Tough v Protech Personnel Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tough v Protech Personnel Pty Ltd [2024] NSWPIC 454
APPLICANT:	Shannon Tough
RESPONDENT:	Protech Personnel Pty Ltd
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	27 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; section 57; sections 329(1)(b) and 329(1A) of Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); application for reconsideration; worker’s claim for lump sum compensation included scarring (TEMSKI); pleadings restricted to the lumbar spine and only this body system was referred to the Medical Assessor (MA); worker content with Medical Assessment Certificate (MAC), but when the employer appealed, the worker discontinued the substantive and appeal proceedings; parties agreed that the discontinued proceedings should be restored; dispute as to whether the claim should be referred back to the MA to assess the scarring; Skates v Hills Industries Ltd, Howell v Stringvale Pty Ltd, Schipp v Herfords Pty Ltd and Samuel v Sebel Furniture Limited discussed and applied; Held – medical dispute that was referred to the Commission always included scarring (TEMSKI) and the referral to MA did not reflect this; the employer was on notice when IME report served; prejudice to the worker outweighed that of the employer, who could still file a fresh appeal; in the interests of justice between the parties, application for reconsideration granted; claim remitted to the President for referral back to MA to assess scarring.
DETERMINATIONS MADE:	The Commission determines: 1. The name of the respondent is amended to Protech Personnel Pty Ltd. 2. The Elections to Discontinue filed in W3479/23 and M1-W3479/23 are revoked and both sets of proceedings are restored. 3. The applicant’s application pursuant to s 57 of the Personnel Injury Management Commission Act 2020 for reconsideration in accordance with ss 329(1)(b) and 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 4. Page 8 of the Application to Resolve a Dispute will be amended as follows: “Systems Claimed: Lumbar spine and scarring (TEMSKI)”. 5. I remit this matter to the President for referral to back to the Medical Assessor, Dr Anderson pursuant to ss 329(1)(b) and 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment as follows: (a) Date of injury: 30 May 2019 – personal injury. (b) Body systems / parts: (i) Scarring (TEMSKI). 6. The Medical Assessor is directed to provide a further Medical Assessment Certificate that incorporates his assessment of whole person impairment of the lumbar spine assessed in his Medical Assessment Certificate dated 13 July 2023. 7. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Medical Assessment Certificate dated 13 July 2023, and (d) a copy of this Certificate of Determination. 8. The appeal proceedings in M1-W3479/23 are stayed pending the outcome of the further assessment by the Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Shanon Tough (the applicant) is 42-years-old and commenced employment with Protech Pty Ltd (the respondent) as a construction labourer in April 2018.
There is no dispute that the applicant injured his back on 30 May 2019 when using a large plate compacter to backfill a culvert. Liability was accepted by Employers Mutual NSW Ltd (the insurer), and weekly compensation was paid until 10 December 2022. Medical expenses have also been paid.
On 22 September 2021, Dr McEntee performed an L4/5 disc replacement at the Gold Coast Private Hospital. The applicant was off work for six to seven months following the surgery. This procedure was the subject of a dispute that was determined in the Personal Injury Commission (the Commission) in the applicant’s favour by Member Homan in matter no. W1811/21 on 26 July 2021.
On 6 February 2023, the applicant’s solicitor, Mr Gilbert, served a notice of claim on the insurer in respect of lump sum compensation of $54,890, based on a report of Dr Kinny dated 23 January 2023. He assessed 20% whole person impairment of the applicant’s lumbar spine and 1% whole person impairment for scarring (TEMSKI), for a combined total of 21% whole person impairment. He noted the presence of the scar on examination but did not describe it in any detail. The date of injury and a breakdown of the claim was not provided in the notice.
On 2 May 2023, the respondent’s solicitor, Mr Simmons, submitted an offer of $51,103.50 in respect of 19% whole person impairment of the lumbar spine, based on the report of Dr Robinson dated 13 April 2023.
Dr Robinson did not provide an assessment in respect of scarring (TEMSKI), although he was provided with a copy of Dr Kinny’s report. Dr Robinson noted on examination that “There is a 10 cm anterior slightly widened incision which he states is itchy and there is numbness within the confines of the scar”.
