1. Leave to appeal the interlocutory orders with respect to Appeal Grounds 1 and 2 is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The Member's Certificate of Determination dated 22 July 2024 is confirmed.

WORKERS COMPENSATION - failure to determine lump sum compensation claim; whether a valid or real medical dispute exists where forensic medical reports of both parties find 24% whole person impairment as a result of injury, but one party wishes to explore possibility of different "diagnosis" - absence of any notice under s 78, or application under s 289A(4), of the Workplace Injury Management and Workers Compensation Act 1998; distinction between concepts of "waiver" and discretionary procedural choices by parties referred to in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364; 228 ALR 387; 80 ALJR 1214 - distinguishing Skates v Hills Industries Pty Ltd [2021] NSWCA 142 and Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18 - application of principles in Etherton v ISS Property Services Pty Ltd [2019] NSWWCCPD 53 at [102]-[105]

Mr D Stiles, counsel, at the oral hearing on 29 April 2025

Elmi-Anvari v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 389

1. Foad Elmi-Anvari, the respondent worker (the worker), started employment with the appellant as a bus driver on 21 April 2016. He stated he "had no issues at work and enjoyed my job" until the last two years of his employment between 2019 and 2021. He says from about the start of those last two years, a new manager (the manager) was engaged by the appellant, and he was subjected to a course of conduct by the manager.[1] As a result, the worker alleges he suffered a psychological injury in the course of his employment with the appellant, deemed to have occurred on 23 June 2021 (the injury).
2. On 31 May 2023, he claimed $66,310 pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for a 24% whole person impairment (WPI) as a result of the injury (the claim). This claim is based on a WPI assessment of Dr Richa Rastogi, psychiatrist, on 23 March 2023 who diagnosed a Post-Traumatic Stress Disorder (PTSD) with anxiety.[2] An abridged version of the history taken from the worker by Dr Rastogi is as follows:

"... [the worker] enjoyed working as a bus driver ... A new manager ... was employed and the work environment changed significantly. [The manager] developed a dislike towards ... and ... targeted ... and alienated [the worker]. There was favouritism and [the manager] would give better shifts to the drivers he favoured. [The worker] was always given buses with a faulty camera, and sometimes he would require moving several buses to access the bus allocated to him in the middle of the yard trying to make his life harder. [The worker] had reported on multiple repeated occasions about [this] behaviour ... to HR but no action was taken and [the manager] continued to target and bully him constantly. [The worker] was dismissed constantly and felt let down by management ... [the manager] made allegations against [the worker] stating there were accidents and damages to the buses which [the worker] drove when there had been no accidents or damages ... also ... [the manager] would apply deductions of his accident demerit points, which ... would remain in his record for 24 months. When [the worker] raised concerns to [the manager], he stated that he was asked to look for another job. [The manager] would hide the positive compliments that [the worker] received from passengers and dismiss these compliments. On 23/6/2021 [the manager] threatened [the worker] after [he] challenged [the manager] being unfair by asking to drive a big bus ..., as it was his turn to drive a small bus. [The manager] was intimidating and replied ... 'I will kill you'. [The worker] stated that he felt scared but continued working. [The manager] was verbally abusive, denigrating and always threatening [the worker] ... This continued over two years ... [The manager's] behaviour did not change ... [the manager] continued changing his shifts and working hours without providing adequate prior notice".[3]

1. The appellant arranged for the worker to be assessed by Dr Iftikhar Ahmad, psychiatrist, on 3 October 2023 who prepared a report on 11 October 2023, addressed to the solicitor for the appellant.[4] The history taken from the worker by Dr Ahmad was similar to and consistent with that taken by Dr Rastogi. Like Dr Rastogi, Dr Ahmad found the worker suffered a 24% WPI with respect to the injury. Dr Ahmad also, like Dr Rastogi, found the employment was a substantial contributing factor to the injury and that there was an absence of evidence of any other factors responsible for the worker's presentation. Dr Ahmad diagnosed a PTSD and Major Depressive Disorder.
2. Dr Ahmad said one of the things he noticed when he was conducting the assessment was "severe shaking of hands/arms, more on left side than right. He was constantly rocking his head and was crying most of the time; in a severe agitated state".[5] These observations were similar to those recorded by Dr Rastogi who noted:

"He was rocking aggressively and shaking vigorously throughout the interview. He sat with downcast eyes and participated minimally in the interview with rapport poorly established. He was too agitated and tense in his demeanour. His speech was monosyllabic and minimal".[6]

1. Dr Anupam Pokharel, psychiatrist, who had earlier (29 March 2022) seen the worker at the request of the insurer, observed that the worker "appeared ... a highly anxious person ... both hands were shaking almost throughout the assessment process, which lasted 65 minutes. He stated that he did not have control over his tremor".[7] Dr Pokharel also opined "the ... employment ... factors are the whole and predominant cause of [the] diagnosable condition. So far, there is no evidence of any pre-existing psychiatric condition or any personal factor impacting his mental health".[8] The history Dr Pokharel took from the worker is essentially the same as that recorded by Drs Rastogi and Ahmad, and the appellant has not lodged any other evidence to call into question the veracity of the worker's statement.
2. Soon after Dr Ahmad reported in October 2023, the appellant asked him to prepare a further report. Although the appellant has not put the terms of the new request into evidence, it appears from his further report, dated 14 November 2023, that two reports of Dr Dowla, neurologist, dated 12 and 19 November 2022, were sent to him. But Dr Dowla's reports do not appear in the evidence, except for limited and selective statements from Dr Ahmad about what Dr Dowla said in these reports. The appellant wrote to Dr Ahmad, saying the worker had been investigated by Dr Dowla for a movement disorder, and (allegedly) "was noted to have a diagnosis of paranoid schizophrenia", and that the appellant was previously unaware of that "possible diagnosis". The appellant then asked Dr Ahmad's opinion about whether there was an alternative explanation for the worker's complaints and whether it was possible that these complaints related to a constitutional paranoid schizophrenia diagnosis - and whether Minnesota Multiphasic Personality Inventory (MMPI) testing would be appropriate to confirm that diagnosis.[9]
3. Dr Ahmad responded to these questions by stating that he thought:

"... it seems less likely Paranoid Schizophrenia as a diagnosis especially he did not report anything to me during assessment which happened via interpreter, in the presence of his wife. These kinds of tremors could come from medications, but I am not fully convinced that it could be that side effects from the prescribed medications [sic] as the worker's wife believes that this is part of his anxiety following alleged death threats from the supervisor, along with constant bullying and harassment at workplace".

1. Dr Ahmad went on to opine that "it would be very appropriate to arrange ... MMPI testing of the worker to confirm a diagnosis ... especially to rule out any Functional Component of the presentation".[10] The only other medical evidence from a psychiatrist in this case comes from the worker's treating psychiatrist, Dr Muhammad Malik. The worker has consulted him between at least 16 March 2022 and 9 April 2024. Dr Malik reported (13 December 2023) to the worker's treating general practitioner (GP), Dr Roshandel that he had:

"... acknowledged the complexity, permanency and severity of his psychiatric illnesses. But he does not meet the diagnostic criteria outlined in DSM 5 for Paranoid Schizophrenia, and I have not officially diagnosed him with this condition. Instead his presentation is of chronic PTSD with severe mood disorder. I'm unclear why Dr Dowla mentioned schizophrenia in his report. The reason I requested a referral to a neurologist was to assess [the worker's] abnormal limb movements and body shakes.

My expertise, continuous longitudinal assessments, extensive follow-ups and comprehensive understanding of [the worker's] condition should bolster the credibility and reliability of my diagnosis concerning his mental illnesses ... in a medicolegal context, psychiatrists are often considered more qualified to diagnose schizophrenia compared to neurologists".[11]

1. Dr Malik also reported to the insurer on 10 April 2024, noting that he had continued to review the worker on a fortnightly basis and that the ongoing symptoms were "severe, persistent and have worsened and crystallised over time". Dr Malik did also note the symptoms were suggestive of a psychotic disorder such as the worker hearing voices of his previous manager threatening him. Nevertheless, Dr Malik began opined that this was "a reflection of hypervigilance and extreme hyperarousal secondary to his chronic PTSD".[12]

1. Following the claim, there were a series of emails from 21 November 2023 to 21 December 2023[13] (the emails) between the solicitor for each party, starting with the appellant's request for the worker to attend a "medical appointment" with Ms Alicia Tyler, psychologist, for the purpose of undertaking MMPI testing, the worker objecting on the basis that Ms Tyler was not a medical practitioner within the meaning of s 119 of the Workplace Injury Management and Workers Compensation Act 1998 ('s 119' and 'the 1998 Act'), and finishing with the appellant saying the proposed MMPI testing was cancelled, and "[i]n relation to [the claim] we have instructions to make a nil offer given the uncertainties with diagnosis, and our expert evidence that suggests MMPI testing is appropriate".
2. The worker lodged the ARD in the Personal Injury Commission (Commission) on 16 April 2024. The appellant lodged a Reply on 1 May 2024. The appellant ticked boxes relating to "Matters in Dispute" as follows: "No" to whether those matters were "Confirmed as per dispute notice(s) attached to the application", "Yes" to whether they were "Confirmed as per exchange of offers attached to the application", and "Yes" to whether there was a "Failure to determine". Then, in response to the form question also relating to "Matters in Dispute" "Where failure to determine leave is sought to include the following", the appellant alleged:

"1 That the [worker] does not suffer any [WPI] as alleged or at all.

