1. Mr Mark Aliprad (the applicant) suffered an accepted work injury in the course of his employment with the respondent on 28 February 2018. He subsequently made a claim seeking compensation (at least) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
2. In a Medical Assessment Certificate (MAC) dated 2 November 2021 the applicant was assessed at 8% whole person impairment (WPI) as a result of the injury. Medical Assessor Meakin assessed the applicant's WPI at 6% for the lumbar spine and 2% for the right lower extremity (ankle). No other body parts were claimed or referred for assessment.
3. A Certificate of Determination was issued on 7 December 2021 in accordance with the MAC (the COD). The brief reasons provided by the Division Head included the following:

"The applicant did not reach the threshold for entitlement to compensation, as required by section 66(1) of the Workers Compensation Act 1987."

1. In November 2023 Mr Aliprad underwent an extensive fusion from T10 to S1 and has on any view, suffered a significant deterioration in the degree of permanent impairment in accordance with the principles discussed in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW.[1]
2. The applicant now wishes to rescind the COD pursuant to s 57 of the Personal Injury Commission Act 2020 (PIC Act) so he can pursue his one right to appeal the medical assessment.
3. The respondent opposes the application to rescind the COD.

1. The matter was listed for arbitration hearing on 7 April 2024 when Mr McEnaney of counsel appeared for the applicant and Mr Kreig, legal practitioner appeared for Abbey Manufacturing Group Pty Ltd (the respondent). The following documents were admitted by consent:

(a) Application to Resolve a Dispute (Application) and attachments;

(b) applicant's reconsideration bundle filed 13 January 2025 (Reconsideration bundle);

(c) applicant's submission dated 20 March 2025;

(d) respondent's submissions dated17 January 2025;

(e) MAC, and

(f) COD dated 7 December 2021.

1. There was no request to call oral evidence. The parties were advised that I would not consider material that was not the subject of express submission. There was no objection to this course.
2. It was common ground that the applicant had not exercised his one right to appeal the medical assessment: Sleiman v Gadalla Pty Ltd.[2]
3. It was also common ground that the applicant had suffered deterioration in the degree of permanent impairment in accordance with the principles discussed in Riverina Wines.

1. The submissions were limited to the documents discussed below.
2. On 27 November 2018 Dr Singh recommend that the applicant undertake physiotherapy and exercises and consider bariatric surgery due to the increase in weight.[3] The doctor then suggested a possibility of future surgery.
3. On 3 December 2018 Dr Hamd, general practitioner (GP) noted that the applicant was suffering back pain secondary to the ankle injury and had increased weight due to reduced physical activity. The GP recommended weight loss to alleviate the worsening back pain.[4]
4. The applicant underwent bariatric surgery in July 2020 for the purposes of reducing symptoms in the lumbar spine.[5]
5. On 7 October 2020 Dr Singh noted recent weight loss following bariatric surgery, the applicant was feeling better and on examination showed good range of motion. Dr Singh noted the applicant had lower back pain radiating to the right buttock in the knee and recommended a repeat EOS scan and CT scan of the lumbar spine to better delineate the current pathology.[6]
6. On 5 November 2020 Dr Singh noted that the EOS scan and CT scan of the lumbar spine showed significant lumbar scoliosis and asymmetric degeneration of the discs and foraminal stenosis at multiple various. The doctor noted that the pain symptoms were manageable and did not recommend injections at that time. The doctor stated:[7]

"He does have significant lumbar pathology which may become worse in time, and he may need intervention in the future. He is happy to manage things as they are at this time, and this is reasonable."

1. Associate Professor Hope was qualified by the applicant and provided a report dated 5 February 2021.[8] The doctor noted the original injury to the right ankle in February 2018 which caused gait changes resulting in consequential injury to the lumbar spine.
2. Associate Professor Hope assessed the lumbar spine as diagnostic related estimate (DRE) Category II with an allowance for the activities of daily living (ADL) and assessed permanent impairment of the lumbar spine at 7% WPI. He otherwise assessed the right ankle right lower extremity at 9% WPI resulting in a combined WPI of 15%.
3. Associate Professor Hope opined that there were "no future treatment needs" and that the conditions "have stabilised".[9]
4. The applicant's legal practitioners served a letter of claim dated 18 March 2021 attaching the report of Associate Professor Hope dated 5 February 2021.[10] The letter claimed compensation pursuant to s 66 of the 1987 Act and noted the following:

"Furthermore, we put you on notice that we have received instructions from our client to investigate their entitlement to a Work Injury Damages claim. Please note we are currently investigating the facts and circumstances surrounding injury in consequential economic loss."

