1. The Member's Certificate of Determination dated 25 June 2024 is revoked.
2. The matter is remitted to a different non- presidential member for re-determination.

WORKERS COMPENSATION - the Personal Injury Commission's power to refer a dispute as to permanent impairment for reassessment or re-consideration - s 329 of the Workplace Injury Management and Workers Compensation Act 1998 - principles applicable - Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286; Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56; Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 - considered and applied

McQuade v Inner West Council, W4339/23, 25 June 2024

1. Mr Peter McQuade (the respondent) brought proceedings in the Personal Injury Commission (the Commission) for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a number of injuries involving his right shoulder and right knee that were incurred over many years in the employ of the Inner West Council (the appellant).
2. The respondent claimed $79,890 for 28% whole person impairment resulting from the following injuries:

(a) injury to the right knee on 23 March 2005;

(b) injury to the right shoulder on 1 January 2010;

(c) injuries to both the right knee and right shoulder on 12 October 2016, 27 June 2020 and 29 June 2020, and

(d) injury to both the right knee and the right shoulder with a deemed date of 6 September 2022 as a consequence of the "nature and conditions" of his employment, which involved:

"lifting, manoeuvring, pushing and pulling of garbage bins and large plastic bins to and from trucks and over kerbs placing stress and strain upon both the right knee and right shoulder together with numerous twisting, turning episodes together with repeated weight bearing and associated stresses and strains upon both the right knee and right shoulder by way of aggravation, exacerbation or acceleration of a disease."[1]

1. The list of pleaded injuries was subsequently amended to include an additional injury to the right shoulder on 12 December 2011 and further injuries to the right knee on 29 June 2005, 11 March 2013, and 15 October 2018.
2. The parties reached agreement as to the occurrence of all of those injuries and entered into Consent Orders dated 25 July 2023 in which the entire list of injuries was referred to a Medical Assessor for assessment of the respondent's whole person impairment, seeking an assessment of the permanent impairments resulting from each of the injuries.
3. A Medical Assessment Certificate (MAC) was issued on 12 September 2023 in which the Medical Assessor determined the respondent's whole person impairment on the basis of a deemed date of injury of 6 September 2022, rather than separately for each injury.
4. The appellant appealed the MAC, asserting that the Medical Assessor erred by globally assessing all the injuries on the basis of a deemed date of 6 September 2022 and by going outside of the terms of the referral. The Medical Appeal Panel (the Appeal Panel) determined that the Medical Assessor was in error by wholly attributing the separate injuries to a deemed date of injury, rather than in accordance with the Consent Orders. The Appeal Panel revoked the MAC and issued a new MAC. Despite the Appeal Panel having found that the first Medical Assessor's approach was wrong, in the new MAC issued by the Appeal Panel, the respondent's permanent impairment of the right knee was assessed as 20% and the right shoulder as 7%, making a total whole person impairment of 26%.
5. The appellant requested the Commission to list the matter for a telephone conference before a member. At the telephone conference on 18 June 2024, the appellant requested a referral of the matter to a Medical Assessor for reconsideration in accordance with s 329 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
6. After hearing submissions by the parties, the Member delivered an ex tempore decision in which he determined that he did not have the power to refer the matter for reconsideration by a Medical Assessor. He issued a Certificate of Determination to that effect on 25 June 2024.
7. The appellant appeals the Member's decision.

1. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Both parties have indicated that they are content for the appeal to be determined 'on the papers.'
2. I have had regard to Procedural Directions PIC2 and WC3; the documents and submissions that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

1. The Consent Orders dated 25 July 2023 entered into by the parties prior to the original referral to a Medical Assessor were in the following terms:

1. The injuries in the Application to Resolve a Dispute and referral to the Medical Assessor are amended to be listed as follows:
   1. On 23 March 2005, the [respondent] slipped from the step of a truck suffering personal injury to the right knee.
   2. On 29 June 2005, in the course of duties associated with the Council clean-up, the [respondent] was attempting to manoeuvre a large lounge within the rear of a truck when he slipped and fell, suffering a twisting injury to his right knee either in the nature of personal injury or in the alternative by way of aggravation, exacerbation, or acceleration of disease in relation to the right knee.
   3. On 12 December 2011, the [respondent] and a co-worker were lifting a barbeque onto the back of a truck and in the course of this manoeuvre wrenched his right shoulder, suffering a personal injury to the shoulder.
   4. On 11 March 2013, the [respondent] suffered injury to the right knee after slipping off a broken kerb into a gutter while dragging a 240L green waste bin either in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to the right knee.
   5. On 12 October 2016, the [respondent] was attempting to empty a 240L plastic bin in the wash bay. Unbeknownst to him the bin was filled with concrete and as he attempted to drag and manoeuvre the bin he suffered a twisting injury to his right knee and also wrenched his right shoulder in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to both the right knee and right shoulder.
   6. On 15 October 2018, the [respondent] suffered injury to the right knee while pulling an oversized bin either in the nature of a personal injury or in the alternative by way of aggravation, exacerbation or acceleration of disease in relation to the right knee.
   7. On 27 June 2020, the [respondent] was attempting to pull an empty garbage bin from a park down to road level when he twisted his right knee and strained his right shoulder by way of aggravation, exacerbation or acceleration of a disease in relation to both the right knee and the right shoulder.
   8. On 29 June 2020, the [respondent] was attempting to climb into the rear of a Council vehicle and whilst attempting to pull himself up into the vehicle his right foot slipped and he fell onto his right shoulder and his right knee suffering further injury to the right shoulder and right knee or in the alternative injury by way of aggravation, exacerbation or acceleration of a disease in relation to both the right knee and the right shoulder.
   9. On 6 September 2022 (deemed), the [respondent] sustained a disease injury due to the nature and conditions of employment including lifting, manoeuvring, pushing and pulling of garbage bins and large plastic bins to and from trucks and over kerbs placing stress and strain upon both the right knee and right shoulder together with numerous twisting, turning episodes together with repeated weight bearing and associated stresses and strains upon both the right knee and right shoulder by way of aggravation, exacerbation or acceleration of a disease.
2. The systems claimed in the Application to Resolve a Dispute for the assessment of permanent impairment and referral to the Medical Assessor are amended as follows:
   1. Right lower extremity (knee).
   2. Right upper extremity (shoulder).
   3. Skin (TEMSKI scarring).
3. The parties agree the permanent impairment resulting from each of the above listed injuries at [1] be assessed separately.
4. The parties agree the determination of apportionment and aggregation issues should be deferred until after the medical assessment in the Commission.
5. The documents to be included in the referral to the Medical Assessor are as follows:
   1. Sealed Application to Resolve a Dispute (with attachments)
   2. Sealed Reply (with attachments)."[2]