1. That there should be a deduction pursuant to Section 323 of the [1998 Act], for previous injury, other non-work-related conditions.

The [appellant] intends to seek leave to issue directions for production to treating practitioners ... for which it became aware once Dr Roshandel's records became available ...

[Also] seeks a stay on these proceedings until the [worker] attends a psychological assessment to undertake MMPI testing pursuant to s 119 of the [1998 Act]".

1. On 9 May 2024, the appellant lodged written submissions with respect to the MMPI issue. Those submissions followed up the request for the directions for production foreshadowed in the emails and the Reply. This request specified that the documents were sought from three entities: The Hills Clinic, Wentwest Mental Health, and Sunnyside Clinic (the DFP). On 10 May 2024, the parties raised the s 119 issue with the Member at a telephone conference (TC). In a Certificate of Determination (COD) dated 15 May 2024, the Member found that a psychologist was not a medical practitioner for the purposes of s 119, and the worker was not obliged to attend the assessment. On 15 May 2024, she separately issued a Direction that "the appointment with an Independent Medical Assessor [MA] for 23 May 2024 will proceed".
2. The appellant appealed the 15 May 2024 COD. On 17 June 2024, Phillips P dismissed the appeal and confirmed the Member's decision.[14] Part of the appellant's submissions before his Honour again raised the DFP request. His Honour dealt with this by allowing the appellant to make an application for such directions, adding this: "Generally, it is my view that such directions should be made if the material sought relates to the real issues ... or otherwise will aid the parties and the Member to do justice ...". His Honour then remitted the matter to the Member for further directions regarding the dispute.
3. The case was listed for another TC before the Member on 25 June 2024. In her ultimate COD on 22 July 2024,[15] she noted that the worker:

"... sought that I issue an award for [the worker] for the percentage of [WPI] agreed by both the [worker's] and [appellant's] psychiatrists at 24%. The [appellant] sought that the [worker] be referred to a [MA] in accordance with my previous Order. I heard oral submissions and issued a further Order requiring the exchange of written submissions.

I vacated the existing appointment with a [MA]."[16]

1. As is usual, when no party makes a request, there is no transcript of a TC. Nevertheless, I asked the parties, in a Direction issued on 14 April 2025, to confirm whether or not there was any matter put or said at either TC that is not recorded in the submissions on appeal or the written submissions to the Member, or the evidence. Neither party identified any such matter.

1. After considering the written submissions lodged by both parties, I was not fully satisfied I had sufficient information to proceed 'on the papers'. I therefore issued the 14 April 2025 Direction calling for an oral hearing, essentially to clarify certain matters, and also to allow each party to make further brief submissions to either add to and/or subtract from their existing written submissions. The oral hearing took place on 29 April 2025.
2. There is no dispute that the threshold requirements as to quantum and time under ss 352(3) and 352(4) of the 1998 Act have been met.

1. The Member said the appellant "has not issued a Notice of Dispute ... The only dispute between the parties to date has been the disputed obligation of the [worker] to attend testing by a psychologist to resolve 'uncertainties with diagnosis'...", and that the issue was whether the case should be referred to a MA (for determination of the WPI) or whether "the Commission should issue an award in that respect".[17]
2. The Member noted the appellant had "since requested [the DFP] be issued to the [worker's] treating practitioners". She further noted the case had been relisted before her on 25 June 2024 when the worker "sought that I issue an award for [him] for the percentage of [WPI] agreed by both ... psychiatrists at 24%", and that the appellant sought a referral to a MA "in accordance with my previous Order".[18]
3. The Member noted the worker's submission that there had there never been a medical dispute between the parties, and that a notice under s 78 of the 1998 Act had never been issued. She also noted the worker's alternative submission that since "the removal of a previous prohibition in s 65" of the 1987 Act, a member had power to determine WPI issues in appropriate cases without referral to a MA.
4. The Member also noted the appellant's submission that "the Commission, having issued an Order prior to the appeal that the [worker] attend [a MA], was bound to adhere to that Order" as it was not set aside by the President's decision and there was no appeal.
5. The Member noted the appellant's submission that the worker's application to have the Commission determine the matter without referral to a MA was an "abuse of process", and that the application had not been remitted to her to revisit her previous Order, but only for the purpose of attending to procedural issues.
6. The Member noted the reports of both Drs Rastogi and Ahmad gave WPI assessments of 24%, and that Dr Ahmad, in his second report, suggested MMPI testing by a psychologist to confirm a diagnosis - which was the subject of the appeal to the President. She also noted the worker put that there was "no end to the list of tests of any condition which could conceivably be carried out. However, Dr Ahmad was nevertheless able to reach a diagnosis, and does not seek to [resile] from it in his supplementary report".[19]
7. The Member said she considered that the degree of the worker's WPI was not in dispute, rather, it was "in fact causation that the [appellant] wishes to dispute without actually issuing a notice to that effect". She noted the appellant's submission in this regard that the treating medical evidence suggested two alternative diagnoses, a movement disorder and paranoid schizophrenia, which may be relevant to the WPI assessment, and which resulted in leave being sought for the DFP.
8. The Member said she was "required to deal with the application as it stands before [her] on the occasion it is listed and on the issues which arise for determination of that date", and as an application was made that she "determine the [WPI] suffered by the [worker] as a result of his injury", that was the issue she intended to determine. She then said she was "not persuaded that I am bound by the Order issued by me prior to the appeal which was then determined by the President", and also not persuaded that the worker's application was an abuse of process - saying "[a]n abuse of process is an allegation of professional misconduct" and "should not be made lightly", and that the application was available to the worker's solicitor and was "perfectly proper", and there was "no abuse of process".[20]
9. The Member added that she did not order the worker to attend for psychological testing not only "because a psychologist is not medical practitioner" but also because it was "unlikely that I would have obliged the [worker] to attend in any event. A one-off attendance for such testing would be unlikely to resolve any complex diagnostic issue".
10. The Member then said the appellant sought the DFP "to identify a cause for the [worker's] illness other than that which has been determined to exist by both psychiatrists". She rejected this request, saying there was no notice of the dispute in relation to causation "and, in any event, it would have been appropriate to ask that such directions be issued at the first [TC], not at this late stage of proceedings".
11. The Member then noted she had power for issuing assessments of WPI "... [w]hen there are circumstances which justify its use", and that she was "persuaded that this is an application where the exercise of that power is appropriate", reasoning that the expert psychiatric reports on both sides had the benefit of viewing the worker's treating doctor's reports, and both "determined that [he] is suffering a psychiatric injury and ... found a [WPI] of 24% as a result. The degree of [WPI] is a settled matter between both psychiatrists".[21] The Member also said she considered the worker's "health and the trauma to which he would be subjected by a further medical assessment", and was "satisfied that the referral ... to a [MA] in the circumstances ..., having considered the medical evidence and the absence of any Notice of Dispute, would not be in accordance the Objects of the 1987 Act".[22]

1. The appellant brings the following grounds of appeal, alleging the Member erred in:

(a) fact, law and discretion, in failing to afford procedural fairness by not granting leave to issue directions for production to the treating practitioners (Ground 1);

(b) law, by re-determining her earlier decision to refer the matter to a MA in the absence of any appeal application, or orders by the Commission in that regard (Ground 2), and

(c) law, by entering an award for the worker where there was a dispute between the parties, and the worker had not been assessed by a MA (Ground 3).

1. The appeal is brought pursuant to s 352(5) of the 1998 Act. This section limits the appeal to a determination of whether or not the decision was affected by any error of fact, law or discretion, and to the correction of any such error. It is not a review or new hearing.

