Sun v State of New South Wales (Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Sun v State of New South Wales (Sydney Local Health District) [2021] NSWPICMP 210
APPELLANT:	Yun Sun
RESPONDENT:	State of New South Wales (Sydney Local Health District)
APPEAL PANEL:	Member Carolyn Rimmer Dr John Dixon-Hughes Dr John Garvey
DATE OF DECISION:	5 November 2021
CATCHWORDS:	WORKERS COMPENSATION- Reconsideration; question of whether the Panel had jurisdiction to reconsider the Statement of Reasons dated 21 June 2021 under section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) or section 57 of the Personal Injury Commission Act 2020 in view of the repeal of section 378 of the 1998 Act from 1 March 2021; Panel concluded that proceedings were “pending proceedings” commenced before establishment day and not fully determined before that day; Panel concluded that the pre-establishment proceedings had not been “completed” prior to the establishment date on 1 March 2021 and the Panel had jurisdiction to reconsider any matter that has been dealt with by the Panel, and to rescind, alter or amend any decision previously made or given; Samuel v Sebel Furniture Limited and Martinovic v Workers Compensation Commission of NSW & Ors considered and applied; Held - Panel was satisfied on the basis of all the evidence that its original determination was correct and was made according to law; Panel declined to reconsider its decision.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A REQUEST FOR RECONSIDERATION

BACKGROUND TO THE APPLICATION FOR RECONSIDERATION

On 8 April 2021 Yun Sun (the appellant) made an application to appeal against a medical assessment (the appeal) to the Personal Injuries Commission (the Commission). The medical assessment was made by Dr Richard Crane, Medical Assessor (the MA) and issued on 11 March 2021.
The respondent to the appeal is the State of New South Wales (Sydney Local Health District).
The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020 (the 2020 Act), from 1 March 2021. The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, Approved Medical Specialists (AMS) in the former Workers Compensation Commission (WCC) became Medical Assessors in the Commission. However, as at the time when the MAC was issued, Dr Crane bore the title of Medical Assessor and in this decision will be referred to by his title “Medical Assessor”.
On 21 June 2021 the Appeal Panel issued its determination in respect of matters the subject of that appeal. In that decision (the decision), the Appeal Panel determined that the MA had erred in assessing the appellant as DRE I, given the findings recorded in the Medical Assessment Certificate (MAC) by the MA. The Appeal Panel was of the view that the appellant warranted an assessment of DRE II for the lumbar spine and assessed 6% whole person impairment (WPI) for the lumbar spine. This brought the appellant’s combined assessment to 11% WPI, giving rise to an entitlement to lump sum compensation.
On 12 July 2021 the respondent requested a reconsideration of the Appeal Panel’s determination in accordance with s 329 of the 1998 Act. A copy of the request for reconsideration was served on the appellant by letter dated 12 July 2021.
The respondent attached submissions to the request for reconsideration dated 12 July 2021. The appellant filed submissions dated 19 July 2021 in reply.
On 8 September 2021, the Appeal Panel requested the parties file further submissions to address whether the Appeal Panel had jurisdiction to reconsider the Statement of Reasons dated 21 June 2021 under s 329 of the 1998 Act or s 57 of the 2020 Act in view of the repeal of s 378 of the 1998 Act from 1 March 2021. The respondent filed further submissions dated 16 September 2021. The appellant filed further submissions dated 24 September 2021.
The Appeal Panel has considered the submissions of the parties which are referred to later in this decision.

JURISDICTION

Section 329 of the 1998 Act provides:

“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 President as an alternative to an appeal against the assessment as provided by section 327, or
(b) a court or the Commission.
(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.
(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency.”

