Vikuckis v Lion-Dairy & Drinks Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Vikuckis v Lion-Dairy & Drinks Pty Ltd [2024] NSWPIC 501
APPLICANT:	Christopher Vikuckis
RESPONDENT:	Lion-Dairy & Drinks Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	10 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; section 57(1); application for reconsideration of Certificate of Determination (COD); Samuel v Sebel Furniture Limited referred to; whether there has been a deterioration in the worker’s condition that results in an increase in permanent impairment and/or additional relevant information not previously available; Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission & Ors and Petrovic v BC Service No 14 Pty Limited and Ors referred to; Held – medical evidence supports a deterioration in the worker’s condition; there is additional relevant information that was not previously available; COD revoked.
DETERMINATIONS MADE:	The Commission orders: 1. The Certificate of Determination dated 15 January 2021 is revoked pursuant to s 57 (1) of the Personal Injury Commission Act 2020. 2. The matter is remitted to the President to determine: (a) if the grounds for appeal specified in s 327 (3)(a) or (b) of the Workplace Injury Management and Workers Compensation Act 1998 has been satisfied; and, if so (b) whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329 (1) of the Workplace Injury Management and Workers Compensation Act 1998.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Christopher Vikuckis, sustained an injury to his left wrist due to repetitive lifting, a consequential condition affecting his right wrist, and an injury to the left knee due to constant walking up and down stairs, while employed as a warehouse operator with the respondent, Lion-Dairy & Drinks Pty Ltd.
The respondent admits liability for these injuries.
Dr Assem, Approved Medical Specialist, issued a Medical Assessment Certificate (MAC) on 7 December 2020 which assessed the applicant as having 12% whole person impairment (WPI) for a deemed date of injury of 2 May 2019, being the date of the claim made by the applicant for a lump sum payment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The assessment of WPI made by Dr Assem was assessed as follows:
·        right upper extremity (wrist)          8%;
·        left upper extremity (wrist)             2%;
·        left lower extremity (knee)             2%, and
·        scarring  0%.
The assessment of permanent impairment of both wrists was based upon range of motion.
The Workers Compensation Commission issued a Certificate of Determination (COD) on
15 January 2021 as follows:
“The Commission determines:
1. The respondent pay the applicant, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $26,900, in respect of 12% permanent impairment resulting from injury on 2 May 2019.
Brief statement of reasons
2. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act1998.
3. The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
The applicant made an application to the Personal Injury Commission (Commission) on
9 July 2024 seeking a “Reconsideration of the Medical Assessment Certificate of
Dr Mohammed Assem dated 7 December 2020”. The applicant requests:
“1. Pursuant to s 57 (1) of the Personal Injury Commission Act 2020 that the Certificate of Determination dated 15 January 2021 be rescinded.
2. That the Personal Injury Commission accept an appeal of the MAC on the grounds of:
(a)a deterioration of the applicant’s condition resulting in an increase of the degree of impairment; and
(b)the availability of additional relevant information that was not available before the medical assessment.
3. In the alternative, that the President refer the applicant to a Medical Assessor for a further assessment as an alternative to an appeal pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).”
The application for reconsideration by the applicant has been made subsequent to the applicant undergoing surgery to the right wrist by way of an arthroscopic right scaphoidectomy with mid carpal fusion on 29 March 2022, and then being assessed by
Dr Lai in June 2023 as now having 22% WPI.
The applicant does not seek to disturb the s 66 payment, but requires the COD dated
15 January 2021 to be revoked and there to be an appeal of the MAC “in order that the worker be given the opportunity to have determined whether he has an entitlement to the benefits that an impairment greater than 20% whole person impairment would provide”.
The respondent opposes the application brought by the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the COD dated 15 January 2021 should be reconsidered and rescinded (s 57 of the Personal Injury Commission Act 2020 (the PIC Act)).

PROCEDURE BEFORE THE COMMISSION

The determination of this application has been determined on the papers in accordance with paragraph 21 of Practice Direction no 17.

