Spokes v Mark Bristow Painting

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Spokes v Mark Bristow Painting [2025] NSWPIC 62
APPLICANT:	Craig Spokes
RESPONDENT:	Mark Bristow Painting
MEMBER:	John Turner
DATE OF DECISION:	24 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Personal Injury Commission Act 2020 (PIC Act); application for reconsideration of a Certificate of Determination (COD) issued by the former Workers Compensation Commission; exercise of discretion to set aside Certificate of Determination; consideration of sections 6 and 57 of the PIC Act; consideration of the transitional provisions in the PIC Act; clauses 14A, 14D, 14F, and 14H of Schedule 1 to the PIC Act; consideration of sections 319, 326, 327, and 350 of the 1998 Act; Papalia v Transom Services Pty Ltd t/as Transom Scaffolding, Department of Communities & Justice v Cannell, Phan v Elcon Cable Processors, Dimos v Gordian Runoff Limited, Baker v Southern Metropolitan Cemeteries Trust, Petrovic v BC Service No 14 Pty Limited and Ors, Samuel v Sebel Furniture Limited, and Hilliger v Hilliger considered; Held – that the Personal Injury Commission has the power pursuant to section 57 of the PIC Act to reconsider the COD of the former Workers Compensation Commission dated 30 September 2019; that the discretion in section 57 of the PIC Act should be exercised in the applicant’s favour and the COD rescinded to enable an appeal by the applicant of the Medical Assessment Certificate (MAC) pursuant to section 327(3)(a) and/or (b) of the 1998 Act; the Commission orders that the COD issued by the former Workers Compensation Commission dated 30 September 2019 is rescinded pursuant to section 57(1) of the PIC Act; leave is granted to the applicant to file an appeal pursuant to section 327(3)(a) and/or (b) against the MAC dated 27 August 2019 within 28 days.
DETERMINATIONS MADE:	The Commission determines: 1. The Certificate of Determination issued by the former Workers Compensation Commission dated 30 September 2019 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020. 2. Leave is granted to the applicant to file an appeal pursuant to s 327(3)(a) and/or (b) against the Medical Assessment Certificate of Dr Meakin dated 27 August 2019 within 28 days. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Craig Spokes, the applicant, seeks to have a Certificate of Determination (COD) issued by the former Workers Compensation Commission (WCC) dated 30 September 2019 rescinded pursuant to either s 57 of the Personal Injury Commission Act 2020 (PIC Act) or in the alternative pursuant to s 350 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM Act) so that he may file an appeal against a Medical Assessment Certificate (MAC) of the Approved Medical Specialist (AMS), Dr Ian Meakin, dated 27 August 2019 pursuant to s 327(3)(a) and s 327(3)(b).
The applicant filed an Application to Resolve a Dispute (ARD) with the then WCC on 18 July 2019 in which he alleged that on 29 May 2017, whilst in the course of his employment with Mark Bristow Painting, the respondent, he fell from a height of approximately 8m from scaffolding sustaining various injuries to his right shoulder, left knee, right knee, left hip, left leg and lumbar spine. The applicant claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (WCA) for 16% whole person impairment (WPI) of his lumbar spine, right lower extremity, left upper extremity and scarring/TEMSKI.
As there was no dispute in respect to injury the applicant was referred directly to an AMS for impairment assessment without a prior teleconference or conciliation conference / arbitration hearing.
The applicant was referred by the WCC to the AMS, Dr Meakin, for assessment of impairment. The referral dated 12 August 2019 records the body parts referred for assessment as the lumbar spine, right lower extremity, left upper extremity and scarring/TEMSKI. The documents referred to the AMS were the ARD with attachments and the Reply with attachments.
The documents relied upon by the applicant in support of his claim included an expert medical report which the applicant had obtained from Dr James Bodel, orthopaedic surgeon, dated 29 March 2019. In the said report Dr Bodel noted that the applicant was about to have “block injections”[1] into his back and left sacroiliac joint and “probably his shoulder.”[2] Dr Bodel observed that if these treatments did not “settle”[3] the applicant would need an MRI scan of the left hip. Dr Bodel also observed that the applicant may need to consider injection of local anaesthetic and hydrocortisone into the right hip joint and may need referral to an arthroscopist to consider an arthroscopy of the left hip. Dr Bodel observed that the applicant may also require similar investigations of the left shoulder depending on the outcome of the cortisone injections in that area. Dr Bodel also observed that it was “very difficult to determine exactly”[4] what treatment was required at that time as further treatment would depend on the outcome of the “block injections.”[5]
[1] ARD   p. 36.
[2] ARD   p. 36.
[3] ARD   p. 36.
[4] ARD   p. 36.
[5] ARD   p. 36.
Due to the previously mentioned ongoing treatment Dr Bodel concluded that the applicant’s condition had not stabilised. As he had concluded that the applicant’s condition had not stabilised Dr Bodel made a “tentative”[6] assessment of WPI on the basis that the applicant’s “clinical condition may not change dramatically over time but he may not yet have reached a level of Maximum Medical Improvement because he is still undergoing treatment. To be fair his clinical assessment of impairment is not yet fully ascertainable.”[7]
[6] ARD p. 37.
[7] ARD p. 37.
Dr Bodel tentatively assessed due to injury sustained on 29 May 2017:
(a)    0% WPI cervical spine;
(b)    7% WPI lumbar spine including 2% WPI for activities of daily living;
(c)    0% WPI pelvis;
(d)    6% WPI left upper extremity due to impairment of the shoulder;
(e)    2% WPI right lower extremity due to impairment of the knee, and
(f)    1% WPI TEMSKI/scarring due to scarring over the front of the knees and upper part of the left shin.
Combined impairment 16% WPI.
No other assessments of impairment were relied upon by the applicant in support of his claim.
The respondent had obtained an expert medical report from Dr Graeme Doig, orthopaedic surgeon, dated 4 June 2019. Dr Doig diagnosed a soft tissue injury to the left shoulder with ongoing impingement, a soft tissue injury to the lumbo-sacral spine with multi-level annular fissures particularly at the L5/S1, inflammation at the sacro-iliac joint and bilateral blows to the patella-femoral articulations of his knees which in the doctor’s opinion most likely caused articular cartilage damage.
Dr Doig noted that the applicant was using Turmeric, fish oil and Glucosamine “at this stage.”[8] Whilst Dr Doig noted that the applicant had undergone an epidural steroid injection in his back and cortisone injection to his left sacro-iliac joint the doctor recorded no reference to any plans for any such further treatment.
[8] Reply p. 3.
Dr Doig assessed the following impairments as a result of injuries sustained in the subject work accident on 29 May 2017:
(a)    6% WPI lumbar spine;
(b)    2% WPI left lower extremity due to injury to the left knee;
(c)    2% WPI left upper extremity due to injury to the left shoulder, and
(d)    0% WPI scarring.
Combined impairment 10% WPI.
The AMS, Dr Meakin, examined the applicant on 20 August 2019. Dr Meakin in the MAC dated 27 August 2019 assessed due to injury sustained as a result of the subject work accident on 29 May 2017:
(a)    6% WPI lumbar spine;
(b)    2% WPI left upper extremity due to injury to the left shoulder;
(c)    2% WPI right lower extremity, and
(d)    1% WPI scarring/TEMSKI.
Combined impairment 11% WPI.
There was no appeal of the MAC by either the applicant or the respondent.
A COD issued by the former WCC dated 30 September 2019 ordered the respondent to pay the applicant $23,391 in respect to 11% permanent impairment in respect to impairment resulting from the subject work injury on 29 May 2017. The COD was issued in accordance with the MAC of Dr Meakin dated 27 August 2019.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the COD issued by the former WCC dated 30 September 2019 can be reconsidered, and if so, whether I shoulder exercise my discretion to rescind the said COD.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
29 November 2024. Mr Joshua Beran, counsel, instructed by CMC Lawyers, appeared for the applicant, who was present. Ms Sarah Warren, counsel, appeared for the respondent, instructed by Hicksons Lawyers. During the conciliation phase of the conference, I drew the party’s attention to the relatively recent decision of Member Parnel McAdam in Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617 (Papalia) which appeared to be relevant to the issues in dispute between the parties. The parties were given time to consider the relevance of the decision in respect to the current matter.
Given the potential relevance of the decision in Papalia and the potential need for the said decision to be addressed in submissions it was agreed that the matter should proceed by way of written submissions and a timetable for written submissions was set.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Documents attached to an Application to Admit Late Documents (AALD) lodged on behalf of the applicant dated 16 October 2024;
(d)    MAC of Dr Ian Meakin dated 27 August 2019;
(e)    COD of the former WCC dated 30 September 2019;
(f)    written reconsideration request submissions lodged by the applicant dated on or about 27 August 2024 and attached documents;
(g)    written submissions lodged by the respondent dated 17 September 2024 in response to the applicant’s reconsideration request;
(h)    written submissions lodged by the applicant dated 19 December 2024;
(i)    written submissions lodged by the respondent dated 23 January 2025, and
(j)    written submissions in reply lodged by the applicant dated 29 January 2025.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