1. The terms of all appeal grounds and the submissions in support significantly overlap in relation to the medical dispute issue. It is thus convenient to deal with all grounds together in that respect. As to Ground 1, the appellant noted the Member refused its request for leave to issue the DFP because she found there was no dispute between the parties and because the request was too late. The appellant says this finding is wrong because its intention to seek leave to issue the DFP was made in the Reply, and was part of its written submissions, lodged on 9 May 2024.
2. The appellant says the DFP request was repeated in its submissions in the s 119 appeal, and was the basis of Order 4 to refer the matter back to the Member for directions, when his Honour expressed a general view that such directions should be made if the material sought relates to the real issues in dispute or will otherwise aid the parties to do justice.
3. The appellant says access to clinical records relating to the treatment of the worker's psychological disorder is relevant and it is in the interests of justice that the DFP be issued, particularly given the opinion from Dr Dowla that a differential diagnosis could be applicable. The appellant also puts that if, as Dr Dowla opines, the worker is suffering from schizophrenia, this would be relevant to the WPI assessment, and access to the records of his treating practitioner is appropriate.
4. The appellant says the Member failed to deal with the DFP request, and in accordance with the President's order, and this has denied it procedural fairness, particularly when the worker did not object to the request in his written submission of 2 July 2024.
5. As to Ground 2, the appellant asserts that at one of the TC's, the worker submitted it was open to the Member to enter orders in favour of the worker to confirm a finding of 24% WPI arising from the injury, on the basis there was no dispute, and that the Member rejected such argument and referred the matter to a MA on 15 May 2024. The appellant says the President's s 119 determination confirmed the order to refer the matter to a MA and there was no appeal from that order. The appellant then says the subsequent award under s 66 of the 1987 Act was in error as it was inconsistent with and contravened the order to refer the matter to a MA and was made "without reference to the procedural requirements" including an "application for review of the decision".
6. As to Ground 3, the appellant says, "the parties were clearly in dispute given that without a dispute the [Commission] has no jurisdiction to determine the matter", pointing to ss 288 and 289(3)(c) of the 1998 Act (failure to determine the claim allows for a referral of a dispute to the Commission). The appellant also puts that while the appellant's evidence confirmed a finding of 24% WPI arising from the injury "this evidence also confirmed ... there may be other diagnoses relevant to this determination ... evident in the ... evidence of Dr Dowla".
7. The appellant submits that error occurred because the s 66 award was entered on the basis that there was no dispute between the parties. The appellant further puts that once a dispute does exist "then the determination of WPI arising from the injury remained in the province of [a MA]", despite the amendments to s 65 of the Workers Compensation Legislation Amendment Act 2018 (the 2018 Act), in particular the repeal of s 65(3).
8. As such, the appellant says the Member erred in determining the award "in the absence of [a MA] assessment ... such clinical assessment is a matter further for [a MA] and not a member who is not medically qualified ...", relying on the decisions of Parker SC ADP in Shankar v Ceva Logistics (Australia) Pty Ltd[23] and Phillips P in Etherton v ISS Property Services Pty Ltd.[24]

1. The worker says the appeal is against an interlocutory decision which requires leave and that there is no issue that the worker is entitled to an award of $66,310 in respect of 24% WPI, and the complaint upon which the appeal is based is an alleged error in failing to refer the matter to a MA and to issue the DFP. He says leave should be refused because there is no medical dispute, or dispute notice under s 78 of the 1998 Act, so there was no utility or power to refer a non-existent dispute to a MA. The worker also says granting leave would be a waste of Commission resources, it is the second appeal, and the appeal lacks merit. He also notes that "apart from some correspondence, there is nothing relied upon in the Reply" pointing to both expert psychiatrists finding a 24% WPI.
2. The worker submitted that the parties differed as to whether it was appropriate for the worker to attend an MMPI examination - and that being "the only dispute which precipitated the commencement of proceedings ... [t]here was no dispute in the conventional sense of a notice having been issue[d] under s 78 ...". The worker says this dispute resulted in the President's decision referred to above, including the remit to the Member "for further directions regarding the dispute". The worker says the terms of the remitter provided "ample power to case manage 'the dispute', such as it remained". The worker adds that the appropriate course in managing the dispute, which had been essentially eliminated by the appeal decision, was to enter an award under s 66 and make any necessary ancillary orders, which was in accordance with the principle of facilitating the just, quick and cost-effective resolution of the real issues in the proceedings.
3. The worker says Ground 1 is based on a misapprehension of the President's orders in the s 119 appeal and that "the final order ... was to leave it to the Member to determine the remaining case management issues", and she "had full jurisdiction to do so".
4. The worker says that it is immaterial if "directions were sought earlier or not - the point [being] that the President had remitted case management to the [M]ember so any issues of this nature could be determined afresh", and there was "no evidence that a direction would have been necessary or appropriate in that it does not appear that the appellant has sought to obtain the material prior (otherwise than by way of a direction)."
5. The worker adds that the President's order was "contingent" on the order being made "if the material sought relates to the real issues in dispute", and it was within the Member's discretion to determine whether or not the material would in fact assist.
6. The worker says the appellant's suggestion of another condition being relevant to the WPI assessment is speculative, and if Drs Ahmad and Rastogi thought there was a pre-existing condition which was difficult to assess, they could have deducted 10% pursuant to s 323 of the 1998 Act. In this regard, it was submitted, the history was that the worker had not had any mental health issues in the past and therefore such deduction was nil.
7. The worker says Dr Ahmad adhered to his original opinion in his supplementary report. He further says the Member also based her decision to not issue the DFP on there being no Notice of Dispute in relation to causation as well as the "distressing" presentation of the worker and "the objectives of the Commission in proceeding to quick resolution of the real issues. Real issues ... do not include speculative issues".
8. As to Ground 2, the worker says "the nature of the jurisdiction the [M]ember was exercising as a result of the remittal ..." meant that it was "not necessary that the worker make an additional application", and it is immaterial if there is inconsistency between the earlier and later order as "they are case management orders not final determinations".
9. As to Ground 3, the worker says there was no "medical dispute" within s 319, except the s 119 dispute, which "goes to the nature of the worker's condition [s 319(a)] ... and that has gone away as a result of his Honour's judgement".
10. The worker further puts that since the 2018 Act, members do have power to determine WPI - "as opposed to carry out a medical assessment", and that the Member did not carry out a medical assessment. The worker says Parliament could not have intended that the amendment by the 2018 Act to s 65 of the 1987 Act "[would] have no purpose"; and "where there is no dispute between the parties in respect to not only injury, but also the extent of impairment", the legislation allows the Commission to determine the impairment itself in an appropriate case.

1. The worker says the decision is clearly interlocutory and says there is no medical dispute and that "[t]he true issues on appeal are the [M]ember declining to make various interlocutory orders as an antecedent step to entry of the final order. The correctness of the final order is not challenged". But the appellant has at least purported to raise an issue as to whether the worker is entitled to such award in in the Reply (page 2 "Matters in Dispute") and in written submissions to the Member on 9 May and 1 July 2024. Ground 3 also takes issue with this claimed entitlement, as did the appellant's initial written submissions on 30 April 2024 (paragraphs [8]-[9]) and written submissions of 9 May 2024.
2. The worker's essential submission is that no real medical dispute exists, including that to comply with ss 78 and or 289A of the 1998 Act. Otherwise, he submits that leave should be refused as there is no utility or power to refer a non-existent dispute for resolution by a MA and it would otherwise be a waste of resources. The worker also says leave should be refused as there is no dispute notice under s 78 "about anything".
3. The question of whether a medical dispute exists clearly affects all three appeal grounds - particularly Ground 3, which alleges error of law by the Member entering an award for the worker without there being a MA assessment where there was a dispute between the parties. If the worker is submitting that the terms of Ground 3, and/or the ultimate determination to award the worker a s 66 lump sum, is not a judgement which finally disposes of the rights of the parties, I reject such submission. That determination is obviously an order which finally disposes of the rights of the parties.
4. Despite the appeal being filed after the Member's final decision, and given the unhelpful submissions for each party, I will assume leave to appeal is necessary and Grounds 1 and 2 are interlocutory decisions. In Gerlach v Clifton Bricks Pty Ltd[25] the majority (Gaudron, McHugh and Hayne JJ at [4]-[7]) adopted the principle that "on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result" (emphasis of the majority). Earlier, In Licul v Corney,[26] the High Court said the question of whether or not a decision is interlocutory depends upon whether the judgement or order finally disposes of the rights of the parties.
5. In all the circumstances, including because the question of whether a relevant dispute exists underpins the analysis of and has the capacity to affect the whole decision, I grant leave to appeal pursuant to s 352(3A) of the 1998 Act, as determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
6. Again, because the appeal grounds and submissions overlap, entangled by the issue of whether a medical dispute exists, it is convenient to deal with each ground jointly while still attempting to provide some delineation for better clarity.

Has a real or valid medical dispute existed, including having regard to ss 78 and or 289(A)?

1. This question also underlies and informs the analysis of all three appeal grounds. The appellant's relevant written submission to the Member amounted to this:

"Member Drake has sought further submissions from the [appellant] in relation to the [worker's] submission that there is no dispute ... and she should make orders confirming WPI ... the [appellant says] there is a dispute between the parties ... such that referral to [a MA] is appropriate ... this is obvious given the matter is before the [Commission] and the [worker] has filed proceedings seeking to resolve the dispute ... [and] has brought a claim for lump sum compensation and the [appellant] has not paid the claim, hence a dispute has arisen for which the [Commission] has the jurisdiction to now determine. In the absence of a dispute there is no jurisdiction for the Commission to make orders at all ... See ... s 288, 289 and s 289A."[27]

1. The appellant's written submissions on appeal in this respect are essentially the same as those put to the Member (further submissions at the oral hearing are dealt with below):

"... the parties clearly were in dispute given that without a dispute the [Commission] has no jurisdiction to determine the matter",

and the parties were in dispute because the worker:

"had made a claim for lump sum compensation and the Appellant had not paid [or determined] that claim. Pursuant to s 288 and s 289(3)(c) ... it was this dispute that provided ... the jurisdiction to determine the dispute ...".