EVIDENCE

The following documents were in evidence before the Commission and considered in making the determination:
(a)    Application for reconsideration and attached documents filed on 9 July 2024;
(b)    submissions in reply filed by the respondent on 19 July 2024, and
(c)    further written submissions filed by the applicant on 30 August 2024.

RELEVANT LEGISLATION

Section 322A of the 1998 Act provides:
“(1) Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) assessment and a medical assessment certificate under this Part, or
(b) a determination by the Commission under Part 4.
(4) This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
Section 327 of the 1998 Act relevantly provides:
“(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) …
(3) The grounds for appeal under this section are any of the following grounds—
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d) the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the president is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) …
(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of a determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.”
Section 57 of the PIC Act relevantly 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.”

SUBMISSIONS

The applicant’s evidence and submissions

The applicant has not provided a statement in support of his application for reconsideration. The only statement from the applicant is dated 30 October 2019, which was included in the Application to Resolve a Dispute that was filed in support of his s 66 claim.
There are multiple reports from the applicant’s treating specialist, A/Prof Nicholas Smith, from 9 June 2021 to 16 November 2022.
In his report dated 9 June 2021, A/Prof Smith writes that the applicant has had right dorsoradial wrist pain since 2007. He recommends an arthroscopic scaphoidectomy, midcarpal fusion, bone graft and first dorsal compartment release. A/Prof Smith writes that the applicant will reactivate his workers compensation claim so that a request for surgical treatment can be made by A/Prof Smith.
There is an Operation Report from A/Prof Smith dated 29 March 2022 which states that the applicant underwent a right wrist arthroscopic scaphoidectomy, midcarpal fusion, and first dorsal compartment release on that day. The Operation Report includes the following:
“The scaphoid was removed using a pituitary rongeur…Exposure of the cancellous bone was confirmed. Debris was removed…The scaphoid had been morselised using a Stryker bone drill and this was packed into the defect and sealed with Tisseel. Screws were then inserted down the wires with a neutralisation screw being used in the more radial position. Good purchase was achieved.”
A/Prof Smith writes in his last report which is in evidence dated 16 November 2022 that a migrated midcarpal screw was removed on 27 September 2022, and that radiographs show the fusion has healed and screw position is satisfactory.
Dr Min Fee Lai, general, plastic and reconstructive surgeon, has provided a report at the request of the applicant’s lawyers dated 13 June 2023.
Dr Lai records that the applicant’s work with the respondent involved heavy repetitive work with the use of his upper limbs. Dr Lai records that the applicant would have to move up to 100 wooden pallets each day, and also to operate control buttons on a production line and forklift with his left hand. Dr Lai writes: “As a result, he started to notice increasing pain in both wrists, initially the left side being worse.”
Dr Lai records the applicant undergoing surgery to both wrists on 18 September 2017, which was performed by Dr Yee. He records that the left De Quervain’s tenosynovitis improved, but the applicant continued to have pain in his right wrist. Dr Lai records that the applicant was able to source another job at PFD Foods as a picker and packer and forklift driver and “worked as tolerated”.
Dr Lai records the applicant undergoing the surgery to his right wrist on 29 March 2022 which was performed by A/Prof Smith, and an arthroscopic removal of a dislodged compression screw in September 2022.
Dr Lai diagnoses the applicant as having a rupture of the scapholunate ligament and intersection syndrome, and left De Quervain’s tenosynovitis.
Dr Lai makes an assessment of WPI of the right upper extremity based upon limited range of motion of the right thumb and right wrist, and an allowance for a scaphoidectomy as provided for by Table 16-27 of AMA 5. Dr Lai assesses the applicant as having 28% of upper extremity impairment (UEI), which converts to 17% WPI.
Dr Lai makes an assessment of WPI of the left upper extremity based upon limited range of motion of the left thumb and left wrist. Dr Lai assesses the applicant as having 8% UEI, which converts to 5% WPI.
Dr Lai makes an assessment of 1% WPI for scarring “from the arthroscopy”.
The applicant submits that the two operations performed by A/Prof Smith during 2022 have resulted in a significant change of circumstances for him, and that the present degree of WPI assessed by Dr Lai could not have been considered or contemplated at the time the MAC was issued.
The applicant submits that neither of the doctors relied upon by the parties in the s 66 claim (Dr Tong and Dr Breit) or Dr Assem record the applicant being aware that further surgery on his right upper limb would be required. He submits that it would be unjust in all of the circumstances to not allow this reconsideration and an appeal pursuant to s 327 or a further assessment by the Medical Assessor.
In relying upon s 327 (3)(a) of the 1998 Act, the applicant submits that the increase in impairment of the right upper extremity is consistent with him undergoing two further surgical procedures. He submits that he now has an impairment of the upper extremity that was not available prior to that surgery, being the 10% UEI for the scaphoidectomy.
In relying upon s 327 (3)(b) of the 1998 Act, the applicant submits that the information regarding the operations which he underwent during a 2022 was not available at the time the MAC was issued.