The applicant seeks to have the COD issued by the WCC dated 30 September 2019 rescinded pursuant to either s 57 of the PIC Act or s 350 of the WIM Act so that he may file an appeal against the MAC of Dr Ian Meakin dated 27 August 2019 pursuant to s 327(3)(a) and s 327(3)(b).
Section 327(3) lists the grounds on which a MAC may be appealed and relevantly states:
“(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),
…..”
There is no statutory time restriction as to when an appeal can be brought on the grounds contained in s 327(1)(a) and (b). However, s 327(7) bars an appeal against a MAC “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.” Therefore, due to the application of s 327(7) the applicant is barred from appealing the MAC on the grounds of s 327(3)(a) and (b) due to the COD issued by the WCC dated 30 September 2019 and hence the reason that the applicant seeks to have the said COD rescinded.

Jurisdiction

Mr Beran submits on behalf of the applicant that I have jurisdiction to rescind the COD by virtue of either s 57 of the PIC Act or s 350 of the WIM Act as in force on 28 February 2021.
Section 57 of the PIC Act states:
“(1)The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2)If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)       alter the decision to correct the error, or
(b)       direct a registrar to alter the decision to correct the error.
(3)Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)       issue a replacement certificate with the error corrected, or
(b)       direct a registrar to issue a replacement certificate with the error corrected.
(4)If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6)       Examples of obvious errors in a decision are where—
(a)there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)       there is an error arising from an accidental slip or omission, or
(c)       there is a defect of form, or
(d)there is an inconsistency between the stated decision and the stated reasons.”
Section 350 of the WIM Act as in force on 28 February 2021 stated:
“(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.”
The WCC was replaced by the Commission with the Commission commencing operations on 1 March 2021. Section 350 of the WIM Act was repealed by the PIC Act on 1 March 2021 with the commencement of operations by the Commission. Section 57 is the analogous provision in the PIC Act to the repealed s 350 of the WIM Act.

Section 57 of the PIC Act

It is the applicant’s primary submission that s 57 grants the Commission jurisdiction to reconsider and rescind a COD issued by the former WCC.
In the applicant’s submission the subject COD became an order of the Commission by virtue of cl 14H, of Sch 1 of the PIC Act. In support of this submission the applicant relies on the reasoning of Member McAdam contained at [53]-[74] in his decision in Papalia.