1. The referral by the delegate of the President to the Medical Assessor noted the medical dispute to be determined in accordance with s 319 of the 1998 Act. The delegate listed the dates of injury referred to in the Consent Orders and noted:

"Body part/s referred: Right lower extremity (knee). b. Right upper extremity (shoulder), Scarring (TEMSKI)

Method of assessment: Whole Person Impairment (for each injury date separately)" (emphasis in the original).[3]

1. In his MAC dated 12 September 2023, Dr Tommasino Mastroianni, Medical Assessor, listed the respondent's injuries. The list was consistent with the dates of injury recorded in the Consent Orders. After examining the respondent, he diagnosed the respondent's injuries as follows:

"As a result of the nature and conditions of his work and the specific incidents, the [respondent] had arthroscopic partial meniscectomy and developed osteoarthritis of the right knee for which he had a total knee replacement. He has right shoulder rotator cuff disease as a result of traumatic incidents and the nature and conditions of his work".

"My interpretation of the Consent Orders is that the injury to the right shoulder and right knee is a deemed date of injury and therefore each of those were assessed as a deemed date of injury.

My interpretation was that the injuries to the two different body parts were deemed date of injuries and that they were to be assessed separately and not combined. It was not my understanding that whole person impairment was to be calculated for each injury date separately. If that were the case it is impossible to allocate impairment to a specific incident and the overall nature and conditions of the employment."

1. The Medical Assessor assessed the respondent as having a 20% whole person impairment of the right lower extremity and 7% whole person impairment of the right upper extremity. He did not combine the two losses.[4]

1. The Appeal Panel considered that it was appropriate for the respondent to undergo a physical examination by Dr Christopher Oates, Medical Assessor, who was a member of the appointed Appeal Panel.[5]
2. Following the medical examination, the Appeal Panel issued a decision on 30 April 2024.[6] The Appeal Panel said that it had considered that it was necessary for the respondent to undergo a further medical examination in order to determine the impairment arising from each of the referred dates of injury in accordance with the Consent Orders. The Appeal Panel determined that:

"It was plainly contemplated between the parties that the relevant dispute concerned the permanent impairment arising from various dates of injury, which was crystallised into the Consent Orders forming the basis of the referral. The Medical Assessor, in assessing the respondent's impairment as wholly attributable to a deemed date of injury, fell into error in not attempting to undertake an assessment of the impairment said to arise from the separate dates of injury."[7]

1. The Appeal Panel concluded that the MAC contained an obvious error. The Appeal Panel listed the findings made by Dr Oates in the physical examination, including the assessment made by him pursuant to s 66 of the 1987 Act that the respondent suffered 20% whole person impairment of the right lower extremity and 7% whole person impairment of the right upper extremity. The Appeal Panel determined that the MAC issued by Medical Assessor Mastroianni was to be revoked, a new MAC was to be issued, and the dispute was to be referred to a member for determination of the apportionment and/or aggregation of the impairment for the various dates of injury.
2. The MAC certified the respondent's impairment of the right lower extremity as 20% whole person impairment resulting from all of the dates of injury, except for 12 December 2011, which solely related to the right shoulder injury. The MAC recorded the respondent's whole person impairment of the right upper extremity as 7% in respect of injuries on 12 December 2011, 12 October 2016, 27 June 2020, 29 June 2020, and the deemed date of 6 September 2022. The MAC certified that the combined whole person impairment was 26%.[8]

1. The term "medical assessment" is defined in s 4 of the 1998 Act as "medical assessment means assessment of a medical dispute by a medical assessor under Part 7 of Chapter 7."
2. The assessment of the degree of permanent impairment of a worker is governed by Part 7 of Chapter 7 of the 1998 Act (ss 319 to 331).
3. Relevantly, s 319 defines a "medical dispute" as:

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

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

(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,

(g) whether the degree of permanent impairment of the injured worker is fully ascertainable."

"A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute."

1. Section 322 requires that the assessment is to be made in accordance with the Workers Compensation Guidelines (subs (1)) and:

"(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker."

1. Section 322A provides that there can be only one assessment of the worker's degree of impairment (s 322A(1)), but that this section does not affect the operation of s 327 of the 1998 Act (322A(4)).
2. The Medical Assessor to whom a medical dispute is referred is to issue a MAC as to the matters referred for assessment (s 325). The degree of permanent impairment certified in a MAC is conclusively presumed to be correct (s 326(1)(a)).
3. Section 327 provides for an appeal against a medical assessment as follows:

(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.

(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)."