In his statement dated 8 February 2023, which attached a photograph of the operation site, the applicant referred to his scar in the following terms:
“8. I am very conscious of this scar as it is disfiguring in my public area. I am especially conscious of the scar when I am being intimate with my partner. The scar can be very clearly seen and I tend to keep my shirt on rather than have it uncovered. When I put on weight, it becomes a large crease and is very ugly. The scar rubs against my pants line which is quite uncomfortable. Please see photo attached”.
On 18 May 2023, the applicant filed an Application to Resolve a Dispute (the Application) in the Commission seeking lump sum compensation in respect 21% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) due to injury sustained on 30 May 2019.
The applicant’s claim was referred to a Medical Assessor (MA), Dr Anderson, on 5 June 2023. The terms of the referral were as follows:
“1.     MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
o   the degree of permanent impairment of the worker as a result of an injury (s319(c))
o   whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
o   whether impairment is permanent (s319(f))
o   whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury:                  30/05/2019
Body part/s referred:      Lumbar Spine
Method of assessment:   Whole Person Impairment
2.      BRIEF
The brief provided to the Medical Assessor includes:
1.the Application and attached documents
2.the Reply and attached documents”
Dr Anderson provided a Medical Assessment Certificate (MAC) on 13 July 2023. He assessed 22% whole person impairment of the applicant’s lumbar spine due to injury on 30 May 2019. In respect of the scar, Dr Anderson reported as follows:
“10. Abdomen. The mid-line surgical scar had healed reasonably well, although
was depressed and he feels it is very obvious.”
On 9 August 2023, Mr Simmons filed an Appeal against a Decision of Medical Assessor in matter no. M1-W3479/23.
On 24 October 2023, before the Medical Appeal Panel (MAP) was convened, Mr Gilbert filed an Election to Discontinue. This had the effect of discontinuing both the substantive proceedings and the appeal against the MAC.
On 31 October 2023, Mr Gilbert filed fresh proceedings in the Commission in matter no. W8104/23. The claim was similar to the prior proceedings but on this occasion the applicant identified a claim for scarring (TEMSKI) in the Application.
The matter was listed for a preliminary conference before me on 11 December 2023. The proceedings were discontinued and I issued a Certificate of Determination – Consent Orders as follows:
“By and with the consent of the parties, the Commission determines:
1. The name of the respondent is amended to Protech Personnel Pty Ltd.
2. Proceedings discontinued and I dispense with the requirement to file an Election to Discontinue.
Notations:
a. The applicant intends to seek a reconsideration of the Election to Discontinue and the referral to the Medical Assessor in matter no. W3479/23 to enable an assessment of whole person impairment for scarring (TEMSKI).
b. If the application is successful, the Medical Assessor will be asked to issue an Amended Medical Assessment Certificate that will include an assessment of whole person impairment for scarring (TEMSKI).
c. This will allow the respondent to file a fresh appeal against the Amended Medical Assessment Certificate because the previous appeal against the Medical Assessment Certificate dated 13 July 2023 was discontinued when the applicant filed an Election to Discontinue.
d. Given the history of these matters, any reconsideration application will be allocated to and determined by me.”
On 20 December 2023, Mr Gilbert sent an email to the Commission and to the respondent’s solicitor advising that the applicant was seeking a reconsideration of the referral to the MA. Submissions were attached to the email.
On 10 January 2024, Mr Simmons filed submissions in response.
The correspondence of each party was referred to me on 20 February 2024.
On 26 February 2024, the applicant was directed to file submissions in reply by 6 March 2024. The parties were advised that upon receipt of these submissions, I would determine the application on the papers. The submissions in reply were filed by the applicant on 6 March 2024.
I was not satisfied with quality of the respondent’s submissions, so I directed that the respondent file fresh submissions by 15 March 2024, and any submissions in reply were to be filed by the applicant by 22 March 2024.
Written submissions were filed by the respondent on 15 March 2024. Further submissions in reply were filed by the applicant on 22 March 2024.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties were informed of my intention to determine the dispute without holding a conciliation conference or arbitration hearing.