Ms Warren submits on behalf of the respondent that s 57 does not empower Members of the Commission to interfere with decisions of the WCC. In the respondent’s submission if it were the intention of Parliament for s 57 to apply to decisions of the WCC, the definition for Commission could have included a reference to the former WCC.
In the respondent’s submission s 57 specifically refers to matters dealt with by the Commission in the Workers Compensation Division. It is in the respondent’s submission clear and unequivocal, with no reference to the former WCC and the intention is clear in the wording used. In support of its submission the respondent relies on the decision of Acting Deputy President Nomchong SC in Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32 (Cannell).
In the respondent’s submission for the applicant to seek a reconsideration of a COD issued by the former WCC he needs to enliven the power provided by the repealed s 350 of the WIM Act as in force prior to 1 March 2021.
Schedule 1 of the PIC Act contains the saving and transitional provisions. Clause 14H of Sch 1 states:
“(1)    An existing order of an original decision-maker made or issued under the motor accidents legislation or workers compensation legislation is taken, on and from the establishment day, to be an order made by the new decision-maker under the corresponding provision, if any, of this Act or the legislation as amended by this Act.
(2)     This clause is subject to the other provisions of this Schedule.
(3)   In this clause—
corresponding provision means a provision corresponding, or substantially corresponding, to the provision of the motor accidents legislation or workers compensation legislation under which the existing order was originally made.
existing order of an original decision-maker is an order made or issued by the decision-maker before the establishment day, and includes an order that would have come into effect on or after the establishment day.
order includes a determination, certificate or assessment.”
The date of the “establishment day” is defined in s 6 of the PIC Act and is 1 March 2021, the same day as that on which the Commission became operational.
In the applicant’s submission “a determination”, is an “existing order” and as such, by virtue cl 14H the COD issued by the WCC dated 30 September 2019 becomes an order of the Commission. The respondent does not dispute that the subject COD falls within the definition of being an “order”.
The respondent however submits that that the applicant’s claim does not fit within the criteria provided by cl 14H. Whilst the respondent does not dispute that the subject COD falls within the definition of being an “order” it does dispute that it fits within the definition of “existing order” in cl 14H.
The respondent submits that the subject COD was made and issued before the establishment day. However, it was not an order that would have come into effect on or after the establishment day.
In the respondent’s submission cl 14H applies to the continuation of existing orders. In the respondent’s submission this is supported by the heading to the clause “Continuation of existing orders”. The respondent argues that that it is not the intention of cl 14H to apply to proceedings that are completed with no orders left to come into effect on or after the establishment day.
I do not accept the respondent’s submission. In my view the words of the clause are clear and unambiguous. There is no dispute that the subject COD is an “order” as defined for the purposes of cl 14H. There is also no dispute that the COD was issued before the establishment day. The subject COD is therefore “an order made or issued by the decision-maker before the establishment day”.
Whilst the definition goes on to state “, and includes an order that would have come into effect on or after the establishment day” the additional words do not act to reduce or limit the orders which fall within the definition but rather, by the use of the word “includes”, expands on the scope of the orders included under the definition. In my view the respondent’s submissions ignore the use of the word “includes” in the definition. There is nothing in the definition of “existing order” in cl 14H to indicate that an “existing order” is limited to orders that still had work to do on or after the establishment day.