1. Section 329 makes provision for the referral of a matter for further medical assessment or reconsideration as follows:

"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

(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 Member's reasons were delivered orally and transcribed.[9] He referred to the Consent Orders that were entered into by the parties, the referral to the Medical Assessor, and the MAC issued by Dr Mastroianni on 12 September 2023 in which the Medical Assessor determined the whole person impairments on the basis of one deemed date of injury of 6 September 2022. He noted that the parties appealed the medical assessment because the Medical Assessor had fallen into error by not complying with the terms of the referral.
2. The Member quoted various paragraphs from the subsequent MAC issued by the Appeal Panel dated 30 April 2024, in which the Appeal Panel determined that the Medical Assessor had not complied with the terms of the referral by not undertaking an assessment of the impairment arising from the separate dates of injury. He noted that Medical Assessor Oates, who was on the Appeal Panel, conducted a medical examination of the respondent on 1 February 2024 and reported in great detail in respect of the various injuries.
3. The Member invited the parties to provide a "recap" of their submissions as to the appellant's application for a referral for re-assessment or reconsideration.
4. The Member referred to the quotations taken by him from both MACs and indicated that his reasons included those quoted paragraphs (it is not necessary for those paragraphs to be reproduced here). He observed that the original Medical Assessor did not comply with the referral because he considered it to be impossible to make the required assessments and that the Appeal Panel considered that that was either an obvious or demonstrable error. The Member observed that although Medical Assessor Oates identified each of the separate injuries in the MAC, his assessment only identified a global percentage for the whole person impairments.
5. The Member said that the appellant sought to have the matter referred back to a Medical Assessor but said that he did not accept that he had the power to do so. He said that:

"In section 327 it speaks of an appeal and section 329(1) speaks of the options open to the President as an alternative to an appeal, to refer the matter back for a court or the Commission."[10]

1. The Member referred to the appellant's submissions that, as a member, he was the "Commission", that as a member of the Commission the reconsideration did not have to be an alternative to an appeal, and that s 329(1A) of the 1998 Act allows for him to refer a matter on one or more occasions for reconsideration in his capacity as a delegate of the President. The Member considered that there was a conflict between s 329(1)(a), which says that as a delegate of the President, he can only refer the re-assessment as an alternative to an appeal and s 329(1A), which allows for the matter to be referred again to a Medical Assessor. He said that he interpreted that the reference to a Medical Assessor was a reference to the original Medical Assessor.
2. The Member reasoned that once a matter gets through to an Appeal Panel and the Appeal Panel determines a matter, the legislature's intention is that there was no longer a right to a re-assessment. The Member said that that approach was consistent with the repeal of the reconsideration power previously provided for in s 378 of the 1998 Act. The Member considered that s 329 only concerns those matters that have not yet proceeded to an appeal and then s 327 takes precedence over s 329.
3. The Member referred to s 327(6) of the 1998 Act, which he noted provided that the President could refer a medical assessment for further assessment as an alternative to an appeal but only if the matter could otherwise have proceeded to an appeal under s 327. The Member considered that, as the present matter had already proceeded to an appeal, the option of proceeding under s 327(6) was not available. He said that the note to s 327(6) was in his view self-explanatory and did not expand on the power provided.
4. The Member concluded that he did not consider that he had the power to do anything other than to confirm the opinion of the Appeal Panel and that the remedy sought would need to be dealt with "elsewhere." He took into account that it was always the intention of the parties that the matter would come back for apportionment or aggregation and that the whole point of the matter going on appeal was because the original Medical Assessor had not complied with the terms of the referral. The Member said that because the Appeal Panel advised that they could not make the required assessments, he could not attend to the apportionment or aggregation and reiterated that he could not do anything other than confirm the MAC.
5. The Member noted that the assessment of the respondent's whole person impairment was 26%, with a date of claim of 6 September 2022, which entitled the respondent to an amount of $76,600.
6. The Certificate of Determination issued on dated 25 June 2024 records:

"The determination of the Commission in this matter is as follows:

1. I order the [appellant] to pay to the [respondent] the sum of $76,600 in respect of 26% whole person impairment as certified by the Medical Panel on 30 April 2024."

1. The appellant brings the following grounds of appeal:

(a) Ground One: The Member erred in determining that the fact the dispute had been subject of a decision by the Appeal Panel prevented the referral of the matter for reconsideration under section 329 of the 1998 Act;

(b) Ground Two: The Member erred in concluding that he did not have power to do anything other than confirm the decision of the Appeal Panel;

(c) Ground Three: The Member failed to exercise the discretion afforded to him under s 329 of the 1998 Act by declining to refer the dispute for reconsideration, and

(d) Ground Four: The Member erred in determining that if the dispute was referred for reconsideration, it could only be referred to the original Medical Assessor.

1. The appellant submits that the Member rejected its proposition that he had the power to refer the matter for reconsideration or assessment pursuant to s 329(1)(b) and/or s 329(1A) of the 1998 Act because the matter had already been the subject of an Appeal Panel decision.
2. The appellant refers to the Member's oral reasoning that:

(a) he did not accept that he had the power to refer the dispute back to the Medical Assessor;

(b) according to the scheme of the Act, once the dispute passes through the gateway through to the Appeal Panel and the Appeal Panel determines the dispute, there is no longer a right to a re-assessment;

(c) section 329 only concerns disputes before they have gone on appeal to the Appeal Panel, and

(d) the power to refer under s 329 as an alternative to an appeal could not be exercised in this matter because an appeal could not have otherwise proceeded as that right had been exhausted.

