(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds -

(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.

(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).

Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).

(7) There is to be no appeal against a medical assessment once the dispute concerned has been the subject of determination by a court or the Commission or agreement registered under section 66A of the 1987 Act.

(8) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.

Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success."

"329 Referral of matter for further medical assessment or reconsideration

(1) A matter referred for assessment under this Part may be referred again on one or more further occasions for assessment in accordance with this Part, but only by -

(a) the President as an alternative to an appeal against the assessment as provided by section 327, or

(b) a court or the Commission.

(1A) A matter referred for assessment under this Part may be referred again on one or more further occasions by the President to the medical assessor for reconsideration.

(2) A certificate as to a matter referred again for further assessment or reconsideration prevails over any previous certificate as to the matter to the extent of any inconsistency."

1. The applicant seeks the reconsideration on the basis that there has, within the meaning of s 327(3)(a) of the 1998 Act, been a deterioration of his condition which results in an increase in the degree of permanent impairment. As the applicant is relying on a deterioration of his condition since the issuing of the MAC, he also relies on there being additional relevant information within the meaning of s 327(3)(b) of the 1998 Act, which the applicant submits was not available, and could not reasonably have been obtained prior to the examination by the Medical Assessor and the issuing of the MAC on 15 December 2023.
2. In Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 (Samuel) Roche ADP (as he then was) considered the principles applicable to reconsideration applications under the former s 350 of the 1998 Act. Those considerations are also applicable to, and have previously been applied by the Commission, in respect to applications for reconsideration brought under s 57 of the PIC Act. In Samuel at [58] Roche ADP provided the following useful summary of the applicable principles to be considered:

"1. the section gives the Commission a wide discretion to reconsider its previous decisions ('Hardaker');

1. whilst the word 'decision' is not defined in section 350, it is defined for the purposes of section 352 to include "an award, order, determination, ruling and direction". In my view 'decision' in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
2. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration ('Schipp');
3. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely ('Hilliger');
4. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result ('Maksoudian');
5. given the broad power of 'review' in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
6. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 ('Anshun') may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings ('Anshun');
7. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration ('Hurst'), and
8. the Commission has a duty to do justice between the parties according to the substantial merits of the case ('Hilliger' and section 354(3) of the 1998 Act)."
9. I now turn to a consideration of the principles summarised in Samuel.

1. The MAC was issued on 15 December 2023 and the COD on 19 January 2024. The current Application for Reconsideration was lodged with the Commission on 26 August 2025. The Application for Reconsideration is being brought on the grounds that there has been a deterioration in the applicant's condition following the MAC assessment of impairment. The application could therefore not be made until after that deterioration had occurred and not until the applicant's condition had stabilised sufficiently for an assessment of impairment to occur.
2. As the applicant submits, all the evidence served on behalf of the applicant in support of the application is dated in the 2025 calendar year. Whilst the earliest of that evidence is dated

30 January 2025 the applicant continued to gather evidence including a report from the treating psychiatrist, Dr Rila Deen, dated 11 July 2025. The lodging of the application has occurred fairly rapidly after obtaining of the report from Dr Deen. 3. In my view this application has been brought expeditiously without any undue delay. I am therefore of the view that this factor does not weigh against the granting of the Application for Reconsideration.

Public interest that litigation should not proceed indefinitely

1. In Hilliger v Hilliger (1952) 52 SR (NSW) 105 (Hilliger) Street CJ stated:

"I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties."

1. In the facts of this case not only has the legislature left prescribed powers for reviewing any decision or order of the Commission to do justice between the parties but the legislature has also specifically not limited the time in which an appeal can be brought under s 327(3)(a) and (b) of the 1998 Act.
2. As Member McAdam observed in Papalia v Transom Services Pty Ltd t/as Transom Scaffolding [2024] NSWPIC 617 (Papalia) at [116]:

"Whilst the legislature brought about a significant restriction on proceedings for lump sum compensation in 2012, by the introduction of s 322A of the 1998 Act and s 66(1A) of the 1987 Act, no amendment was made to s 327. In fact, s 322A(4) explicitly excludes s 327 from its operation. It is likely that this is because an appeal (by way of the "error" grounds) involves an assessment of the degree of permanent impairment. Regardless, s 327, including the deterioration ground, are not caught by s 322A. If the legislature wished to prevent a right of appeal on the basis of deterioration, they could have done so."