1. The worker submitted, both before the Member and on appeal, that there was "no medical dispute, and "no utility (or legal power) to refer a non-existent dispute for resolution by a [MA]" (emphasis added). The worker also put that the objectives of the Commission included quick resolution of the "real issues", and that "[r]eal issues ... do not include speculative issues".
2. For the purpose of the analysis in identifying whether any error exists under s 352 of the 1998 Act, I agree with and accept the worker's submissions in this respect. It can be inferred that the Member found that no true or real dispute came into existence. This is tolerably clear from [33]-[37] and [46]-[47] of the reasons, where she implicitly accepted the worker's submission that both Drs Rastogi and Ahmad had the benefit of reviewing the worker's "treating doctor's reports", that the "degree of [WPI] is a settled matter between both psychiatrists", and "Dr Ahmad was nevertheless able to reach a diagnosis, and does not seek to resolve, [sic, resile] from it in his supplementary report". In Northern NSW Local Health Network v Heggie,[28] Sackville AJA, Basten and Ward JJA agreeing, stated at [166]:

"The [1998 Act] ... also provides that proceedings are to be conducted as informally as proper consideration of the matter permits and that the rules of evidence do not apply. Having regard to these provisions, I think that a fair reading of the Arbitrator's reasons is that he did take into account the events preceding the alleged assault, but considered ... they had little bearing on the issue of the reasonableness of the Health Network's actions".

1. While of course the underlying facts are not the same, the circumstances of the present case allow for a similar "fair reading" of the Member's reasons to allow an inference to be drawn that her reasons for determining that the question of the degree of WPI resulting from the injury was "a settled matter between both psychiatrists",[29] and not something about which a real dispute existed.
2. The Member was not in error for so finding. The summary of the background and relevant medical evidence (at paragraphs [1]-[9] above) shows that no less than four psychiatrists (with both parties engaging two each) have assessed the worker and all four came to an opinion that the worker suffers from a psychological injury which was caused by his employment, and without any contribution from any pre-existing condition or abnormality. It is also important that all four have taken into account the same or similar history from the worker leading up to the injury (a history not challenged by any evidence from the appellant) before coming to that opinion. All four have also taken into account the worker's presentation, such as shaking of his hands and arms and rocking of his head, before coming to that opinion.
3. The highest the appellant's case gets (relevant to analysis of whether a real dispute exists) is the comment in Dr Ahmad's second report[30] that "the possibility of Movement Disorder which Dr Dowla opined to either medication related or there could be a functional manifestation most likely is very important [sic]" (Dr Ahmad's emphasis). The first problem with this statement is that it appears to be based on an opinion from Dr Dowla. But the appellant has not put any material from Dr Dowla into evidence. In Onesteel Reinforcing Pty Ltd v Sutton,[31] Allsop P (McColl and Basten JJA agreeing) stated that:

"The relationship between the rules of evidence and hearings by the Commission is ... clear ... The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless ... the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material".

1. With these principles in mind, it is unsurprising that the Member did not take into account anything Dr Dowla may or may not have said. At the very least, the hearsay provided by Dr Ahmad appears to be only a small selection of Dr Dowla's "documentations and investigations". While it can be accepted that Dr Ahmad himself has expressed an opinion, and it is tolerably clear that extends to "the possibility of Movement Disorder", it is not clear whether the reference to "either medication related or there could be a functional manifestation most likely" are the views of Dr Ahmad or Dr Dowla or both. Nevertheless, as the worker has submitted, this passage does not rise above the level of speculation or "possibility". Further, Dr Ahmad says the following about the symptoms he observed on the worker's presentation:

"These kinds of tremors could come from medications, but I am not fully convinced that it could be the side effects from the prescribed medications as the worker's wife believes that this is part of his anxiety following alleged death threats from the supervisor, along with constant bullying and harassment at workplace."

1. It is not totally clear what Dr Ahmad means in this passage. As Mr Stiles properly conceded,[32] the only medications that could be relevant having regard to the whole of the evidence were those that had been prescribed to the worker as a result of the injury, and thus likely to be related to the injury as well. Also, Dr Ahmad does not need to be "fully convinced" in order for his opinion to be probative, he only needs to opine as to whether something is more likely than not. In any event, although it is not totally clear, it appears that the alternative causative factors to the medication, that is, the anxiety following the "alleged death threats ... [and] constant bullying and harassment ...", are also likely to be related to the injury as well.
2. In any event Dr Ahmad's recommendation (following a leading question from the appellant's solicitor) is to arrange MMPI testing "to confirm a diagnosis" (emphasis added), and to "rule out any Functional Component of the presentation". The MMPI testing has now been dealt with. The appellant has not pursued it by way of appeal or otherwise. I also accept the worker's submission that despite Dr Ahmad saying it would be "very appropriate" to arrange MMPI testing, and that a Movement Disorder was no more than possible, he has not written anything suggesting he wished to in any way alter the opinions in his first report, in particular that "[the WPI] ... results fully from the injuries sustained in the course of employment with the [appellant]. No proportion of the impairment is due to previous injuries, pre-existing conditions or abnormalities".[33]
3. Therefore, at least for the above reasons, the Member was right to implicitly find that there was no real medical dispute that existed between the parties.
4. In the above context, ss 78 and 289A are of critical importance to the finding (at [38]) that "The degree of the [worker's WPI] is not in dispute. It is in fact causation that the [appellant] wishes to dispute without actually issuing a notice to that effect". This finding was open to the Member. It was also the correct finding in all the circumstances as both forensic doctors agreed the degree of WPI was 24%, with the comment about "causation" clearly referring to the words "as a result of an injury" in s 319.
5. It can be accepted that s 289(3)(c) allowed the dispute to be referred to the Commission for determination because the appellant failed to determine the lump sum claim. But it does not necessarily follow that the appellant is then relieved from complying with s 289A, which provides for "further restrictions" as to when a dispute can be referred to the Commission.
6. Section 289A provides more specificity than s 289 in terms of the particular jurisdiction provided, with s 289A (1) providing: "A dispute cannot be referred for determination ... unless it concerns only matters previously notified as disputed" (emphasis added). Section 289A(2) then limits the way a matter can be taken to have been previously notified as disputed in only two ways: firstly, if the matter was notified (relevant to this case) in a s 78 notice, and secondly, by s 289A(2)(b) if "it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation."
7. Section 289A was added to the 1998 Act by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005. The relevant Minister's second reading of the Bill relevantly included the following:

"A number of further amendments have now been identified ... to further improve the ... dispute resolution process ...Their purpose is to encourage earlier settlement of claims and to enhance the efficiency of both pre-dispute and dispute resolution processes ... the bill contains a number of measures aimed at facilitating earlier settlement of claims and ensuring that the matters referred to the commission are genuinely in dispute. These measures provide for the exchange of all relevant documents and identification of all relevant issues as part of the claim and dispute process ... this is not about accepting every claim made on an insurer. It is about making sure matters that go before the commission are genuinely in dispute ... the bill contains provisions that strengthen the commission's powers to decline to deal with disputes that do not comply with statutory prerequisites and to limit consideration of dispute to matters notified prior to lodgement ... However, the commission will acquire a specific new power to deal with a matter if it is in the interests of justice to do so".

1. These statements are consistent with the text, context and purpose of s 289A and the whole of Ch 7, Pt 4, Div 3 of the 1998 Act.[34] Given these matters, it is difficult to envisage how and/or why it could have been intended that an insurer who has failed to determine the claim can be relieved of the general obligation to comply with s 289A on the basis of it having failed "to determine the claim as and when required by this Act".
2. I do not accept the appellant's written submission that "the parties clearly were in dispute given that without a dispute the [Commission] has no jurisdiction to determine the matter". There are two aspects to this. Firstly, even assuming the s 119 dispute determined by Phillips P could be classified as a medical dispute within the meaning of s 319, the worker did not raise an issue about there being a valid medical dispute in existence at either the 10 May 2024 TC or during the s 119 dispute. Nor was this brought to the attention of his Honour at all. Secondly, it was clearly raised at the 25 June 2024 TC, as shown by the Direction on 27 June 2024, that the appellant "will file within seven days written submissions in support of its oral submission that there is a dispute in this application and that the application is required to be referred to [a MA]". The Member then directed the worker to respond within three days after receiving the appellant's submissions.
3. So, if the worker had a right to argue there was no valid medical dispute before 25 June 2024, I accept his argument that he "waived" that right by not raising the matter with the Commission and/or directly with the President. But once the issue was raised, the Member was right to call for submissions from both sides on the question of whether there was a real dispute, and to set it down for an arbitration hearing. But "waiver" is not the correct term in the circumstances. In Berowra Holdings Pty Ltd v Gordon,[35] the plurality (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) said that terms such as "waiver" and "nullity" may not be helpful in this type of situation, and that discretionary procedural choices are involved. The plurality stated (at [10]-[15] and [38]-[39], footnotes omitted) the following:

"10. ... It was said that such proceedings are 'invalid' or a 'nullity'. In Minister for Immigration and Multicultural Affairs v Bhardwaj, three members of this Court pointed out in the context of administrative decisions that such expressions are statements of conclusion which are not necessarily helpful in resolving the rights of parties. Dangers are equally present in the context of proceedings in, and acts and orders of, courts.