ISSUE FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether matters W3479/23 and M1-W3479/23 should be restored;
(b)    whether the Application in matter W3479/23 be amended to include scarring (TEMSKI);
(c)    whether the referral for assessment in matter W3479/23 be amended to include scarring (TEMSKI), and
(d)    whether the applicant’s claim should be remitted to the President for referral back to the MA to provide a further assessment of whole person impairment.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application with attached documents;
(b)    Reply with attached documents;
(c)    MAC dated 31 October 2022, and
(d)    Certificate of Determination (COD) dated 5 December 2022.

SUBMISSIONS

Applicant’s submissions

Mr Gilbert confirms that the applicant seeks a reconsideration of the referral to the MA in matter no. W3479/23 pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in accordance with Procedural Direction PIC7. Given that this application is not being made as an alternative to an appeal in accordance with s 329(1)(a) of the 1998 Act, I will treat this application as being made in accordance with ss 329(1)(b) and 329(1A) of the 1998 Act. This was confirmed by Mr Gilbert in his submissions in reply.
Mr Gilbert submits that the applicant seeks orders that matters W3479/23 and M1-W3479/23 be restored, the referral to the MA in matter no. W3479/23 be amended to include a second body system, namely scarring (TEMSKI), and any orders that the Commission deems fit to give effect to the application.
Mr Gilbert submits that the applicant made a claim for 21% whole person impairment based on a report by Dr Kinny dated 23 January 2023. Dr Kinny assessed 20% whole person impairment for the lumbar spine (after making a 10% deduction for pre-existing impairment) and 1% for scarring (TEMSKI).
Mr Gilbert submits that the Application filed on behalf of the applicant was based on Dr Kinny’s report, but inadvertently the pleadings did not seek a referral for the assessment of scarring. He submits that the error was only discovered when the MAC was issued, but no action was taken to rectify this omission as the MA had assessed 22% whole person impairment for the lumbar spine.
Mr Gilbert submits that when the respondent lodged an appeal against the MAC, the applicant sought to have the scarring included in any further assessment that might flow from the appeal. The applicant then discontinued the proceedings and the appeal before commencing fresh proceedings. The present application for reconsideration was later instituted.
Mr Gilbert submits that having regard to the principles discussed in Samuel v Sebel Furniture Limited,[1] it is in the interests of justice for the reconsideration to proceed because there is no dispute that the worker has a surgical scar arising from the accepted injury to his lumbar spine. A fair reading of the documents filed with the Application plainly reveals the nature of the dispute and it will impose no further burden on the Commission.
[1] [2006] NSWWCCPD 141 (Samuel).
Mr Gilbert submits that a reconsideration will provide the applicant with the opportunity to promptly obtain an assessment on all body parts in respect of which he has made a valid claim for lump sum compensation. It will represent no unfairness to the respondent.

