WPI.

Report of Dr Frank Machart dated 17 August 2022

In a report dated 17 August 2022, Dr Frank Machart noted he had examined the applicant on 27 May 2022, having previously assessed the applicant in 2016.
Dr Machart expressed the following opinion:
“The diagnostic features have not changed. The presentation is primarily non-organic. I accept the assessment by the workers’ compensation appeals panel. I did not see features in my assessment which were different to my previous assessment. I did not find objectively defined deterioration.
Injury was in 2014. The appeal panel determination was in 2017. Deterioration was claimed subsequent to the appeals panel determination.
The narrative indicated that there was ongoing pain in several areas of the body: cervical spine, lumbar spine, left shoulder, right shoulder, headaches, anxiety, depression, and right leg numbness in the quadriceps area. There was minimal movement in shoulders, no more than 20° elevation evident at the time of my assessment on 01/02/2016. At the time of my re-assessment on 01/02/2022, I did not see evidence of objectively defined pathology concordant with deterioration in all the allegedly injured areas.
Having looked at the documents attached, I did not see objective evidence of deterioration. I noted non-organic elements in his presentation. It would be difficult to rely on self-reporting and subjectively determined ROM as features of deterioration.
He did nothing strenuous since 2014. He has not worked for much of the time. The pathology of injury did not display reasons for deterioration in all or any alleged injured areas.
I looked at the IMEs presented by Dr Giblin and Dr Mellick. In relation to deterioration, there was no clear-cut objectively defined medical evidence of pathology that could be linked to the injury causing deterioration as a result of the injury.”
Dr Machart concluded that there was no change in the WPI assessed in the MAC. He commented:
“The non-organic illness behaviour corrupted the physical signs I was inclined to accept the objective pathology of injury, which had not changed. The objectively defined injury pathology cannot be responsible for the plethora of symptoms, the severity of the subjectively obtained range of movement, or the severity of impact on ADLs, as self-reported. My assessment does not alter. I did not see objective evidence of change in the MAC appeals panel outcome.”

Reports of Dr Peter Giblin

In a report dated 13 March 2018, Dr Peter Giblin, orthopaedic surgeon, examined the applicant some eight months after the determination of the MAP. Dr Giblin noted that the applicant’s lumbar spine was grossly restricted and associated with quite marked lumbar spine muscle tightening and guarding. Dr Giblin identified the following symptoms as indicative of a deterioration that was beyond the MAP’s finding of 0% WPI for the lumbar spine. The symptoms included:
(a)     both knee jerks were absent though both ankle jerks were present;
(b)     his toes were down-going, and
(c)     straight leg raising was limited to 10 degrees on the left side and 30 degrees on the right side.
Dr Giblin assessed a 5% WPI of the lumbar spine on the basis that clinical findings now supported an assessment of DRE Category 2. No addition was made in relation to ADLs as the physical restrictions in relation to ADLs primarily centred on the shoulders. Dr Giblin did note that on this occasion he could not perform an adequate examination of the shoulders due to complaints of severe pain every time he attempted a range of motion assessment.
In a further report dated 14 January 2019, Dr Giblin in assessing the lumbar spine noted:
(a)     examination of lumbar spine revealed markedly restricted, and asymmetric range of motion with palpable lumbar spine muscle tightening and guarding;
(b)     the deep tendon reflexes seemed to be absent in the knees, just present at the medial hamstrings and present in both ankles;
(c)     there was decreased sensation to light touch in the right leg but not any dermatome or peripheral nerve distribution, and
(d)     motor strength was normal.
Dr Giblin in this assessment concluded that based on the examination on that day the applicant had a DRE Category 2 assessment and now suffered 8% WPI for his lumbar spine.
In this report of 14 January 2019 Dr Giblin assessed the right shoulder and found:
(a)    flexion - 90 degrees –6% upper extremity impairment;
(b)    extension – 30 degrees – 1% upper extremity impairment;
(c)    abduction - 80 degrees - 5% of upper extremity impairment;
(d)    adduction – 20 degrees – 1% upper extremity impairment;
(e)    internal rotation - 60 degrees – 2% upper extremity impairment, and
(f)    external rotation – 60 degrees – 0% upper extremity impairment;
This gave a total of 15% upper extremity impairment for the right shoulder equating to 9% WPI.
In relation to the left shoulder, Dr Giblin found:
(a)    flexion - 100 degrees – 5% upper extremity impairment;
(b)    extension - 30 degrees - 1% of upper extremity impairment;
(c)    abduction – 90 degrees - 4% upper extremity impairment;
(d)    adduction - 20 degrees – 1% upper extremity impairment;
(e)    internal rotation - 60 degrees – 2% upper extremity impairment, and
(f)    external rotation - 60 degrees - 0% upper extremity impairment;
This gave a total of 8% WPI for the left shoulder. Dr Giblin deducted 1/10^th pursuant to s 323 of the 1998 Act, which produced a subtotal of 7% WPI for the left shoulder.
In his further report dated 13 April 2022, Dr Giblin noted that there had been two surgical procedures on the right elbow in 2019 and 2020 which related to the ulnar nerve and the applicant was awaiting similar surgery on the left elbow. Dr Giblin noted that physical examination was associated with generalised, moderately severe allodynia, withdrawal responses, cogwheel rigidity, and submaximal effort.
In his further report dated 13 April 2022, Dr Giblin assessed the applicant as DRE 2 for the lumbar spine and assessed 8% WPI for the lumbar spine. Dr Giblin then deducted 1/10^th pursuant to s 323 of the 1998 Act, which produced a subtotal of 7% WPI for the lumbar spine. The bilateral shoulder assessments remained unchanged.