The respondent’s submissions

The respondent submits that the available medical evidence indicates that the applicant was aware that the condition of his right wrist was ongoing and worsening despite undergoing surgery in September 2017 to address this issue.
The respondent submits that given the gradual progression of the applicant’s right wrist condition, a similar recommendation for fusion surgery would likely have been made by A/Prof Smith if the applicant had consulted A/Prof Smith prior to the MAC being issued in December 2020.
The respondent understands that the applicant engaged in employment with a different employer as a picker/packer after the MAC was issued and before he attended upon A/Prof Smith. The respondent submits that the applicant has not provided sufficient evidence that his increase in symptoms and subsequent need for surgery is as a result of deterioration, rather than an aggravation which would constitute a new injury with that subsequent employer.
The respondent refers to Galea v Ralph Symonds Pty Ltd [1989] NSWCC 4 (Galea) in which the applicant’s degenerative changes had progressed over time and O’Meally J said that the medical evidence could not be accurately described as “fresh evidence”, but rather “more evidence”.

DETERMINATION

The effect of ss 322A (3) and 327 (7) of the 1998 Act is that the applicant is barred from seeking an appeal of the MAC dated 7 December 2020 or a further assessment as provided for by s 329 of the 1998 Act unless the Certificate of Determination dated 15 January 2021 is revoked or set aside.
Harrison AsJ in Sleiman v Gadalla Pty Ltd [2021] NSWSC 86 (Sleiman) said at [115]:
“Section 294 of the 1998 Act unequivocally requires the Commission to issue a certificate of determination as soon as practicable after the determination has been made. Although the provision made for an appeals process s 327 is generally remedial in character, s 327(7) clearly states that there is no appeal from a medical assessment after such a certificate has been issued. In my view, these provisions evince an intention to provide for finality in the resolution of medical disputes. This intention is reflected elsewhere in the legislation, such as in 322A of the 1998 Act, which limits an injured worker to one assessment of his or her degree of permanent impairment.”
However, Harrison AsJ acknowledges the ability of the Commission to reconsider a Certificate of Determination involving an assessment of permanent impairment when her Honour said at [121]:
“Finally, as set out earlier, there is provision in the legislation for the Commission to reconsider decisions which are otherwise final and not subject to appeal. In the event that a person might seek to have such a decision reviewed on the basis of that his or her condition has deteriorated, s 350(3) provides a “broad” discretion by which the Commission may reconsider any matter it has dealt with and rescind, alter or amend it: see Martinovic at [91].”
The decision of the Court of Appeal in the subsequent appeal in Sleiman did not dismiss or alter those observations made by Harrison AsJ.
The ability of the Commission to reconsider a decision is now provided for by s 57 of the PIC Act, but that section is in similar terms to the now repealed s 350 of the 1998 Act. A summary of the principles regarding a reconsideration which was set out in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141(Samuel) remains applicable to s 57(1) of the PIC Act, where DP Roche said at [58]:
“58. 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).”
The applicant does not provide his own evidence as to any deterioration in either of his upper limbs since he attended Dr Assem in December 2020.
There is no report from A/Prof Smith which addresses the issue of deterioration.
Dr Lai does not specifically address whether there has been a deterioration in the applicant’s condition in his report dated 13 June 2023. He merely makes his own assessment of permanent impairment of the upper limbs and scarring.