1. The letter referred to the provision of all relevant particulars in accordance with s 281 of the WorkInjury Management & Workers Compensation Act, 1998 (the1998 Act). During the hearing the legal practitioners agreed that this was a reference to the provision of particulars for the claim pursuant to s 66 of the 1987 Act.
2. The MAC is dated 2 November 2021 relating to an examination on 27 October 2021. The Medical Assessor noted asymmetrical active loss of range of motion of the lumbar spine with no spasm or guarding. Various radiology was cited including the MRI scan of the lumbar spine dated 5 October 2018 and the bone scan dated 23 November 2018.
3. The Medical Assessor noted a partial sensory loss in the L3 distribution which was identified as the only sign of radiculopathy.[11]
4. When assessing the degree of permanent impairment, the Medical Assessor certified that the "impairment is permanent and that the degree of permanent impairment is fully ascertainable".[12] There is no suggestion within the MAC that there was a possibility of surgery to the lumbar spine.
5. Dr Singh reviewed the claimant on 19 December 2021 noting increasing back pain with symptoms in the legs and weakness. The doctor then arranged updating imaging.[13]
6. On 4 February 2022 Dr Singh noted that the applicant was in very significant back and leg pain and that he had "reviewed the images of the CT scan of his lumbar spine and standing x-rays".[14] The doctor stated that the applicant had significant disease in the lumbar spine with lateral listhesis, mid lumbar kyphosis with foraminal and central lateral recess stenosis. The doctor opined that the applicant was likely to require surgery by way of multilevel decompression and fusion.
7. On 25 November 2023 the applicant underwent a fusion from T10 to the pelvis.[15]
8. Dr Gehr provided a report dated 24 September 2024. The doctor assessed WPI of the lumbar spine as DRE Category IV (20%), allowed 3% for the effects on the ADL, a further 7% for the second and further levels of the fusion and 2% for scarring. The combined assessment was 29%.
9. On 10 October 2024 the applicant served notice that there was a deterioration in the degree of permanent impairment based on the report of Dr Gehr and that the applicant's impairment exceeded various thresholds.[16]
10. The application for reconsideration was filed on or about 20 December 2024.[17]

FINDING REGARDING LACK OF REASONABLE DILIGENCE BY THE APPLICANT IN FAILING TO UNDERTAKE FURTHER INVESTIGATIONS/TREATMENT IN 2021 PRIOR TO THE MAC

1. The respondent referred to the medical evidence from Dr Singh and the general practitioner (GP) that bariatric surgery was recommended and noted that it was undertaken in July 2020. The evidence shows that the applicant complied with that medical advice.
2. The respondent noted that in October 2020 the applicant displayed ongoing lumbar symptoms with radiating pain to the right leg. In November 2020 Dr Singh noted ongoing pain, did not recommend injections and only raised the possibility of future surgery.
3. The respondent referred to the evidence in late 2020 that prior to the issuing of the MAC, surgery was only referenced as a future possibility until Dr Singh suggested that it was likely in February 2022.
4. The respondent noted that the radiology of the lumbar spine was undertaken in 2019 and that the applicant's ongoing lumbar spine symptoms in 2021 suggested that he should have consulted Dr Singh at that time. It was submitted that the applicant should have undergone updated radiological investigations in 2021 and that the issue of future surgery would have arisen prior to the issuing of the MAC. In those circumstances the respondent submitted that the medical assessment would not have proceeded in late 2021.
5. There is no direct evidence to support these submissions. This submission is based on the drawing of inferences of the likelihood of the continuity of lumbar spine symptoms in 2021 and the fact that Dr Singh recommended that the applicant undergo spinal surgery in February 2022.
6. The respondent submitted, and I accept, that the symptoms described by Dr Singh in November 2020 continued up until the provision of the MAC. It noted that there were no further reports from Dr Singh until after the provision of the MAC.
7. In December 2021 Dr Singh recommended updated imaging. The respondent submitted that had reasonable steps been taken which included updated radiological investigations, then the recommendations for surgery would have occurred prior to the issuing of the MAC. The submission was that the applicant or his solicitors (it was unclear who) should have turned their mind to the symptoms that were occurring, advice given and steps taken in term of undertaking further medical treatment thereby deferring the medical assessment with the Medical Assessor that was undertaken at that time.
8. The respondent submitted that establishing deterioration under s 327(3)(a) was, in this case, dependent upon the need for "additional relevant information" under s 327(3)(b) of the 1998 Act. It submitted that the applicant would need to rely on the further evidence to establish the deterioration and that evidence must be such that "it could not reasonably have been obtained ... before the medical assessment appealed against."
9. The respondent's submissions are inconsistent with two specialist medical reports in 2021 provided by Associate Professor Hope in early 2021 and Medical Assessor Meakin in November 2021. Neither doctor indicated that further treatment was required, and Associate Professor Hope expressly stated that it was not required. The submission is also inconsistent with the opinion of Dr Singh in November 2020 that he did not recommend spinal injections and did not suggest further treatment.
10. Further, no medical practitioner commented upon the age of the radiology as being of significance. That submission arose without evidence. As a matter of logic there is no basis to draw that inference. Dr Singh did not recommend updated investigations in late 2020 and did not raise the suggestion until December 2022.
11. I do not accept that the applicant acted unreasonably in attempting to second guess a situation which had not been raised by the various specialists.
12. I also do not accept the respondent's submission that the applicant's solicitors were required to provide advice on appropriate or possible medical treatment.
13. The respondent also submitted that there was no evidence from the applicant responding to its submission that he failed to seek medical attention from late 2020 to the date of the MAC and respond to the assertion that he failed to update radiology investigations and consult Dr Singh during this period. The submission was not made in the written submissions and was the subject of an unnotified submission on the day of the hearing. The submission that the applicant should have responded by way of evidence to this submission is illogical as the applicant was obviously unaware of the submission and had no reason to address an argument not previously raised.
14. I reject the respondent's submission that there was a lack of reasonable diligence by the applicant in not seeking treatment by consulting Dr Singh in 2021 and undergoing updated radiological investigations. Neither Associate Professor Hope nor Medical Assessor Meakin suggested that the symptoms were sufficient to undergo further radiology.
15. The submission is speculative and inconsistent with the finding by Medical Assessor Meakin that the degree of impairment was permanent and fully ascertainable in November 2021 with no suggestion of further treatment.
16. The submission is inconsistent with the opinion expressed by Associate Professor Hope in early 2021.
17. The submission is also inconsistent with the opinion of Dr Singh in November 2020 which did not recommend further treatment at that time.
18. I am satisfied, to place the onus on the applicant, that he acted with reasonable diligence prior to the provision of the MAC in respect of undertaking appropriate medical treatment.
19. I reject the respondent's submission that the applicant (or his legal advisors) failed to exercise reasonable diligence by failing to undertake further treatment prior to the MAC, specifically obtaining updated investigations and consulting with Dr Singh in 2021.

