CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Bird (Formerly Richardson) v Australian Bale Press Company Pty Ltd [2023] NSWPIC 391	
		
APPLICANT:	Edward Bird (formerly Richardson)	
		
RESPONDENT:	Australian Bale Press Company Pty Ltd	
		
SENIOR Member:	Kerry Haddock	
		
DATE OF DECISION:	4 August 2023	
		
CATCHWORDS:	WORKERS COMPENSATION - Request for reconsideration of Certificate of Determination (COD) pursuant to section 57(1) of Personal Injury Commission Act 2020; Medical Assessment Certificate (MAC) issued but not reviewed by respondent’s solicitor; solicitor became aware of MAC when COD issued; respondent sought to appeal the MAC pursuant to section 327(3)(c) and 327(3)(d) of Workplace Injury Management and Workers Compensation Act 1998 and sought extension of time pursuant to s 327(5); applicant did not consent to COD being rescinded; consideration of Marsh v Newcastle Stevedores Pty Ltd; Samuel v Sebel Furniture Limited; Railcorp NSW v Registrar of the WCC of NSW; Atomic Steel Constructions Pty Ltd v Tedeschi; Held – COD rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020.
 	
determinations made:	The Commission determines:
1.	The Certificate of Determination dated 21 April 2023 is rescinded pursuant to s 57(1) of the Personal Injury Commission Act 2020. 