Respondent’s submissions

Mr Simmons submits that in the interests of fairness, the respondent does not oppose setting aside the Elections to Discontinue filed by the applicant and having the matters W3479/23 and M1-W3479/23 restored pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the PIC Act).
Mr Simmons submits that the respondent opposes the application for reconsideration pursuant to s 329(1A) of the 1998 Act because the interests of fairness would not extend to exercising the discretion to refer the matter for assessment to the MA for reconsideration under s 329(1A) of the 1998 Act.
Mr Simmons submits that a further referral to a MA for reconsideration is essentially an application by the applicant to avoid the referral to the Medical Appeal Panel. Such an application offends procedural fairness.
Mr Simmons submits that a separate referral for assessment pursuant to an application for reconsideration, where there is already a referral in place to the medical appeal panel, offends the objectives of the Commission to facilitate the just, quick and cost-effective resolution of the matter.
Mr Simmons submits that there is an absence of adequate reasons provided by the applicant for the delay in bringing this application. The application offends the public interest in finality of litigation.
Mr Simmons submits that, having regard to cl 69 of Procedural Direction PIC7, a mistake or oversight by the legal representative may not, in itself, be determinative of whether the application for reconsideration should be granted. This consistent with Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd.[2]
[2] [1953] 27 WCR (NSW) 29, [30] (Hurst).
Mr Simmons submits that if leave is granted to restore the prior proceedings, the pending appeal before the MAP in matter M1-W3479/23 must be determined based on the evidence and submissions before the MAP.
Mr Simmons submits that in the notice of claim, the applicant’s solicitor did not particularise the claimed body parts. He conveyed an offer of $54,890 in respect of 21% whole person impairment. In the Application filed in the Commission, the applicant only referred to the lumbar spine. The applicant did not raise any issue or seek to make any amendment to those pleadings at any stage.
Mr Simmons submits that the referral to the MA only mentioned the lumbar spine. This was correct as the lumbar spine was the only body system listed in the Application.
Mr Simmons submits that the Commission’s practice and procedure requires parties to a medical dispute to advise of any objection to a Referral for Assessment within three days of the email to the parties advising of the referral. The applicant did not raise any issue with the MA referral within the three days allowed by the Commission, nor did the applicant raise any issue with the referral prior to discontinuing the proceedings in October 2023.
Mr Simmons submits that the MA did not provide an assessment for scarring in the MAC. This was correct as this was not claimed in the pleadings or in the referral. Therefore, scarring (TEMSKI) was incapable of being appealed to a MAP in respect of an additional body system. The MAC was the subject of an appeal, but prior to the decision of the MAP, the applicant discontinued the substantive matter and the appeal.
Mr Simmons submits that the applicant was given an opportunity to review the Application and the referral, and failed to make submissions as to whether it correctly stated the dispute to be referred. In the circumstances, the terms of the referral as recorded by the MA and certified by the Registrar’s delegate were terms of referral to which the applicant must be taken to have accepted as defining the dispute which the MA and the MAP were to determine.
Mr Simmons submits that the Commission in O’Callaghan v Energy World Corporation Ltd[3] held that the matters which can be appealed are limited to matters which were originally referred to the MA for assessment, and that the matters referred to in s 325 of the 1998 Act are the specific body parts or body systems referred for assessment.[4] The decision in Galea v Colourwise Nursery (NSW) Pty Ltd[5] is also helpful.
[3] [2016] NSWWCCPD 1, (O’Callaghan).
[4] O’Callaghan, [84].
[5] [2019] NSWWCC 362, (Galea).
Mr Simmons submits that as scarring (TEMSKI) had not been referred for assessment, it was not a matter capable of being appealed to the MAP in respect of an additional body system.
Mr Simmons submits that on applying the relevant principles in Samuel, the discretion to refer the matter to a MA for reconsideration under s 329(1A) should not be exercised. The lack of due diligence by the worker's solicitor, together with a mistake or oversight, does not give grounds for reconsideration. He submits that in those circumstances, together with the public interest in finality of proceedings, the application for reconsideration should not be granted.
Mr Simmons submits that the respondent opposes an order that the referral for assessment in matter W3479/23 be amended to include scarring (TEMSKI) and for the applicant to be referred back to the MA for an assessment of scarring (TEMSKI). The scarring (TEMSKI) had not been a matter referred originally for assessment by the MA and therefore was a matter incapable of being appealed to the MAP in respect of an additional body system.
Mr Simmons submits that the respondent will be prejudiced if the referral be amended to include a second body system which was not pleaded at any stage within the letter of demand or the Application and if the applicant is allowed be to undergo a further assessment as part of any restored proceedings.
Mr Simmons submits that the respondent does not oppose setting aside the Elections to Discontinue and having the matters W3479/23 and M1-W3479/23 restored pursuant to s 57(1) of the PIC Act so that the respondent’s appeal against the MAC can appropriately be determined by the MAP.

Applicant’s submissions in reply

Mr Gilbert submits that the respondent does not point to any actual prejudice that night be occasioned by the orders sought by the applicant.
Mr Gilbert submits that a reasonable person in the respondent’s shoes having regard to the letter of offer and Dr Kinny’s report would have understood that the claim for lump sum compensation included an assessment of 1% whole person impairment for scarring.
Mr Gilbert submits that what the respondent is really saying is that it would be unfair if the respondent was not able to take advantage of the error of the applicant’s lawyer in not including the scarring in the Application.
Mr Gilbert submits that the delay was not significant, and the respondent has not made any submission as to how it was or would be prejudiced by any delay. The appeal panel had not been convened and the matter had not been concluded.
Mr Gilbert submits that the applicant seeks a reconsideration pursuant to ss 329(1)(b) and 321(1A) of the 1998 Act.
Mr Gilbert submits that the respondent has not demonstrated any actual unfairness or prejudice that would be caused if the reconsideration applicant was granted. A reasonable person in the respondent’s shoes reading the letter of offer and Dr Kinny’s report would have understood that the claim for lump sum compensation included an assessment of 1% whole person impairment for scaring (TEMSKI). The respondent is actually submitting that it would be unfair if the respondent was not able to take advantage of the error in not including the scarring in the Application.
Mr Gilbert submits that the delay was not significant because the MAP had not been convened and the matter had not been concluded.