1. The appellant asserts that the Member did not properly consider the discretion vested in him by operation of s 329. The appellant says that the Member's conclusion was inconsistent with that section. The appellant contends that there is nothing in s 327(6) that precludes a reconsideration under s 329(1)(b) or s 329(1A) of the 1998 Act and, unlike ss 327(6) and 329(1)(a), those sections do not require the reconsideration to be "an alternative to an appeal against the assessment". The appellant asserts that ss 327(6) and 329(1)(a) "should be read jointly or in consideration of the parts of the legislation referred to therein",[11] however the Member was wrong to conclude that by operation of ss 329(1)(b) and 329(1A), he was prevented from referring the dispute for reconsideration under s 329 or that he could not refer the dispute for reconsideration because an appeal had already been made and determined.
2. The appellant refers to Target Australia Pty Ltd v Mansour,[12] and asserts that Roche ADP (as he then was) observed that "the Commission may exercise its discretion under section 329 of the 1998 Act to refer a matter to a Medical Assessor for further assessment despite the matter having previously been the subject of an appeal to the [Medical Appeal Panel]."[13] The appellant says that Roche DP took the same approach in Milosavljevic v Medina Property Services Pty Ltd,[14] when he said that he agreed "that the fact that a matter has previously been referred to an [Approved Medical Specialist] does not of itself prevent a further referral".[15] The appellant also refers to Adriaansen v Dungog & District Retirement Living Limited,[16] in which Snell AP said that he accepted that the Commission had jurisdiction to make an order pursuant to s 329(1)(b) after an Appeal Panel decision had been made. The appellant further refers to a decision of Member Rimmer in Papera v Equity Transport Group Pty Ltd,[17] in which Member Rimmer came to the same conclusion.
3. The appellant submits that the conclusions reached by the Member in this case were inconsistent with the legislation and the above authorities in respect of a reconsideration application under s 329 in circumstances where an Appeal Panel decision had been made. The appellant asserts that the conclusions reached by the Member constituted an error of discretion that "feeds into an error of law."[18]

1. The respondent contends that the Member did not err in determining that s 327(6) of the 1998 Act constrained the powers of referral provided for in s 329(1A). He submits that s 327(6) provides that the President may refer a medical assessment for further assessment pursuant to s 329, but only if the dispute could otherwise have proceeded to an appeal in accordance with the section. The respondent asserts that s 329(1A) relates to a further referral of a dispute for medical assessment by the President.
2. The respondent says that there is no challenge to the Member's determination that s 327 is the operative provision and takes precedence over s 329. He submits that, on that basis, the President's power is contained in s 329(1A) and is restricted by s 327(6) in that the further referral can only be made in circumstances where the dispute could otherwise have proceeded by way of an appeal pursuant to s 327. The respondent submits that this matter could not otherwise have proceeded by way of an appeal because the respondent had exhausted his right to appeal. The respondent cites the NSW Court of Appeal authority of Sleiman v Gadalla Pty Ltd.[19]
3. The respondent says that he also concedes that the restriction in s 327 does not operate to constrain a reconsideration in accordance with s 329(1)(b) of the 1998 Act. The respondent submits, however, that a review of the submissions made by the appellant to the Member discloses that the appellant's case before the Member was predicated upon the referral being made by the Member in his capacity as a delegate of the President. The respondent refers to the transcript of proceedings, where the appellant submitted that:

"The [appellant] says that you have power either as a Member or as a delegate of the ... President, to refer it back to a medical assessor ...".[20]

1. The respondent asserts that the substance of the application for reconsideration was made on the basis of s 329(1A), which required a consideration of the President's powers and not the powers of a member, which power is contained in s 329(1)(b). The respondent refers to the submissions in respect of which Medical Assessor the dispute should be referred to and submits that those submissions were made from the perspective of a referral and reconsideration by the Member acting as a delegate of the President.
2. The respondent contends therefore that the Member did not err in "dealing with the substance of the matter before him, as ventilated by the appellant."[21] The respondent cites the authorities of Metwally v University of Wollongong[22] and Coulton v Holcombe.[23]
3. The respondent submits that, if its submissions made in respect of how the case was run at first instance are not accepted, then he concedes that the Member erred in relation to his determination that s 329(1)(b) is restricted to the circumstances where no prior appeal had been lodged and/or determined.

1. The appellant notes that the respondent asserts that the submissions by the appellant made to the Member were that:

(a) subsection 329(1A) applied, and the appellant did not make submissions as to the application of s 329(1)(b), and

(b) s 327(6) operates to constrain the power to reconsider contained in s 329(1)(a), 329(1)(b) and/or s 329(1A) of the 1998 Act where a further appeal could not take place as there had already been an appeal.

1. The appellant submits that, in relation to paragraph [55(a)] above, a review of the transcript makes it apparent that the submissions made to the Member were not restricted to s 329(1A), and that it was either readily apparent or could be inferred that s 329(1)(b) was included in circumstances where the application was brought pursuant to the whole of s 329.
2. The appellant refers to its submission to the Member that the Member had the power either a as a member or as a delegate of the President to refer the matter back to a Medical Assessor. The appellant says that it was plain that the application was for a reconsideration by the Member "under the various mechanisms afforded to him under section 329 of the 1998 Act."[24] The appellant points out that s 329(1)(a) refers to the President and s 329(1)(b) refers to the Commission (that is, a member of the Commission). The appellant further refers to its submissions to the Member that s 329(1)(a) and 329(1)(b) are disjunctive, that the power under s 329 is a broad power with a wide discretion and that the referral could be to either Dr Mastroianni (the initial Medical Assessor) or to Dr Oates (the member of the Appeal Panel). The appellant points to the Member's reasoning in which he discussed s 329(1) and the appellant's submissions made in respect of the options available to him under those subsections. The appellant submits that the Member plainly contemplated the application of s 329(1)(b) and it was apparent that the appellant's submissions encompassed s 329 as a whole and not just s 329(1A).
3. The appellant submits that, in relation to the respondent's assertion in paragraph [55(b)] above, there is nothing in s 327(6) that precludes a reconsideration under s 329(1)(b) or s 329(1A) where an appeal has taken place or is required as an alternative to an appeal.
4. The appellant otherwise relies upon its submissions already made.