1. In particular, the introduction into s 151C [of the 1987 Act] of concepts of 'nullity' and 'invalidity' is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction ...
2. That difference between courts of general jurisdiction and of limited jurisdiction is important because s 151C(1) refers generally to 'court proceedings', a term which is not susceptible of confinement to proceedings in any particular court and ... jurisdiction in workers' claims are cognisable in a range of courts. ... this Court should not prefer a construction which would result in s 151C having differential application depending upon the court in which proceedings were commenced.
3. There is also a very real difficulty in characterising proceedings as 'invalid'. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court ...
4. Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.
5. In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party ...

38. ... 'Waiver' is a word which Cardozo J described as 'misleading' on account of the many things for which it is made to stand ..."

39. ... once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as 'waiver' (and acquiescence and estoppel) are confusing and imprecise ... The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court".

1. There is nothing in the workers compensation legislation which is relevantly contrary to these principles being equally applicable to proceedings in the Commission. In this case the worker did not take the necessary procedural step to affect the path of the proceedings until on or about the time of the 25 June 2024 TC. I find that it was only from then that an issue about whether or not there was a medical dispute or any real or valid medical dispute at all became relevant.
2. At the oral hearing, Mr Stiles said it was unnecessary for the appellant to comply with s 289A, saying, "we don't seek that leave because we say ... the dispute was already crystallised ... [by the emails]" and "that which led up to that". He also relied on the principles in Skates v Hills Industries Ltd.[36] Although not expressed, this reliance was presumably on this passage, (at [44]-[46]) per Leeming JA:

"The starting point is a 'medical dispute'. That term is defined in s 319 of the [1998 Act] ... by reference to the existence of a 'dispute between a claimant and the person on whom a claim is made' about any of seven related subject matters including the degree of [WPI] as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.

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 [WPI] 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" (emphasis added).

1. Skates can be distinguished from the worker's case. There are significant factual differences. In Skates, Basten JA, Leeming JA agreeing, said (at [29]):

"Medical reports enclosed with the [ARD] referred to specific injuries ... it was these injuries to which the insurer admitted liability and as to which a dispute arose concerning the precise extent of the injury. The insurer offered to accept a degree of [WPI] calculated at 12%; the applicant sought a payment calculated by reference to 18%. These figures were supported by medical reports".

1. The first difference is that in the present case both doctors who provided forensic reports, Drs Rastogi and Ahmad, find a degree of permanent impairment of 24%, with no deduction for any pre-existing matter. Thus, they are not "different claims". It may be said by the appellant that "different claims" are not necessarily confined to percentage WPI points. But even so, the appellant's only relevant "claim" is "uncertainty about diagnosis" and "the [worker] does not suffer any [WPI] as alleged or at all ...". Even if that could be said to be a valid claim, there is much tension between such claim(s) and the appellant also saying there is no liability issue, including causation.
2. Secondly, it was clear in Skates that there was no liability issue. The only issue was the degree of WPI for the body parts referred to a MA. In the present case, the appellant's position that liability is not in dispute is unclear given that its primary allegation is that the worker "does not suffer any [WPI] as alleged or at all", and with the purported issue being "uncertainties with diagnosis", referring to alternative diagnoses of paranoid schizophrenia and/or movement disorder. The third difference is that the ability of the appellant to agitate a medical dispute at all, and whether any purported dispute was real (from on or about the time of the second TC on 25 June 2024), and the applicability of ss 78 and or 289A(4), are in issue here. They were not issues in Skates.
3. During the oral hearing, I understand Mr Stiles conceded that even though s 289(3)(c) ("fails to determine the claim as and when required ...") would allow for the dispute to be referred to the Commission, the "further restrictions" in s 289A also need to be overcome before the dispute can be so referred. If my understanding is correct, that was a proper and necessary concession. I clarify this because the transcript is not totally clear. But it would not make a relevant difference even if there was no such concession because after considering all submissions in this respect, I find the plain and literal meaning of ss 289 and 289A, read together, is that a dispute can only be referred for determination if it is taken to have been previously notified as disputed by either a notice of dispute under the 1998 Act (s 289A(2)(a)), or if it concerns matters raised in writing between the parties before the dispute is referred for determination, concerning an offer of settlement of a claim for lump sum compensation (s 289A(2)(b)).
4. There being no s 78 notice, Mr Stiles properly conceded the appellant would not be able to satisfy s 289(2)(a). As to s 289A(2)(b), the relevant transcript of the oral hearing should be set out:

"ACTING DEPUTY PRESIDENT: ... I did shut you down not permanently but temporarily in relation to the dispute matter so I'm going to invite you to say something about it ... section 289 says ... with respect to a dispute for a claim for lump sum compensation it can't be referred unless inter-alia there is a failure to determine. ... in other words, on one view ... jurisdiction is given on that basis under section 289 and there's no need to resort to 289A, is that what you say? ... it may have been what Mr Guest said in ... his earlier submissions."

Mr STILES: That is so, ... but what Mr Guest was getting at is that in 289A, subsection (2)(b) it says a matter is taken to have been previously notified as disputed if it concerns matters raised in writing between the parties before the dispute is referred to the President concerning an offer of settlement of a claim for lump sum compensation. So we say that that email correspondence which says nil offer in response to the claim for lump sum compensation that would be a matter that is previously notified in any event".[37]

"ACTING DEPUTY PRESIDENT: ... Mr Stiles, I take it that you may have been implying in any event - I say it's my preliminary view, I haven't looked at any authority for this but 289A does need to be resorted to because - and 289 needs to be looked at subject to 289A because of the words further restrictions in 289A.

ACTING DEPUTY PRESIDENT: Yes. So 289 alone doesn't ... get it up, yes. Yes, that's the way I ... (not transcribable 01: 28:40) ... All right. Anything else gentlemen?..."[38]

1. Both counsel then indicated they did not wish to make further submissions. However, earlier Mr Robison's submission in this respect was as follows:

"... the plain terms of ... the correspondence are precisely the opposite. It's not ... an offer of settlement, it is we will not be making an offer, nil offer. It's not an assessment of [0% WPI] or some percentage of impairment which is below the compensable threshold or something like that, it's simply we're not making an offer".[39]

1. I do not accept the appellant's submissions in this respect. The meaning of s 289A needs to be read in the context of the scheme of Part 3 (Dealing with Claims) Division 4 (Claims for Lump Sum Compensation and Work Injury Damages) of the 1998 Act. Section 281 states that a person on whom a claim for lump sum compensation is made must, within a period of 1 to 2 months (relevantly and depending on the circumstances), either accept liability and make a reasonable offer of settlement, or dispute liability under, relevantly, ss 78 (insurer is to give notice of decisions) and 79 (providing detail as to how such a notice is to be given).
2. The appellant says it has not disputed liability despite the primary allegation in the Reply being "the [worker] does not suffer any [WPI] as alleged or at all". Section 289A relevantly says that "A dispute cannot be referred for determination ... unless it concerns only matters previously notified as disputed" and "A matter is taken to have been previously notified as disputed if ... it concerns matters, raised in writing ... concerning an offer of settlement ...". In Thadsanamoorthy v Teys Australia Southern Pty Ltd,[40] Parker SC ADP examined s 281 of the 1998 Act and said:

"It is evident from the text of s 281 that the provision is intended to promote the early determination of liability and assessment of claims for lump sum compensation. To facilitate that objective s 282 requires the claimant to provide 'relevant particulars about the claim ... sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement on the claim'. The emphasis is on providing information to the insurer to enable it to make an expeditious and early determination of liability, and, if liability is accepted, to make an early and reasonable offer of settlement.

Sub-section 282(2) facilitates that purpose by directing that the employer can have the claimant examined. This is intended to provide a mechanism whereby the insurer can inform itself as to the impairment if any. The intent is to avoid referral to an AMS and to enable the parties to resolve medical disputes. ..." (emphasis added).