Prior to its repeal, s 378 of the 1998 Act provided:
“(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.”
Section 57 of the 2020 Act provides:
“(1)    The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2)     If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may-
(a)alter the decision to correct the error, or
(b) direct a registrar to alter the decision to correct the error.
(3)     Without limiting subsection (2), if the decision is contained in a certificate, the President may-
(a) issue a replacement certificate with the error corrected, or
(b) direct a registrar to issue a replacement certificate with the error corrected.
(4)     If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)     If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6)     Examples of obvious errors in a decision are where-
(a) there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) there is an error arising from an accidental slip or omission, or
(c)there is a defect of form, or
(d) there is an inconsistency between the stated decision and the stated reasons.”
The respondent’s submissions in relation to jurisdiction were dated 16 September 2021 included the following:
(a)    section 378 of the 1998 Act, as in force before 1 March 2021, continued to apply to the present matter, which gave the Appeal Panel jurisdiction to reconsider their decision;
(b)    between the issuing of the MAC on 19 February 2021 [sic] and the applicant filing his appeal on 7 April 2021, the WCC was abolished and the Commission was established. This occurred on 1 March 2021;
(c)    the 2020 Act, and the amendments to the Workers Compensation Act1987 (1987 Act) and 1998 Act came into effect from 1 March 2021, being the “establishment day” as defined by s 6 of the 2020 Act;
(d)    due to the application of s 14A(2), as at 1 March 2021, the present proceedings, being Matter No: 5407/20, were not “finally determined” as the period for the worker to bring his appeal had not expired. As such, as at 1 March 2021, the present proceedings must have been “pending proceedings”;
(e) the proceedings, as at 1 March 2021, were considered to be “pre establishment proceedings”. Of relevance was the definition of “commence”, as found in schedule 1, s 14A;
(f)    the term “commence” refers to the action of a party establishing new proceedings in the Commission, that is, the filing of an initial Application with the Commission that starts the dispute resolution process. It would be illogical to conclude, in proceedings that had not been “finally determined”, that the filing of the appellant’s appeal amounted to him commencing new proceedings. This was supported by the fact that any appeal proceedings retain the same matter number as the substantive proceedings before it;
(g)    therefore, at the time that the appellant filed his appeal on 7 April 2021, the present proceedings were “pending non-court pre-establishment proceedings”, as they had not been “finally determined” and the act of filing the appeal was not an action taken to “commence” new proceedings;
(h) such proceedings are dealt by sch 1, s 14B. Importantly, s 14B(4) provides that: (i) the person or persons completing the proceedings has and may exercise all the functions that the original decision-maker had immediately before the establishment day,… (ii) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply, …;
(i) that is, the “person or persons” completing the proceedings, being the Appeal Panel, had available to them “all the functions that the original decision-maker had immediately before the establishment day”. For the purposes of the application of cl 14B(4)(a), the “original decision-maker” would also have to have been the Appeal Panel, as they had sole jurisdiction to hear any appeal against a medical assessment as outlined in s 328(1) of the 1998 Act. Further, all of the provisions in force prior to 1 March 2021, including s 378 of the 1998 Act, continued to apply in light of s 14B(4)(c);
(j)    in accordance with those provisions of the 2020 Act, it is submitted that the provisions of the workers compensation legislation in force prior to 1 March 2021, including s 378 of the 1998 Act, continued to apply until the proceedings, including the appeal, were “determined”;
(k) there was no definition contained in sch 1, s 14A of the 2020 Act for the term “determined” (aside from s 14A(2)). Section14A does not deal with situations, such as the present matter, where an Appeal Panel has issued their Statement of Reasons but a Certificate of Determination (COD) has not been issued, and an Application for Reconsideration is subsequently filed;
(l) the respondent submits that the term “determined”, as it appears in sch1, s 14A of the 2020 Act, means proceedings where a COD has been issued. This is supported by the fact that “decision” is defined in s 14A as “a purported decision or a refusal or failure to make a decision”. There is no suggestion that the issuing of a “decision” infers that the proceedings have been “determined”;
(m)     the Appeal Panel’s Statement of Reasons is a binding “decision” but the proceedings were not “determined” until a COD is issued;
(n)    this was consistent with situations where an applicant discontinues proceedings following the issuing of a MAC but prior to the issuing of a COD. In that situation, the MA has made a binding “decision”; however, the respondent has no obligation to pay the worker any lump sum compensation if the COD is not issued;
(o)    the only conclusion that can be drawn is that, despite the Appeal Panel issuing a Statement of Reasons, the proceedings had not been “determined” as a COD had not been issued. As a result, the proceedings maintained their status as
pre-establishment pending proceedings, which in turn means that s 14B(4)(a) and (c) continued to apply at the time that the respondent filed the Application for Reconsideration, as the action of filing such an application does not amount to commencing new proceedings. In accordance with s 14B(4)(c), s 378 of the 1998 Act continues to apply, meaning that the Appeal Panel has jurisdiction to reconsider its Statement of Reasons;
(p)    in the alternative, the respondent submits that the Appeal Panel maintained its jurisdiction to reconsider its Statement of Reasons in accordance with s 57 of the 2020 Act;
(q)    It was evident that the jurisdiction to reconsider a matter, following the amendments of the 1998 Act from 1 March 2021, falls to the President of the Commission;
(r)    However, s 18(1)(a) of the 2020 Act gives the President the power to “delegate to a Division Head of a Commission Division or other member any of the functions of the President (other than this power of delegation)”. Further, s 8(1) provides that “members” include principal members, senior members and general members;
(s)    in accordance with s 328 of the 1998 Act, an Appeal Panel is constituted by a Member of the Commission and two MAs. In the present matter, Member Rimmer sits on the Appeal Panel, and
(t)    by way of the delegation power contained in s 18(1)(a) of the 2020 Act, the respondent submits that the jurisdiction to reconsider matters conferred to the President of the Commission by s 57, can be delegated to Member Rimmer in her capacity as Member sitting on the Appeal Panel.
The appellant’s submissions in relation to jurisdiction were dated 24 September 2021 include the following:
(a) section 378 of the 1998 Act (as in force immediately before 1 March 2021) continued to apply in the present case by virtue of clause 14B(4) of Schedule 1 of the 2020 Act. If this is accepted, then the Appeal Panel has jurisdiction to reconsider its decision under s 378 of the 1998 Act;
(b)    if s 378 of the 1998 Act does not apply, then section 57 of the 2020 Act does not confer upon the Commission jurisdiction to refer the respondent’s request for reconsideration back to the Appeal Panel nor does the Appeal Panel have jurisdiction to reconsider its decision;
(c)    the respondent submitted there is no issue that, prior to its repeal, s 378 of the 1998 Act provided the Appeal Panel with jurisdiction to reconsider a matter (paragraph 6 of the respondent’s further submissions). The appellant worker agreed with this submission;
(d) after considering the respondent’s submissions (but not adopting all the respondent’s reasons) the appellant worker agreed that s 378 of the 1998 Act (as in force immediately before 1 March 2021) continued to apply in the present case by virtue of clause 14B(4) of sch 1 of the 2020 Act. Therefore, the Appeal Panel has jurisdiction to reconsider its decision under s 378 of the 1998 Act;
(e)    if section 378 of the 1998 Act (as in force immediately before 1 March 2021) does not apply and the request for reconsideration was subject to the provisions of the 2020 Act and the 1998 Act (as currently in force), the Commission does not have jurisdiction to refer the respondent’s request for reconsideration back to the Appeal Panel nor does the Appeal Panel have jurisdiction to reconsider its decision;
(f)    section 57 of the 2020 Act provides the Commission with the power to reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division. It provides the Commission with the power to rescind, alter, or amend any decision previously made by or given by the Commission in the Workers Compensation Division;
(g)    the power given to the Commission under s 57 is broad and it is clear from the reference in ss 57(3) and (5) to “certificates” that the power extends to altering or issuing replacement MACs in the case of an “obvious error”;
(h)    for the reasons outlined in our 19 July 2021 submissions opposing the respondent’s request for reconsideration, the appellant submits the respondent’s request cannot reasonably be described as a request to correct an obvious error;
(i)    if this is accepted the jurisdiction issue turns on whether: (i) The referral power in s 329 provides the Commission with jurisdiction to refer the matter back to the Medical Appeal Panel (MAP) with a request that it reconsider its decision (notwithstanding the repeal of section 378 of the WIM Act). (ii) The power in s 57 extends to the rescinding, altering, or amending of MACs by way of a request for reconsideration that does not involve an obvious error;
(j)    the answer to both of the above questions is, no;
(k) section 329 applies to a “matter referred for assessment” under Part 7. It is submitted that reference to a matter being referred for assessment is a reference to the referral to an AMS (refer sections 321, 321A, and 325);
(l)    an Appeal against a MAC is not “referred” to the MAP. The procedure on appeal is governed by s 327 and s 328 of the 1998 Act. Section 327(4) provides that an appeal is to be made by application to the President and is not to proceed unless the President is satisfied, on the face of the application, that at least one ground of appeal has been made out. If the President is so satisfied, the appeal is remitted to the MAP under s 328 of the 1998 Act, with the appeal to be conducted by way of review of the MAC (328(2));
(m)     section 329 of the 1998 Act is limited to the referral of a matter for further medical assessment or reconsideration by the AMS. The power of referral under s 329 does not extend to referring the matter back to the MAP for reconsideration. If that was the case, the now repealed s 378 would have been a redundant provision (given that section provided the Appeal Panel with the power to reconsider any matter that it had dealt with);
(n) further, s 329(1A) provides that a matter referred for assessment under Part 7 (our emphasis) “may be referred again by the President to the medical assessor for reconsideration”. The reference to “the medical assessor” can only be a reference to the AMS. There is no suggestion or inference that s 329 extends to referral of a matter for further assessment or reconsideration by the MAP;
(o)    in relation to s 57 of the 2020 Act, it is submitted that s 57 does not permit the President to refer the matter back to the MAP for reconsideration nor does it confer on the MAP jurisdiction to reconsider its decision;
(p)    under section 8 of the 2020 the Commission consists of the President, Deputy President, principal members, senior members, and general members. The MAP does not form part of the Commission. Rather, under s 328(1) of the 1998 Act the MAP is appointed by the Commission and is constituted by 2 medical assessors and 1 member of the Commission chosen by the President. Once constituted the MAP is not subject to control or direction by the Commission with respect to any decision affecting the interests of the parties concerned (s 36 of the 2020 Act);
(q)    section 57 confers on the Commission jurisdiction to reconsider any decision made by the Commission. That is, any decision made by the President, Deputy President, principal member, senior member, or general member. As the MAP does not form part of the Commission there is no power under s 57 enabling the Commission to refer the matter back to the MAP for reconsideration and no power enabling the MAP to reconsider its decision, and
(r)    by virtue of subsections 57(2), (3), (5), and (6), the reconsideration power extends only so far as to allow the correction of “obvious errors” in MACs. It therefore follows that the power to extend obvious errors extends to any MAC issued by the MAP. However, for the reasons noted above, this is the limit of the reconsideration power under s 57 in so far as it relates to decisions of the MAP.