Reports of Dr Ross Mellick

Dr Ross Mellick, consultant neurologist, in a report dated 20 June 2019, noted that he had examined the applicant on 7 May 2019. Dr Mellick noted that the applicant experienced numbness involving the fingers of the right hand, together with pain involving the region of the olecranon of the elbow on the right and numbness involving the 5^th, 4^th and 3^rd fingers of the right hand. He noted that the numbness began in about 2018 and the pain in the region of the olecranon began approximately 12 months after the pain that occurred on
14 May 2014. Dr Mellick noted that the applicant reported a steady increase in back pain since the date of the injury and also a steady increase in neck pain and shoulder pain with the passage of time and referred symptoms into the right lower extremity.
Dr Mellick assessed 20% UEI of the right shoulder and 15% UEI of the left shoulder, which was converted to 12% WPI and 9% WPI respectively. He deducted 1/10^th pursuant to s 323 for the right shoulder which resulted in an assessment of 11% WPI for the right shoulder. He noted that there was smallness of the right forearm and wasting of the intrinsic muscles of the right hand, particularly evident in the 1^st dorsal interosseous, and weakness of finger abduction, particularly abductor digiti minimi and abduction of the right index finger. There was also weakness of abduction of the other digits on the right side. On measurement, the right forearm was a quarter centimetre smaller in circumference that the left, the non-dominant forearm, being 31.75 cm on the right and 32 cm on the left. The circumference of the upper arm on the right side was 34cm and on the left 33 cm. There was loss of the superficial modalities of sensation; light touch, pinprick and temperature, involving the 5^th and 4^th fingers of the right hand. The deep tendon reflexes in the upper extremities were symmetrical and normally brisk.
Dr Mellick noted that there was subjective loss of light touch and pinprick appreciation in the outer aspect of the right lower leg and dorsum of the right foot and there was wasting of extensor digitorum brevis on the right side compared to the left. The deep tendon reflexes were symmetrical apart from the right hamstring jerk which was reduced compared to the left.
Dr Mellick noted that nerve conduction studies performed on 11 March 2019 by Professor Yiannikas referred to bilateral ulnar and median neuropathy and he also recorded denervation consistent with right L5 radiculopathy in the right lower extremity. Dr Mellick referred to the decision of the MAP dated 16 June 2017 which referred specifically to the lumbar spine, upper extremities, and digestive tract. Dr Mellick noted that this decision did not cover the neurological issues in detail and although wasting of the dominant limb was found and documented, no explanation was given and the Appeal Panel stated that no neurological disorder was found. Dr Mellick considered that some progression of the neurological disorder may have occurred in keeping with the applicant’s history and the findings Dr Mellick recorded.
Dr Mellick concluded that the physical examination conducted identified impairment of cervical movement and objective signs of an ulnar nerve lesion involving the right upper extremity with considerable diagnostic evidence, in addition to neurophysiological evidence of an ulnar lesion on that side. Dr Mellick also considered that there were abnormalities on examining the lumbar spine and right lower extremity, with objective evidence pointing to the presence of a radiculopathy involving the right lower extremity. He noted that reference was made to radicular symptoms in the report prepared by the neurosurgeon dated 10 June 2016. Dr Mellick assessed 8% WPI for ulnar nerve impairment, 5% WPI for the cervical spine and 13% WPI for the lumbar spine.