Legislation

Section 57 of the Pic Act with the reconsideration power of the Commission. It provides:
“57    Reconsideration of decisions of Commission
(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 the stated reasons.”
Section 329 of the 1998 Act deals with referrals for further assessment by a MA. It provides:
“329 Referral of matter for further medical assessment or reconsideration
(1) A matter referred for assessment under this Part may be referred a gain 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.”

Reasons

Should W3479/23 and M1-W3479/23 be restored?

Before there can be any reconsideration of the referral to the MA, the Elections to Discontinue filed in W3479/23 and M1-W3479/23 would need to be revoked and both sets of proceedings restored.
As both parties agree that the matters should be restored, I propose to do so.

Should the Application and the referral for assessment in matter W3479/23 be amended to include scarring (TEMSKI)?

Section 57 of the PIC Act confirms that provides that the Commission can rescind, alter or amend any decision previously made or given by the Commission. The referral to the MA qualifies for this.
Mr Simmons has referred me to a number of decisions in support of the respondent’s case. In my view these authorities can be distinguished from the facts in the present matter.
In O’Callaghan, Acting President Roche, as he then was, was required to determine whether an Arbitrator was in error when he declined to set aside consent orders by way of a reconsideration under s 350(3) of the 1998 Act.
Ms O’Callaghan’s lump sum claim in respect of her lumbar spine was referred by consent to and Approved Medical Specialist (AMS). She was assessed with 10% whole person impairment. Ms O’Callaghan’s neck condition deteriorated and an Application was filed in the Commission with respect to a threshold dispute Ms O’Callaghan’s lumbar and cervical spines. These proceedings were discontinued and she attempted to appeal the MAC. When the appeal was rejected by a delegate, Ms O’Callaghan sought a reconsideration of the original consent orders on the grounds that there had been a deterioration in her neck condition.
The Arbitrator declined to reconsider the matter because the deterioration in s 327(3)(a) of the 1998 Act must relate to the original impairment that was assessed by the AMS, and his decision was confirmed on appeal by Acting President Roche, who indicated that it was not open to the worker to lodge an appeal against an assessment that the AMS did not make with respect to the cervical spine. The Acting President commented:
“…an AMS can only give a certificate as to the matters referred for assessment. To say that the Medical Appeal Panel is not restricted to the matters in the original referral to the AMS ignores the fact that a matter does not get to a Medical Appeal Panel unless and until the Registrar is satisfied that, on the face of the application and any submissions made in support of it, at least one of the grounds for appeal specified in subsection (3) has been made out.”[6]
[6] O’Callaghan, [84].
The Acting President also cited with approval Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW & Anor.[7] In that matter, Malpass AJ stated:
“The prescription contained in subsection (1) of s 325 requires the approved medical specialist (AMS) to give a certificate as to the matters referred for assessment. It is significant that the provision appears to distinguish between ‘a medical dispute’ and ‘the matters referred for assessment’. The statutory function of the AMS is to give a certificate as to those matters.
[7] [2006] NSWSC 322 (Aircons).
[8] Aircons, [20]-[21].
I am satisfied that the medical assessment certificate given by Dr Fry contains demonstrable error. He has addressed matters other than those referred to him for assessment. He has not given a certificate as to the matters referred for assessment. …”[8]
In Galea, the worker filed an application for consideration, seeking that a COD, be rescinded so that an appeal against a MAC in respect of a threshold dispute could proceed pursuant to s 327 of the 1998 Act on the grounds that there had been a deterioration in her condition.
The Arbitrator set aside the COD as he was satisfied that there had been a deterioration in her condition, but the appeal against the MAC could only relate to the assessed body parts, and no the further body part, namely the cervical spine, which had not been the subject of a prior assessment.
Of course, the facts in the current case differ from those in O’Callaghan and Galea. The medical evidence relied upon by those workers did not include any claim in respect of their cervical spines in the original claims. In the present matter, Dr Kinny provided an assessment for scarring (TEMSKI).
In the initial submissions filed by Mr Simmons, he cited the Court of Appeal decision in Skates v Hills Industries Ltd[9] and suggested that case law does not permit the Commission to go beyond the initial scope of the referral to the MA. Such an interpretation is without merit. Curiously, Mr Simmons did not rely on this decision in his amended submissions. The decision is directly on point and requires some analysis.
[9] [2021] NSWCA 142, (Skates).
In Skates, the worker’s injuries were described in the Application as left wrist, ring finger and scarring. Those injuries were not disputed by the insurer.