The history of this matter is as follows:
(a)    appellant filed an Application to Resolve a Dispute (ARD) on 21 September 2020;
(b)    a teleconference was held on 19 October 2020;
(c)    following the teleconference, a COD was issued on 20 October 2020, which referred the Applicant to a MA for the assessment of permanent impairment in respect of the lumbar spine, right lower extremity (knee), and upper digestive tract;
(d)    the appellant was assessed by MA Dr Richard Crane on 19 December 2020 (teleconference) and 8 February 2021 (physical examination);
(e)    a MAC was issued on 11 March 2021;
(f)    the appellant filed an Application to Appeal the MAC on 7 April 2021 and the respondent filed its Notice of Opposition on 29 April 2021;
(g)    the Appeal Panel’s Statement of Reasons was issued on 21 June 2021, and
(h)    the respondent filed its Application for Reconsideration on 12 July 2021;
The Appeal Panel noted that the respondent in the submissions dated 16 September 2021 wrote; “A Medical Assessment Certificate (“MAC”) was issued on 19 February 2021”. This was incorrect as the MAC was issued on 11 March 2021.
Section 378 was repealed on 1 March 2021. However, the respondent submitted that the provisions of that section still applied to this matter.
The first question to consider is whether the Appeal Panel maintains its jurisdiction under
s 378 on this matter.
Schedule 1, Division 4A of the 2020 Act deals with the “Completion of existing proceedings”. Schedule 1, Subdiv 1, s 14A provides the following definitions:
“(1) In this Division—
‘commence’, in relation to proceedings, includes lodge or file an application or a
document seeking the exercise of a function.
‘decision’ includes a purported decision or a refusal or failure to make a decision.
‘new decision-maker’, in relation to proceedings or an unexercised right, means the person, court or other body given the function, on and from the establishment day, of dealing with the proceedings or the exercise of the right instead of the original decision-maker because of amendments made to the motor accidents legislation or workers compensation legislation.
Example—
Schedule 6 makes amendments to confer or impose functions of the WCC under the workers compensation legislation on the Commission.
‘original decision-maker’, in relation to proceedings or an unexercised right, means
the person, court or other body having the function of dealing with the proceedings
or the exercise of the right immediately before the establishment day.
‘part heard proceedings’ means pending proceedings that had begun to be heard
or considered, but were not determined, before the establishment day.
‘pending proceedings’ means proceedings that—
(a) were commenced before the establishment day, and
(b) had not been finally determined before that day.
Note-: see subclause (2) for the meaning of finally determined proceedings.
pre-establishment proceedings means—
…
(b) proceedings that, before the establishment day, were required or
permitted under the workers compensation legislation to be dealt with by—
(i) the WCC or a member of the WCC, or
(ii)the Registrar of the WCC or a delegate of the Registrar, or
(iii) an approved medical specialist appointed under Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998, including a senior approved medical specialist, or
(iv) an Appeal Panel for a medical assessment constituted under Workplace Injury Management and Workers Compensation Act 1998, or
(v)a mediator appointed under section 318F of the Workplace Injury Management and Workers Compensation Act 1998.
‘pre-establishment referral proceedings’ means pre-establishment proceedings to determine whether a matter should be referred to another decision-maker to determine.
‘proceedings’ includes an application for, or an appeal against, the exercise of a
function.
‘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.
"unheard proceedings" means pending proceedings that had not been heard or considered before the establishment day.
(2) For the purposes of this Division, proceedings are not finally determined if—

(a) any period for bringing an appeal as of right in respect of the proceedings has not expired, ignoring any period that may be available by way of extension of time to appeal, or
(b) any appeal in respect of the proceedings is pending, whether or not it is an appeal brought as of right.”

Section 14A(2) clarifies that proceedings are not “finally determined” if any period for bringing an appeal as of right has not expired, or if any appeal is pending.
Schedule 1, s 14B deals with “Pending non-court pre-establishment proceedings” and provides:
“(1) This clause applies in relation to pre-establishment proceedings if they are pending proceedings before an original decision maker other than a court.
(2) Unheard proceedings are taken on and from the establishment day -
(a)to have been commenced for determination by the new decision-maker, and
(b) may be determined by the new decision-maker instead of the original decision-maker.
(3) For part heard proceedings, the person or persons who started hearing or considering the proceedings--
(a) is or are to continue, on and from the establishment day   to hear or consider the proceedings, and to determine the proceedings, in the capacity of the new decision-maker, and
(b) is or are taken for the purposes of completing the proceedings to have been duly appointed as the new decision-maker, or as a member of the Commission if it is the new decision-maker, even if they have not been appointed by or under another provision of this Act, and
(c) may have regard to any record of the proceedings before the original decision-maker, including a record of any evidence taken in the proceedings before the original decision-maker.
(4)     The following provisions apply to the completion of proceedings under this clause-
(a) the person or persons completing the proceedings has and may exercise all the functions that the original decision-maker had immediately before the establishment day,
(b) for pre-establishment referral proceedings--
(i) the person or persons completing the referral proceedings may refer the matter for determination by the new decision-maker for the referred matter instead of the original decision-maker for the referred matter, and
(ii) the new decision-maker to which the matter is referred has and may exercise all the functions that the original decision-maker for the referred matter had to determine the matter immediately before the establishment day,
(c) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,
(d) despite paragraph (c), 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.
(5)     To avoid doubt, if the District Court remits a matter to which subclause (4)(d) applies to the new decision-maker under section 26, the modifications made by this clause to proceedings, other than subclause (4)(d), continue to apply to the determination of the proceedings.”
Schedule 1, s 14D deals with “Unexercised rights to commence non-court proceedings” and provides:
“(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,
…”

Schedule 1, Subdivision 4, s 14F deals with “Review of completed pre-establishment proceedings” and provides:

“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.
…
(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.”