1. The facts of the above case involved an issue about whether it was necessary for a worker, who lived overseas, to attend a medical examination arranged by the insurer, so the facts between it and the present case are not fully analogous. However, while the present case did involve a request by the appellant for an examination, it was not with a relevant medical practitioner. It was also not relevant to the analysis of Parker SC ADP because the worker did present himself for examination by two medical practitioners at the request of the appellant or insurer. Therefore, the purpose of s 281 found by Parker SC ADP applies equally to the worker's case. Section 281 relevantly provides:

"(1) The person on whom a claim for lump sum compensation ... is made must, within the time required by this section ... (up to 2 months) determine the claim by -

(a) accepting liability and making a reasonable offer of settlement to the claimant, or

(b) disputing liability under Division 3 of Part 2 of Chapter 4 [relevantly referring to s 78] ...

Section 283 makes failure to comply with this section an offence. Section 78 requires notice of dispute to be given. If an offer of settlement is not made as required by this section, the claim can be referred for assessment as soon as the time for making the offer has expired.

(2A) The determination of a claim cannot be delayed beyond 2 months after the claimant has provided to the insurer all relevant particulars about the claim (that delay being on the basis that the degree of [WPI] ... is not fully ascertainable), unless the insurer has within that 2-month period notified the claimant that the degree of [WPI] ... resulting from the injury is not fully ascertainable.

(3) An offer of settlement is to specify an amount of compensation ... or a manner of determining an amount of compensation ...

(4) If an offer of settlement is made on the basis that the insurer accepts only partial liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is accepted

1. My above underlining is to emphasise that the term "concerning an offer of settlement" in s 289(2)(b) should be read with and in the context of the term "offer of settlement" in s 281, and when it is so read, it can be seen that the appellant's submission about the meaning of s 289(2)(b) is incorrect. I read these words in accordance with their ordinary meaning and in the context and purpose of Pt 3 Div 4 of the 1998 Act (particularly s 281), as the emails needing to concern matters that concerned an offer of settlement.
2. Even if liability has been accepted, s 281(1)(a) requires the making of a reasonable offer of settlement to the worker, with the only other option being to dispute liability, in which case a s 78 notice, also complying with the proper form in s 79, would clearly apply. I accept the worker's submission that the emails did not concern an offer of settlement. The words "offer of settlement" do not appear in the emails, or the evidence at all. The word "offer" does appear once, but it is preceded by the word "nil".[41] The emails are solely concerned with the MMPI dispute and/or the "uncertainties with diagnosis". They were not concerned with an offer of settlement. The appellant does not otherwise explain how and or why the "email correspondence which says nil offer in response to the claim for lump sum compensation", can be properly characterised as concerning matters that concern an offer of settlement.
3. Therefore, even if I am wrong in the finding there was no error in finding that there was no relevantly real or valid medical dispute, I find that the appellant does need to comply with s 289A, and for the reasons above it has failed to show that the alleged medical dispute was a matter that could be taken to have been previously notified as disputed within the meaning of s 289A, given there also being no s 78 notice, which would have been the only other relevant gateway, by way of s 289A(2)(a).
4. Section 289A(3) provides that the Commission "may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination ...". However, s 289A(4) provides:

"Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so."

1. But the appellant has expressly eschewed reliance on s 289A(4). It follows that the matters sought to be raised as a dispute in the Reply have not been previously notified. Those matters are the "uncertainties with diagnosis" and/or that the worker does not suffer any WPI as alleged or at all, and that there should be a deduction under s 323.
2. Even if an application under s 289A(4) had been made to the Member, it is highly arguable it would have been unsuccessful. Because the appellant has expressly declined to rely on this sub-section, it is unnecessary to conduct a full consideration of all relevant matters in the exercise of the discretion referred to in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services.[42] However, the discussion relating to the validity of the purported dispute (at paragraphs [1]-[9] and [58]-[64] above) would militate strongly against leave being granted by her, given the "merit and substance of the issue that is sought to be raised" factor in Mateus at [48(d)].
3. Also going against the appellant obtaining leave would be the "degree of difficulty or complexity to which the unnotified issues give rise" at Mateus at [38(a)], and (at [38(c)] "the degree to which the insurer has otherwise fulfilled its statutory obligation to notify the worker of its decision disputing liability". The appellant's failure to determine the claim feeds into the question of whether or not liability has truly been disputed, and its complexity. There is a significant lack of clarity in the appellant's position (see paragraphs [77] and [82] above), which has also complicated the case. On 14 April 2025, I issued Directions which relevantly included this part, at [1(c)]:

"... There also appears to be no submission from either party as to whether or not they, or the Member, turned their minds to, and or dealt with, the power in s 289(4) ... the appellant is asked how and why it should be allowed to agitate the issue of causation (see reasons [38]) without leave ... under s 289A, and the respondent is asked to explain how and why such situation does necessarily mean the appellant is prevented from agitating the causation issue ...".

1. In this regard, Mr Stiles submitted at the oral hearing:

"... a dispute regarding causation ... [has] ... never been raised ... the appellant hasn't sought and doesn't seek today to agitate any causation issue. We say that the dispute was that which was crystallised by the ... email correspondence and that which led up to that.

What's contained in the part of the Reply ... is consistent ... with ... terms of the question of impairment and ... the issues raised in that email correspondence. It's not ... simply limited to the ... MMPI testing but uncertainties as to diagnosis and, therefore, a dispute regarding the level or degree of impairment. That is what we say is - was the dispute and remains the issue in dispute.

... we don't seek ... leave [under s 289A] because ... the dispute was already crystallised".[43]

1. The particular issue that remained (noting the MMPI dispute has been disposed of) is "uncertainties as to diagnosis". This description is consistent with the evidence and submissions otherwise. Although the allegation has remained vague, this presumably goes to whether or not the diagnosis ought to be paranoid schizophrenia and or movement disorder, leaving significant scope for the primary allegation in the Reply - that the worker does not suffer any WPI at all - to prevail. The appellant's submission thus contains an internal contradiction given the relevant authorities. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd,[44] Emmett JA (Ward and Meagher JJA agreeing) stated:

"... Questions of causation are not foreign to medical disputes within the meaning of that term when used in the [1998] Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of [WPI] of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of 'medical dispute' ...".[45]

1. In short, the worker submitted that the appellant's position in relation to liability, including causation, was unclear.[46] I agree. For just one example, if leave under s 289A(4) had been sought and granted by the Member, there would have been complexity in relation to whether the Commission had the power to determine "the nature of the injury", assuming that was what the appellant has referred to as "diagnosis". In Jaffarie, White JA approvingly referred to the following passage in the earlier decision of Roche DP in Jaffarie v Quality Castings Pty Ltd[47] at [256]-[257]:

"256. ... since 'the nature of the injury' (or the 'condition' or 'aetiology of the condition') is not a matter on which an assessment in a [Medical Assessment] is conclusively presumed to be correct, the opinions of [a MA] on such matters do not bind the Commission. This follows from s 326(2), which states that '[a]s to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings' ...

1. The absence of any similar provisions for 'the nature of the injury' points strongly to the conclusion that 'the nature of the injury' is a matter for the Commission to 'determine. This is consistent with Emmett JA's statement [Bindah at [111]] that it is for the Commission 'to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act' and his Honour's later statement ... that only 'certain matters of causation'... are within the exclusive jurisdiction of [a MA]".
2. Thus clearly, if an application under s 289A(4) had been made, there would be complex questions arising in all the circumstances, including whether or not the purported issue posited by the appellant was part of the "certain matters of causation" referred to by Emmett JA above, despite the appellant putting that it was not raising a causation issue.
3. More importantly, this discussion also shows the Member did not err in finding (at [38]) that "[i]t is in fact causation that the [appellant] wishes to dispute without actually issuing a notice to that effect", and (at [44] and [50]) that there was "no Notice of Dispute in relation to causation" as well as an "absence of any Notice of Dispute".
4. The above findings, together with the appellant's failure to determine the claim, about whether the alleged medical dispute has existed, or was real, is not intended to express or imply any opinion in relation to the offence provisions of ss 283-286 of the 1998 Act. I now turn to the specific grounds of appeal.
5. Ground 1 asserts error of fact, law, discretion and denying procedural fairness by refusing to grant leave for the issue of the DFP. The appellant's submissions (at [1]) point to the relevant reasoning of the Member being at [44].
6. If my earlier findings about whether there was a proper basis for the alleged medical dispute are incorrect, I would accept the appellant's submission that the "decision to refuse leave to issue [the DFP] is an error of law or discretion" and that it was based on a mistake of fact. But the appellant has not made any clear submission in support of any such error amounting to procedural unfairness, including by pointing to any defect of procedure that resulted in any such unfairness. Even if that is incorrect, because this is an interlocutory order, Gerlach still says the error needs to affect the final result before being corrected.
7. The Member did not deal with any DFP request at either the 10 May and/or 25 June 2024 TC's. While that request was foreshadowed in the Reply, and was part of the 9 May 2024 written submissions, it is not entirely clear whether the appellant did specifically raise with the Member, at the 10 May 2024 TC, this aspect of the written submissions. These submissions mainly deal with the MMPI/diagnosis matters, with the DFP request only forming the last three paragraphs of the document. However, the Member did deal with it in her 22 July 2024 decision, after the appellant was directed to and did provide written submissions before the hearing, including in relation to the DFP.
8. The appellant submits the Member then erred (at [10] and [44]) in finding the request for the DFP was at a "late stage of proceedings", and "it would have been appropriate to ask that such directions be issued at the first telephone conference". Contrary to this finding, the appellant says the request "formed part of the submissions [it] provided to" the Member at the initial TC, and was lodged with the Commission on 9 May 2024, the day before the first TC. This is consistent with the Commission records.
9. The 15 May 2024 determination did not deal with the appellant's request for leave to issue the DFP. It is also unclear whether there was a further request at the 25 June 2024 TC, but the first sentence of reasons [44] shows it was an issue at the hearing. There is error in this interlocutory decision (at [10] and [44]) because contrary to the Member's finding that "it would have been appropriate to ask that such [DFP] be issued at the first [TC]", the DFP was before the Member on 10 May 2024. Again, although I am not fully convinced the appellant orally moved on those written submissions at that TC, on a fine balance, I accept it did ask for the DFP to be issued through the last paragraph [24] of the 9 May 2024 submissions.
10. This means there should be an analysis of whether the error relevantly affected the final result. In Workers Compensation Nominal Insurer v Al Othmani,[48] Bathurst CJ (McColl JA agreeing) stated:

"The critical question ... is whether the errors infected the ... ultimate conclusion; that is whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 [Akora]."

In Akora, Basten JA (at [17]) relevantly stated:

"... it was not a material or operative error. If that conclusion were removed from the Deputy President's reasons, it is sufficiently clear that he would still have set aside the decision of the arbitrator for the reasons articulated ...".

1. Further, in Walshe v Prest[49] Basten JA (Giles JA and Campbell AJA agreeing) stated:

"The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless 'some substantial wrong or miscarriage has been thereby occasioned' is now to be found in ... the Supreme Court Rules. As noted in Conway v The Queen (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in [NSW] ... The power to give a judgement which 'ought to have been given' in the Court below permits the dismissal of an appeal in circumstances where, despite apparent error, the judgement below did not result in a substantial miscarriage of justice ...

... The question ... is whether ... the trial judge has made an error, but reached the right result, or at least a result which can be seen, objectively, not to involve substantial injustice".

1. The appellant says the Ground 1 error appears at [10] and [44]. But the context within which [10] and [44] should be read also includes the Member's:

(a) notation (at [37]) of the worker's submission that there was "no end to the list of tests of any condition which could conceivably be carried out. However, Dr Ahmad was nevertheless able to reach a diagnosis and does not seek to [resile] from it in his supplementary report";

(b) finding (at [38]) that the degree of the worker's WPI was not in dispute, rather, "[i]t is in fact causation that the [appellant] wishes to dispute without actually issuing a notice to that effect", and notation of the appellant's submission that the "treating evidence suggests two alternative diagnoses ... [and Dr Ahmad] ... had indicated that these potential diagnoses may be relevant to an assessment of [WPI] and has sought leave to issue directions to treating doctors" (emphasis added), and

(c) finding (at [44]) that there was "no Notice of Dispute in relation to causation ...".

1. In all the circumstances, I find the Ground 1 error found would not likely have affected or made a difference to the result, at least because of the Member's finding that there was no notice of dispute with respect to causation or any medical dispute otherwise. The statement by the appellant's counsel that there has never been a dispute about causation is problematic for the reasons referred to in paragraphs [90]-[93] above. However, whether I accept or reject that concession, or even treat it as one, makes no difference - because if the erroneous Ground 1 conclusion was removed from the decision, it is sufficiently clear the Member would still have ultimately determined the award she made on 22 July 2024 - on the basis of her finding that the appellant was seeking to agitate a causation issue about "uncertainties with diagnosis", "without having issued a notice to that effect", and/or that no medical dispute existed. Otherwise, in all the circumstances, I also find this to be a situation where error has occurred in the decision but the Member still "reached the right result, or at least a result which can be seen, objectively, not to involve substantial injustice".[50]
2. There has been no satisfactory explanation from the appellant as to why no s 78 notice was issued, or leave sought under s 289A(4), either before the Member or on appeal, including in the written submissions. The appellant says that despite not determining the claim in accordance with the 1998 Act, it did not need to comply with s 78 or s 289A(4) because "the dispute was already crystallised ... [by the emails]" and "that which led up to that". If that submission is right, it would appear to produce an anomalous and potentially problematic situation by putting a party who does not comply with a fundamentally important procedural requirement in a position where it is able to avoid that requirement when all other parties generally do need to comply with it.
3. It may be said that the Member's reasons were brief, as were the findings as to the alleged medical dispute not existing. But s 294(2) of the 1998 Act relevantly provides that: "A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination". This obligation is also addressed in the Personal Injury Commission Rules 2021. However, the appellant has not made any complaint or submission about the adequacy of reasoning. It is thus unnecessary to say more, except that I do not think it inappropriate such an issue was not pursued.
4. In my opinion, this is a factor which points towards it being more likely that the Member would still have set aside the decision on the grounds that there was no medical dispute even if the error I have found was removed from the reasons.
5. Further, the terms of the DFP request are:

"On the 19th December 2023 the [appellant] wrote to Dr Roshandel with an authority from the [worker] seeking copies of clinical notes. Despite chasing production of these documents in January 2024, Dr Roshandel did not produce his clinical records to the [appellant].

Dr Roshandel's notes have been produced to the [worker] and are attached to the Application. These notes confirm that the [worker] has been referred to a number of medical practitioners to treat his psychological injury. Until receipt of the Application the [appellant's] solicitor was unaware of these practitioners.

These documents are likely to be relevant to the determination of these issues and may have significant forensic relevance. ... the [appellant] seeks leave to issue directions to the following medical practitioners or clinics;

(a) The Hills Clinic (Dr Pearson),

(b) Wentwest Mental Health

(c) Sunnyside clinic."

1. The Member said in the first sentence of [44], immediately preceding the statement that she did "not intend to issue [the DFP]", that the appellant's intention was "to identify a cause for the [worker's] illness other than that which has been determined to exist by both psychiatrists". Given the overall evidence, my discussion, and findings in relation to the lack of existence of the purported medical dispute, and the opinions I expressed in relation to the hypothetical s 289A matters, I find the Ground 1 error found was not a material or operative error, and that if the Member's conclusion at [44] was removed from the reasons, it is clear that she would still have found that no medical dispute existed. I also find in this regard that the Ground 1 error can be seen, objectively, to not involve a substantial injustice.
2. Further, as far as one is able to see and/or discern from the evidence, each of the "medical practitioners or clinics" referred to in (a)-(c) above appear not to have seen the worker prior to the GP writing letters referring the worker to each, on 14 December 2021, 8 November 2021 and 6 December 2021 respectively.[51] In each of those referral letters the GP provided past medical history, but nothing appears in respect of any psychological issue. It is also to be remembered that the worker's unchallenged evidence is that he commenced employment with the appellant on 21 April 2016, from which time he had no issues with and enjoyed his work, until the manager arrived in about 2019 or 2020.
3. In all the circumstances, I also find that with the Ground 1 error removed the Member's decision can be seen, objectively, to not involve a substantial injustice.[52]
4. For all the above reasons, Ground 1 fails.
5. As to Ground 2, the appellant submits that the worker's application to enter orders with respect to a 24% WPI occurred at the "preliminary conference", which I take to mean the 10 May 2024 TC, and that the worker conceded the application was made at the "2nd conference" which must mean the 25 June 2024 TC. The application being raised at the first TC appears inconsistent with the 15 May 2024 Certificate of Determination, which provides short reasons in support of the s 119 determination but does not mention at all a contest about any other matter.
6. The Commission records show that there were two separate documents, a "Direction" and a "Certificate of Determination", issued on 15 May, with the "Direction" only stating: "The appointment arranged with an Independent Medical Assessor for 23 May 2024 will proceed". I also acknowledge that determination 4 of the Certificate of Determination similarly states, "the [worker] will attend the Independent Medical Assessment arranged for him on 23 May 2024". So there does not appear to be any referral at all, let alone one detailing the terms or basis of any referral that may have occurred.
7. Determination 4 does provide that the worker "will attend the Independent Medical Assessment arranged for him on 23 May 2024" with nothing more. If there was a contest at the 10 May 2024 TC about this, I would have expected there would have been some short reasons, or at least a recording of that contest and some record of any referral.
8. I do not see anything significant turns on which of those occasions it was raised. The worker's position regarding Ground 2 is that it was not necessary to "make an additional application because of ... the remittal order made in disposal of the first appeal", "it is immaterial if the current order is inconsistent with the former one - they are case management orders not final determinations", and "the worker did make an application for the entry of the award absent a referral to a [MA]". I do not accept this argument. Firstly, the "specific application" referred to in Ground 2 clearly enough refers to an application for reconsideration under s 57 of the Personal Injury Commission Act 2020 ('s 57' and 'the 2020 Act'). The appellant should have made this clearer though - with the extent of the submissions being:

"This application should have properly formed part of an appeal of the Member's earlier orders ...