The lump sum claim in the Application referred to the worker’s left upper extremity, joint ring finger and scarring. The MA provided an assessment of 60% whole person impairment because he considered that Mr Skates has an essentially useless left arm as a result of impairments in the shoulder, elbow, fingers and thumb. The wrist was not assessed. The respondent appealed on the grounds that the MA had assessed body parts which did not form part of the referral. A MAP acknowledged the terms of the referral, revoked the MAC and assessed 7% whole person impairment.
Mr Skates sought judicial appeal in the Supreme Court and succeeded on the ground that the MA had not assessed the worker’s left wrist but agreed that the MAP was correct to revoke the MA assessment because he had gone beyond the terms of the referral. Although the matter was remitted back to the Commission, Mr Skates sought leave to appeal to the Court of Appeal. The Court granted leave to appeal, set aside the Arbitrator’s post MAC COD and remitted the matter back to Commission for a further assessment that would include Mr Skates left wrist.
Leeming JA made some important observations as follows:
“The starting point is a ‘medical dispute’. That term is defined in s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), reproduced in the other judgments. The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ …...” and
“The dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute.”[10]
[10] Skates, [44] and [46].
His Honour continued:
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.
The document signed by the Registrar’s delegate and dated 1 September 2017 described itself as a ‘Referral for Assessment of Permanent Impairment to Approved Medical Specialist’. Its first numbered subheading was ‘Medical Dispute Referred for Assessment’ and there it stated, wrongly, ‘Body part/s referred: Left Upper Extremity (joint ring finger), Scarring (TEMSKI)’. That was wrong insofar as it did not include Mr Skates’ wrist. The later referral contained the same poor language and contained additional errors. But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute. The Appeal Panel was correct to state that the Approved Medical Specialist had gone beyond assessment of the medical dispute which had been referred to him.”
Therefore, the plurality determined that the terms of the referral are not restricted to the body parts identified. Rather, the nature of the dispute between the parties must be observed.
The decision in Skates was cited with approval President Phillips in Secretary, New South Wales Department of Education v Connolly[11] and in Voudouris v TDV Constructions Pty Ltd.[12]
[11] [2023] NSWPICPD 38 (Connolly).
[12] [2023] NSWPICPD 53, (Voudouris).
It is true that Mr Gilbert failed to provide full particulars of the applicant’s claim when he served the report of Dr Kinny on 6 February 2023. He merely referred to $54,890 in respect of 21% whole person impairment. This is extremely poor practice and is the main reason why the respondent has opposed this application, but having said that, it was clear from Dr Kinny’s report that the applicant had 20% whole person impairment of the applicant’s lumbar spine and 1% whole person impairment for scarring (TEMSKI), for a combined total of 21% whole person impairment. The basis of the applicant’s claim was clear. There was a medical dispute that the parties sought to have resolved in the Commission.
The insurer retained solicitors and an offer was made by Ms Gair on 2 May 2023 in respect of 19% whole person impairment of the lumbar spine, based on the report of Dr Robinson dated 13 April 2023. She made no comment about any offer for the scarring, such as making the offer inclusive of any claim for scarring. In proceedings filed in the Commission, this is often addressed by an agreement that there will be an award for the respondent in respect of the disputed body part.
Dr Robinson did not provide an assessment in respect of scarring (TEMSKI), presumably because he was not asked for one. He noted the presence of a 10cm scar, so the insurer and its solicitor would have been on notice of some scarring that was not insignificant. The matter did not resolve, so there was a dispute that required a determination in the Commission in terms of s 319 of the 1998 Act. Each party had differing assessments.
Mr Gilbert omitted to plead the scarring in the Application, and this meant that the referral to the MA did not include this component, even though the Dr Kinny’s assessment included scarring (TEMSKI). Of course, the Commission is not a tribunal of strict pleadings and it is not bound by the rules of evidence.
The applicant’s statement which was attached to the Application clearly referred to the scarring and photographs were attached, so again the insurer and its solicitor would have been on notice of the scarring. I find it difficult to understand why these issues were not identified by the insurer and its solicitors. One would have thought that Dr Robinson would have been asked to provide an assessment for scarring in response to the report of Dr Kinny.
Unfortunately the matter proceeded directly to a MA without the scheduling of a preliminary conference. Had one been appointed, a Member would have most likely observed the deficiency in the pleadings and this would have been properly addressed.
However what is clear is that the parameters of the dispute were clear from the correspondence and attached medical reports. The nature of the dispute was clear and this involved a claim that included scarring (TEMSKI), even though the referral omitted that body system. Therefore, on the principles discussed in Skates, there are compelling reasons to reconsider the matter.