No Certification of Determination was issued in this matter after the MAC was issued or after the decision of the Appeal Panel was issued. The proceedings have always had the same matter number, M1–5407/20.
While jurisdiction cannot be conferred by consent, it appears that both parties agreed that
s 378 of the 1998 Act (as in force immediately before 1 March 2021) continues to apply in the present case by virtue of clause 14B (4) of Schedule 1 of the 2020 Act and therefore, the Appeal Panel has jurisdiction to reconsider its decision under s 378 of the 1998 Act.
The parties have approached this issue on the basis that the matter is a pending non-court pre-establishment proceedings. In that situation, the question of jurisdiction appears to depend on whether this matter can be considered to have been “completed”.
The word “completed” is not defined in the 2020 Act. However, cl 14A (2) of Schedule 1 provides that proceedings are not finally determined if any period for bringing an appeal as of right in respect of the proceedings has not expired. If a matter has not been finally determined, the Appeal Panel considered that it could not be regarded as completed.
The Appeal Panel agreed that the proceedings were “pending proceedings” as the proceedings were commenced before establishment day and not fully determined before that day. Pre-establishment proceedings were defined to include proceedings that before establishment day were required or permitted under the workers compensation legislation to be dealt with by an Approved Medical Specialist and also an Appeal Panel for a medical assessment constituted under the 1998 Act. The proceedings as at 1 March 2021 were therefore pre-establishment proceedings.
The matter was clearly not completed by 1 March 2021 as the MA issued his decision on 11 March 2021. The provisions of the 1998 Act that would have applied to or in respect of the determination of the proceedings by the MA had the 2020 Act not been enacted continued to apply in respect of the decision to be made by the MA.
Although the correct position in law is not free from doubt and differing views are possible, the Appeal Panel has concluded that the pre-establishment proceedings had not been “completed” prior to the establishment date on 1 March 2021. This means that under
s 378(1) of the 1998 Act the Appeal Panel had jurisdiction to reconsider any matter that has been dealt with by an Appeal Panel, and to rescind, alter or amend any decision previously made or given.
In Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 (Sleiman) Leeming JA at 90 commented on the transitional provisions and said:
“It was common ground that the effect of the transitional provisions was that
Mr Sleiman continued to be able to apply for reconsideration, notwithstanding the repeal of s 378. The parties disagreed as to precisely how this occurred. It is not necessary to resolve that point, which is not free from difficulty, although I favour
Mr Sleiman’s submissions, which turn on the 2019 application being a “pending non-court pre-establishment proceeding” within the meaning of cl 14B of Schedule 1 of the Personal Injury Commission Act 2020 (NSW).”
However, as was established long ago in Hardaker v Wright and Bruce Pty Ltd [1962] SR (NSW) 244 and has been repeated in numerous cases ever since, there is a distinction between the existence of a power to reconsider decisions in workers compensation cases and the occasions of its exercise; public interest demands that litigation should not proceed interminably, and the Courts must be on their guard to see that the same matter is not
re-litigated again and again.

EXERCISE OF THE DISCRETION TO RECONSIDER

Having made the findings above in relation to jurisdiction, it is appropriate to consider the substance of the Application for Reconsideration.
As noted above both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The respondent’s submissions dated 12 July 2021 included the following:
(a)    the crux of the reasons of the Appeal Panel was:
(i) the worker satisfied DRE II because there was clinical history and examination findings that were compatible with a “specific injury”, and
(ii) in the alternative, the Appeal Panel relied on a different criteria [sic] under DRE II, being that the “individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disk at the level and on the side that would be expected…”;
(b)    the findings of the Appeal Panel were inconsistent with the correct application of AMA 5 and the Guidelines. On that basis, the respondent requests that the Appeal Panel reconsider their decision in accordance with their discretionary power under s 329 of the 1998 Act;
(c)    the Appeal Panel should exercise the discretion to reconsider their decision pursuant to s 329 of the 1998 Act having regard to the relevant considerations listed in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel);
(d)    the “wide discretion” extended to the Appeal Panel allows them to reconsider this decision, there has been no delay in bringing the Application for Reconsideration, and the merits of the submissions below warrant a reconsideration of the Appeal Panel’s decision. Ultimately, it is in the interests of justice, that the Appeal Panel exercise its discretion to reconsider this matter;
(e)    the Appeal Panel erred in finding that there was a “specific injury”;
(f)    AMA 5 sets out three criteria for DRE II. If a worker satisfies any of them, they warrant an assessment in accordance with DRE II. In the present matter, one of the criteria is irrelevant as it relates to fractures. The two relevant categories are (at page 384):
“Clinical history and examination findings are 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 non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy (‘criteria 1’).
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 the radiculopathy following conservative treatment (‘criteria 2’)”.
(g)    in respect of criterion 1, contrary to the MA’s views, the Appeal Panel considered that there was a “specific injury”, which ultimately satisfied that criteria. This was based on a finding that the “mechanism of injury was significant, that being a heavy fall with the appellant landing on his left buttock (Canterbury Hospital ED Discharge Referral 2 August 2011)”;
(h)    the Canterbury Hospital ED Discharge referral (page 5 of the ARD). The history taken by the ED was that the appellant “was pulling end of operating theatre table when over balanced with end of bed in hands landing on left buttock…”;
(i)    there was no reference to a “heavy fall” in the discharge referral. On that basis, it was not open to the Appeal Panel to find as such to infer that the appellant suffered a “specific injury” in order to satisfy criteria 1 for DRE II;
(j)    additionally, AMA 5 contains examples of varying circumstances to assist assessors in categorising a worker into the appropriate DRE category. The Appeal Panel did not address those submissions in its decision despite its relevance to the present matter. As a result, the respondent is of the view that the Appeal Panel did not discharge its obligation to provide reasons on this issue, and to explain why their conclusion was preferred to that offered by the respondent, as required by the decision in Campbelltown City Council v Vegan [2006] NSWCA 284;
(k)    in any event, Example 15-1 (page 385 of AMA 5) relates to DRE I and 0% WPI is assessed for a “minor lumbar strain”. In Example 15-2 (page 385 of AMA 5), the diagnosis that warranted an assessment of DRE II is a “posterolateral disk herniation L5-S1.”;
(l)    based on the examples provided in Example 15-1 and 15-2 in AMA 5, the definition of “specific injury” under DRE II requires more than a minor soft tissue injury or strain;
(m)     additionally, the mechanism of injury was irrelevant to a finding of “specific injury”, as the examples concentrate on the diagnosis. An individual could theoretically fall down a flight of stairs and sustain only soft tissue injuries. For the purposes of whether there has been a “specific injury” as stated in AMA 5, the fact that the individual suffered only soft tissue injuries is the determinative factor as to whether such a “specific injury” is present, not the fact that the individual fell downstairs;
(n)    the diagnosis provided by the ED of Canterbury Hospital was a “soft tissue injury” and “strain of back muscle” (page 5 of ARD). This was consistent with the MA’s diagnosis of “a soft tissue injury to the lumbar spine…” which was not disturbed by the Appeal Panel given that a re-examination of the appellant was not undertaken;
(o)    it was not open to the Appeal Panel to find that the appellant sustained a “specific injury” on 2 August 2011, as this was an incorrect application of AMA 5. In accordance with Example 15-1, the only conclusion open to the Appeal Panel was that the appellant fell into DRE I because his injury was a strain or soft tissue injury;
(p)    the Appeal Panel erred in finding that there was “clinically significant radiculopathy”. The Appeal Panel also relied on criterion 2 above in that the appellant had “clinically significant radiculopathy”, which warranted an assessment of DRE II;
(q)    the Appeal Panel referred to paragraph 4.27 of the Guidelines which defined radiculopathy. The Appeal Panel was satisfied that the MA’s finding of sensation being slightly reduced below the knee on the lateral side of the leg and the dorsum of the foot was a symptom of L5 distribution. They noted that this was a major criterion outlined in paragraph 4.27 of the Guidelines, meaning that the appellant satisfied a finding of clinically significant radiculopathy;
(r)    the respondent did not previously have an opportunity to respond to whether or not the appellant satisfied criteria 2 of DRE II, given that the appellant’s submissions only addressed the MA’s alleged errors with regard to the application of criteria 1. The respondent conceded that the Appeal Panel may make findings outside of those grounds of appeal raised by an appellant; however, a respondent must be given the opportunity to address this issue prior to a decision being handed down, in accordance with the requirement in Siddick v WorkCover Authority of NSW [2008] NSWCA 116;
(s)    it was not open to the Appeal Panel to conclude that the appellant had “clinically significant radiculopathy”;
(t)    paragraph 4.27 of the Guidelines states that “in order to conclude that radiculopathy is present, two or more of the following criteria should be found, one of which must be major…”;
(u)    the Appeal Panel only identified one criterion under paragraph 4.27 and it is respectfully submitted that the term “should” in paragraph 4.27 creates an obligation on an assessor to identify two or more criteria, as opposed “may”, which would suggest that the assessor has the option to do so;
(v)    the Appeal Panel’s exclusion of a second relevant criterion for a finding that radiculopathy is present was an incorrect application of the Guidelines, meaning that it was not open to them to conclude that radiculopathy was present. Flowing from that is the Appeal Panel’s erroneous conclusion that there was “clinically significant radiculopathy” as required by criteria 2 in AMA 5;
(w)   this reading of paragraph 4.27 is supported by the inclusion of paragraph 4.28 of the Guidelines, which states that: “Radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings (somatic pain, non-verifiable radicular pain) do not alone constitute radiculopathy”;
(x)    in addition, for a finding that clinically significant radiculopathy is present, criteria 2 of DRE II. requires a person to have “…an imaging study that demonstrates a herniated disc at the level and on the side that would be expected”. The requirement to have an imaging study as described above is not optional given the wording used in AMA 5. On that basis, it was not open to the Appeal Panel to conclude that the appellant had “clinically significant radiculopathy” when they have not identified the imaging study that supports that finding;
(y)    it was not open to the Appeal Panel to find that the appellant warranted an assessment under DRE II;
(z)    the Appeal Panel should reconsider its decision dated 18 March 2021 [sic];
(aa)    the MAC issued with the Statement of Reasons dated 21 June 2021 should be revoked, and
(bb)    the MAC of Dr Richard Crane should be reinstated.