Dr Mellick was asked the following questions:
“(a) Has our client’s lumbar spine injury deteriorated further and is there any presence of verifiable radiculopathy at our client’s lumbar spine that was not present at the time of the Medical Appeal Panel Assessment on 16 June 2017
(i) Yes
(b) Has our client’s bilateral shoulder injuries deteriorated since the assessment of the Medical Appeal Panel dated 16 June 2017?
(i) There has been some deterioration since 16 June 2017.”
In a report dated 27 June 2022, Dr Mellick noted that he had re-examined the applicant on 28 April 2022. He commented that history taking on that day proved difficult, and some details of the history and descriptions of symptoms were highly variable, but such difficulties arose because of the time which had elapsed since the injury and cultural matters despite the assistance of an interpreter. Dr Mellick noted that the symptoms involving the shoulders, neck and lower back had become steadily worse with the passage of time. The applicant told him that surgery had been performed on the right shoulder since the last assessment by
Dr Mellick without therapeutic benefit.
On examination, Dr Mellick found that there was no wasting of any muscle group in the lower extremities. There was objective impairment of the superficial modalities of sensation involving the outer aspect of the right lower extremity. The knee jerks were bilaterally present and symmetrical, the right hamstring jerk was significantly reduced and the ankle jerks were bilaterally brisk but reduced compared with the knee jerks. Cervical movements were performed symmetrically, slowly and without muscle guarding in all directions. There was no wasting of the paracervical or shoulder girdle musculature. There was no abnormality of contour, posture, tone or coordination in the upper extremities. There was altered sensation involving the 2nd, 3rd, 4th and 5th fingers of the right hand to the superficial modalities of light touch and temperature. The deep tendon reflexes in the upper extremities were symmetrical and normally brisk. Power production was highly variable proximally and distally. Finger dexterity was intact, as was finger/thumb opposition.
Dr Mellick wrote:
“The main symptoms are referred to above and continue to be pain involving both shoulders, the lower back and the neck. Examination today identified changes in the findings compared with my previous assessment three years ago. The impairment of cervical movement previously present is not now identifiable. The impairment of the range of shoulder movements persists and is marginally worse than previously. There continues to be assessable impairment of lumbar spinal movement associated with signs of radiculopathy involving the L5 distribution.
I am not able to establish that the sensory symptoms of numbness and tingling, the subject of alteration of sensation in the right hand, are aetiologically connected to the injury in question. Those sensory symptoms should be regarded to be consequential upon the co-existing diabetes, in keeping with the nerve conduction studies performed on 11 March 2019 and referred to in my previous report and which provided evidence of ulnar and median neuropathy, as well as denervation in keeping with evidence of L5 radiculopathy.
There is consistency of neurological assessment in relation to certifying assessable abnormality involving both shoulders, the lower back and the right lower extremity.”
Dr Mellick assessed 13% WPI of the lumbar spine, 13% WPI of the right upper extremity and 9% WPI of the left upper extremity which resulted in a combined total of 32% WPI.