1. The period which has elapsed since both the MAC and COD were issued is relatively conservative given the nature of the grounds of the application and given the unexercised appeal rights I am of the view that this ground does not weight against the granting of the Application for Reconsideration.

1. The applicant submits that there has been a deterioration in his condition since the Medical Assessor's examination and assessment of impairment.
2. It needs to be considered whether the new evidence would be likely to lead to a different result as well as to whether that evidence could with reasonable diligence have been obtained prior to the assessment by the Medical Assessor and the issuing of the MAC.
3. Somewhat counterintuitively I will first consider whether the new evidence would be likely to lead to a different result as this requires a relatively detailed consideration of the evidence which will be relevant to the consideration of whether that evidence could with reasonable diligence have been obtained prior to the assessment.
4. The deterioration which is relevant "is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination...on the basis of which the MAC was issued took place."[1]
5. For the applicant to have an entitlement to permanent impairment compensation for his primary psychological injury he must have an impairment of at least 15% WPI.[2]
6. Unfortunately, a consideration of whether there has been such a deterioration is not as simple as comparing the impairment assessments performed after the MAC with that contained within the MAC.
7. The Medical Assessor having examined the applicant on 12 December 2023 assessed in the MAC dated 15 December 2023 an impairment of 8% WPI. The applicant relies on two assessments of impairment which post-date the MAC.
8. Dr Abdal Khan, psychiatrist, provided a forensic report to the applicant dated 30 January 2025 in which the doctor records an assessment of 22% WPI after deduction of 2% WPI for pre-existing impairment. Dr Khan however previously assessed on 28 April 2023 (pre-MAC) 17% WPI after deduction of 2% WPI for pre-existing impairment. Dr Khan's assessment of 28 April 2023 is therefore significantly higher than the MAC assessment.
9. The applicant also relies on a report dated 11 July 2025 from his treating psychiatrist,

Dr Deen, who assessed 19% WPI. There is no earlier assessment of impairment from

Dr Deen in evidence. Unfortunately Dr Deen's report provides limited information as to the specific behaviours that led to the impairment assessment.