1. The appellant refers to the Member's conclusion that he could not do otherwise than to confirm the decision of the Appeal Panel. The appellant submits that that conclusion raises "practical implications and injustice" for both parties because of the failure by the Medical Assessors to give regard to the Consent Orders and the remaining "live issue" between the parties.[25] The appellant says that the only other remaining remedy available to it lies in seeking judicial review in the New South Wales Supreme Court. The appellant refers to Mansour, Adriaansen and Papera in which Roche ADP, Snell AP and Member Rimmer respectively made observations that the requirement to pursue judicial review in the Supreme Court would be contrary to the objectives of the workers compensation legislation.
2. The appellant submits that, in the context of all three grounds of appeal, the Member's conclusion is an error of law and discretion and results in an outcome which is procedurally unfair and contradicts the Commission's objectives.

1. The respondent submits that the appeal should be dismissed because the appellant is bound by the case it ran at first instance. The respondent asserts that the case put to the Member was that the Member was considering the dispute in his capacity as a delegate of the President. The respondent asserts that the Member did not err by determining that he was unable to exercise the power under s 329(1)(b) of the 1998 Act because an appeal had already been lodged and/or determined.
2. The respondent submits that, in the alternative, if it is determined that the appellant's submissions to the Member were not so limited, then he concedes that the Member erred in determining that s 329(1)(b) of the 1998 Act restricted him from exercising his power simply because an appeal had already been lodged and/or determined.

1. The appellant submits that the Member's power to refer a matter for reconsideration is a discretionary power, which the Member failed to exercise. The appellant refers to Mansour, Milosavljevic and Adriaansen as to the scope of s 329 and when the discretion in s 329(1)(b) should be exercised, which is to be determined on a case-by-case basis. The appellant asserts that the Member was wrong to conclude that he had no other option than to confirm the MAC issued by the Appeal Panel.
2. The appellant points to the Member's acknowledgment that there was a live issue between the parties as to apportionment and aggregation. The appellant asserts that the Member's acknowledgment that the Appeal Panel had not undertaken the task required of it is an indication that the Member should have exercised the discretion vested in him under s 329. The appellant submits that the Member's failure to exercise his discretion has resulted in a lack of procedural fairness and is erroneous.

1. The respondent relies upon his submissions made in respect of Ground Two of the appeal.

1. The appellant refers to the Member's conclusion that he interpreted the term "medical assessor" in s 329 meant the original Medical Assessor. The appellant submits that that conclusion is inconsistent with the legislation and authorities dealing with s 329. The appellant quotes from the decision by Roche ADP in Mansour that s 329 does not require that a further assessment is to be conducted by the Medical Assessor who performed the earlier assessment. The appellant asserts that the legislation sets out no such requirement and the usual course of action, in the absence of any agreement by the parties, is for the Commission to nominate a Medical Assessor. The appellant asserts that the Member has thus committed an error of law.
2. The appellant concludes that it was open to the Member to refer the matter for a further assessment pursuant to s 329(1)(b) of the 1998 Act or to a Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act.

1. The respondent relies upon his submissions made in respect of Ground Two of the appeal.

1. The appellant seeks to have the appeal allowed, the Certificate of Determination revoked, and the following determinations to be made:

(a) the decision of the Appeal Panel does not prevent the matter being referred for further assessment or reconsideration under s 329(1)(b) and/or s 329(1A) of the 1998 Act;

(b) section 327(6) does not limit the operation of 329(1)(b) and/or s 329(1A) of the 1998 Act;

(c) the Member failed to exercise the discretion afforded to him pursuant to s 329 of the 1998 Act, and

(d) the Member erred in determining that a reconsideration under s 329 could only be referred to the original Medical Assessor.

1. The appellant seeks to have the matter referred either by the Commission for further assessment pursuant to s 329(1)(b), or by the President to the Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act. In the alternative, the appellant asks that the matter be remitted to another non-presidential member for re-determination.
2. The respondent seeks to have the Member's Certificate of Determination confirmed or, if the appeal succeeds, says that the matter should be remitted to a different non-presidential member for re-determination. The respondent submits that a remitter is appropriate because the submissions in respect of the exercise of the Member's discretion have not yet been determined.

1. In the light of the parties' submissions, it is convenient to firstly review the authorities referred to by them.
2. In Mansour, the worker's claim for whole person impairment was assessed by an Approved Medical Specialist (AMS) (the equivalent of a Medical Assessor) and a MAC was issued. Both parties appealed the MAC and the appeal proceeded without the worker being required to submit to a further medical examination. The Appeal Panel revoked the MAC and issued a fresh MAC in which it assessed the worker's whole person impairment as 9%. The Appeal Panel had taken into account a matter that it was not permitted to consider when assessing the worker's whole person impairment, so the worker made an application to have the matter relisted before an arbitrator (now a "member") for consideration of a further referral to an AMS for re-assessment pursuant to s 329(1)(b) of the 1998 Act. The Arbitrator determined that the appropriate course was for a further Appeal Panel to be held pursuant to section 329 of the 1998 Act.
3. The employer appealed the Arbitrator's decision. Roche ADP made the following observations:

"It is argued that if the Respondent Worker wished to rely on section 329 in the present case he could have made an application to the Commission under that section as an alternative to pursuing an appeal to the Appeal Panel. I accept that a further assessment under section 329 is an avenue that the Registrar may pursue if an appeal against an AMS is on the basis of the grounds set out in subsections (3)(a) and (b) of section 327, but I do not agree that that is the only work for section 329 to do. Such a conclusion ignores the fact that the operation of section 329 is not restricted to the circumstances set out in section 327(6), but is in broad unlimited terms without any need for preconditions to be satisfied before it can be used by the Commission, or a court."[26]