Evidence of the applicant

In a statement dated 7 May 2019, the applicant stated that he continued to have bilateral shoulder pain, back pain and neck pain. He wrote:
“56. Since assessment at the hands of Dr Drew Dixon, the pain within my shoulders and lumbar spine has intensified. The pain has intensified since the initial 2014 injury and significantly since the assessment which occurred at the hands of Dr Drew Dixon.
57.    I was referred to Dr Andrew Kam and Dr Rosenberg for a second and third opinion in respect of my lumbar spine injuries.
58.    The pins and needles within my legs had only got worse. I had initially conferred with Dr Ashish Dewan in 2014 who indicated that I did not need surgical intervention. Since this time, my injuries have deteriorated. I desired a resolution to the pain that I am experiencing. I refer to a copy of an MRI scan dated 10 January 2018 which is annexed hereto and marked with the letter “A”. I was advised that there had been significant changes within the scan of my lumbar spine which indicated that not only was my L5 nerve root impinged upon, however my L4 nerve root was now also affected.
59.    It was at this time I was also referred to Dr Peter Giblin to comment upon the need for the proposed lumbar spine surgery. I understand that I was recommended to undergo a lumbar spine fusion at the hands of Dr Rosenberg. Unfortunately, this surgery was declined by the insurer. Given the denial I did not undergo same.”
The applicant stated that he had put on additional weight since July 2017, which led to a deterioration of the lumbar spine to the point that he now has “chronic pins and needles within both legs”. The applicant stated that he also had a greater restriction of movement within both shoulders, he cannot raise his shoulders above his head and that his left shoulder had become more troublesome that previously.
I note that the MRI scan of 10 January 2018 and the report of Dr Rosenberg were not attached to the applicant’s statement. None of Dr Giblin’s reports referred to the need for proposed surgery to the lumbar spine and Dr Giblin made no reference to the MRI scan of
10 January 2018.