1. The applicant accepted that it was only appealing the medical assessment for the purpose of using any certificate issued by an Appeal Panel for threshold purposes.

1. The respondent submitted that the applicant never made a claim for the assessment of the degree of permanent impairment for threshold purposes. Accordingly, it submitted the applicant had no right to appeal the medical assessment for threshold purposes and the setting aside of the COD for that purpose had no utility.
2. The respondent specifically relied on the provisions of s 319 of the 1998 Act and the decision in Secretary, Department of Communities & Justice v Cannell.[18]
3. The respondent submitted that the applicant's entitlement to appeal the MAC is based on a threshold determination which was not the subject of a claim and cannot be the subject of an appeal against the medical assessment. It submitted that the reasoning in Cannell applies to this matter and the applicant has no entitlement to appeal the medical assessment based on an assessment for any threshold purpose.[19]
4. The respondent submitted that no claim was made in respect of any of the thresholds and what was required was "a specific claim for the particular threshold" which had to be in writing for the particular type of compensation. It was submitted that the worker must refer or indicate in the claim the particular threshold for which the assessment of the degree of permanent impairment was sought.
5. The respondent's principal submission was that the applicant never made a claim for threshold purposes and accordingly there was no associated medical dispute within the meaning of s 319 of the 1998 Act. It submitted, by reference to the definition of claim (s 4) and various other provisions, that any appeal of the medical assessment was limited to the claim made which was restricted to an assessment of permanent impairment for permanent impairment compensation under s 66 of the 1987 Act. As the applicant was not appealing the medical assessment for the purposes of obtaining permanent impairment compensation, there was no entitlement to appeal the medical assessment for threshold purposes and no utility in rescinding the COD.
6. The respondent submitted that the applicant cannot expand the underlying claim and appeal the medical assessment for a purpose that was not encompassed in the original medical dispute.
7. The respondent referred to various provisions (ss 293, 321 and 322A) which noted that it is the medical dispute that is referred for assessment under Part 7 of the 1998 Act.
8. It was submitted that this was determined in Cannell and the findings in that matter were based on facts similar to these, that is that there had been no claim for threshold purposes of any type. At one point the respondent referred to the reasoning of Cannell[20] as obiter as it was not central to the decision made. Subsequently the respondent submitted that I was bound by the decision.

1. The applicant submitted that the respondent was on notice that the assessment would be used for threshold purposes as a potential claim for work injury damages was referenced in the letter of claim.
2. The applicant submitted that the construction suggested by the respondent was unnecessary, not in accordance with the text of the legislation and served no relevant purposes. He submitted that there was no need to reference the various provisions where an assessment of permanent impairment was required, and the respondent was importing a construction into the legislation that did not arise either for the ordinary reading of the text or contextually.

1. As the plurality stated in Military Rehabilitation and Compensation Commission v May[21] the "question of construction is determined by reference to the text, context and purpose of the Act" citing Project Blue Sky Inc v Australian Broadcasting Authority[22] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.[23]
2. A medical dispute is defined in s 319 of the 1998 Act to mean:

**"...**a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--

(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),

(b) the worker's fitness for employment,

(c) the degree of permanent impairment of the worker as a result of an injury,

1. Section 293 of the 1998 Act provides that the President may refer a medical dispute within the meaning of Part 7, for medical assessment. The section is subject to regulations under s 321A. There are no relevant regulations promulgated which relate to the operation of s 321A.
2. A worker cannot commence proceedings for the recovery of work injury damages and cannot serve a pre-fling statement where there is a dispute "as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages" (s 313 of the 1998 Act).
3. Section 314(3) was enacted after the decision of the Court of Appeal in JC Equipment Pty Ltd v Registrar of the Workers Compensation Commission of NSW.[24] Section 314(3) provides that acceptance by the employer of a claim for permanent impairment compensation also constitutes acceptance of the degree of permanent impairment for the purposes of the claim for work injury damages.
4. Claim is defined in s 4 of the 1998 Act and means "a claim for compensation for work injury damages that a person has made or is entitled to make".
5. Despite the respondent's repeated submission that the medical dispute defined in s 319 only relates to the claim made, this submission involves a misreading of the text in s 319. The words of s 319 define the medical dispute to arise after a claim is made and relate to any of a number of matters (in this case the assessment of the degree of impairment) "in connection with a claim".
6. The words "in connection with" are discussed in various authorities, some of which are collected in Statutory Interpretation in Australia.[25] It is sufficient to note the observations of French CJ in R v Khazaal[26] when his Honour stated:

"Relational words such as 'connected with' appear in a variety of statutory settings. Other examples are: 'in relation to'; 'in respect of'; 'in connection with' and 'in'.. ... They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose."