"Whilst the Arbitrator accepted that proceedings before an AMS (or an Appeal Panel) are separate from and independent of the Commission, he held that the passing of section 329 ensures that, where procedural fairness has not been accorded to a party by the Appeal Panel, the Commission may correct that lapse when the matter returns to it for determination (Reasons, paragraph 70). I agree with that assessment of the Commission's power and the power under section 329 which is unrestricted in its terms. I am persuaded by the general objectives of the legislation which require the provision of a "fair ... system for the resolution of disputes" and by the terms of section 354(3) which requires that the Commission is to 'act according to equity, good conscience and the substantial merits of the case'."[27]

1. In arriving at his conclusions, Roche ADP had regard to a passage in Campbelltown City Council v Vegan[28] where Basten JA observed that:

"Nor does the express reference to s 326, as having application to a certificate given by the Appeal Panel, demonstrate a clear intention to exclude the operation of other provisions. For example, it is doubtful that it is intended to exclude the operation of s 329, which permits referral for further assessment by the [delegate] or a court or the Commission."[29]

1. In Milosavljevic, Roche DP again considered the application of s 329 of the 1998 Act. In that case the worker was assessed by an AMS as having 9% whole person impairment after deducting 50% on account of her pre-existing condition. The worker appealed the MAC to an Appeal Panel, who revoked the MAC and issued a fresh certificate, assessing the worker's impairment as 6%. The worker sought a further referral to the original AMS for reconsideration pursuant to the now repealed s 378 of the 1998 Act and, subsequently, while reserving her rights under the former s 378, requested the matter to be allocated to an arbitrator in order to have the matter remitted to an AMS for reconsideration under s 329. The matter was allocated to an arbitrator, who, after submissions were made by both parties, refused to remit the matter under s 329(1)(b). The worker appealed the Arbitrator's decision.
2. Deputy President Roche confirmed the Arbitrator's decision. In doing so, he made the following observations:

"The question that arises in the present matter was not in issue in Mansour, as no determination had been made prior to the order under section 329. My reference to section 329 being in 'broad unlimited' terms was a reference to the fact the section provides no guidance as to how or when it is to be used. That is not to say that the section stands outside the terms of the Workers Compensation Acts. It doesn't, and it must be read in the context of that legislation. There is nothing to indicate that the legislature intended that section 329 could be used in an unrestrained or unlimited way regardless of the Commission's previous orders or determinations. The exact scope of section 329 must be determined on a case-by-case basis.

Malpass AsJ may well be correct in stating that section 329 can be used where no grounds of appeal under section 327 are made out, but 'the dictates of justice require a further referral for assessment'. Whether the dictates of justice require a further referral requires a careful consideration of the facts in each case, but whether such a referral can be made is always subject to the Commission's jurisdictional limits".[30]

1. Deputy President Roche agreed that the fact that a matter has previously been referred to a Medical Assessor does not of itself prevent a further referral. He did not accept that the Appeal Panel misdirected itself in relation to the task to be performed or that the Appeal Panel denied the worker procedural fairness. He was of the view that the Appeal Panel gave the worker "every opportunity to present her case and she did so".[31]
2. In Adriaansen, the worker commenced proceedings in the former Workers Compensation Commission in respect of a claim for lump sum compensation pursuant to s 66 of the 1987 Act. The claim was referred to an AMS who assessed the worker's combined whole person impairment as 10%, which was not greater than 10% and therefore not compensable (s 66(1) of the 1987 Act). The worker appealed to an Appeal Panel. The Appeal Panel accepted that there had been an error in the first assessment however, after correction of the error, arrived at the same assessment. The worker requested that the matter be relisted before an arbitrator for determination of an application for reconsideration. The parties made submissions, and the Arbitrator determined that the dictates of justice did not require the referral and declined to refer the matter for further assessment. The worker appealed the Arbitrator's decision and Snell AP determined the appeal. In his consideration of the issues on appeal, Snell AP referred to both Mansour and Milosavljevic and made the following observations:

"I accept, consistent with Mansour, that an order can be made pursuant to s 329(1)(b) of the 1998 Act, notwithstanding that there has been a [Medical Appeal Panel] decision. There has been no final determination of the dispute, and I accept that the Commission has jurisdiction to make such an order, should it be appropriate. I also accept, as was stated in Mansour at [74], that a party, having failed in a Medical Appeal, is not restricted to taking Supreme Court proceedings as his or her only recourse."[32]

"I accept, that the provision [s 329(1)(b)] must be read in the context of the 1987 and 1998 Acts. It is not to be 'used in an unrestrained or unlimited way'. Its scope is to be 'determined on a case by case basis' ... Its use is predicated on 'the dictates of justice' ...".[33]

"In the context of Ch 7, Pt 7 of the 1998 Act, the primary vehicle for correcting error, in an assessment by an AMS, is the provisions of ss 327 and 328, providing for medical appeals. In most cases where such error is alleged, the appropriate means of challenging the assessment of an AMS will be the lodgment of a medical appeal pursuant to s 327, rather than seeking a further referral pursuant to s 329(1)(b).