In the respondent’s submission cl 14H only applies to orders which still have work to do is supported by the heading to the clause which states “Continuation of existing orders”. I do not accept this submission. Firstly, the heading is “Continuation of existing orders” not “Continuation of continuing orders” or similar. In my view the words of the heading do not indicate that the clause is limited to those orders that still have work to do on or after the establishment day but rather deals with the continuation of all existing orders. Secondly, for the purposes of statutory interpretation the heading to a clause is not taken to be part of the Act.[9]
[9] Section 35 Interpretation Act 1987.
Member McAdam considered this issue in Papilia stating:
“58. The respondent adverted to and relied on that proposition in the oral hearing, suggesting that there is a relevant difference. In the present case, there has been an award of lump sum compensation that total and finally resolved the claim, for 12% whole person impairment and an award of compensation. Presumably the amount of $27,684.58 has been paid, pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). On some bases one could see how it is arguable that the continuation of the order, to be an order of the Commission (as opposed to an order of the Workers Compensation Commission that has been effected) is otiose.
59. I am satisfied that in present circumstances that there is still a valid reason for the order of the Workers Compensation Commission to have been made into an order of the Commission by virtue of cl 14H. One such reason is the principles of estoppel. Another such reason is the binding nature of the assessment of permanent impairment, which, at the issue of the MAC (and certified in the Certificate of Determination) was ‘conclusively presumed to be correct... in any proceedings before a court or the Commission’.
60. Further, and most importantly, there is nothing in the text of cl 14H to suggest that applies only to orders that have some kind of ongoing effect. The clause concerns existing orders which are specifically defined to be ‘an order made or issued by the decision-maker before the establishment day, and includes an order that would have come into effect on or after the establishment day’…”
I agree with the above reasoning of Member McAdam.
The fact that s 57 of the PIC Act does not contain any reference to applying to decisions of the former WCC does not in my view indicate the intention of Parliament. It is not necessary for s 57 of the PIC Act to directly refer to whether it applies to decisions of the former WCC as the savings and transitional provisions in Schedule 1 of the PIC Act can perform that function.
In the respondent’s submission s 57 specifically refers to matters dealt with by the Commission in the Workers Compensation Division. It is in the respondent’s submission clear and unequivocal, with no reference to the former WCC and the intention is clear in the wording used. In support of its submission the respondent relies on the decision of Acting Deputy President Nomchong SC in Cannell. The respondent does not elaborate on the decision in Cannell.
In Cannell, the respondent worker, initially sought a reconsideration pursuant to s 350 (repealed) of the WIM Act however subsequently requested the Member to exercise the discretion conferred by s 378 (repealed) of the WIM Act to revoke the Medical Assessment Certificate and Certificate of Determination on the grounds that the workers WPI had not reached maximum medical improvement and in the alternative that “the appeal be remitted to the President, for remittal to a medical assessor appointed to re-assess the whole person impairment.”
The repealed s 378 provided that a 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.”
There appears to have been some confusion in the submissions as to whether the worker was relying solely on s 378 or whether s 350 was also being relied upon.
Acting Deputy President Nomchong SC in Cannell noted at [214] that it was accepted by both parties and the Senior Member (at first instance) “that in order for the worker’s application to be entertained by the Commission, the Senior Member had to be satisfied that the application fell within the savings and transitional provisions in Div 4A, Pt 2 of Sch 1” of the PIC Act. Significantly no submissions appear to have been made by either party in respect to the effect of cl 14H. For present purposes, the relevant focus of the submissions before Acting Deputy President Nomchong SC was on Sch 1, cl 14D and in particular the issue of an “unexercised right” as the second ground for the appeal was that the Senior Member had erred at law in the application of cl 14D and had subsequently committed jurisdictional error by exercising a discretion under s 350(3). Unsurprisingly the Acting Deputy President did not consider or refer to cl 14H in Cannell as it was never raised.
Whilst the Acting Deputy President does state at [286]:
“The appellant correctly identified that the only statutory power available to the Commission to reconsider the COD dated 4 April 2019 was that in the repealed s 350(3) of the 1998 Act. As such, the appellant correctly identified that the respondent worker would be required to satisfy the savings and transitional provisions in Div 4A, Subdiv 3 of Sch 1 to the 2020 Act in order to proceed. This is because the COD dated 4 April 2019 was made prior to the establishment of the Commission and whilst s 57 of the 2020 Act permits the Commission to reconsider its own decisions, that power does not extend to a reconsideration of decisions made by WCC.”
I do not believe that I am bound to follow the decision in Cannell in this respect as the application and effect of cl 14H and the potential engagement of s 57 of the PIC Act was not a matter raised before or considered by the Acting Deputy President.
In the respondent’s submission the decision of Member Camp in Phan v Elcon Cable Processors [2024] NSWPIC 634 (Phan) should be followed.
In Phan, Member Camp, considered cl 14H and determined that the said clause did not enliven s 57 because pursuant to cl 14H(2) the “clause is subject to the other provisions of this Schedule” and cl 14F in particular limits the application of the new law of which s 57 is part of, to “apply to completed pre-establishment proceedings under subdivision 2 and 3.”[10]
[10] Phan [98].
Clause 14F states:
“14F   New law to apply to certain matters
(1)This clause applies to the following proceedings (completed pre-establishment proceedings)—
(a)       pending proceedings completed under Subdivision 2,
(b)       proceedings commenced and completed under Subdivision 3.
(2)The new review provisions, if any, apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings instead of the old legislation.
(3)The new review provisions are the provisions of the new legislation applicable to appeals against or reviews of decisions of new decision-makers that correspond, or substantially correspond, to provisions of the old legislation for decisions of the same kind.
(4)Without limiting subclause (2)—
(a)section 7.24 of the Motor Accident Injuries Act 2017, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3, and
(b)section 62 of the Motor Accidents Compensation Act 1999, as in force on or after the establishment day, extends to a medical assessment completed before the establishment day or under Subdivision 2 or 3.
(5)In this clause—
new legislation means this Act and statutory rules under this Act, the motor accidents legislation and the workers compensation legislation, as in force on or after the establishment day.
old legislation means the motor accidents legislation and workers compensation legislation, as in force immediately before the establishment day.”
Clause 14A of the PIC Act defines “pending proceedings” to mean proceedings that:
“(a) were commenced before the establishment day, and
(b) had not been finally determined before that day.”
In summary in Phan it was submitted on behalf of the applicant that cl 14F(3) provided for the new review provision contained in s 57 to be applied to rescind a COD from 2016. Member Camp rejected the applicant’s submission.
In the current proceedings the applicant does not rely on cl 14F(3) to enliven s 57 but rather submits that cl 14F does not limit the application of cl 14H. In the applicant’s submission cl 14F specifically relates to the discreet types of proceedings detailed in cl 14F(1) and is not an exclusionary clause. The applicant does not submit that these proceedings are of a type that falls within cl 14F(1).
I accept the applicant’s submission. The purpose of cl 14F appears clear, which is to identify the law that is to be applied to defined types of proceedings which straddle the commencement of the PIC Act. It is easy to see that confusion could arise as to the review provisions which are to apply to such matters and the purpose of cl 14F is to clearly identify the applicable law. The text of cl 14F is in my view clear and unambiguous in defining the types of proceedings to which the clause applies and the applicable review provisions to be applied in those types of proceedings. The clause contains nothing in my view which places any limitation on cl 14H.
In support of the submission that s 57 grants jurisdiction to rescind the COD issued by the WCC dated 30 September 2019 the applicant relies on the reasoning of Member McAdam contained at [53]-[74] in his decision in Papalia.
In Papalia, as in the current matter, neither party appealed the MAC. Also, in Papalia, as in the current matter, the applicant sought to have a COD rescinded so that he might appeal the MAC on the basis that there had been a deterioration in his condition that resulted in an increase in the degree of permanent impairment. In Papalia Member McAdam stated:
“62    It is my view that cl 14H is not “subject to” cl 14D to prevent it from having operative effect. Clause 14D grants a right to a person to commence proceedings with the new decision-maker. It does not prevent the exercising of any right, but in fact grants rights to a person to have matters determined according to the provisions “that would have applied to or in respect of the determination of the proceedings”. Importantly, cl 14D(2) contains a discretion through the use of the word “may”. It is my view that both clauses can coexist and can have effect depending on the factual circumstance of the case. A person may wish to rely on cl 14H to have the Commission determine the matter in accordance with the law that exists now. Likewise, a person may identify an unexercised right to commence pre-establishment proceedings and seek to rely on cl 14D. The facts of the case will determine what provision might be relevant and what pathway a person may elect to pursue.
63.    This may seem like a somewhat contradictory, or even impossible position to take, in that proceedings are either to be determined in accordance with the “same functions that could have been exercised by the original decision maker”, or under “the corresponding provision, if any, of this Act or the legislation as amended by this Act”.
64.    However, when one examines the transitional provisions in Sch 1 as a whole, it is my view that they can exist harmoniously consistent with my construction above. Statutory interpretation prefers harmonious goals…”
I agree with the above view and reasoning of Member McAdam in Papalia that cl 14H is not subject to cl 14D.
For the above reasons I am of the view and find that the COD issued by the WCC dated
30 September 2019 is, pursuant to cl 14H, taken on and from the establishment day
(1 March 2021) to be an order made by the Commission. I am therefore of the view and find that the Commission has the jurisdiction to reconsider the said COD of the former WCC pursuant to s 57 of the PIC Act.
If I am wrong, I now turn to a consideration of s 350 of the WIM Act.