1. The phrase "in connection with a claim" are ambulatory words and can extend the notion beyond the strictness of the meaning of claim.
2. In my view the plain meaning of the words in s 319 extends the medical dispute beyond the initial claim to encompass, in this case, the degree of permanent impairment in connection with a claim. This interpretation is consistent with the meaning of claim in s 4 which extend the meaning to what a person "is entitled to make".
3. The right to receive various statutory entitlements beyond set periods require an acceptance by the employer or an assessment of permanent impairment under Part 7 of the 1987 Act. These are commonly known as "thresholds".
4. The entitlement to weekly compensation after the five-year period requires injury resulting in permanent impairment of more than 20% (s 39 of the 1987 Act). The statutory pre-conditions for the entitlement to compensation in the third period under s 38(3) of the 1987 Act do not apply if the worker's impairment is greater than 20% (s 38(3A) of the 1987 Act).
5. The limits to the duration of medical expenses depends upon the degree of permanent impairment (s 59A) which varies from up to two years if impairment is 10% or less and between two and five years if impairment is more than 10% but not more than 20%. Workers with greater than 20% impairment are entitled to expenses beyond the five-year period.
6. Pursuant to s 151H of the 1987 Act no damages are payable unless the degree of permanent impairments is at least 15%.
7. These threshold provisions apply where the degree of permanent impairment is at least a certain percentage. When these provisions are read contextually with the notion of the "dispute ...in connection with a claim" in s 319, the expression encompasses all potential claims which are affected by an assessment of the degree of permanent impairment as a result of the injury.
8. Othe provisions read contextually with the definition of medical dispute and the appeal process are against the narrow construction proposed by the respondent.
9. Section 322A(1) of the 1998 Act provides that the worker is limited to one assessment of the degree of permanent impairment. The operation of the one assessment provision does not affect the entitlement to appeal under s 327 (see s 322A(4)).
10. Section 322A(2) provides:

"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 an injury ...".

1. That provision clearly favours the applicant's interpretation as s 322A(2) specifically provides that the medical assessment certificate is the only certificate that can be used for any subsequent dispute in connection with any dispute about the degree of permanent impairment.
2. By reference back to s 319 and the definition of a medical dispute, the effect of s 322A(2) is that the assessment is used for all threshold purposes. The respondent's submission that s 322A(2) only applies to the original assessment and not an assessment provided on appeal is inconsistent with the terms of s 322A which make that provision subject to an appeal (s 322A(4)).
3. The respondent referenced the entitlement to appeal under s 327(1) of the 1998 Act and submitted that the applicant "cannot expand the claim". This was one example where the respondent restricted the language in s 319 to the "claim" as opposed to the assessment of "matters in connection with a claim".
4. Section 327(1) provides that the appeal is "against the medical assessment" but only "in respect of a matter that is appealable under this section". That sub-section provides that the appeal is against the medical assessment. Section 327(2) provides that an appeal only applies where the medical assessment certificate is conclusively presumed to be correct.
5. Section 327(2) is a reference back to s 326(1) which defines the assessment certificate in the medical assessment certificate to a more limited range of matters than provided in s 319. Neither s 326 nor s 327 confine the scope of the appeal to the claim as the respondent submitted.
6. The effect of both s 326 and s 327 is that any appeal in the present case is limited to the matters to which the Medical Assessor certified in the MAC. Consistent with the opinion in O'Callaghan v Energy World Corporation Ltd[27] (discussed later) the appeal is restricted to the various matters assessed by the Medical Assessor, which, in the present case, is the degree of permanent impairment of the lumbar spine and right lower extremity.
7. The applicant noted that the respondent's proposed construction required references to thresholds in the original claim which did not arise at that time. This would occur where the worker, as in the present case, was only assessed at 15% but now is assessed at significantly higher percentage. On the respondent's construction there was no valid claim for any threshold requiring an assessment above 20% such as under s 39 of the 1987 Act.
8. The respondent's proposed construction ignores that a valid ground of appeal under s 327(3) is deterioration of the degree of permanent impairment. Section 327(3)(a) provides that a worker may deteriorate and pursue an appeal. An initial claim, such as the present, was for 15% and did not overcome the s 39 threshold (greater than 20%). The applicant now has a significantly greater impairment due to the extensive lumbar fusion which, as assessed under American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 5) and the NSW workers compensation guidelines for the evaluation of permanent Impairment, fourth edition (Guidelines), commences at 20% and increases by 1% for every extended level of the fusion.
9. The respondent's submission that the claim when made, should have encompassed all relevant thresholds when they did not arise under the initial assessment, suggests an approach which is impractical. As the applicant correctly submitted, the respondent essentially submitted that the legislation requires the worker to list all relevant thresholds or has lost the opportunity of appealing in respect of that statutory entitlement. I do not accept that the respondent's narrow, unnecessary and artificial construction arises from the various statutory provision.
10. The respondent's submission, that the worker is required to list claims not contemplated at the time is also an impractical consequence of its proposed interpretation. The present case is an example.
11. In 2021 Mr Aliprad had not reached the five-year period when his entitlements for compensation ceased unless he was assessed at greater than 20% (s 39 of the 1987 Act). The respondent's submission is that the worker must identify all potential threshold disputes even when such as claim is not made illustrates an unnecessary requirement of the scheme.
12. The preferred construction is that, consistent with s 322A(2), the claim for permanent impairment compensation and any appeal from that assessment necessarily affects any potential threshold entitlements.
13. The respondent noted that various sections such as s 293, s 321 and s 322 of the 1998 Act all refer to the medical dispute being referred for assessment. That submission is undoubtedly correct. In Skates v Hills Industries Ltd Leeming JA described the various provisions noting that it is the medical dispute which is referred for assessment. His Honour stated:[28]

"Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences 'Referral of medical dispute' and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate."