The appellant’s submissions dated 19 July 2021 include the following:
(a)    the appellant opposed the application for reconsideration. The essence of the respondent’s request for reconsideration is that the decision of the MAP was affected by errors of fact and/or discretion;
(b)    the decision in Samuel involved consideration of the reconsideration power under s 350(3) of the 1998 Act. In that decision, Roche ADP observed at item 6 of paragraph 58: “Given the broad power of ‘review’ in section 352…the reconsideration power is section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion…”;
(c)    the request for reconsideration raised matters that were effectively alleged errors of fact or discretion. The correction of these alleged errors (noting the applicant disputes the decision of the MAP was affected by error) is more properly a matter for judicial review by the Supreme Court. On this ground alone, the respondent’s request for reconsideration should be rejected;
(d)    in relation to the substance of the respondent’s request for reconsideration, the applicant: (i) disputes the matters raised by the respondent provide grounds for reconsideration; (ii) disputes the decision of the MAP was affected by error, and (iii) submits the request for reconsideration should be dismissed;
(e)    in relation to a finding of a “specific injury”, the respondent asserted that it was not open to the Appeal Panel to find the appellant worker sustained a “specific injury” and the only conclusion open for the Appeal Panel was to find that the appellant worker suffered a “soft tissue injury”. The respondent further submitted that the reference to a “specific injury” in AMA 5 requires more than a minor soft tissue injury or strain. The submissions were made in the Notice of Opposition to Appeal and the respondent is seeking to ventilate issues that were already considered and determined by the Appeal Panel;
(f)    there was nothing in the wording of AMA 5 or the Guidelines to suggest that a finding of DRE II was incompatible with a worker having suffered a “soft tissue injury” or that reference to a specific injury in AMA 5 required more than a worker suffering a “soft tissue injury”;
(g)    the respondent provided no authority for the proposition that a “soft tissue injury” was not a “specific injury”;
(h)    further, it was incorrect to describe the appellant worker’s injury as a “soft-tissue” injury. In accordance with the COD of the WCC dated 20 June 2014 (page 47 of the ARD) the Commission determined the applicant:
“Suffered personal injury to his low back, left hip, and right knee in the course of his employment with the respondent on 2 August 2011, such injury involving a disc bulge at L4/5 and the aggravation of degenerative changes”;
(i)    in relation to the finding of “clinical significant radiculopathy”, the respondent’s submissions were misguided. It was our understanding that the Appeal Panel did not find the appellant worker had clinically significant radiculopathy at the time of the MA’s examination;
(j)    a finding of “significant radiculopathy” places an injured worker in DRE-III, not DRE-II (refer Table 15-3 of AMA-5 (page 384) as well as clause 4.30 of the Guidelines). The Appeal Panel decided that the appellant worker fell into a DRE-II category of impairment as: (i) The clinical history and examination findings were compatible with a “specific injury”; (ii) The appellant had radicular complaints of pain or sensory features that followed an anatomical pathway, and (iii) The appellant’s radicular complaints fell short of his having “verifiable radiculopathy” in the sense referred to in clause 4.27 of the Guidelines (hence he did not warrant a DRE-III category of impairment);
(k)    if the Appeal Panel had found that the appellant worker suffered from clinically significant radiculopathy at the time of the AMS’s examination, then the appellant should have been assessed as falling into a DRE-III category of impairment, with 10% WPI of the lumbar spine (after a 1% WPI allowance for activities of daily living and a 1/10th deduction for pre-existing degenerative changes);
(l)    with respect to DRE-II, this is satisfied if: (i) The clinical history and examination findings are compatible with a “specific injury” and (ii) There are findings on examination that are compatible with a DRE-II category of impairment (refer Table 15-3 of AMA-V (p384)). These findings “may include” (iii) Significant muscle guarding or spasm observed at the time of the examination; (iv) Asymmetric range of motion; (v) Non-verifiable radicular complaints (defined as complaints of radicular pain without objective findings); (vi) No alteration of structural integrity; (vii) No significant radiculopathy, and (viii) The worker had clinically significant radiculopathy (with imaging consistent with this) but no longer has radiculopathy following conservative treatment;
(m)     with respect to imaging, as the above criteria make clear, it is not a necessary condition of DRE-II that a worker has imaging demonstrating a herniated disc. Rather this is simply one criterion that qualifies an injured worker for a DRE-II assessment. In any event, there was evidence to support the finding that the appellant previously had clinically significant radiculopathy supported by imaging, namely, the medical report of Dr Clive Sun dated 15 October 2011 (page 18, ARD) wherein Dr Sun reported that the MRI of the lumbar spine showed “L4/5 disc protrusion encroaching on the left nerve root”;
(n)    the Appeal Panel observed the AMS found on examination that the appellant had reduced sensation below the knee on the lateral side of the leg and dorsum of the foot. The Appeal Panel concluded that these findings were significant as they described symptoms in the L5 distribution. It was noted that these findings satisfied one of the major criteria for radiculopathy set out in clause 4.27 of the Guidelines;
(o)    the respondent did not dispute this finding, rather, they disputed that it was “not open” for the MAP to conclude that “radiculopathy was present”. For the reasons noted above, this represents a fundamental misreading of the decision of the Appeal Panel’s decision as well as a misreading of the criteria for a DRE-II category of impairment;
(p)    the Appeal Panel’s findings evidence no error and comfortably place the appellant in a DRE-II category of impairment with respect to the lumbar spine;
(q)    the respondent’s submissions are misguided and founded on an incorrect reading of the decision of the MAP. The respondent’s submissions should be rejected;