1. In the applicant's submission the diagnosis has changed with the development of a comorbid alcohol use disorder.
2. The Medical Assessor diagnosed the applicant with a persistent depressive disorder with anxious distress. The Medical Assessor observed that the applicant had developed a comorbid alcohol use disorder following cessation of work however at the time of examination his alcohol use was no longer at problem levels.
3. The applicant reported to the Medical Assessor that at the time of injury he was using alcohol to get to sleep, that his alcohol consumption consisted of approximately 700ml of bourbon per week, that he needed alcohol prior to playing bowls and on a number of occasions he was drinking at 8.00am in order to control his anxiety.
4. The Medical Assessor records that the applicant reported that his alcohol consumption at the time of the examination was four or five glasses of bourbon and Coke on the weekend which was similar to his pre-injury history.
5. Dr Khan in his report of 30 January 2025 records a history that the applicant's pattern of alcohol consumption increased following injury to where he was consuming on average five standard drinks on any occasion, four days per week. That the applicant ceased use of alcohol in around April 2024, that he briefly relapsed into alcohol use in late 2024 before again becoming abstinent approximately three weeks prior to examination.
6. Dr Khan in his report of 30 January 2025 records a diagnosis of persistent depressive disorder with anxious distress with persistent major depressive episode and comorbid alcohol use disorder.
7. Dr Deen states that throughout the assessment period (the doctor initially examined the applicant on 14 March 2023 and last reviewed him on 3 July 2025) the applicant's clinical presentation had remained consistent with a diagnosis of major depressive disorder (moderately severe), with anxious distress. Dr Deen did not diagnose a comorbid alcohol use disorder and does not refer to the applicant's use of alcohol at all in his report of 11 July 2025 except in respect to a fear of relapse into alcohol use. Dr Deen takes the applicant's fear of relapse from a statement by the applicant dated 8 July 2024 which is not in evidence.
8. The applicant's supplementary statement of 13 June 2025 contains no mention of the applicant's use of alcohol. The statement of the applicant's partner, Deborah Ranford, made 12 June 2025 also contains no mention of the applicant's alcohol consumption.
9. Dr Khan in his report dated 28 April 2023 recorded that the applicant's use of alcohol had escalated with him at that time consuming on average five standard drinks on any occasion, four days per week. Dr Khan at that time diagnosed a major depressive disorder with anxious distress and comorbid alcohol use disorder.
10. Whilst Dr Khan has diagnosed a comorbid alcohol use disorder the doctor had done so prior to the MAC. There is in fact no evidence that the applicant's consumption of alcohol has increased since the applicant was assessed by the Medical Assessor.
11. On 12 December 2023 the applicant has reported to the Medical Assessor that he was at that time consuming four or five glasses of bourbon and Coke on the weekend which was similar to his pre-injury history. Dr Khan, who does not list the MAC among the documents which he reviewed for his report of 30 January 2025, simply records that the applicant's alcohol consumption had escalated to a pattern of consuming on average five standard drinks on any occasion, four days per week and that he ceased using alcohol in around April 2024 before briefly relapsing in late 2024 and again ceasing three weeks prior to the examination on 30 January 2025. Dr Khan does not appear to be aware that the applicant had reduced his alcohol consumption to his pre-injury levels prior to the examination with the Medical Assessor.
12. Based on the history taken by Dr Khan the applicant's alcohol consumption reduced further following the examination by the Medical Assessor with the applicant becoming completely abstinent. Whilst Dr Khan records that the applicant relapsed in late 2024 the doctor provides no information, and there is no other evidence, as to what his consumption of alcohol was at the time of the relapse. There is also no evidence after 30 January 2025, at which time the applicant was again completely abstinent from alcohol, that the applicant's consumption of alcohol had increased and that his pattern of consumption had been problematic.
13. The applicant as the party seeking the reconsideration bears the onus of proof and I do not accept that the evidence supports that there has been a deterioration in the diagnosis.

1. The Medical Assessor noted in the MAC that the applicant was no longer experiencing intense suicidal thoughts.[3] Dr Khan in his report of 28 April 2023 records that the applicant had no active suicidal ideation. Dr Khan in his report of 30 January 2025 stated that the applicant's "[f]eelings of hopelessness and worthlessness persisted and perpetuated passive suicidal ideation."[4]
2. It is the applicant's evidence in his statement made 13 June 2025 at [5] that his condition has deteriorated to a state where he has "contemplated suicide numerous times" and at [14] that he has "contemplated on numerous occasions about ending my life due to the state that I'm in." It is the evidence of the applicant's partner, Ms Ranford, in her statement made 12 June 2025 at [13] that the applicant has talked to her "many times" about ending his life.
3. The evidence of the applicant and Ms Ranford is unchallenged, and I accept their evidence. The evidence in my view does indicate that there has been a deterioration in the applicant's condition in respect to suicidal ideation.

1. The psychiatric impairment rating scale (PIRS) is the assessment tool used to assess psychiatric impairment. In assessing impairment, the Medical Assessor made the following observation in respect to the PIRS categories:

(a) Self-care and personal hygiene - class 2 - the applicant reported to the Medical Assessor that he usually showered every day but sometimes left it for two or three days. The applicant reported the same with his clothing. His nutrition was satisfactory and was usually prepared by his partner. The applicant reported that he made an effort to look good for the interview and did the same when going out. The Medical Assessor's assessed the applicant as mildly impaired;