1. I do not believe that respondent's submission takes the matter any further as it incorrectly focused on the claim as opposed to the matters defined in s 319 in connection with the claim. This is discussed later in the analysis in Cannell and what was determined in Skates.
2. Further, the applicant only has one right to appeal the medical assessment: Sleiman v Gadalla Pty Ltd.[29] It is difficult to accept, as s 322A protects that one right, that the entitlement should be construed in the restrictive nature proposed by the respondent.
3. The respondent otherwise referenced the right of reconsideration under s 329 of the 1998 Act. I have discussed elsewhere and adopt that this right is subject to the one assessment of permanent impairment proscribed by s 322A and that the reconsideration power should be narrowly construed.[30] I do not accept that the restricted right of reconsideration favours the respondent's proposed construction.
4. The respondent submitted that the right under s 322A should be narrowly construed given the intention of the legislature to restrict workers to one assessment. Whilst that is correct in respect of the one assessment, there is no obvious purpose in restricting the scope of the appeal, where s 322A specifically recognises an entitlement to appeal the one assessment.
5. The respondent's suggested interpretation that the applicant would be required to specify each particular threshold does not arise from any reasonable interpretation of the legislation. It is an interpretation that does not arise from a plain reading of the legislation.
6. The text, context and purpose of the meaning of "in connection of a claim" in s 319 and the various provisions does not require an undue restrictive interpretation. In making the claim for the assessment of permanent impairment, the provisions of the 1987 and 1998 Acts mean that this assessment would be used for all threshold purposes.
7. In the present case the applicant's entitlement to weekly compensation beyond the five-year period (s 39) had not arisen at the time of making the claim for the assessment of permanent impairment in early 2021 or when the medical assessment occurred in late 2021. The entitlement to weekly compensation beyond the five-year period under s 39 did not arise until at least 2023. The construction proposed by the respondent means that the worker, having not specified a claim that had not arisen, was precluded from seeking an appeal against an assessment concerning that threshold. In my view this would produce an absurd result not required by a reasonable construction of the legislation.
8. In Uelese v Minister for Immigration and Border Protection[31] the plurality cited Legal Services Board v Gillespie-Jones[32] and stated that "a construction that 'appears irrational and unjust' is to be avoided where the statutory text does not require that construction". These observations are equally apposite to the construction proposed by the respondent in this case.
9. The respondent conceded that the claim under s 39 of the 1987 Act did not arise at the relevant time, but the worker could have provided notice and that this consideration that the entitlement had not arisen "was irrelevant". In my view, this is an example of an injustice in the respondent's interpretation that is an unnecessarily restrictive interpretation and, as I found, a construction unnecessary and contextually against the respondent's proposed construction. It is, to use the words in Uelese, a construction that appears "irrational and unjust".
10. Part of the absurdity of the respondent's submission is that, even if a threshold purpose is identified in the claim, the entitlement to appeal is restricted to the identified threshold and does not extend to any other threshold.
11. Absent the determination of the binding nature of the decision in Cannell, I would have clearly found that the construction of the text, context and purpose of these provisions allows the worker to appeal the assessment of the degree of permanent impairment for any threshold entitlement.
12. The next issue is the nature of the claim made by the worker giving rise to the medical dispute.
13. The terms of the letter making the claim are set out earlier.[33] The applicant has clearly notified the respondent in the letter of a possible work injury damages claim. The terms of the letter implicitly raised potential work injury damages claim. The satisfaction of the s 151H threshold is a necessary pre-condition for the exercise of that right. The applicant's letter indicated that a potential claim for work injury damages was contemplated. The proper and reasonable inference is that the assessment of the degree of permanent impairment would be used for that purpose if the worker chose to pursue a claim for work injury damages.
14. The respondent accepted that if a claim was made for the purposes of an entitlement to recover work injury damages, then the applicant could appeal the medical assessment limited to that particular threshold. In my view this concession reveals the absurdity of the respondent's position that the applicant's entitlement to pursue his one appeal on a particular threshold is limited to providing specific notice of that threshold in the letter of claim.
15. The respondent's submission that every potential threshold must be claimed to allow an appeal does not arise from a fair reading of Canell which obviously did not consider that issue given the factual finding in that case.
16. The respondent emphasised that there must a "valid claim". However, the present claim was clearly valid in the context of seeking an assessment of the degree of permanent impairment accompanied by a medical report of a properly qualified medical practitioner assessing the degree of permanent impairment. This submission is otherwise contrasted with the words used in Cannell where it was noted that the correspondence did not include a reference "to a possible WID claim".[34]
17. The respondent's proposed construction raises a requirement of form over substance which the applicant aptly described as "silly". It meant that the requirement to specify every potential relevance of claim for the assessment of permanent impairment was satisfied if the claim letter simply listed all relevant sections where compensation was potentially payable if impacted by threshold requirements.
18. The respondent otherwise submitted that I was bound by Cannell and that on that fact alone, the applicant had no entitlement to appeal for threshold purposes.
19. My findings above are inconsistent with the finding in Cannell where it was held that no particular threshold was claimed.
20. There was no relevant discussion in Cannell of the text, context and purpose of the legislation on this issue. The finding made in Cannell is based on the factual conclusion that no threshold was identified in the claim and that, consistent with Skates, there could be no appeal for a purpose not identified.
21. In Cannell it was determined that, if the assessment of permanent impairment was limited to a claim for s 66 compensation, then there was no medical dispute for any threshold purpose. The reasoning in Cannell is that Skates supported this conclusion. Nomchong ADP stated:[35]