Section 329(1)(b) provides a remedy in circumstances where a Medical Appeal, for whatever reason, is not sufficient to satisfy the dictates of justice. The factual situation in Mansour is a good example."[34]

1. The Acting President provided a summary of the deficiencies in the worker's application for reconsideration and concluded that he accepted the reasons put forward by the Appeal Panel for rejecting the worker's submissions and he agreed with the Arbitrator's conclusions. He said that, in accordance with the authorities and the principles discussed, the Arbitrator did not err by rejecting the application.
2. The principles drawn from the above authorities that apply to a consideration of s 329 can therefore be summarised as follows:

(a) the Commission has jurisdiction to make an order referring a matter for further assessment pursuant to 329(1)(b), notwithstanding that an Appeal Panel decision has been made (Adriaansen);

(b) where a party has failed in an appeal to the Appeal Panel, the party's remedy is not restricted to the commencement of Supreme Court proceedings (Adriaansen);

(c) section 329 is in broad unlimited terms not needing preconditions to be satisfied and is not restricted to the circumstances described in s 327(6) (Mansour, Milosavljevic);

(d) section 329(1)(b) allows the Commission to correct the failure to afford a party procedural fairness by an Appeal Panel and s 329 can be used where no grounds of appeal are made out, but the dictates of justice require a further referral (Mansour, Milosavljevic, Adriaansen);

(e) such an approach is consistent with the objectives of the legislation to provide a fair dispute resolution system and for the Commission "to act according to equity, good conscience and the substantial merits of the case" in accordance with s 43(3) of the 2020 Act (Mansour);

(f) a referral for further assessment does not have to be conducted by the same Medical Assessor who performed the earlier assessment (Mansour);

(g) while s 329(1)(b) is in broad unlimited terms, the section must be read in the context of the legislation (Milosavljevic, Adriaansen), and

(h) the scope of s 329 must be determined on a case by case basis and will always be the subject of the Commission's jurisdictional limits (Milosavljevic, Adriaansen).

1. With those principles in mind, I now turn to the grounds of appeal raised in the present appeal.

Ground One: The Member erred in determining that the fact the dispute had been subject of a decision by the Appeal Panel prevented the referral of the matter for reconsideration under section 329 of the 1998 Act

1. The appellant submits that the Member's conclusion was inconsistent with s 329. It submits that the Member did not properly consider the discretion vested in him and the Member was wrong to conclude that he was prevented from referring the matter for reassessment or reconsideration pursuant to s 329(1)(b) or 329(1A) because the respondent had no further appeal rights.
2. The respondent asserts that the appellant is prevented from raising s 329(1)(b) in the appeal because it was not raised in submissions to the Member.[35] While the principle is correct, the respondent is mistaken as to the appellant's submissions. A review of the transcript discloses that the appellant made the following submissions:

"The [appellant] says that you have power either as a Member or as a delegate of the ... President, to refer it back to a medical assessor be it either Dr [Mastroianni] or Dr Oates to ensure that they properly perform their task so that the Commission can properly make orders in this matter."[36]

"Now, we say it should go back under 329 and we are - we canvassed this argument in conciliation."[37]

"[Section] 329 simply says - sub (1) simply says that 'a matter referred under this part' being Part 7 ... which is all of the assessment provisions including appeals ... 'can be referred again on one or more occasions by the Commission.' That's [1(b)] because [a] and [b] are disjunctive. So that, in my submission, is an accurate summary of 329(1). Then 1A says: 'A matter referred for assessment under this part may be referred again on one or more occasions by the [President] to the [Medical Assessor] for reconsideration.' And if you then go to - if I could take you back to ... 329 but if you then look at the definition ... 1A says 'A matter referred for assessment under this part may be referred again on one or more occasions by the President to the medical assessor for reconsideration."[38]

"When you go to section 327 of the Act ... that is under part 7, of course, that deals with appeals against the medical assessment. [Section] 327(6) says: 'The President may refer a medical assessment for further assessment under 329 as an alternative to an appeal.' So there's two pathways, you can either go by way of 329 to get it redone by the original assessor or you can go up the pathway of an appeal but if it goes up the pathway of appeal there's nothing to stop it being reconsidered under 329 and the note there says '329 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.' So 329 is a broad power. We all know that under reconsideration under the general principles of reconsideration Samuel v Furnishings case it's a very wide discretion."[39]

1. The above submissions disclose that the appellant did in fact make cogent submissions that s 329(1)(b) applied, and that the appellant submitted that the Member had the power to refer the matter for re-assessment, either as "the Commission" or in his capacity as a delegate of the President. In accordance with the Commission's Table of Delegations, the power to refer a matter for re-assessment pursuant to ss 327(6), 329(1) and 329(1A) is delegated by the President to a non-presidential member.[40]
2. The respondent submits that the Member did not err in determining that s 327(6) of the 1998 Act constrained the powers of referral in s 329(1A). Even if that proposition was correct, which I do not accept to be the case, it does not assist the respondent. It is clear from the above authorities that the Member had the power to refer a matter for re-assessment in accordance with s 329(1)(b) in his capacity as the "Commission", or s 329(1A) in his capacity as a delegate of the President, and that that power was not restricted to the circumstances described in s 327(6).[41]
3. The Member did not entertain that submission or deal with it at all.
4. The respondent cites Sleiman to say that the matter could not otherwise have proceeded by way of an appeal because the respondent had exhausted his right to appeal. It is clearly established in Mansour and Milosavljevic that s 329(1)(b), and indeed s 329(1A), are not restricted by the precondition that he could have proceeded with an appeal to the Appeal Panel.
5. Sleiman does not assist the respondent. That authority involved the question of whether a second appeal could be made to an Appeal Panel and whether the appeal ought to have been considered as an application for reconsideration under the former s 378 of the 1998 Act (repealed in 2021).
6. The respondent concedes that s 327 does not operate to constrain a reconsideration in accordance with s 329(1)(b) of the 1998 Act. He says that if his submissions made in respect of how the case was run at first instance are not accepted, then he also concedes that the Member erred in relation to his determination that s 329(1)(b) is restricted to the circumstances where no prior appeal had been lodged and/or determined.
7. The respondent's concessions are appropriate.
8. It is apparent that the appellant raised s 329(1)(b) as being a mechanism available to the Member to refer the matter for further assessment, and that the Member did not deal with that submission. The submission is of substance. The Member's determination that the referral of the matter for reconsideration under s 329 of the 1998 Act was prevented because the dispute had been the subject of a decision by the Appeal Panel was erroneous and contrary to Snell AP's conclusion in Adriaansen.
9. Those matters are sufficient to establish error of law on the part of the Member.
10. It follows that Ground One of the Appeal succeeds.