No such appeal was filed ... (nor application for review of the decision) and accordingly the order referring the matter to [a MA] was confirmed ... and was binding...".[53]

1. Therefore, assuming there was a lawful referral to a MA (again I have concerns about that but the worker does not raise any point about it), the "re-determining" of it[54] was erroneous because there was no reference to s 57 as supporting the exercise of the power to reconsider any earlier decision made in this respect, nor to the principles to be applied in carrying out that exercise;[55] although again, there is no evidence that has been shown by either party, or that I can find, that such order was validly made. At [41] the Member states, "I am not persuaded that I am bound by the Order issued by me prior to the appeal which was then determined by the President", resulting in a situation where there is a lack of clarity as to the terms of the Order and the basis for being unpersuaded that she was ultimately bound by the Order.
2. The appellant also says the Order was final and binding, referring to s 56(1) of the 2020 Act, but fails to mention that s 57(1) follows that section and whether or not that was relevant. In this regard, the worker submitted to the Member that "[t]o the extent necessary (if any), these submissions (and the submissions made orally at the preliminary conference) should be taken as relying on the reconsideration power in s 57 of the [2020 Act]."[56] However, the Member did not refer to this.
3. Nevertheless, and even assuming this error can be found, it would not likely have affected or made a difference to the result, for the same reasons I have given for coming to a finding that no error made under Ground 1 (paragraphs [104]-[108] and [110] above, excepting discussion as to the particular Ground 1 error) made a difference. Of course, the reasoning at paragraphs [114]-[119] above also supports my finding that any said Ground 2 error would not have likely made a difference to the result and that with the said Gound 2 error removed, the Member's decision can also be seen to not involve a substantial injustice.
4. For those reasons, Ground 2 fails.
5. The appellant's first point as to Ground 3 is that the Member erred because there was no jurisdiction to enter the award in favour of the worker as "the parties were clearly in dispute", contrary to the finding "that there was no dispute between the parties". This argument is also relevant to the disposition of Grounds 1 and 2 and has been dealt with in the reasons above, particularly at paragraphs [104]-[108], [110], and [120] above. Those reasons apply equally to this first point made under Ground 3. I thus do not accept the appellant's submissions in that respect. I find that no error of law, or fact or discretion was involved in the finding that there was no relevant medical dispute.
6. I also do not accept the appellant's submission that although its evidence "confirmed a finding of 24% WPI arising from the injury, this evidence also confirmed that there may be other diagnoses relevant to this determination ... evident in the treating evidence of Dr Dowla and formed the basis for the appellant's request for leave to issue directions to other treating doctors ...".[57] The appellant then says it did not agree to meet the claim of 24% WPI for those reasons and a dispute arose.
7. As earlier found, there was no evidence from Dr Dowla, apart from unacceptable, limited, and selective hearsay from Dr Ahmad (that is no criticism of him). This goes no higher than speculation as the worker has submitted. I also disagree with the assertion that a medical dispute arose for the reasons earlier given in finding that the Member did not err in this respect.
8. The Member identified the matters in dispute (at [5]) as "whether the application should be referred to [a MA] for determination of the [WPI] ... or ... alternately the Commission should issue an award in that respect". She carefully noted the evidence, particularly the medical evidence (at reasons [13]-[27]). Then, at ([40]), she stated that at the 25 June 2024 TC, she was asked to determine the WPI suffered by the worker "as a result of his injury" and, "That is the issue I intend to determine" (emphasis added). Neither party has made a complaint about that formulation of those issues. The Member resolved that dispute (or those disputes) by also finding (at [50]) that she would not make a referral to the MA "having considered the medical evidence and the absence of any Notice of Dispute", then determining the award under s 66 of the 1987 Act in favour of the worker.
9. At no stage has the Member made a medical assessment of the worker's WPI as a result of injury. She has determined, after carefully analysing the medical evidence and the lack of a relevant medical dispute otherwise, particularly the evidence from the expert psychiatrists, Drs Rastogi and Ahmad, that the worker suffers a 24% WPI as a result of the injury. Both these doctors assessed the WPI as a result of the injury in accordance with the Workers Compensation Guidelines and thus s 322 of the 1998 Act. No issue has been raised by either party about that.
10. The appellant's second point under this ground[58] is that Shankar stands for the proposition that "once a dispute between the parties existed, then the determination of WPI arising from the injury remained in the province of an AMS". But even if that submission accurately describes what Shankar stands for (and is not an oversimplification), the submission itself acknowledges that a medical dispute needs to exist before question of any referral arises. There is no such dispute in this case for the reasons given above.
11. The appellant's reliance on the comments of Phillips P in Etherton that "the amendments to s 65 did not alter the method of assessment provided by the scheme of the Act" also show how this case can be distinguished from Shankar, because in the worker's case there has been no assessment by the Member, and the Member has determined the relevant issue particularly on the basis of the evidence from Drs Rastogi and Ahmad who both assessed the WPI in accordance with the Workers Compensation Guidelines. I therefore do not accept the appellant's submissions that the determination was made in contravention of s 65(1) of the 1987 Act and those Guidelines.
12. Similarly, I do not accept the appellant's submission, again relying on Shankar (at [55]), that "the amendment to s 65 does not authorise the Commission to make an assessment of the degree of [WPI]. The assessment of the degree of [WPI] remains the province of the AMS". Again, there was no assessment in the present case. Also, Shankar can be distinguished because it was found by the learned Acting Deputy President in that case that there was a medical dispute within the meaning of s 319.[59] My finding is that the Member did not err in finding that no such dispute has existed the worker's case.
13. The appellant does not make any clear or detailed argument otherwise, except that "[i]n determining WPI without the consent of both parties and without referral to [a MA] the appellant submits the Member erred at law".[60] This does not explain why or how such error occurred, but taking it on its face, I respectfully agree with and gratefully adopt the following statement from Phillips P in Etherton at [102]-[105]:

"102. Prior to the commencement of the [2018 Act] on 1 January 2019, s 65(3) of the 1987 Act provided as follows:

'If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.'

1. This provision was repealed with effect from 1 January 2019.
2. A new provision was inserted into the 1998 Act, s 322A(1A) which provides ...:

'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.'

1. As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself".
2. For all those reasons, Ground 3 fails.

1. Leave to appeal the interlocutory orders with respect to Appeal Grounds 1 and 2 is granted pursuant to s 352(3A) of the 1998 Act.
2. The Member's Certificate of Determination dated 22 July 2024 is confirmed.

[1] Worker's statement dated 5 February 2024, Application to Resolve a Dispute (ARD), pp 2-3.

[12] Application to Admit Late Documents dated 26 April 2024, pp 2-3.

[14] ComfortDelGro Corporation Australia Pty Ltd v Elmi-Anvari [2024] NSWPICPD 34.

[15] Elmi-Anvari v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 389 (reasons).

[23] [2021] NSWPICPD 18 (Shankar).

[24] [2019] NSWWCCPD 53 (Etherton).

[25] [2002] HCA 22; 209 CLR 478; 76 ALJR 828 (Gerlach).

[26] [1976] HCA 6.

[27] Appellant's written submissions dated 1 July 2024.

[28] [2013] NSWCA 255.

[31] [2012] NSWCA 282, [2].

[32] Transcript of proceedings 29 April 2025 (T), T 30.23-31.21.

[34] Military Rehabilitation and Compensation Commission v May [2026] HCA 19, [10].

[35] [2006] HCA 32; 225 CLR 364; 228 ALR 387; 80 ALJR 1214.

[36] [2021] NSWCA 142 (Skates).

[40] [2019] NSWWCCPD 61, [68]-[69].

[42] [2007] NSWWCCPD 227 (Mateus).

[44] [2014] NSWCA 264 (Bindah), [110].

[45] See also Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 (Jaffarie), [80].

[47] [2014] NSWWCCPD 79.

[48] [2012] NSWCA 45, [92].

[49] [2005] NSWCA 333 (Prest), [27]-[28].

[51] ARD, pp 180, 174 and 178 respectively.

[53] Appellant's submissions, p 5, [4]-[5].

[54] Appellant's submissions, p 5, [4].

[55] Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141.

[56] Worker's submissions dated 4 July 2024, [17].

[57] Appellant's submissions, p 6, [4].

[58] Appellant's submissions, pp 6-7, [5]-[7].

[60] Appellant's submissions, p 7, [7].