"The decision in Skates held that the dispute between the parties is crystallized by the correspondence attached to the ARD and referred to the Commission, and in that matter, the Court of Appeal held the 'medical dispute' was about the degree of permanent impairment.

In my view, in this matter, ... the dispute is about the degree of permanent impairment for the purposes of the respondent worker's claim for lump sum compensation."

1. I do not accept that Skates supports the proposition stated in Cannell. The decision in Skates concerned the scope of the medical dispute in the context of the body parts that were to be assessed. Skates did not decide the issue determined in Cannell whether the appeal right was restricted based on the distinction between a claim for permanent impairment compensation as opposed to any claim for a threshold purpose.
2. The nature of the scope of the medical dispute was subsequently discussed in Scone Race Club Ltd v Cottom.[36]
3. The reasons of the Court, delivered by Basten AJA (Gleeson and Mitchelmore JJA agreeing), included the following principles from previously decided cases:
   • - the medical dispute was based on the claim and not limited to the referral (Skates v Hills Industries Ltd [2021] NSWCA 142);
   • - the Appeal Panel is obliged to dismiss the appeal unless there has been a demonstrable error which is material: Queanbeyan Racing Club Ltd v Burton;[37]
   • - it is impermissible for an Appeal Panel to reconsider an element of the medical assessment which has not been the subject of a ground of appeal,[38] and
     • - the 1998 Act only allowed one appeal: Sleiman.[39]
4. The Court in Cottom noted that the consent orders agreed between the parties removed any reference in the Application to an allegation of a consequential condition to the lumbar spine caused by the accepted right knee injury. The only matters referred for assessment were the right knee, peripheral nerve damage and scarring.
5. The Court of Appeal accepted the correctness of the statement by the Appeal Panel that the lumbar spine was not part of the medical dispute referred for assessment. Basten AJA stated:[40]

"As the Appeal Panel was restricted to the grounds of appeal raised in the referral (and any submissions accompanying the referral) and to the injury the subject of the referral (namely to the right knee), it could not properly have dealt with either of the matters raised in the late documents accompanying the application of 9 March 2022."

1. The Court, applying the reasoning of Leeming JA in Skates at [44], held that the medical dispute was limited to a medical dispute about the assessment of the right knee and scarring and did not extend to a claimed injury for the lumbar spine.
2. The issue was also considered by the Court of Appeal in the context of the motor accidents legislation in Mandoukas v Allianz Australia Insurance Limited.[41] Stern JA then discussed both Skates and Cottom in terms of whether particular body parts were part of the medical dispute referred for assessment. By way of example, Stern JA discussed Cottom when her Honour stated:

"The Court accepted the appellant's contention, in those circumstances, that the claimed lumbar spine injury was not part of the medical dispute referred for assessment and that an Appeal Panel would have erred if it had considered documents which purported to rely upon the consequential spine injury: at [47]-[48], [53]."

1. Skates and subsequent Court of Appeal authorities found that the scope of the medical dispute is crystallized in the documents giving rise to the medical dispute. There is nothing in those decisions which stand for the proposition, enunciated in Cannell, that this determines the purposes for which the medical assessment can be used.
2. The respondent otherwise submitted that the reasoning in Galea was outdated following the subsequent decision of the Court of Appeal in Skates and that was the explanation for the change in interpretation.
3. I have discussed both Skates and subsequent Court of Appeal authorities which address the scope of the medical dispute and do not, in my view, stand for the proposition enunciated in Cannell. I do not accept that I am bound to apply Cannell in these circumstances.
4. I have otherwise concluded that the respondent was on notice that the assessment of permanent impairment was relevant to a potential work injury damages claim. That fact alone distinguishes the matter from Cannell. Cannell did not discuss and determine that all thresholds must be claimed to allow appeal rights against a particular threshold. For the reasons above, based on text, context and purpose of the legislation, I otherwise do not accept the respondent's proposed construction.

RECONSIDERATION POWER UNDER S 57 OF THE PERSONAL INJURY COMMISSION ACT 2020 (PIC Act)

1. Section 57(1) of the PIC Act provides that the Personal Injury Commission (Commission) may reconsider any matter dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made.
2. The applicant bears the onus of proof of setting aside the COD.
3. The parties referred to the principles in Samuel v Sebel Furniture Ltd[42] which have been followed in numerous decisions.
4. In its written submission the respondent submitted that the only factor weighing against the application was "the merits of the application" asserting that the "application

lacked merit as it contravenes the authority in Cannell." 5. In its oral submission the respondent raised two further matters relevant to the exercise of the discretion. Those matters were firstly, the finality of litigation and secondly, the assertion that the applicant had not acted reasonably by being assessed in 2021. It was submitted that the applicant should have acted with reasonable diligence and taken appropriate steps prior to the medical assessment. 6. I accept that a relevant factor in the exercise of the discretionary power is the finality of litigation.[43] In Burrell v The Queen[44] the High Court stated:

"It is that the principle of finality serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time‑consuming, and it is almost always costly."