Legislation as at August 2019

Section 327 provided:
“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 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.”
Section 328 gives further content to the right of appeal:
“328 Procedure on appeal
(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 2 approved medical specialists and 1 Arbitrator, chosen by the Registrar.
(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. The Workers Compensation Guidelines can provide for the procedure on an appeal.
(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.
(4) When attending an Appeal Panel for the purposes of an assessment, an injured worker is entitled to be accompanied by a person (whether or not a legal adviser or agent) to act as the injured worker’s advocate and assist him or her to present his or her case to the Appeal Panel.
(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.
(6) The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.”
Section 327 refers to the power to refer for further medical assessment or reconsideration under s 329. That section provides for a number of avenues following an assessment:
“329 Referral of matter for further medical assessment or reconsideration
(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 Registrar 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 Registrar to the approved medical specialist 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.”
Sections 350 and 378 expressly authorised the Commission and the Appeal Panel to reconsider matters. These sections provided:
“350 Decisions of Commission
(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) A decision of or proceeding before the Commission is not:
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) 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.
378 Reconsideration of decisions of Registrar or Appeal Panel
(1) The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2) Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.
(3) Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).
(4) The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.
(5) This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”
The first matter to be determined is whether the prior certificate of determination dated
21 July 2017 should be reconsidered and rescinded.
The reconsideration power exercised by the Compensation Court, expressed in almost identical terms to s 350(3) of the 1998 Act, has been the subject of comment by the Court of Appeal in a number of decisions.
In Hatfield Engineering Pty Ltd v Fitzgerald [2003] NSWCA 345 Santow JA described the discretion in s 17 of the Compensation Court Act (the predecessor to s 350) as “a discretion virtually without limit” (at [36], Hodgson JA and Ipp JA agreeing at [1] and [54]).
In Reodica v State Rail Authority [2003] NSWCA 112, Tobias JA stated (at [30], with whom Mason P and Handley JA agreed at [1]-[2]):
“It is well established that s.17(4) of the Court Act confers a discretionary authority upon the Compensation Court itself to review, and correct, errors of both fact and law: Hardaker v Wright & Bruce Pty Limited (1960) 62 SR(NSW) 244 at 248, 249; Schipp v Herfords Pty Limited (1975) 1 NSWLR 412 at 424. The width of the subsection was described by Owen and Walsh JJ in Hardaker (at 249) in the following terms:
‘Such reconsideration was not necessarily limited to an examination of changed circumstances or fresh evidence concerning the original circumstances. It may, in a proper case, extend to considering whether an error had been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appeared to require’.
This passage was cited with approval in Schipp by Mahoney JA at 438.”
In Hardaker v Wright & Bruce Ltd (1960) 62 SR (NSW) 244; 78 W.N. 94 Owen and Walsh JJ (at 248; 943-4) noted the observations of Street CJ in Hilliger v Hilliger (1952) SR (NSW) 105 concerning the wide discretion in s 71 of the Landlord and Tenant (Amendment) Act, 1948 which included the power to vary or rescind as “it may seem proper” and keeping in mind the “distinction between the existence of the power and the occasion of its exercise” and stated “that these observations are applicable” to the exercise of the discretion to vary an award of the Commission.
In Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33 (Tedeschi), Roche DP stated (at [83]):
“The discretionary power conferred by the reconsideration power is in ‘extremely wide terms’ (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248). It is important, however, to remember the distinction between the existence of the reconsideration power and the occasion of its exercise, and that courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably (Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 at 108). Nevertheless, as Street CJ further observed, it is clear that the legislature intended to leave with certain tribunals the power of reviewing the decision to see ‘that justice is done between the parties’.”
The Court of Appeal has continually held that the reconsideration power is available in circumstances “to see that justice is done between the parties”. In an appeal based on either s 327(3)(a) and/or (b), there is no time frame for the filing of the appeal. In these circumstances, given that reconsideration is an alternative to an appeal, the principles of delay and finality of litigation may not be a relevant consideration.
In Martinovic, Adams J cited the following principles from the decision in Samuel v Sebel Furniture Pty Ltd [2006] NSWWCCPD 141 (Samuel), at [58] (in that case, regarding former
s 350 of the 1998 Act):
“1.     the section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Pty Ltd (1962) 62 SR(NSW) 244);
2. 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 v Herfords Pty Ltd [1975] 1NSWLR 413);
4.      one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely (Hilliger v Hilliger (1952) 52 SR(NSW) 105 (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 v J Robins & Sons Pty Ltd [1993] NSW CC 36; (1993) 9 NSWCCR 642);
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 v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29), and
9.      the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’) and section 354(3) of the 1998 Act).”
In Railcorp NSW v Registrar of the Workers Compensation Commission (NSW) [2013] NSWSC 231, Harrison AsJ at [56] stated:
“It is my view that the discretion of the court, when it conducts a reconsideration, is wide ranging. Overall, the task of the court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
In Hochbaum v RSM Building Services Pyu Ltd; Whitton v Teshnical & Further Education Commission t/as TAFE NSW [202] NSWCA 113, Brereton JA stated obiter (with White JA and Simpson AJA agreeing at [55] and footnote [31] the following:
“While a decision of an Appeal Panel in respect of a medical assessment certificate can be reconsidered under s 378, that does not mean that the degree of permanent incapacity changes; it means that, upon reconsideration, the correct degree is determined and substituted. Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A.”
The applicant relies on additional relevant information that has been filed in this matter, namely, the reports of Drs Giblin and Mellick and the applicant’s statement.
The applicant’s statement, particularly since the reports referred to in it by the applicant were not attached, is not medical evidence and in my view is not probative in terms of establishing whether there has been any deterioration since the decision of the MAP was issued.
The issue of “deterioration” in s 327(3)(a) was considered in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149 (Riverina Wines) when Campbell JA stated at [94] (Hodgson JA and Handley AJA agreeing at [1] and [115]):
“94. Considering that submission involves, first, construing section327(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.”