Section 350 of the WIM Act

In the alternate the applicant relies on s 350 of the WIM Act.
In summary the applicant submits that the evidence supports that the applicant’s condition was not stable when he was examined by Dr Meakin on 20 August 2019 as the applicant, unbeknown to Dr Meakin, was continuing to receive treatment, in particular cortisone injections into his injured left shoulder, subsequently underwent an MRI of the left shoulder on 7 August 2020 and subsequently receiving a surgical recommendation. In the applicant’s submission this evidence goes to the heart of the function of the AMS and the finding of maximum medical improvement.
The applicant submits that the new evidence afforded him an “unexercised right” to commence pre-establishment proceedings as it was in existence but not in his possession prior to the establishment day (1 March 2021).
In the applicant’s submission this new evidence would arguably have had a direct bearing on the AMS’ opinion as to whether maximum medical improvement had been reached. The applicant submits that on that evidence alone an appeal could have been made pursuant to s 327(3)(b) of the WIM Act prior to the “establishment day” and this constituted an unexercised right.
Clause 14D of Sch 1, Div 4A of the PIC Act states:
“14D   Unexercised rights to commence non-court proceedings
(1)     This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.
(2)     A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.
(3)     The following provisions apply to the commencement of proceedings under this clause—
(a)the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings,
(b)the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,
(c)despite paragraph (b), Division 3.2 of this Act applies to the proceedings, including section 30, but only if—
(i)the proceedings concern a compensation claim within the meaning of Division 3.2, and
(ii)a person with standing to whom section 26(1) applies makes an application to the District Court in accordance with that section.
(4)     To avoid doubt, if the District Court remits a matter to which subclause (3)(c) applies to the new decision-maker under section 26, the modifications made by this clause to proceedings, other than subclause (3)(c), continue to apply in relation to the determination of the proceedings.”
Clause 14A defines “unexercised right” as follows:
“unexercised right means a right, including a right exercisable only with leave or other permission, that—
(a) was available to be exercised immediately before the establishment day, and
(b) had not yet been exercised before that day.”
In Dimos v Gordian Runoff Limited [2023] NSWSC 1151 (Dimos) cl 14D was considered in the context of an application under s 62 of the Motor Accidents Compensation Act 1999 (MAC Act) for further medical assessment in the Motor Accidents Division of Commission. In Dimos Schmidt AJ stated at [81]
“Had the information contained in the 2014 records only come into existence after the establishment date, as the insurer’s s 62 application incorrectly conveyed when it described them to be 2022 documents, its right to make the s 62 application would not have been an ‘unexercised right’. That is because no basis for making that application in respect of such additional information could then have existed before the establishment date.”
Principle Member Harris in Baker v Southern Metropolitan Cemeteries Trust [2023] NSWPIC 593 (Baker) considered Dimos and said at [31]:
“I interpret from these paragraphs that the Court accepted the third construction set out at [25], that is that the right is only available to be exercised ‘when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party’.”
The applicant relies on a forensic medical report from Dr James Bodel, orthopaedic surgeon, dated 23 November 2023. Dr Bodel recorded a history that since the settlement of his claim for permanent impairment compensation the applicant had sort further treatment and noted that the applicant had undergone a fusion of his left sacroiliac joint, left shoulder arthroscopic procedures, arthroscopic procedures to both hips as well as surgery to his lumbar spine in the form of posterior decompressive laminectomy at the L3/4 and L4/5 levels.
Noting that the applicant had undergone surgery since the time of the previous claim for permanent impairment compensation, Dr Bodel expressed the opinion that the applicant’s level of WPI had significantly decreased.
Dr Bodel assessed 6% WPI due to impairment of the left upper extremity due to injury to the left shoulder, 16% WPI due to impairment of the lumbar spine, 5% WPI for the fusion of the left sacroiliac joint, 1% WPI due to scarring/TEMSKI with a combined impairment of 26% WPI.
The assessment of Dr Bodel was based on the doctor’s examination of the applicant on
23 November 2023 and does not claim to be an assessment of the applicant’s likely impairment prior to the “establishment day” on 1 March 2021.
The applicant does not concede that the principles in Dimos apply to this matter and refers to and adopts the reasoning of Member McAdam in Papalia at [82] – [102] of that decision.
In Papalia Member McAdam distinguished and declined to follow Dimos. Taking guidance from Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 (Hochbaum) Member McAdam observed at [99] that the “date from which the degree of permanent impairment is finally and correctly ascertained is from the date of injury. That includes through the mechanism of an Appeal Panel, which will substitute the decision from the date of the award.” Member McAdam went on to state at [100]:
“As such, the evidence on which the applicant relies, being the report of Dr Gothelf, shows that there was an unexercised right that existed before 1 March 2021, being an option to have a Certificate of Determination set aside to appeal on the basis of deterioration. That right is granted because of the terms of s 327 of the 1998 Act, which allows for an appeal on the basis of deterioration without a time limitation, and the outcome of which will determine the degree of permanent impairment ascertainable from the date of injury, which was prior to 1 March 2021.”
The respondent submits that the reasoning in Papalia should not be followed. That the current matter can be distinguished in particular in that the current matter under consideration involves the assertion of new material or as s 327(3)(b) refers, “availability of additional relevant information”. Which is, in the respondent’s submission, similar to the requirements of a further assessment which was being sought in Dimos. This however would not appear to be a basis on which to distinguish Papalia as Mr Papalia also relied on s 327(3)(b) WIM Act. Member McAdam recorded at [12]:
“The purpose of the application is so that Mr Papalia might appeal against the Medical Assessment Certificate issued on 16 September 2020 on the basis that there had been a deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, pursuant to s 327(3)(a) and/or (b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).”