Should the applicant’s claim should be remitted to the President for referral back to the MA to provide a further assessment of whole person impairment?

Two decisions of the former Commission are of great assistance when dealing with a reconsideration application.
In Howell v Stringvale Pty Ltd,[13] Arbitrator Johnstone, as he then was, provided a useful summary of the principles regarding reconsideration of determinations pursuant to s 350(3) of the 1998 Act which has since been repealed. Nevertheless, the principles discussed in that decision are still relevant in respect of reconsideration applications. The Arbitrator stated:
[13] [2005] NSWWCC 64, (Howell).
“The subsection and its predecessors have been considered in a number of cases. Having reviewed those cases the following summary of principles may be made as to its application:
1.The power to reconsider is unlimited: Hilliger v Hilliger (1952) 52 SR (NSW) 105, but discretionary: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192. However, it is important to keep in mind the distinction between the existence of the power and the occasion of its exercise: Hilliger at 108.
2.The general rule is that public interest requires that litigation should not proceed interminably, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. Nevertheless, it is appropriate to exercise the power to remedy some manifest injustice: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].
3.The power applies to both questions of fact and law, and is not limited to changed circumstances or fresh evidence: Hardaker v Wright & Bruce Pty Ltd (1960) 62 SR (NSW) 244 at 248 and 249.
4.The section overrides the common law doctrine of estoppel: Lambidis v Commissioner of Police (1995) 12 NSWCCR 225, but the discretion should not be exercised where the party has unreasonably refrained from raising the issue in the earlier proceedings: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26]. See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
5.New evidence must be distinguished from additional evidence as opposed to fresh evidence: Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642. If the evidence was readily available at the time of the first hearing, this is a factor to be weighed in considering whether or not to exercise the discretion: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [58]. However, any new evidence must be such that it would have been a determining factor in the decision: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
6.Other grounds for the exercise of discretion include where the original decision maker did not consider an available and possibly determinative argument: Lasaitis v Email Ltd (1990) 6 NSWCCR 154 at 171A. But where the Commission does not have jurisdiction to determine the particular matter asserted, the discretion should not be exercised: Galea v Ralph Symonds Pty Ltd (1989) 5 NSWCCR 192.
7.Mistake or inadvertence on the part of legal advisers is an insufficient ground: Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] 27 WCR (NSW) 29 at 30. But disposal of litigation by legal advisers on a basis contrary to their instructions has been held to be sufficient: Sorcevski v Steggles Pty Ltd (1991) NSWCCR 315.
8.An application must be brought without delay and the matter raised must be of such a nature that it would have affected the outcome of the original decision: Southern Tableland Health Service v Solomon (1999) 19 NSWCCR 235 at [26].”[14]
[14] Howell, [27].
In Samuel, which also dealt with s 350(3) of the 1998 Act, Acting Deputy President Roche, as he then was, cited with approval the Court of Appeal decision in Schipp v Herfords Pty Ltd,[15] where the court considered the equivalent reconsideration provisions in the Workers Compensation Act 1926. He stated:
“The factors relevant to the exercise of the discretion in section 36 of the 1926 Act were considered by the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413 (‘Schipp’). The court noted the following factors were relevant in deciding whether the discretion should be exercised in favour of the moving party:
1.delay;
2.whether the worker had a right of appeal from the first decision but failed to exercise that right;
3.waiver or estoppel issues, and
4.rescinding an earlier award will allow a worker to bring fresh proceedings.”[16]
[15] [1975] 1 NSWLR 413.
[16] Samuel, [45].