In Riverina Wines (at [122]), Handley JA commented that the material necessary to substantiate a challenge under sub paragraph (b) must comment on the worker’s subsequent condition following the AMS’s examination.
I accept that the reports of Dr Giblin dated 13 March 2018, 14 January 2019 and
13 April 2022 and the reports of Dr Mellick dated 20 June 2019 and 27 June 2022 were not available to the applicant before that medical assessment of MAP and could not reasonably have been obtained by the applicant before that medical assessment. These reports addressed the deterioration in the applicant’s injuries since the assessment by Dr Drew Dixon of the MAP and obviously could not have been reasonably obtained before the assessment of Dr Dixon.
A factor to be considered in a reconsideration is the obtaining of new evidence that could not with reasonable diligence have been obtained during the first proceedings. It is necessary that the new evidence, if it had been put before the MAP, would have been likely to lead to a different result. While I am satisfied that new evidence has been obtained by the applicant that could not with reasonable diligence have been obtained before the assessment of the MAP, the real question that needs to be decided is whether that evidence, if available to the MAP, would have been likely to lead to a different result.
The respondent submitted that after considering the various medical reports there was no objective basis for concluding that there has been any deterioration in the applicant’s condition and no reason had been advanced by the applicant or in the reports of Dr Giblin and Dr Mellick as to why there is now said to have been a deterioration in his condition. The respondent argued that Dr Machart provided a compelling explanation of why the evidence did not support a finding of any deterioration.
The applicant argued that the Court of Appeal had spoken to the merits of the applicant’s reconsideration application. The Court of Appeal did not address the actual evidence relied upon by the applicant concerning the alleged deterioration. However, at [82], Leeming JA said:
“82. …the right of appeal on the ground of deterioration addresses errors that have occurred, and if there is further deterioration after an assessment of permanent impairment by the Appeal Panel, then those cases would, at least under the regime which obtained in 2019, be cases where a relatively powerful case for reconsideration would be available.”

LUMBAR SPINE

DRE 1 requires “no significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity, and no other indication of impairment related to injury or illness; no fractures”. DRE 2 requires either “clinical history and examination findings compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy” or “individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disc at the level and on the side that would be expected based on the previous radiculopathy, but no longer has radiculopathy following conservative treatment”.
The respondent argued that neither Dr Giblin nor Dr Mellick gave reasons for the deterioration in the applicant’s condition.
In his report of 13 March 2018, Dr Giblin did identify symptoms that were indicative, in his view, of a deterioration since the assessment by the MAP. Those symptoms included absence of both knee jerks at the knees (though both ankle jerks were present), the toes were downgoing and straight leg raising was limited to 10 degrees on the left side and 30 degrees on the right side. Dr Giblin assessed a 5% WPI of the lumbar spine on the basis of clinical findings now supported an assessment of DRE Category 2.
In his report of 14 January 2019, following examination of the lumbar spine Dr Giblin noted there was a markedly restricted, and asymmetric range of motion with palpable muscle spine tightening and guarding. Dr Giblin also noted that the deep tendon reflexes seemed to be absent in both knees (and just present at the medial hamstrings and present in both ankles) and there was decreased sensation to light touch in the right leg but not in any dermatome or peripheral nerve distribution. Dr Giblin concluded that the applicant had a DRE Category 2 assessment and assessed 8% WPI of the lumbar spine.