Dr Lai also does not consider whether the work of a picker and packer, which the applicant has done since being examined by Dr Assem, has been the cause of any deterioration of the right upper limb. Dr Lai simply accepts that the applicant “worked as tolerated” in this new job without undertaking his own interrogation of the applicant.
The submissions filed on behalf of the applicant do not specifically address deterioration, but instead the submission is made that the “increase in impairment in the right upper extremity is consistent with the fact that the worker has undergone two further surgical procedures”.
Nevertheless, the outcome of the surgical procedure performed by A/Prof Smith on
29 March 2022 does attract 10% UEI, which equates to 6% WPI.
In Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission & Ors [2007] NSWCA 149 (Riverina Wines), Campbell JA said at [94]:
“.... “Deterioration” of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the “deterioration” that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley AJA said in that same decision at [122]:
“The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
A surgical procedure which occurs after a MAC is issued and which involves removal of the scaphoid bone, the bone being morselised, followed by a bone graft, and which attracts 10% UEI under AMA 5, provides a strong indication of a deterioration or worsening of a wrist condition.
Whether that deterioration which results in an increase in the degree of permanent impairment is due to the work injury and/or is a natural progression of a degenerative disease in the right wrist and/or has been caused by the work which the applicant has done as a picker and packer since the MAC was issued, is a matter for an Appeal Panel or a further assessment by a Medical Assessor.
However, the surgical procedure which the applicant has undergone, and which allows for an assessment of 10% UEI, is consistent with a deterioration or worsening of the applicant’s right wrist condition as contemplated by s 327 (3)(a) of the 1998 Act and in the dicta of Campbell JA and Handley AJA in Riverina Wines.
That same evidence also amounts to ‘additional relevant information’ that was not available, and which could not reasonably have been obtained, before the appeal which the applicant now wishes to make.
In Petrovic v BC Service No 14 Pty Limited and Ors [2007] NSWSC 1156 (Petrovic), Hoeben J said at [31]: “The information must be relevant to the task which was being performed by the AMS.” The information regarding the surgery which the applicant underwent, which allows for assessment of 10% UEI, is relevant to the task of the Medical Assessor because it relates directly to the issue of permanent impairment.
In my view, the applicant meets the fifth principle set out by DP Roche in Samuel, being that there is new evidence which could not with reasonable diligence have been obtained before the applicant underwent his assessment with Dr Assem in December 2020, and which might now be a determining factor in a higher assessment of WPI.
The fifth principle in Samuel refers to new evidence which “would have been likely to lead to a different result”, but the decisions referred to by DP Roche are not as dogmatic as that. In Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642 (Maksoudian), Bishop CCJ referred at [645F] to fresh evidence that “would more likely than not have affected the outcome of the proceedings”.
O’Meally CCJ in Galea said at [201B] that:
“…the applicant must satisfy me that that evidence was not discoverable by the exercise of reasonable diligence at the time of the hearing….and that if believed would be at least a determining factor in the outcome of the case.”
The additional relevant information which would at least be a determining factor in an increase in permanent impairment is the outcome of the surgery which the applicant underwent on 29 March 2022, and which Dr Lai assesses as adding 10% UEI or 6% WPI.
The Certificate of Determination dated 7 December 2020 is therefore to be revoked in accordance with these reasons.
There are some further issues raised by the respondent which need to be addressed.
The respondent objects to the inclusion of the report from Dr Lai in this application and in any assessment by a Medical Assessor because the inclusion of that report offends reg 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) which provides that only one forensic report in a speciality can be admitted on behalf of a party in proceedings before the Commission.