The respondent also submitted that the temporal element in cl 14D is the existence of the right as of 1 March 2021 which ought not to be ignored on the basis that the entitlement to compensation vests on the date of injury. In the respondent’s submission the temporal element requires examining the position of the applicant as of 1 March 2021 and whether the purported “unexercised right” existed at that time and it is only logical to examine the evidence that the applicant had at the relevant time. In respect to the temporal argument the respondent submitted that Member McAdam failed to consider Meat Carter Pty ltd v Melides [2020] NSWCA 307 (Melides).
I do not accept the applicant’s submission that I should follow the decision of Papalia in respect to the issue but rather adopt the authority of Dimos and Baker. Clause 14D applies in respect in relation to an “unexercised right to commence pre-establishment proceedings”. The relevant unexercised right is in respect to commencing particular types of proceedings. As noted above in Dimos Schmidt AJ stated at [81]
“Had the information contained in the 2014 records only come into existence after the establishment date, as the insurer’s s 62 application incorrectly conveyed when it described them to be 2022 documents, its right to make the s 62 application would not have been an ‘unexercised right’. That is because no basis for making that application in respect of such additional information could then have existed before the establishment date.”
[Emphasis added]
Whilst I accept that the applicant had a theoretical right to appeal on the basis of deterioration, in my view the pivotal issue as identified by Schmidt AJ is whether there is a basis for the commencing of the proceedings before the establishment date. Or as Principle Member Harris said in Baker “the right is only available to be exercised ‘when the facts underlying an application for referral existed prior to 1 March 2021 and those facts were available to the party’”. [Emphasis added].
If there is no evidence on which to commence the proceedings, there is no “basis” for the proceedings and no “unexercised right”. Whilst there may have been a theoretical right to bring proceedings there is in my view no “unexercised right” for the purposes of cl 14D until the information is available on which to base the commencement of such proceedings.

New evidence

The applicant submits that Dr Meakin and the applicant were unaware at the time that
Dr Meakin examined the applicant on 20 August 2019 and the issuing of the MAC on
27 August 2019 that the applicant was continuing to receive interventional treatment. In the applicant’s submission the evidence supports that the applicant’s condition was not stable at the time of the medical examination with Dr Meakin and the issuing of the MAC.
In the applicant’s submission this new evidence affords the applicant an “unexercised right” to commence pre-establishment proceedings as it was in existence and not in the applicant’s possession prior to the “establishment day”. In the applicant’s submission the new evidence goes to the heart of the function of the AMS and the finding of maximum medical improvement and is relevant new medical evidence to which s 327(3)(b) speaks in that it would have a bearing on whether the applicant had actually reached maximum medical improvement.
The applicant submits that the new evidence would have arguably had a direct bearing on the AMS’ finding as to maximum medical improvement. The applicant submits that on the basis of that evidence alone an appeal could have been made pursuant to s 327(3)(b) of the WIM Act prior to the “establishment day” and this is an “unexercised right”.
There are no submissions for the respondent on this point.
Dr Meakin records in the MAC recorded in respect to the applicant’s “Present treatment” that the applicant was continuing to undergo acupuncture, osteopathy and physiotherapy treatment as well as his own personal exercise programme at home and that he continued to use physiotherapy creams and took Turmeric medication and fish oil. Dr Meakin recorded no other continuing treatments at the time of examination.
Prior to the medical examination with Dr Meakin, Dr David Abraham wrote to Dr Lauren McCann on 22 July 2019 advising that he would request a cortisone injection to the left subacromial space (left shoulder).[11] Dr Abraham again wrote to Dr McCann on
13 August 2019 advising that he thought that the applicant may benefit from a cortisone injection to his left subacromial space (left shoulder).[12] Dr Abraham wrote to Dr McCann on 27 August 2019 (the day on which the MAC was issued) that approval had been given for a cortisone injection to the applicant’s left shoulder which Dr Abraham had performed.[13]
[11] Applicant’s reconsideration documents p. 749.
[12] Applicant’s reconsideration documents p. 748.
[13] Applicant’s reconsideration documents p. 746.
[14] Applicant’s reconsideration documents p. 736.
[15] Applicant’s Application to Admit Late Documents (AALD) dated 16 October 2024 p. 1.
Dr Abraham wrote to Dr McCann on 30 June 2020 advising that the applicant continued to have left shoulder pain and that he had referred the applicant for an MR arthrogram of the left shoulder to assess for a SLAP tear.[14] On 7 August 2020 the applicant’s left shoulder was injected with local anaesthetic.[15]
Hoeben J in Petrovic v BC Service No 14 Pty Limited and Ors [2007] NSWSC 1156 (Petrovic) said at [31]:
“In my opinion the words “availability of additional relevant information” qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, “additional relevant information” for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).”
I accept that the medical evidence is additional relevant medical evidence.
Section 319 of the WIM Act defines “medical dispute” to mean a dispute between a claimant and the person to whom the claim is made about specific matters or a question about any of those specific matters in connection with a claim. Those specific matters include “whether impairment is permanent” and “whether the degree of permanent impairment of the injured worker is fully ascertainable.” Pursuant to s 326(1) of the WIM Act a MAC is conclusively presumed to be correct in respect to certain matters which include “whether impairment is permanent” and “whether the degree of permanent impairment of the injured worker is fully ascertainable.”
The NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment at 1.15 states that:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
Dr Meakin was unaware that the applicant was continuing to have injections to his left shoulder at the time of his examination of the applicant. Dr Bodel who provided a report dated 29 March 2019 on which the applicant relied for the permanent impairment claim provided “tentative assessment of Whole Person Impairment on the basis that this gentleman’s clinical condition may not change dramatically over time but may not yet have reached Maximum Medical Improvement because he is still undergoing treatment.”[16]
[16] ARD p. 37.
As previously noted above under the heading “Background” Dr Bodel recorded that at the time of his examination the applicant was about to have block injections into his back and left sacroiliac joint and probably left shoulder. Dr Bodel observed that if these treatments “do not settle” he would need an MRI scan of the left hip and he may need to consider injection of local anaesthetic and hydrocortisone into the left hip joint as well as referral to an arthroscopist to consider arthroscopy of the left hip. Dr Bodel also observed that the applicant may require similar investigations of the left shoulder depending on the outcome of the injections of cortisone in that area. Dr Bodel went on to observe that it was very difficult to determine exactly what treatment was needed as this would depend on the outcome of the block injections.[17] Dr Bodel found that the applicant’s condition had not stabilised as he was undergoing treatment.[18]
[17] ARD p. 36.
[18] ARD p. 37.
The fact that Dr Bodel found that the applicant’s condition had not stabilised due to the applicant receiving ongoing treatment in the form of the injections supports the view that the new medical evidence is relevant to the issue of “whether impairment is permanent” and/or “whether the degree of permanent impairment of the injured worker is fully ascertainable” and is therefore relevant to the task performed by the AMS, Dr Meakin.
I am not however satisfied that the “additional information was not available to, and could not reasonably have been obtained by” the applicant before the medical assessment was conducted by Dr Meakin.
The applicant bears the onus of proof. There is no evidence as to why the additional evidence was not available to, and could not have been obtained by the applicant prior to the medical assessment with Dr Meakin. As noted above Dr Abraham wrote to Dr McCann on
22 July 2019, prior to the applicant being examined by Dr Meakin of 20 August 2019, advising that he would request a cortisone injection to the left subacromial space (left shoulder). Presumably the treatment was discussed with the applicant and the applicant had agreed to the proposed treatment for the request to be made. Dr Abraham again wrote to
Dr McCann on 13 August 2019 (again prior to the examination with Dr Meakin) advising that he thought that the applicant may benefit from a cortisone injection to his left subacromial space (left shoulder). Dr Abraham wrote to Dr McCann on 27 August 2019 (the day on which the MAC was issued) that approval had been given for a cortisone injection to the applicant’s left shoulder which Dr Abraham had performed.
It therefore seems that the applicant was aware of the proposed and planned treatment prior to the medical examination with Dr Meakin and could have advised Dr Meakin at the time of the examination but does not appear to have done so. Whilst I accept that there may have been some difficulty in obtaining the relevant clinical records in respect to the treatment prior to Dr Meakin examining the applicant given the close proximity of the reports and treatment to the medical examination, the relevant information was the undergoing of the further treatment in respect to which the applicant could have advised Dr Meakin. It should be noted that the applicant was not unfamiliar with the proposed procedure having undergone similar procedures previously. Whilst the applicant did have a further injection to his left shoulder on 7 August 2020 this occurred almost a year after Dr Meakin’s examination and is not relevant in my view as to whether the applicant’s condition had reached maximum medical improvement at the time of the examination by Dr Meakin.