1. The comments of the High Court were made in the context of a superior court reopening proceedings and reconsidering the orders that had been made. However, the observations are otherwise consistent with the authorities that support the principles of the finality of justice in an application for reconsideration.
2. As was noted in Galea,[45] the finality of litigation should be considered in the context that an application to appeal based on s 327(3)(a) and further evidence under s 327(3)(b) is unlimited by time. This is contrasted with an appeal pursuant to either s 327(3)(c) and/or (d) where an application to appeal must be filed within 28 days of the medical assessment appealed against (see s 327(5) of the 1998 Act).
3. An appeal based on deterioration will usually arise a significant time after the issuing of a Certificate of Determination. Accordingly, the normal course is to seek leave to rescind a Certificate of Determination to enable an appeal to proceed against the medical assessment.
4. The matters raised by the applicant in his written submissions[46] and not contradicted by the respondent are accepted and relevant to the exercise of the discretion in favour of the applicant. They include:
   • - the manner in which the applicant promptly made and pursued the claim based on deterioration;
   • - the strong argument that the applicant has a significant deterioration in the level of permanent impairment following the multi-level fusion where liability for the surgery was accepted by the respondent,[47] and
   • - the prejudice suffered by the applicant if the application was not granted.
5. In his oral submission the applicant added that he was only exercising his appeal right pursuant to s 327(3) where that right was "unlimited in time". This was an appropriate case to order the recission of the COD where there has been substantial deterioration of the degree of impairment. I accept that submission.
6. I otherwise add, although do not need to rely on the absence of any actual prejudice identified by the respondent.
7. The respondent's submissions on this second issue relied on that part of Samuel which provided that "a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration" citing Hurst v Goodyear Tyre and Rubber Company.[48]
8. There are several issues with respect to the reliance on that part of Samuel which in turns relies on the decision of Hurst as authority for a general observation that is repeatedly misapplied by parties relying on that proposition. The present case is another example of the misapplication of this principle.
9. First, the decision of Hurst must be read in context. Secondly it must be read subject to a number of decisions of the Court of Appeal, and, thirdly, considered in light of other Presidential decisions.
10. The decision of Samuel is not authority for the proposition that mistake by legal representatives can "never result in the exercise of the discretion". Samuel refers to the various principles as being "applicable".[49] The decision does not state that whilst these principles are applicable, they are, as a matter of law, "determinative" of the application.
11. Deputy President Roche acknowledged this in Atomic Steel Constructions Pty Ltd v Tedeschi[50] where he exercised the discretion to reconsider an order despite an obvious mistake by a solicitor.
12. The applicant in his submissions correctly submitted, that the principles in Samuel are "not determinative" and can be departed from where the interests of justice or the fundamental jurisdictional power of the Commission are central to the determination of the issue. The applicant cited Tedeschi and Workers Compensation Nominal Insurer v Demasi[51] as support for this proposition_._
13. In Tedeschi Roche DP stated:[52]

"The discretionary power conferred by the reconsideration power is in 'extremely wide terms' (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248). It is important, however, to remember the distinction between the existence of the reconsideration power and the occasion of its exercise, and that courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably (Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 at 108 Nevertheless, as Street CJ further observed, it is clear that the legislature intended to leave with certain tribunals the power of reviewing the decision to see 'that justice is done between the parties'".

1. In Tedeschi the consent orders were entered by the parties in circumstances where the settlement was significantly greater than the worker's potential maximum claim. The settlement was obviously entered into by "mistake". During his reasons the Deputy President noted the statement in Hurst v Goodyear Tyre and Rubber Company[53] relied upon as support for this proposition in Samuel, had to be considered in the context of that decision.[54]
2. The facts in Hurst said to give rise to the principal stated in Samuel should be properly considered in their factual context.
3. In Hurst the Court noted that it was "insufficient" to base the application on "mistake or inadvertence". The applicant's lawyers had brought proceedings in 1946 for an injury in 1940 although did not then claim known medical and hospital expenses. Further proceedings were brought in June 1949 when medical and hospital expenses were claimed for the 1940 injury. That claim failed because the maximum amount of the employer's liability had been previously determined in the 1946 proceedings. The worker then brought proceedings in July 1949 claiming the same medical expenses but seeking to attribute these to an injury sustained in 1945. That claim failed because it was held that the amounts claimed were due to the 1940 injury and not to the 1945 injury.
4. A further application was filed in December 1952 seeking to revisit the original proceedings brought in 1946. In those proceedings Judge Rainbow noted that on general principles there should be an end to the litigation and that all compensation amounts due and owing should be claimed in the one proceeding. His Honour was of the view that the only proper basis to claim the prior expenses was to re-open the 1946 proceedings and stated:[55]

"There has to be a sufficient reason to set aside an award and re-open a case and it has, with certain exceptions, to be done within six months; (citation omitted). The only reason why the amounts were not claimed before is mistake or inadvertence of the then solicitors. That is insufficient. If the application rests at large on the basis that the Commission has general power to decide matters without being bound by precedent, upon the merits and justice of the case, it still would not succeed. Even then, there has to be some reason, some merits, and some justice. A factor to be taken into consideration on that score is surely the passage of time."