I consider that the report of Dr Lai dated 13 June 2023 can be admitted into evidence because that report meets the definition of ‘forensic medical report’ in sub-clause (4)(c) of reg 44. Dr Lai is a specialist medical practitioner who has not treated the applicant and his report has been obtained for the purpose of proving an entitlement in respect of another claim or dispute, namely the application for reconsideration and the potential for an appeal or further assessment.
The respondent also opposes the application for reconsideration based upon the fourth principle set out in Samuel, namely that the application is against the public interest because there should be a finality in litigation, and litigation ought not be allowed to proceed indefinitely.
However that principle, which is derived from Hilliger v Hilliger (1952) 52 SR (NSW) 105 (Hilliger), should be weighed against another principle in Hilliger [at 108] that there is certain legislation which allows a relevant court or tribunal “to see that justice is done between the parties”.
Section 354 (3) of the 1998 Act which is referred to in Samuel has now been repealed but the same terms are in s 43 (3) of the PIC Act:
“The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
In my view equity, good conscience and the substantial merits of this dispute should allow the applicant to have the Certificate of Determination revoked because of the right wrist surgery which he underwent after the MAC was issued and which has the potential to change the assessment of his whole person impairment as a result of the injury he sustained.
The respondent relies upon a decision of Member Toohey in Roach v Teldaw Pty Ltd [2023] NSWPIC 445 wherein it was stated that even if it were accepted that the worker’s condition has deteriorated since a MAC, it does not naturally follow that the discretion in s 57 (1) of the PIC Act should be exercised in the worker’s favour.
However, applications for reconsideration are primarily based on the facts of each dispute, and the facts in this dispute support the COD being revoked for the reasons which I have given. In my view, this is not a dispute which requires judicial comity because as DP Wood said in Secretary, Department of Education v Dawking [2023] NSWPICPD 23 (Dawking) at [112] after referring to what was said by Chen J in Comino v Kremetis [2023] NSWSC 63 (Comino):
“As Chen J observed in Comino, judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations.”
The respondent does raise a concern regarding the assessment of impairment of both thumbs by Dr Lai. I agree with the respondent that any appeal or further assessment must be limited to those body parts which were the subject of the initial referral, being the left upper extremity (wrist), right upper extremity (wrist), left lower extremity (knee), and scarring (TEMSKI).
The thumbs or hands were not part of the referral by consent because Dr Tong, whom the applicant relied upon for his s 66 claim, did not assess any impairment of those body parts and found full range of movement of both hand joints.
Acting President Roche in O’Callaghan v Energy World Corporation [2016] NSWWCCPD 1 (O’Callaghan) said at [82]:
“It is correct that s 65(2) of the 1987 Act states that if a worker receives more than one injury arising out of the same incident, those injuries are to be treated as one injury for the purposes of Div 4 of the 1987 Act, which deals with compensation for non-economic loss. However, contrary to Mr McManamey’s submission, that does not mean that the appeal rights in s 327 must relate to the “overall impairment”, however and whenever it may arise. As explained above, claims for permanent impairment compensation must be properly particularised and supported with appropriate medical evidence. Those particulars set the parameters within which the AMS must conduct his or her assessment. It follows that “condition” in s 327(3) does not mean any condition, whenever arising, as a result of the relevant work incident.”
I agree with the submission made by the respondent that the decision in O’Callaghan means that the thumbs or hands cannot be the subject of appeal or further assessment because those body parts were not part of the original referral for assessment.
However, it will ultimately be for the Appeal Panel or Medical Assessor on further assessment to have regard to this because I cannot trespass on the task of the Appeal Panel or Medical Assessor.

SUMMARY

The orders from this application will be as follows:
(a) The Certificate of Determination dated 15 January 2021 is revoked pursuant to s 57 (1) of the PIC Act.
(b) The matter is remitted to the President to determine:
(i)if the grounds for appeal specified in s 327 (3)(a) or (b) of the 1998 Act have been satisfied; and, if so
(ii)whether this matter can be referred for a further assessment of permanent impairment as an alternative to an appeal as provided for by s 329 (1) of the 1998 Act.

[2024] NSWPIC 501

10 September 2024