Deterioration

The applicant submits that since the issuing of the MAC and COD he has undergone a series of surgical procedures that would prima facie show a worsening of his condition that resulted in an increase in the degree of permanent impairment. For the purposes of cl 14D however none of the surgical procedures occurred prior to the “establishment day” on 1 March 2021. The assessment of impairment conducted by Dr Bodel and enshrined in his report of
23 November 2023 postdates the “establishment day” and assess the applicant’s impairment at the time of examination not prior to 1 March 2021 taking into consideration when assessing the impairment surgical procedures performed after the “establishment day”.
The applicant bears the onus of proof and whilst there is evidence of treatment postdating the MAC and the COD there is no evidence of an increase in the degree of permanent impairment prior to the “establishment day”.
In respect to the applicant’s alternative submission, I am for the above reasons, not satisfied that the applicant had an “existing right” for the purposes of cl 14D. I am therefore of the opinion that I do not have jurisdiction under s 350 of the WIM Act to reconsider the COD issued by the former WCC dated 30 September 2019.

The exercise of discretion

As I have found that the Commission has the jurisdiction to reconsider the COD of the former WCC dated 30 September 2019 pursuant to s 57 of the PIC Act I now turn to considering the application of s 57.
Section 57(1) by the use of the word “may” gives the Commission a discretion to “reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.”
Roche ADP in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel) considered the issue of discretion in respect to reconsideration applications under s 350 of the WIM Act. In my view the observations of Roche ADP in respect to the discretion under s 350 are applicable to s 57 of the PIC Act, the provisions being similar. At [58] of Samuel Roche ADP provided the following, often quoted, useful summary of the applicable principles to be considered in the exercise of the discretion:
“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).”

Delay

In the respondent’s submission the COD is more than four years old and the applicant has not explained the delay in the bringing of these proceedings.
The COD in respect to which this reconsideration application relates is dated
[19] Applicant’s reconsideration documents p. 1009.
30 September 2019 and was therefore issued in excess of five years ago. Since the issuing of the COD the applicant has undergone further treatment including surgical procedures. Of particular relevance on 17 October 2022 the applicant underwent surgery to his lumbar spine at the hands of Associate Professor Seex in the form of a left L4 and L5 Rhizolysis and decompression.[19] Following the said lumbar spine surgery the applicant continued to receive invasive treatment in respect to his lumbar spine.
Dr Sachittra Fernando, consultant physician in rehabilitation medicine, reported to Dr Chiou on 13 February 2023 that the applicant’s bilateral radicular symptoms had improved following the surgery by A/Prof Seex however not completely and advised that an L4/5 transforaminal nerve block had been performed on 7 February 2023 for his residual symptoms. At that time Dr Fernando also reported that he was keen to proceed with bilateral L4/5 dorsal root ganglion pulsed radiofrequency.[20]
[20] Applicant’s reconsideration documents p. 889.
On 15 March 2023 the applicant underwent bilateral L4/5 dorsal root ganglion pulsed radiofrequency at the hands of Dr Vahid Mohabbati.[21]
[21] Applicant’s reconsideration documents p. 773.
On 20 March 2023 Dr Abraham reported to Dr Michelle Crocket that the applicant was still having left lower limb pain with an L5 nerve root impingement. Dr Abraham recorded that he had asked the applicant to return to A/Prof Seex for an opinion regarding a left L4/5 microdiscectomy observing that a hemi-laminectomy had previously been performed.[22] A/Prof Seex reported to Dr Siobhan Ballesty on 4 April 2023 that he did not think that further lumbar surgery was likely to be of benefit.[23]
[22] Applicant’s reconsideration documents p. 826.
[23] Applicant’s reconsideration documents p. 894.
The medical evidence supports that the applicant was continuing to receive invasive treatment at least up to mid to late March 2023 with the applicant being reviewed for potential further lumbar spine surgery in late March or early April 2023. The applicant was examined by Dr Bodel on 23 November 2023 for the purposes of assessing permanent impairment.
In the applicant’s submission there is no time limit to bring an appeal under s 327(3)(a) and (b) and it was not until the applicant reached maximum medical improvement that impairment could be assessed.
Whilst there has been a delay in bringing the application for reconsideration such an application could not be brought until a deterioration becomes apparent and the applicant had reached maximum medical improvement so that an assessment of impairment could be undertaken. As previously discussed, the applicant was continuing to receive invasive treatment until at least mid to late March 2023 and in late March, early April 2023 the applicant was assessed in respect to further lumbar spine surgery.
In my view the medical appointment with Dr Bodel to assess the applicant for impairment happened within a reasonable time period following the last known invasive procedure that I have been able to identify in the evidence, allowing time for the applicant’s condition to settle, any further treatment to be considered, the obtaining of legal advice and the arranging of the appointment with Dr Bodel. I note that clinical records appear to have been obtained prior to the applicant attending the re-examination with Dr Bodel with clinical notes having, according to the schedule of annexures to the documents served in support of the reconsideration application, been obtained from Sydney Adventist Hospital up to 15 March 2023, Dr Abraham up to 21 August 2023 and Riverstone Family Medical Practice up to 25 August 2023.