(b) Social and recreational activities - class 2 - the applicant reported that he took the dog for a walk in the morning. He had returned to playing lawn bowls, sometimes on a weekly basis and sometimes on a monthly basis. He was a bit more active in the garden. He reported that he went to the races to watch his horse, probably once per month. He described being less interactive at the racecourse. He enjoyed watching all forms of sport on television. He helped his partner with the shopping on a weekly basis. He enjoyed a one-week surprise holiday in Hawaii in August 2023. The Medical Assessors assessed the applicant as mildly impaired;

(c) Travel - class 1 - the applicant reported that he was able to drive without difficulties. He could drive to Port Macquarie on his own but preferred to go with his partner; he did this trip every four or six weeks to see his children and grandchildren. He was able to use public transport and could travel by air. The Medical Assessors assessed the applicant as unimpaired;

(d) Social functioning - class 2 - the applicant lived with his partner and her two adult children. The applicant reported that things were mostly okay but could get very tense between them. He reported that there was a lot of stress because his moods went up and down and he occasionally withdrew. The applicant's partner had threatened to leave on a number of occasions. The applicant reported that there were some sexual side effects from the antidepressant which interfered with his intimate relationship. The Medical Assessor assessed the applicant as mildly impaired;

(e) Concentration, persistence and pace - class 2 - the applicant described his concentration as "average at best". The applicant reported that he had never been one to read books but was watching all sport on television and could focus for between 30 and 45 minutes. The applicant reported that he often paused and restarted shows. He managed his own money. He reported that he tended to put things off rather than attend to them immediately and it usually took him longer to complete tasks. The applicant gave the example of mowing the front lawn one day and the back lawn on another day. The Medical Assessor observed that there was no evidence of impaired concentration throughout the interview. The Medical Assessor assessed the applicant as mildly impaired, and

(f) Employability - class 5 - the applicant was not working. The applicant reported that he was too scared to apply for another position because he was afraid everything he would do would be wrong. He reported that he constantly sought reassurance from his partner and her children that what he was doing is acceptable. He said this anxiety would prevent him from taking another job. He agreed that he had improved in that area, but he did not believe he could improve any further. He reported that he even questioned himself whilst playing bowls. The Medical Assessor assessed the applicant as totally impaired.

1. In comparison to the MAC assessment, Dr Khan's assessment on 30 January 2025 for each PIRS category was higher except for "employability" which they both assessed as class 5. However, the difference in the assessments of impairment provided by Dr Khan on