(r) the application for reconsideration should be dismissed.

Section 378 of the 1998 Act provides:
“Reconsideration of decisions
(1)     The Registrar, an approved medical specialist or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar, the approved medical specialist or the Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2)     Without limiting subsection (1), if the Registrar, an approved medical specialist or an Appeal Panel is satisfied there is an obvious error in the text of a decision, the Registrar, approved medical specialist or Appeal Panel may alter the text of the decision to correct the error.
(3)     The Registrar, an approved medical specialist or an Appeal Panel must reconsider any matter referred to it for reconsideration not later than 2 months after the referral is made.
(4)     An altered or amended decision is taken to be the decision of the Registrar, approved medical specialist or Appeal Panel.
(5)     Nothing in this section affects any other power under this Act or the 1987 Act to review or amend a decision.
(6)     In this section, "decision" includes an assessment or further assessment by an approved medical specialist or an Appeal Panel.”

The power contained in section 378 is discretionary. The Registrar’s Guideline contains some guidance as to the matters that may be relevant to the exercise of the discretion. Such factors include:
·        the statutory objective of the Commission to provide a fair system of dispute resolution (s367 (1)(a));
·        the reasons for, and extent of any delay in bringing the request to the Commission;
·        the public interest in the finality of litigation;
·        new evidence which could not reasonably be obtained prior to the decision the subject of request for reconsideration;
·        whether a claim or defence could have been pursued in the original proceedings, and
·        the substantial merits of the case and the requirement for the Commission to do justice to the parties.
The principles applicable to the reconsideration power under s 350(3) of the 1998 Act were considered by Roche A-DP in Samuel. The principles identified were as follows:
“(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)     While the word “decision” is not defined in s 350, it is defined for the purposes of s 352 to include “an award, order, determination, ruling and direction”. In Roche’s ADP’s view “decision” in s 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
(3)    While 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) 1 NSWLR 413);
(4)    One of the factors to be weighted 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);
(5)    Reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained during the first proceeding 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 Robin & Sons Pty Ltd (1993) NSWCC 36; (1993) 9 NSWCCR 642);
(6)    Given the broad power of “review” in s 352 (which was not universally available in the Compensation Court of New South Wales) the reconsideration provision in s 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 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;
(8)    A mistake or oversight by a legal advisor 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 v Hilliger (1952) 52 SR (NSW) 105) and s 354(3) of the 1998 Act).”
Section 350 applied to decisions of the WCC as constituted by an arbitrator or presidential member but “the Commission” referred to in s 350 did not include a medical appeal panel (Campbelltown City Council v Vegan [2006] NSWCA 284). Section 350 has been repealed but the statement of legal principle under s 350 by ADP Roche in Samuel provide material guidance in considering the merits of the reconsideration application in the present case.
The Appeal Panel considers that these principles are relevant to a reconsideration pursuant to s 378 of the 1998 Act.
The Panel notes that the reconsideration power has been used in the Commission to address a manifest injustice (Nan v Country Freight Services Pty Limited (2006) NSWWCCPD 160), and where new evidence is available that could not with reasonable diligence have been obtained during the first proceeding is later obtained and that new evidence would have a significant influence on the outcome or where time for lodging an appeal had passed and where there was a recent decision of a higher court which would lead to a different interpretation of the law (NSW Police v Gilmore (2007) NSWWCCPD 178). However, cases in which there was a refusal to reconsider a commission decision include cases where there has been no change to the law such as to favour or require reconsideration of the original decision (Bluescope Logistics Co Pty Ltd (formerly BHP Transport & Logistics Pty Limited) v Finlow (2006) NSWWCCPD 338), cases where there is no new evidence leading to a different result (Ljubicic v Akora Holding Pty Ltd (2006) NSWWCCPD 291; Newby v NSW Police Force (2009) NSWWCCPD 100). In Woodbury v Peter Miles and Annie Miles (No 2) (2008) NSWWCCPD 92 it was held that an allegation of error of law or denial of natural justice against a determination of an Arbitrator should be dealt with by way of appeal, not reconsideration.
In Martinovic v Workers Compensation Commission of NSW & Ors (2019) NSWSC 1532 Adams J considered the principles applicable to a review under s 350(3) of the 1998 Act at [91]-[101]. She set out the nine principles found at 58(e) in the decision of Samuel and noted that the Arbitrator had applied the test set out in Samuel and proceeded on the basis that he was required to consider the “substantial merits of the case in accordance with his duty to do justice between the parties”. Adams J said at [93]-[95], [100]:

“93. Mr Martinovic did not contend that the Arbitrator misstated the relevant principles. The Arbitrator set out the relevant principles in some detail at [19]–[25] of his reasons, including the passage from Samuel extracted above. The Arbitrator also referred to the decision in Nan v Country Road Freight Services Proprietary Limited [2006] NSW PD 160 where ADP Snell observed at [58]:
‘... It is inappropriate to restrict exercise of the reconsideration power contained in s 350(3) of the (1998) to “exceptional circumstances” where reconsideration is necessary to address a manifest injustice.’
94. This Court has dealt with other decisions concerning s 350 of the 1998 Act on the basis that the principles in Samuel are applicable: McCallum J in Ljubisavljevic v Workers Compensation Commission of New South Wales [2010] NSWSC1358 at [43]-[44] , Stevenson J in Ali Ali v Rockdale City Council [2015] NSWSC 1481 at [43] –[44] at and Harrison AsJ in Rail Corp NSW v Registrar of the WCC of NSW [2013] NSWSC 231 at[54]-[56]. In Rail Corp NSW her Honour stated the following at [56]:
“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).”
95. The principles stated by Roche ADP in Samuel relied heavily on the decision of the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413.
…
100. Despite this, although there is no express reference in Samuel to any principle to the effect that in a review under s 350, an arbitrator may decline to intervene even if “clear” error is noted. Both Mr Martinovic and Corporate Projects accepted that the principles in Samuel were applicable. Those principles include that an arbitrator exercising his or her power under s 350 has a “duty to do justice between the parties according to the substantial merits of the case”. I am satisfied that the reference to the “merits of the case” in this context of balancing competing interests necessarily implies that it is open, within the broad discretion conferred in s 350(3), to find error and yet dismiss the application.”

The Appeal Panel accepted that there was no delay by the respondent in seeking a reconsideration in this matter. Further, there is no fresh evidence relied on by the respondent.
The respondent argued that the merits of the submissions made by the respondent warranted a reconsideration of the Appeal Panel’s decision and it was in the interests of justice that the Appeal Panel exercise its discretion to reconsider this matter.

The Appeal Panel proceeded to consider the “substantial merits of the case in accordance with its duty to do justice between the parties”.
The respondent submitted that the “crux” of the reasons of the Appeal Panel were: (a) the worker satisfied DRE II because there was clinical history and examination findings that were compatible with a “specific injury”, and (b) in the alternative, the Appeal Panel relied on a different criteria under DRE II, being that the “individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disk at the level and on the side that would be expected…” [sic].
The respondent submitted that the findings of the Appeal Panel were inconsistent with the correct application of AMA 5 and the Guidelines.
The respondent submitted that AMA 5 set out three criteria for DRE II and if a worker satisfies any of them, they warranted an assessment in accordance with DRE II. The respondent noted that one of the criteria was irrelevant in this matter as it related to fractures and therefore the two relevant categories were (at page 384):

“Clinical history and examination findings are 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 non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy (referred to as ‘criteria 1’ by the respondent).
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 the radiculopathy following conservative treatment ‘referred to as criteria 2’ by the respondent.”

The first submission from the respondent concerned with the criteria in AMA 5 for DREII was in relation to the finding of a “specific injury” made by the Appeal Panel. The respondent argued that the only conclusion open for the Appeal Panel was to find that the appellant worker suffered a “soft tissue injury” and that the reference to a “specific injury” in AMA 5 requires more than a minor soft tissue injury or strain.
These submissions were made in the Notice of Opposition to Appeal and the respondent is seeking to reargue issues that were already considered and determined by the Appeal Panel.
There is nothing in the wording of AMA 5 or the Guidelines to suggest that a finding of DRE II is incompatible with a worker having suffered a “soft tissue injury” or that reference to a specific injury in AMA 5 requires more than a worker suffering a “soft tissue injury”. The respondent provided no authority for the proposition that a “soft tissue injury” is not a “specific injury”.
At paragraph 35 of its decision, the Appeal Panel wrote:

“The Appeal Panel considered that the mechanism of injury was significant in this case, that being a heavy fall with the appellant landing on his left buttock (Canterbury Hospital ED Discharge Referral 2 August 2011). This injury resulted in him being off work for two to three months. The Appeal Panel considered that the clinical history and examination findings were compatible with a specific injury.”

The respondent noted that the history taken in the Canterbury Hospital ED Discharge referral (page 5 of the ARD) was that the appellant “was pulling end of operating theatre table when over balanced with end of bed in hands landing on left buttock…”. The respondent stated that there was no reference to a “heavy fall” in the discharge referral and it was not open to the Appeal Panel to infer that the appellant suffered a “specific injury” in order to satisfy criteria for DRE II.

In his statement dated 15 February 2020 (page 180 of the ARD), the appellant wrote: “In pulling this bottom part of the operating table out, I suddenly felt severe pain in my low back. I fell backwards heavily…”.
In the Canterbury Hospital ED Discharge dated 2 August 2011, Dr Chu made a diagnosis of soft tissue injury and strain of back muscle and under impression wrote “1. Soft tissue injury inferomedial aspect right thicg [sic] 2. Soft tissue and musculoskeltal [sic] injury left lumbar region and buttock”. An x-ray of the lumbar spine was performed at Canterbury Hospital on 2 August 2011.
The MA noted that the appellant was off work for two to three months after the injury on
2 August 2011 and had physiotherapy for six months after the incident and later attended a
gymnasium program, mainly directed towards his lower back and right knee. He was also treated with a TENS machine and prescribed Panadeine, Oxycontin, Mobic and about one month later, Nurofen.
The respondent submitted that AMA 5 contained examples of varying circumstances to assist assessors in categorising a worker into the appropriate DRE category and that the Appeal Panel did not address those submissions in its decision despite its relevance to the present matter. The respondent argued that as a result, the Appeal Panel did not discharge is obligation to provide reasons on this issue, and to explain why their conclusion was preferred to that offered by the respondent, as required by the decision in Campbelltown City Council v Vegan [2006] NSWCA 284.
In particular, the respondent referred to Example 15-1 in AMA 5, which is an example of an assessment of 0% impairment due to lumbar injury. In that example the subject hurt his back while lifting and examination shortly after the injury was normal except for a slight decrease in lumbar motion due to pain. The individual was treated with an analgesic and was off work for three days and then returned to work and continued to work. A diagnosis was made of “minor lumbar strain”. No clinical studies were performed. At the time of the impairment evaluation there were no objective findings and the individual was assigned lumbar DRE category I. There are very significant and obvious differences in the history and findings on examination between the subject in Example 15-1 and the appellant. For example, in the appellant’s case, there was no diagnosis made of a “minor lumbar strain”.
The respondent also referred to Example 15-2 in AMA 5 in which the subject was assessed as having 5%-8% impairment due to lumbar injury. In this example, the subject was diagnosed with a left posterolateral disk [sic] herniation L5-S1 with the comment: “This individual had a radiologically confirmed herniated disk, at the level and side expected from physical examination. Most symptoms resolved with conservative treatment. At the time of evaluation, the individual was doing well, with no evidence of residual radiculopathy”. Again, this subject’s history and findings on examination are distinguishable from the applicant’s history and findings in the current proceedings. Further the method of assessment used in Example 15-2 was, to use the respondent’s term, an assessment under “criteria 2” in Table 15-3 and as such the method of assessment did not require a specific injury.
In the view of the Appeal Panel, the references to the examples in Chapter 15 did not assist at all in the assessment of impairment in this case.
The respondent argued that the mechanism of injury was irrelevant to a finding of “specific injury”, as the examples in AMA 5 concentrate on the diagnosis. This submission did not reflect the fact that the examples in Chapter 15 of AMA 5 all contain a history of the injury, including cause or mechanism of injury. The history, including the cause or mechanism of injury, is, in most cases, an essential part of the assessment process and the diagnosis.
The Appeal Panel noted that the respondent argued that an individual could theoretically fall down a flight of stairs and sustain only soft tissue injuries. The respondent appeared to have assumed that a soft tissue injury was a minor injury. The Appeal Panel disagreed with this general assumption as soft tissue injuries can in some cases be very serious and result in significant impairment. Each assessment depends on the evidence available in that specific matter and such references to theoretical situations do not assist in the determination of matters before the Appeal Panel.