1. Thirdly, the Court of Appeal in a series of cases in relation to the construction of the predecessors to s 57 of the PIC Act identified that the reconsideration power as a discretion without limit and requires its exercise where it is necessary that justice is done between the parties.[56]
2. I refer to the earlier factual findings in response to the respondent's submission that the applicant did not act with reasonable diligence in undertaking further investigations and consulting with Dr Singh in 2021 prior to undertaking the medical assessment.[57] I do not accept the respondent's submission in respect of the second basis for suggesting that the exercise of the discretion weighs against the rescission of the COD.
3. For the reasons outlined earlier[58] the present case is a clear example where the interests of justice favour that the COD should be rescinded so that the applicant can pursue his one entitlement to appeal the medical assessment.

1. The parties' attention was drawn to the nature of the scope of the medical assessment and the extent of any appeal rights on deterioration noting the decision of Roche AP in O'Callaghan.
2. The issue was raised because Dr Gehr assessed 2% for scarring and made an allowance for the modifiers of the further levels of the fusion which included two levels of the thoracic spine. This meant that the modifiers included an extra 2% for the additional level of fusions at T10 and T11.
3. I declined the applicant's argument to make further written submissions as I do not accept that there is any argument that the thoracic spine and scarring can be assessed unless O'Callaghan is wrongly decided. The applicant must have been aware of the decision as he relied on Galea in his submissions and O'Callaghan is discussed at some length in that decision.[59]
4. Since O'Callaghan has been decided the relevant authorities commencing with Skates have addressed the scope of the medical dispute which was referred for assessment. The appeal, under s 327 is against the medical assessment. Neither assessment of the scarring nor the thoracic spine was part of the original medical assessment and cannot be appealed under s 327 of the 1998 Act. This conclusion is otherwise consistent with the observations of Stern JA in Mandoukos.[60]
5. For these reasons the application to appeal the medical assessment cannot include an assessment of the degree of impairment of scarring and the thoracic spine.

1. The applicant submitted that the entitlement to appeal under s 327(3)(a) was restricted to threshold purposes and did not include an assessment for permanent impairment compensation under s 66 of the 1987 Act.
2. In Galea I noted that the applicant was not pursuing an entitlement to further s 66 compensation and referenced earlier decisions that the right of appeal under s 322A(4) and s 327 was subject to s 66(1A).[61] In Lizdenis I noted the inconsistency between s 66(1A) of the 1987 Act and the appeal entitlement under s 327(3)(a). That inconsistency arises from the entitlement to appeal for deterioration unlimited by time where the claim for s 66 claim had "resolved".[62]
3. It may be that my previous view that the appeal under s 327(3)(a) which is protected by s 322A(4) of the 1998 Act is subject to s 66(1A) was incorrectly decided. The issue was raised with the applicant and his oral submissions confirmed that the appeal of the medical assessment was restricted to one involving threshold purposes only**.** Accordingly, this issue does not arise for determination.

1. The applicant is directed to file an application to appeal the medical assessment and the President, through his delegate, is required to address the test under s 327(4). It is difficult to see how the respondent could submit that a ground of appeal has not been made out. In any event, if the matter proceeds to an Appeal Panel, the President should advise the Appeal Panel that the body parts for assessment are restricted to an assessment of the lumbar spine and the right lower extremity (ankle).
2. The findings and orders are set out in the Certificate of Determination.

[1] [2007] NSWCA 149 (Riverina Wines).

[2] [2021] NSWCA 236 (Sleiman).

[5] Respondent's oral submissions which were accepted by the applicant.

[18] [2024] NSWPICPD 32 (Cannell)

[21] [2016] HCA 19 (May) at [10].

[22] [1998] HCA 28 [69]-[71].

[24] [2008] NSWCA 43.

[25] D C Pearce, 10th Edition, pp 488-489.

[26] [2012] HCA 26 at [31].

[27] [2016] NSWWCCPD 1 (O'Callaghan).

[28] [ 2021] NSWCA 142 (Skates) at [47].

[29] [2021] NSWCA 236 (Sleiman).

[30] See Meyers v Andrew Miedecke Motors Pty Ltd [2024) NSWPIC 357 at [26]-[35].

[31] [2015] HCA 15 (Uelese) at [45] per French CJ, Kiefel, Bell and Keane JJ.

[32] [2013] HCA 35 at [48].

[36] [2024] NSWCA 34 (Cottom).

[37] [2021] NSWCA 304 (Burton), [25].

[39] [2021] NSWCA 236.

[40] Scone Race Club Ltd v Cottom [2024] NSWCA 34, [53].

[41] [2024] NSWCA 71 (Mandoukos).

[42] [2006] NSWWCCPD 142.

[43] See Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 117, [44]-[45] applying Hilliger v Hilliger (1952) 52 SR (NSW) 105 and Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244.

[44] [2008] HCA 34 at [16].

[46] Applicant's written submissions, [13].

[47] Applicant's written submissions, [16(2)].

[48] [1953] WCR 29 (Hurst).

[50] [2013] NSWWCCPD 33 (Tedeschi).

[51] [2017] NSWWCCPD 9.

[53] [1953] WCR 29 (Hurst).

[56] See the discussion in Galea at [72]-[78].

[61] See Lizdenis v Centrel Pty Ltd [2016] NSWWCC 21 (Lizdenis) at [110]-[117].

[62] See Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 at [80].