In his report of 13 April 2022, Dr Giblin noted that in the erect position with his feet together, the applicant could bend over and place his hands on the top of his thighs and lateral flexion was just to the greater trochanter on either side and extension of his lumbar spine was no more than a half normal. The applicant was generally tender in the midline at L5. Dr Giblin noted that in the seated position with some assistance the applicant could fully extend both knees. He found the deep tendon reflexes to be preserved but quite depressed in both knees, medial hamstrings and the ankles. Thigh circumference was equal but calf circumference was 40cm on the right and 39cm on the left. Dr Giblin found that the extensor digiti minimi muscles on each foot are atrophied but symmetrical. Straight leg raising was 10° bilaterally. The motor strength of the major muscle groups around the foot and ankle, particularly the big toe extensor power, appeared to be normal and equal on both sides.
Dr Giblin assessed the applicant as DRE 2 for the lumbar spine and assessed 8% WPI for the lumbar spine. Dr Giblin then deducted 1/10^th pursuant to s 323 of the 1998 Act for age related degenerative changes which “would have been present on 14 May 2014”.
Dr Melllick, in his report of 20 June 2019, noted that on examination he had found subjective loss of light touch and pinprick appreciation in the outer aspect of the right lower leg and dorsum of the right foot and wasting of the extensor digitorum brevis on the right side compared to the left. He noted that the deep tendon reflexes were symmetrical apart from the right hamstring jerk which was reduced compared to the left. Dr Mellick concluded that there were abnormalities on examining the lumbar spine and right lower extremity and assessed 13% WPI for the lumbar spine having assessed DRE 3. Dr Mellick was of the view that the applicant’s lumbar spine had deteriorated further and there was verifiable radiculopathy that was not present at the time of the assessment by the MAP.
In his report of 27 June 2022, Dr Mellick noted that the symptoms in the lower back had become steadily worse with the passage of time. On examination, he noted that forward flexion and lateral flexion were limited asymmetrically because of back pain with muscle guarding. Dr Mellick found no wasting of any muscle group in the lower extremities. He found objective impairment of the superficial modalities of sensation involving the outer aspect of the right lower extremity, knee jerks were bilaterally present and symmetrical, the right hamstring jerk was significantly reduced and the ankle jerks were bilaterally brisk but reduced compared with the knee jerks. Dr Mellick was of the view that there continued to be assessable impairment of the lumbar spine movement associated with signs of radiculopathy involving L5 distribution. He considered that there was a consistency of neurological assessment in relation to certifying assessable abnormality involving the lower back and right lower extremity. Dr Mellick made an assessment of 13% WPI for the lumbar spine.
Dr Mellick stated that he was not able to establish that the sensory symptoms of numbness and tingling, the subject of alteration of sensation in the right hand, were aetiologically connected to the injury in question. He considered that those sensory symptoms should be regarded to be consequential upon the co-existing diabetes, in keeping with the nerve conduction studies performed on 11 March 2019 and referred to in his previous report and which provided evidence of ulnar and median neuropathy, as well as denervation in keeping with evidence of L5 radiculopathy.
The respondent relied on the report of Dr Machart dated 17 August 2022. Dr Machart had previously examined the applicant in 2016 and considered that the diagnostic features had not changed and the presentation was primarily non-organic. He said that he did not find objectively defined deterioration. Dr Machart considered that it would be difficult to rely on self-reporting and subjectively determined ROM as features of deterioration. He was of the view that the pathology of the injury did not display reasons for deterioration.