On 24 January 2024 the applicant’s current solicitors wrote to GIO asking whether the threshold pursuant to s 151H of the WIM Act was conceded in the light of the report of
Dr Bodel dated 23 November 2023 a copy of which was enclosed with by way of service. Whilst there was some delay between the issuing of the said report of Dr Bodel and the letter to GIO the delay is minimal and in part understandable due to the Christmas period.
On 8 February 2024 Hicksons Lawyers responded on behalf of GIO to the letter from the applicant’s solicitors declining to concede the s 151H threshold.
A further delay then occurs before the applicant served on the respondent its request for reconsideration submissions which was done under cover of correspondence dated
27 August 2024. Prior to the serving of the reconsideration submissions, it appears from the schedule of annexures to the reconsideration request, that further medical evidence was obtained in support of the reconsideration application with the schedule of annexures including a reference to clinical notes from A/Prof Seex “as at 14 August 2024”.
The respondent’s response to the applicant’s reconsideration application is dated
17 September 2024. The matter then seems to have brought before the Commission with reasonable expedition.
For the above reasons I am of the view that delay is not a factor that weighs against the applicant in terms of the discretion.

Public Interest that litigation should not proceed indefinitely

In Hilliger v Hilliger (1952) 52 SR (NSW) 105 (Hilliger) Street CJ stated:
“I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.”
As Member McAdam observed in Papalia at [116] whilst significant restrictions on proceedings for lump sum compensation were introduced by legislation in 2012 no amendment was made to s 327, and s 322A(4) of the WIM Act specifically states that s 322A does not affect the operation of s 327. There is no time limit placed on the ability to appeal under s 327(3)(a) and (b) by the legislature unlike s 327(3)(c) and (d). Of significance the applicant in these proceedings has not previously sought to appeal the MAC.
Whilst the public interest does need to be considered I am of the view that this factor does not weigh against the applicant in the current proceedings.

Anshun estoppel

In the applicant’s submission there are no principles of estoppel that apply to the current proceedings. The respondent has not provided any submissions to the effect that an estoppel arises in this matter.
I am of the view that no Anshun estoppel arises. The applicant is not pursuing any claim that was not pursued in the previous proceedings.

Mistake or oversight of legal advisor

It is the applicant’s evidence at [11] of his statement dated 15 May 2024 that his former solicitors did not advise him of any right to seek an appeal of the MAC. That his former solicitors simply advised him if he underwent any surgeries, he would be able to return to the then WCC for reassessment. It appears that this advice was given to the applicant shortly after the issuing of the MAC.
The respondent submits that the applicant with legal advice decided not to appeal in 2019. The respondent did not refer to any evidence in support of this statement which appears to be in direct conflict to the applicant’s evidence. In any event in 2019 no deterioration had occurred on which to base an appeal and even if deterioration had occurred the condition did not reach maximum medical improvement at that time with the applicant coming to lumbar spine surgery in 2022 and invasive treatment and the consideration of further lumbar spine surgery occurring at least up until March/April 2023.
In my view this factor does not weight against the applicant.

Justice between the parties and substantial merits of the case

In the respondent’s submission the matter was correctly determined in 2019. The applicant had the right to appeal, and a decision was made not to exercise that right to appeal. In the respondent’s submission the revocation of the COD would lead to further litigation, the application goes against the intention of the scheme in relation to finality of proceedings and the respondent should not be required to meet the costs of further litigation.
I do not accept the respondent’s submissions. The medical evidence supports that the applicant has suffered a deterioration in his condition with increased impairment assessment having been assessed by Dr Bodel on behalf of the applicant. Whilst there maybe dispute about the level of impairment assessed by Dr Bodel it cannot be disputed that the applicant has suffered a deterioration which will be reflected in an increased level of permanent impairment as the applicant has undergone surgery to his lumbar spine.
The level of increased impairment which Dr Bodel has assessed is significantly greater than that which was assessed by Dr Meakin and for which the applicant was compensated for under the COD dated 30 September 2019. The level of impairment assessment can also impact the applicant’s rights beyond compensation for permanent impairment being relevant to a number of thresholds under the workers compensation legislation.
Whilst the revocation of the COD may lead to further litigation and its inevitable costs the legislature has not placed a time limit on an appeal based on s 327(3)(a) and/or (b) and the applicant has not previously sought to appeal the MAC.
In my view this factor weighs in favour of the applicant.
In my view the above factors weigh in favour of the exercise of the discretion in favour of the applicant under s 57 of the PIC Act.

CONCLUSION

For the above reasons I am of the view and find that the Commission has the power pursuant to s 57 of the PIC Act to reconsider the COD of the former WCC dated 30 September 2019. Having weighed the relevant considerations, I am also of the view and find that the discretion in s 57 of the PIC Act should be exercised in the applicant’s favour and the COD rescinded to enable an appeal by the applicant of the MAC pursuant to s 327(3)(a) and/or (b) of the WIM Act.

[2025] NSWPIC 62

24 February 2025