The Acting Deputy President continued:
“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).”[17]
[17] Samuel, [58].
I have a wide discretion to reconsider the referral in accordance with s 57 of the PIC Act, but the discretion must be exercised fairly.[18]
[18] Samuel, [58].
When one has regard to the principles discussed in Howell and Samuel, it is clear that the principle that litigation should not proceed indefinitely must be balanced with the injustice that might arise if a decision is not revisited.
Given the threshold issues and the importance for the applicant of an assessment of 21% whole person impairment or more, on the background of an appeal having been lodged against the MAC by the respondent, it is clear that the applicant will suffer greater injustice if the Application is not amended and his claim referred back to the MA to assess his scarring (TEMSKI) before any appeal proceeds.
The present matter does not involve new evidence. Dr Kinny provided his report and the insurer and its solicitor were well aware of its contents. One could not suggest the respondent would be prejudiced by this.
According to Hurst, mistake or inadvertence on the part of legal advisers is an insufficient ground. In this matter, Mr Gilbert failed to observe the error in his pleadings and the referral. Of course, the error was not restricted to the applicant’s side, as the insurer and its solicitor seemingly overlooked the error and failed to act. As Basten J said in Skates, “The failure of both parties to raise with the Registrar the error in excluding the left wrist is inexplicable…”.[19] However, one must consider the other criteria.
[19] Skates, [36].
The concept of delay is relevant. In this matter, Mr Gilbert and his client were satisfied with Dr Anderson’s assessment in his MAC, and rightly so, given that Dr Anderson had assessed 22% whole person impairment, which was greater than the applicant’s claim.
Once the respondent filed an appeal, Mr Gilbert, as he is entitled to do, filed Elections to Discontinue that not only deprived the respondent of its right of an appeal, but also left the lump sum claim in limbo.
Mr Gilbert filed fresh proceedings one week later and when they came before me, I informed him that he would need to file a reconsideration application. This was filed reasonably quickly, so one could not say that he has been overly tardy.
It could not be suggested that the applicant unreasonably refrained from pursuing the claim in the original proceedings. His solicitor made a claim based on an assessment provided by Dr Kinny, and both Mr Gilbert, the insurer and its solicitor failed to realise the omission in the pleadings and in the referral.
I am obliged to do justice between the parties according to the substantial merits of the case. It is the objective of the Commission to provide a timely, fair and cost-effective system for the resolution of disputes. Section 43 (3) of the PIC Act provides that the Commission is to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. I have a wide discretion, but I must be fair, and justice must be done between the parties.
When one considers the principles discussed in Skates, Samuel and Howell, I need to balance the interests of justice between the parties. If I was to decline the applicant’s application, he would not have an assessment of whole person impairment for scarring (TEMSKI), which was always part of his claim and the medical dispute. It was only through inadvertence by his solicitor that he was deprived of an assessment of that body system.
Although Mr Simmons submitted that the respondent would be significantly prejudiced if the applicant was allowed to have a further assessment, he did not provide details of any prejudice.
In my view, there will be little, if any, prejudice to the respondent for two reasons. Firstly, the MA might find that the applicant has no whole person impairment due to scarring (TEMSKI), and even if there is an assessment, its rights of appeal against the new MAC will still be available.
In the circumstances, the applicant’s application pursuant to s 57 of the PIC Act for reconsideration in accordance with ss 329(1)(b) and 329(1A) of the 1998 Act is granted.
As there will be a new MAC issued by the MA that will prevail over the previous MAC in accordance with s 329(2) of the 1998 Act, there will be no utility in the appeal lodged against the original MAC continuing. The appeal proceedings will be stayed, in anticipation of the respondent withdrawing that appeal and lodging a fresh appeal.

ORDERS

The name of the respondent is amended to Protech Personnel Pty Ltd.
The Elections to Discontinue filed in W3479/23 and M1-W3479/23 are revoked and both sets of proceedings are restored.
The Elections to Discontinue filed in W3479/23 and M1-W3479/23 are revoked and both sets of proceedings are restored.
The applicant’s application pursuant to s 57 of the PIC Act for reconsideration in accordance with ss 329(1)(b) and 329(1A) of the 1998 Act is granted.
Page 8 of the Application to Resolve a Dispute will be amended as follows:
“Systems Claimed: Lumbar spine and scarring (TEMSKI)”
I remit this matter to the President for referral to back to the MA, Dr Anderson, pursuant to s 329(1)(b) of the 1998 Act for assessment of whole person impairment as follows:
(a) Date of injury: 30 May 2019 – personal injury.
(b) Body systems / parts:
(i)Scarring (TEMSKI).
The MA directed to provide a further MAC that incorporates his assessment of whole person impairment of the lumbar spine assessed in his MAC dated 13 July 2023.
The documents to be reviewed by the Medical Assessor are:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    MAC dated 13 July 2023, and
(d)    a copy of this COD.
The appeal proceedings in M1-W3479/23 are stayed pending the outcome of the further assessment by the MA.

[2024] NSWPIC 454

27 March 2024