UPPER EXTREMITIES

I have referred to the medical evidence concerning the lumbar spine. The doctors also made assessments of the upper extremities (shoulders). The MAP had assessed 8% WPI of the right upper extremity and 6% WPI of the left upper extremity. Dr Giblin in his reports of
14 January 2019 and 13 April 2022 assessed 9% WPI right upper extremity and 7% WPI of the left upper extremity. Dr Mellick in his report of 20 June 2019 assessed 12% WPI of the right upper extremity and 9% WPI of the left upper extremity. In his report of 27 June 2022 Dr Mellick noted that the impairment of the range of shoulder movements persisted and was marginally worse that previously. He assessed 13% WPI of the right upper extremity and 9% WPI of the left upper extremity.
Dr Machart said that he did not find objectively defined deterioration. Dr Machart considered that it would be difficult to rely on self-reporting and subjectively ROM as features of deterioration. He was of the view that the pathology of the injury did not display reasons for deterioration. Dr Machart wrote:
“The non-organic illness behaviour corrupted the physical signs. I was inclined to accept the objective pathology of injury, which had not changed. The objectively defined injury pathology cannot be responsible for the plethora of symptoms, the severity of the subjectively obtained range of movement, or the severity of impact on ADLs, as self-reported. My assessment does not alter. I did not see objective evidence of change in the MAC appeals panel outcome.”
I am satisfied that the weight of the medical evidence, even taking into account the problems various doctors have experienced in examining the applicant, support the conclusion that there has been a deterioration in the lumbar spine and some deterioration in the upper extremities since the assessment of the MAP. In reaching this conclusion, I have preferred the evidence of Dr Giblin and Dr Mellick to the evidence of Dr Machart. The expert evidence of Dr Giblin and Dr Mellick indicates that on an objective basis there has been a deterioration in the applicant’s condition. The fact that another expert witness indicated that there was no objective evidence is not sufficient, in my view, to refuse to exercise the discretion to reconsider the matter and rescind the COD.
The respondent submitted that the absence of any explanation for the deterioration in
Dr Giblin’s reports was highlighted by the indication that the impairment assessed in each report was “permanent”. Dr Giblin’s assessments of the upper extremities in his reports of
14 January 2019 and 13 April 2022 were in fact the same. He assessed the lumbar spine as DRE 2 in all his assessments but appeared to add 3% for ADLs in the last assessment although he then deducted one tenth for pre-existing condition. The conditions of an injured worker can vary from time to time. I do not consider the variations in the assessments should result in me placing less weight on Dr Giblin’s opinion.
The respondent submitted before the Court of Appeal that Mr Sleiman’s failure to articulate his application as one seeking reconsideration, despite clear guidance at the relevant time in a Guideline dated February 2010 entitled “Requests for Reconsiderations under Sections 329(1A), 350(3) and 378 of the 1998 Act” weighed against the applicant being permitted to do so now.
On balance, I do not consider that the applicant’s failure to articulate his application as one seeking reconsideration is a factor that weighs heavily against the exercise of the discretion to allow a reconsideration.
At [95] Leeming JA said:
“The position is a fortiori in the Commission, to which s 354(1) and (3) applied. Mr Sleiman’s solicitor filed a document and attached submissions which sought to exercise a review of the 2017 decision of the Appeal Panel on the basis of deterioration. The invocation of a right of appeal was wrong, but it was plain that Mr Sleiman was applying for a different decision as to the degree of his permanent impairment based on his claimed deterioration between 2017 and 2019. There was an avenue available to Mr Sleiman for his application to be considered on the merits, and as it happens, it was the only avenue available. A body which is commanded to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms should have addressed the substance of the application.”
And at [96] Leeming JA said:
“96 … The Registrar’s Delegate’s decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by Mr Sleiman is unnecessary, but the Delegate’s decision dismissing his application should be quashed and the application remitted for determination in accordance with law”
In appeals under s 327(3) there is no time limit specified in which to file an appeal under
s 327(3)(a) and/or (b) of the 1998 Act, that is, in appeals concerning the deterioration of the worker’s condition and the availability of additional relevant information. However, an appeal based on the grounds specified in s 327(3)(c) and/or (d), that is, either demonstrable error or application of incorrect criteria, is to be made within 28 days, subject to special circumstances justifying an increase in the period for an appeal. The legislature expressly contemplated the right of appeal, unlimited by time, on grounds concerning the deterioration of the worker’s condition and the availability of additional relevant information.
Although this matter is now being considered as an application for reconsideration and not an appeal, it follows, in my view, that the delay in bringing the application and the failure to articulate the application are matters that should not greatly weigh against the exercise of the discretion.
Further, I do not consider that any prejudice was identified by the respondent. I accept that in the submissions dated 5 September 2019 the respondent submitted that it was prejudiced as the respondent had not been afforded an opportunity to have the applicant re-examined by Dr Machart, but that was addressed when the applicant was re-examined by Dr Machart on 27 May 2022.
I accept that 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). However, this must be balanced against the other factors that are to be considered especially the availability of new evidence and evidence of any deterioration. The applicant has requested a reconsideration on the basis that there is new evidence from
Dr Giblin and Dr Mellick, which could not have been reasonably obtained before the medical assessment of the MAP.
The reconsideration power is available so that justice is done between the parties. It is important to keep in mind that while a decision of an MAP in respect of a MAC can be reconsidered under s 378, that does not mean that the degree of permanent incapacity changes; it means that, upon reconsideration, the correct degree is determined and substituted (Hochbaum).
The MAP noted that the AMS assessed DRE 1 and 0% WPI of the lumbar spine on the basis of there being no muscle guarding, no non-verifiable radicular complaint, no dysmetria, no neurological signs and no bony injury.
However, the reports of Dr Giblin and Dr Mellick assessed the applicant as DRE 2 or DRE 3 for the lumbar spine. Dr Giblin found asymmetric loss of motion (dysmetria) and absence of knee jerks in his report of 13 March 2018. Dr Giblin found asymmetrical range of movement and muscle guarding in his report of 14 January 2019. Dr Mellick in his report of
20 June 2019 found an asymmetric range of motion and muscle guarding. In his report of
27 June 2022, Dr Mellick found that forward flexion and lateral flexion were limited asymmetrically because of back pain with muscle guarding and there was objective impairment of the superficial modalities of sensation involving the outer aspect of the right lower extremity.
On balance I consider that the discretion to rescind the COD dated 21 July 2017 should be exercised and the matter referred back to the MAP for reconsideration under s 378 of the 1998 Act.

[2022] NSWPIC 496

6 September 2022