28 April 2023 (17% WPI) and the assessment on 30 January 2025 (22% WPI) is attributable to increased impairment assessments in only two of the PIRS categories being "self-care and personal hygiene" and "social functioning". Dr Khan assessed both categories as class 2 on 28 April 2023 and class 3 on 30 January 2025. 2. Dr Deen in his assessment of 14 July 2025, assessed compared to the MAC lower levels of impairment in respect to "self-care and personal hygiene" and "employability", the same level of impairment in respect to "social and recreational activities" and higher levels of impairment in respect to "travel", "social functioning" and "concentration, persistence and pace". There is no prior assessment of impairment by Dr Deen available for comparison. 3. I will now consider each PIRS category. 4. "Self-care and personal hygiene" - Dr Khan in his report of 28 April 2023 observed that the applicant brushed his teeth and showered regularly but was less attentive with his appearance. He predominantly relied on his partner to complete domestic duties. In the view of Dr Khan, the applicant's neglect of his self-care was evidenced by his weight gain (9kg) and escalating alcohol use since the subject injury. 5. Dr Khan in his report of 30 January 2025 observed that the applicant brushed his teeth and showered most days of the week but often neglected these tasks for up to two days at a time. His partner needed to encourage him to clean his teeth. The applicant is less attentive with his appearance, and he spends days at a time wearing the same clothes. He relies on his partner to complete domestic duties. In the view of Dr Khan, the applicant's neglect of his self-care is evidenced by his weight gain (Dr Khan recorded that the applicant had gained approximately 10kg since the subject injury) and history of escalating alcohol use since the subject injury. 6. Dr Deen assessed class 1 with no deficit or minor impairment; independent in all aspects of self-care. Dr Deen does not provide any further explanation for the assessment. Dr Deen does not refer to the arrangements for the applicant's meals or his habits in respect to personal hygiene. 7. The applicant in his statement made 13 June 2025 states at [15] that his partner forces him to shave once a week and if it was not for her, he would not even think of doing so. His partner also reminds him to clean his teeth and shower. Sometimes he will pass two days without a shower. 8. Ms Ranford in her statement made 12 June 2025 states at [4] that the applicant used to cook and prepare meals as well as help her in the kitchen which he does not do anymore as he has lost confidence. Ms Ranford confirms that the applicant only shaves once a week and often because she tells him to. She has to remind him to shower and clean his teeth. 9. In this category the evidence in my view indicates an increase in impairment with there being evidence that the applicant requires additional encouragement and/or prompting from his partner in respect to showering, shaving and brushing his teeth and that the applicant has completely ceased involvement in food preparation and cooking. 10. Whilst Dr Deen assessed class 1 with no deficit or minor impairment; independent in all aspects of self-care, the doctor does not provide any description of the applicant's actual functioning which can be compared to the observations of the Medical Assessor and Dr Khan and the statement evidence of the applicant and Ms Ranford. 11. "Social and recreational activities" - Dr Khan in his report of 30 January 2025 records that the applicant is no longer actively engaged in social and recreational activities, which previously included socialising with friends, attending outings and gardening. His partner and treating team had been encouraging him to play lawn bowls. 12. Dr Deen assessed the applicant at class 2, the same as the Medical Assessor, but provides little description of the applicant's behaviour. 13. The applicant in his statement made 13 June 2025 states at [6] that he now has to be prompted and forced by his partner to do things that he used to love doing such as gardening and mowing the lawn. It is the applicant's evidence that he now needs to be forced to do it and most of the time he still won't do it. 14. It is the evidence of Ms Ranford that the applicant no longer goes to the horse races, no longer walks the dog, often makes excuses not to play lawn bowls, no longer assists with the grocery shopping and she has to force him to garden. 15. There is significant evidence, in particular the statement evidence of the applicant and

Ms Ranford, that there has been a deterioration in the applicant's functioning in respect to "social and recreational activities" in particular cessation of activities such as walking the dog, attending the horse races and assisting with the shopping. 16. "Travel" - Dr Khan in his report of 30 January 2025 assessed "travel" at class 2 observing that the applicant is able to travel to familiar places on his own although he struggles with anxiety and avoidance when he leaves his home. He is less confident when driving and he has been driving more slowly in recent times. Dr Deen assessed class 3 observing that the applicant avoided unfamiliar areas and preferred to be accompanied. 17. It is the evidence of Ms Ranford that the applicant either likes her to be in the car when he is driving or prefers her to drive, that he won't travel long distances and had not been to Port Macquarie since the previous year when she had driven him. 18. The evidence does in my view indicate a deterioration in the applicant's condition compared to the MAC when the applicant was driving without difficulties and was able to drive and travel to Port Macquarie a trip which at the time of the MAC he was performing every four to six weeks. At the time of the making of the statements by the applicant and Ms Ranford he had not undertaken the trip to Port Macquarie for approximately six months. 19. "Social functioning" - Dr Khan observed when assessing class 2 for "social functioning" on