The Appeal Panel considered that there was no merit at all in the respondent’s submissions as to a finding of specific injury. The Appeal Panel did not consider that it is incumbent on the Appeal Panel to specifically address in their decision the various examples in AMA 5 when these examples can be clearly distinguished from the particular case being assessed. If the respondent considered that the Appeal Panel did not discharge its obligation to provide reasons on this issue, it was open to the respondent to seek prerogative relief in the Supreme Court. The respondent’s submissions that the Appeal Panel did not give adequate reasons are without substance.
In Wingfoot Australia Partners Pty Ltd v Eyup Kocak (2013)252 CLR 480; [2013] HCA 43 (Wingfoot) the High Court said:
“[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
...
[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
The Appeal Panel considered that its earlier decision sufficiently complied with the standard required of reasons as stated in Wingfoot at [55] and adopted by Davies J in Workers Compensation Nominal Insurer v Arcaba [2016] NSWSC1647 as being applicable to a Medical Appeal Panel. The Statement of Reasons in the Appeal Panel’s original decision adequately explained the actual path of reasoning.
The second submission by the respondent was that the Appeal Panel erred in finding that there was “clinically significant radiculopathy”. The respondent argued that the Appeal Panel also relied on a different criterion under DRE II, that is, to use the respondent’s term, criterion 2 above, in that the appellant had “clinically significant radiculopathy” and had an imaging study that demonstrates a herniated disk [sic] at the level and on the side that would be expected which warranted an assessment of DRE II.
The respondent submitted at paragraph 27 of the submissions dated 12 July 2021 that the Appeal Panel noted that the MA’s finding of sensation being slightly reduced below the knee on the lateral side of the foot was a symptom of L5 distribution and “that this was a major criterion outlined in paragraph 4.27 of the Guidelines, meaning that the appellant satisfied a finding of clinically significant radiculopathy”.
This submission misstates the findings of the Appeal Panel.
The relevant paragraphs of the decision are [36]-[39]:
“36. The MA in the MAC stated that the examination of the lumbar spine did not show any evidence of dysmetria, muscle spasm or guarding, or suggestion of radiculopathy and assessed the lumbar spine as DRE I with 0% WPI.
37.    This assessment of the lumbar spine as DRE I and the statement that the examination did not show any suggestion of radiculopathy were inconsistent with the finding by the MA that sensation was described as slightly reduced below the knee on the lateral side of the leg, and the dorsum of the foot. The MA clearly described symptoms in an L5 distribution. This was a significant clinical finding. A finding of reduced sensation below the knee on the lateral side of the leg and the dorsum of the foot was a finding of reduced sensation in the L5 dermatome region which is a major criterion of radiculopathy as set out above in paragraph 4.27 of the Guidelines.
38.    The Appeal Panel concluded that the inconsistency between the findings on examination by the MA and his statement that there was no suggestion of radiculopathy was a demonstrable error and the assessment was made on the basis of incorrect criteria.
39.    Taking into account the finding of reduced sensation in the L5 dermatome region and the fact that the clinical history and examination findings were consistent with a specific injury, the Appeal Panel concluded that on balance the appellant fell into DRE II rather than DRE I. The Appeal Panel assessed 5% WPI in respect of the lumbar spine. “
The Appeal Panel considered that it was very clear from the decision that the assessment of DRE II was made on the basis of the finding of reduced sensation in the L5 dermatome region and the fact that the clinical history and examination findings were consistent with a specific injury. This was an assessment, to use the respondent’s reference, under criteria 1, that is:
“Clinical history and examination findings are 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 non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy (“criteria 1”).
The Appeal Panel did not make a finding of or conclude that the appellant had clinically significant radiculopathy. The Appeal Panel made no reference to a herniated disc. The Appeal Panel did not make an assessment under criterion 2, that is:
“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 the radiculopathy following conservative treatment (‘criteria 2’)”.
The Appeal Panel determined that finding of reduced sensation below the knee on the lateral side of the leg and the dorsum of the foot was a finding of reduced sensation in the L5 dermatome region which is a major criterion of radiculopathy as set out above in paragraph 4.27 of the Guidelines. However, that finding did not amount to a finding of “clinically significant radiculopathy” but rather a finding that the appellant had a non-verifiable radicular complaint of reduced sensation in the L5 dermatome region. The Appeal Panel merely pointed out that this was a significant clinical finding and also a major criterion of radiculopathy under paragraph 4.27 of the Guidelines. If the Appeal Panel had made a finding that radiculopathy was present, the Appeal Panel would have had to have found that there was another criteria of radiculopathy as set out in paragraph 4.27 of the Guidelines and the appellant would have been assessed as DRE III.
The Appeal Panel made the assessment of DRE II under clause 4.18 of the Guidelines which provides:

“DRE II is a clinical diagnosis based upon the features of the history of the injury and clinical features. Clinical features which are consistent with DRE II and which are present at the time of assessment include radicular symptoms in the absence of clinical signs (that is, non-verifiable radicular complaints), muscle guarding or spasm, or asymmetric loss of range of movement. Localised (not generalised) tenderness may be present. In the lumbar spine, additional features include a reversal of the lumbosacral rhythm when straightening from the flexed position and compensatory movement for an immobile spine, such as flexion from the hips. In assigning category DRE II the assessor must provide detailed reasons why the category was chosen.”

The clinical feature consistent with DRE II present at the time of assessment was radicular symptoms in the absence of clinical signs (that is non-verifiable radicular complaints).
Since the Appeal Panel did not make an assessment under criterion 2 in Table 15-3 of AMA 5, it was not necessary for the Appeal Panel to give the respondent an opportunity to respond to whether or not the appellant satisfied criteria 2 of DRE II.
The Appeal Panel was satisfied on the basis of all the evidence that its original determination was correct and was made according to law.
In summary, after considering the “substantial merits of the case in accordance with its duty to do justice between the parties” and the public interest that litigation should not proceed indefinitely, the Appeal Panel concluded the submissions made by the respondent lacked merit and that this was not an appropriate case for exercising the reconsideration discretion in the respondent’s favour.

Accordingly, the Panel declined to reconsider its decision and has decided that the Appeal Panel’s decision of 21 June 2021 stands as the determination of the Appeal Panel.

[2021] NSWPICMP 210

5 November 2021