Ground Two: The Member erred in concluding that he did not have power to do anything other than confirm the decision of the Appeal Panel

1. The appellant submits that the Member's conclusion has created a practical injustice and has left the appellant with the only available remedy of pursuing the matter in the Supreme Court, which is contrary to the Commission's objectives.
2. The respondent repeats his unsuccessful submission that the appellant is bound by the case it ran at first instance, and that if that submission is unsuccessful, he concedes that the Member erred.
3. For the reasons provided in respect of Ground One of the appeal, the Member's determination that the dispute could not be referred for re-assessment or reconsideration is plainly wrong.
4. The Member could have exercised the power vested in him as a member of the Commission pursuant to s 329(1)(b). Ground Two of the appeal fails.

Ground Three: The Member failed to exercise the discretion afforded to him under s 329 of the 1998 Act by declining to refer the dispute for reconsideration

1. It is apparent from the error exposed in Ground One of the appeal that the Member did not proceed to exercise his discretion as required by s 329. The appellant submits that as a result, the appellant has not been afforded procedural fairness.
2. It is correct to say that the power to refer a matter for re-assessment or reconsideration in s 329 is a discretionary power.
3. The Member, having determined that he did not have the power to refer the matter for re-assessment, did not proceed to evaluate whether it was in the interests of justice to refer the matter, whether any prejudice would arise for either party if it was referred, or whether a party had been denied procedural fairness. The Member was required firstly to determine whether s 329(1)(a), s 329(1)(b) or s 329(1A) permitted him to refer the matter for re-assessment or reconsideration and secondly to determine whether the dictates of justice led to the conclusion that the matter should be referred for re-assessment or reconsideration. The Member erroneously determined that he did not have the requisite power to make the determination and as a consequence, he did not exercise his discretion at all, contrary to the authorities discussed above. Ground Three of the appeal is made out.

Ground Four: The Member erred in determining that if the dispute was referred for reconsideration, it could only be referred to the original Medical Assessor

1. The appellant submits that the Member's conclusion is inconsistent with the legislation and the authorities. The appellant says that there is no such legislative requirement and submits that in Mansour, Roche ADP concluded that in a further assessment pursuant to s 329, the assessment did not have to be performed by the same Medical Assessor.
2. The Member's conclusion was plainly inconsistent with authority and has no legislative basis. The Member's reasons for his ultimate conclusion included the notion that the referral required the re-assessment to be made by the original AMS. The notion is erroneous and has affected the ultimate outcome. This ground of appeal therefore also succeeds.

1. The appeal succeeds and the Member's Certificate of Determination is revoked.
2. In the circumstances of this case, the power to refer the matter for further assessment pursuant to s 329 is vested either in the President (s 329(1)(a) and s 329(1A)) and delegated to a non-presidential member pursuant to the Table of Delegations, or it is vested in the Commission (s 329(1)(b)). Section 8 of the 2020 Act provides that:

(1) The Commission is to consist of the following members -

(a) the President,

(b) Deputy Presidents,

(c) principal members,

(d) senior members,

(e) general members."

1. Thus, as a member of the Commission, I have the power under s 329(1)(b) of the 1998 Act to determine whether the matter should be referred for further assessment.
2. The appellant seeks either a referral to a Medical Assessor for reconsideration or for the matter to be remitted to another non-presidential member for re-determination. The respondent asks that the matter be remitted to a different member for re-determination and submits that the remitter is appropriate because the submissions in respect of the exercise of the member's discretion have yet to be determined.
3. Taking into account that:

(a) the wishes of the parties are that the matter be remitted for re-determination by a non-presidential member so that their submissions can be ventilated;

(b) the determination involves the exercise of discretion, and

(c) any appeal from a Presidential member's decision to the Court of Appeal pursuant to s 353(1) of the 1998 Act is limited to the question of whether a party is aggrieved by a decision of the Presidential member in point of law,

I consider that it is appropriate to remit the matter to a different non-presidential member for re-determination.

1. The Member's Certificate of Determination dated 25 June 2024 is revoked.
2. The matter is remitted to a different non-presidential member for re-determination.

[1] Application to Resolve a Dispute (ARD), p 9, Injury Details - deemed date of 6 September 2022.

[2] Annexure to the Appeal Against Decision of a Member (the Appeal), pp 16-17.

[7] Appeal Panel decision dated 30 April 2024, [27].

[9] Transcript of proceedings (T), McQuade v Inner West Council, W4339/23, 25 June 2024.

[11] Appellant's submissions, [9.18].

[12] [2006] NSWWCCPD 286 (Mansour).

[14] [2008] NSWWCCPD 56 (Milosavljevic).

[16] [2016] NSWWCCPD 36 (Adriaansen), [81].

[17] [2022] NSWPIC 421 (Papera).

[18] Appellant's submissions, [9.24].

[19] [2021] NSWCA 236 (Sleiman).

[22] [1985] HCA 28 (Metwally).

[23] [1986] HCA 33.

[24] Appellant's submissions in reply, [2.3(d)].

[25] Appellant's submissions, [9.26].

[28] [2006] NSWCA 284 (Vegan).

[40] Table of Delegations 'A', Items [77], [79] and [80].