28 April 2023 that the applicant had experienced "some strain" in his relationship with his partner but there had not been any periods of separation. He remained withdrawn from his extended family and friends. 20. In his report of 30 January 2025 Dr Khan observed when assessing class 3 that the applicant had experienced "significant strain" in his relationship with his partner and separation had been discussed on many occasions. He remained withdrawn from his extended family and friends. 21. Dr Deen in his report of 14 July 2025 assessed class 3 observing that the applicant tended to avoid broader social engagements. 22. The applicant in his statement made 13 June 2025 states that he tends to argue and fight with his partner and family, he is no longer welcome at his partners parents' house following an argument with them, he is no longer speaking to his youngest daughter, that his mood swings have become more intense and frequent and that he isolates himself to avoid confrontation. 23. It is the evidence of Ms Ranford in her statement of 12 June 2025 that she has noticed a deterioration in the applicant's mood swings which have become more frequent and intense. 24. In my view the evidence does support that there has been a deterioration in the applicant's social functioning with a worsening of his relationships with his family and his partner's family and increased and more intense mood swings. 25. "Concentration, persistence and pace" - Dr Khan on 28 April 2023 assessed the applicant's "concentration, persistence and pace" as class 3 with the applicant struggling with his cognition, particularly his attention, concentration and memory. He was unable to focus on tasks such as reading, watching television or using his computer as he is easily distracted. Dr Khan in his report of 30 January 2025 again assessed the applicant at class 3 repeating his observations of 28 April 2023. 26. Dr Deen also assessed the applicant at class 3 observing that there was occasional task disengagement due to anxiety and hypervigilance. 27. It is the applicant's evidence in his statement of 13 June 2025 that he now mostly lays in bed or on the lounge all day, that he constantly flicks channels on the television or walks away leaving it on. 28. It is the evidence of Ms Ranford that if she gives the applicant a job to do he takes "forever to do it" and leaves it for her to finish, that he constantly pauses TV shows every 10 minutes at most or moves on to another show without finishing what he was watching, she now manages the applicant's money and pays all the bills as the applicant was forgetting to do so. 29. The evidence indicates that the applicant's attention span has got shorter with the applicant at the time of the examination by the Medical Assessor being able to focus for 30 to 45 minutes and manage his own money. There is also evidence of reduced engagement with activities with the applicant failing to finish tasks. 30. "Employability" - Dr Khan on 28 April 2023 assessed "employability" at class 5 observing that the applicant could not work at all due to his pervasive mental health and cognitive difficulties. Dr Khan again assessed the applicant as class 5 in his report of 30 January 2025 adding to his previous observations that the applicant's vulnerability to escalating alcohol use. 31. Dr Deen assessed the applicant as class 4 observing that the applicant was not yet ready to resume competitive employment, though engaging in parenting roles and structured routines. There is no indication that the applicant's parenting roles and structured routines had increased since the MAC. 32. It is the applicant's evidence that the thought of work or going back to work makes him very anxious and upset. 33. There is no indication on the evidence that there has been any improvement in the applicant's confidence and anxiety and thus his employability since the MAC assessment. 34. For the above reasons I accept the applicant's submission that there has been a deterioration in his condition since the Medical Assessor assessed his degree of permanent impairment and the MAC and COD were issued. Given the number of PIRS categories potentially affected by the applicant's deterioration there is likely to be a different result on re-assessment. However, assessment of impairment is ultimately a matter for a Medical Assessor. 35. The new evidence relied upon by the applicant could not have been obtained prior to the examination by the Medical Assessor and the issuing of the MAC as the new evidence is in respect to the applicant's condition following the issuing of the MAC. The new evidence is in my view both relevant and probative going directly to the issue of deterioration in the applicant's condition following the MAC. 36. For the above reasons I am of the view that this factor weighs in favour of the granting of the Application for Reconsideration.

1. This factor is not relevant to the present matter.

1. This factor is not relevant to the present matter.

Justice between the parties and substantial merits of the case

1. In my view this factor weighs in favour of the granting of the Application for Reconsideration. In the respondent's submission the strongest objection to the Application for Reconsideration is in respect to finality. There having been no attempt to appeal the MAC and no submission that it contains an error. That a COD has been issued bringing finality to the proceedings.
2. The application however relates to a deterioration which has occurred in the applicant's condition after the issuing of the MAC. It is not alleged that there is any error in the MAC. The legislation contemplates and allows for such deteriorations by providing no time restrictions in which to bring an appeal pursuant to s 327(3)(a) and (b). The evidence in my view supports that there has been a deterioration in the applicant's condition.
3. Having examined the facts and circumstances in this case I am of the view that it is just to rescind the COD and remit the matter back to the President for consideration of referral back to the Medical Assessor.[5]

[1] Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Ors [2007] NSWCA 149 at [94].

[5] Scone Race Club Limited v Cottom [2021] NSWPICPD 33 at [82].