STATEMENT OF REASONS
BACKGROUND
1.	The applicant, Edward Bird (Mr Bird), was employed by the respondent, Australian Bale Press Company Pty Ltd, as a sheet metal fabricator. 
2.	Mr Bird sustained an injury to his right hand, deemed to have occurred on 5 March 2018, and has sustained a consequential condition of his left hand. Liability for the injury and the consequential condition has been accepted. 
3.	By letter dated 6 April 2022, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant claimed the sum of $141,350, in respect of 42% whole person impairment (WPI), as a result of injury to his left upper extremity [sic].
4.	On 5 August 2022, the respondent’s insurer, Employers Mutual NSW Limited (EML), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 
5.	EML disputed that the applicant had an entitlement to permanent impairment compensation, as his injury had not resulted in more than 10% impairment, as required by s 66(1) of the 1987 Act. 
6.	The applicant lodged an Application to Resolve a Dispute (the Application) on 6 September 2022.
7.	The applicant claimed the sum of $141,350 in respect of 42% WPI as a result of injury on 5 March 2018 to his left upper extremity and his right upper extremity. 
8.	The respondent lodged its Reply on 28 September 2022.
ISSUES FOR DETERMINATION
9.	The following issues remain in dispute:
(a)	Whether the Certificate of Determination (COD) issued by the Personal Injury Commission (the Commission) on 21 April 2023 should be rescinded, and
(b)	Whether the matter should be referred again to the Medical Assessor (MA).
PROCEDURE BEFORE THE COMMISSION 
10.	The medical dispute was referred to Dr Tim Anderson, MA, who examined the applicant, assessed his left upper extremity and his right upper extremity, and made an assessment of WPI as a result of his injury.
11.	On 17 March 2023, Dr Anderson issued a Medical Assessment Certificate (MAC), in which he assessed the applicant’s WPI as 35%, comprising 23% WPI as a result of injury to his right upper extremity (hand, wrist, elbow, and radial nerve), and 16% WPI as a result of injury to his left upper extremity (wrist and ulnar nerve). 
12.	On 17 March 2023, a member of the Commission’s staff emailed the solicitors for both parties, advising that the MAC was available on its online portal. 
13.	On 21 April 2023, Principal Member Harris issued a COD, pursuant to which the respondent was to pay the applicant the sum of $106,210, in respect of 35% permanent impairment resulting from injury deemed to have happened on 5 March 2018. 
14.	On 21 April 2023, a member of the Commission’s staff emailed the solicitors for both parties, advising that the COD had been issued, and was available on its online portal.
15.	On 21 April 2023, the respondent’s solicitors emailed the Commission, advising that they had no record of the MAC being made available. They requested a copy of the email that advised the MAC was available on the portal. 
16.	A copy of the email sent on 17 March 2023, which had advised that the MAC was available, was sent by the Commission to the solicitors for both parties on 21 April 2023. 
17.	By letter dated 9 May 2023, the solicitors for the respondent requested that the Commission exercise the discretion to extend time to appeal the MAC; rescind the COD dated 21 April 2023; and refer the matter to an Appeal Panel for redetermination on the basis that the medical assessment was made on the basis of incorrect criteria, and the MAC contained a demonstrable error, pursuant to ss 327(3)(c) and 327(3)(d) of the 1998 Act. 
18.	The respondent’s solicitors enclosed reasons in support of the application. 
19.	The applicant opposed the respondent’s request.
20.	The matter was listed for preliminary conference on 8 June 2023. Mr Hopper appeared for the applicant, who was present. Ms Browne, instructed by Mr Bradfield of EML, appeared for the respondent. 
21.	The respondent sought to provide further submissions with respect to its application to rescind the COD. A timetable was set for provision of submissions by both parties. They were advised that, at the conclusion of the time allowed for submissions, the dispute would be determined “on the papers”.
22.	The submissions have now been received.
23.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
EVIDENCE
Documentary evidence
24.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	Application and attached documents;
(b)	Reply and attached documents;
(c)	MAC dated 17 March 2023, and
(d)	COD dated 21 April 2023.
Oral evidence
25.	There was no application to call oral evidence or cross-examine any witness. 
FINDINGS AND REASONS 
26.	In view of the issues, it is unnecessary that I consider all of the evidence before me. 
Medical evidence
Dr Mohammed Assem – rehabilitation specialist
27.	Dr Assem was qualified by the applicant. He reported on 21 March 2022.
28.	Dr Assem opined that the applicant had 100% sensory deficit on the right radial nerve and the first webspace, but no motor deficit. He had 80% sensory deficit on the left ulnar nerve from the cubital tunnel. Sensation was reduced, but motor deficit was difficult to calculate. 
29.	Dr Assem diagnosed intersection syndrome. The applicant had failed to respond to treatment. There was sensory loss in the right first dorsal compartment, and an area of hypersensitivity and allodynia. There was reduction in grip strength and dexterity. 
30.	The applicant had developed similar symptoms in his left hand. He underwent surgery, without benefit, and complained of constant pain and stiffness. Post-operatively, there was compression on the ulnar nerve at the cubital tunnel, causing persisting weakness and sensory loss. 
31.	Dr Assem opined that the applicant did not satisfy the diagnostic criteria for complex regional pain syndrome (CRPS). However, he was awarded impairment for limitation of motion, 20% sensory deficit involving the right radial nerve distribution, and moderate sensory [loss] in the left ulnar nerve distribution, which had developed as a complication of the last surgery. 
32.	Dr Assem recorded his measurements on examination.
33.	Dr Assem assessed the applicant’s right upper extremity as including impairment due to the right hand; the right arm (shoulder/elbow/wrist); the nerve system; strength; and the vascular system. The total right side upper extremity impairment was 46%. 
34.	Dr Assem assessed the applicant’s left upper extremity as including impairment due to the left hand; the left arm (shoulder/elbow/wrist); the nerve system; strength; and the vascular system. The total left side upper extremity impairment was 33%.
35.	The applicant’s total WPI was 42%. 
Dr John Bentivoglio – orthopaedic surgeon
36.	Dr Bentivoglio was qualified by the respondent. He reported first on 22 June 2022. 
37.	Dr Bentivoglio recorded a history that the applicant had been advised he had some damage to his left ulnar nerve after decompression of de Quervain’s tenosynovitis. 
38.	Dr Bentivoglio had difficulty understanding how the applicant’s ulnar nerve could have been damaged while having a decompression, and opined that if it was damaged, it should have recovered. 
39.	The applicant had not had nerve conduction studies to verify damage to his ulnar nerve and had had no treatment for this. Dr Bentivoglio believed it was imperative that he have the studies, to determine whether he had pressure on the ulnar nerve, and from where it was coming.
40.	Dr Bentivoglio was unable to explain any of the applicant’s symptoms. He considered the surgery Mr Bird had had was for minimal abnormalities and should not have been performed. He did not have evidence of CRPS. Noting his current investigations, Dr Bentivoglio did not believe it was possible for him to have the amount of disability he claimed. 
41.	Dr Bentivoglio had difficulty explaining how the applicant had sustained injuries, noting the minimal abnormalities seen on the initial MRI of his wrist, from his work activities. Considering the minimal abnormality on investigation, he also had difficulty accepting the magnitude of the applicant’s symptoms. 
42.	Dr Bentivoglio was unable to provide a diagnosis of either the applicant’s right or left upper limb. He was “totally unhappy” about giving any impairment rating for either, noting the investigations. He did not believe the applicant had needed any surgical treatment. 
43.	Dr Bentivoglio “totally disagree[d]” with Dr Assem’s impairment assessment. 
44.	Dr Bentivoglio again reported on 4 August 2022. 
45.	If Dr Bentivoglio “had” to assess the applicant’s impairment based on examination of his right thumb, he would consider any disability was the result of damage to the superficial branch of his radial nerve, causing traction on the nerve with movement of the thumb. He would not rate any impairment for the right thumb. He would not assess any impairment rating for the fingers, for the same reason. 
46.	As regards the applicant’s (right) wrist, Dr Bentivoglio considered that de Quervain’s tenosynovitis would not give any impairment. He had no reason for any loss of movement in the applicant’s wrist. 
47.	The applicant did have evidence of hypersensitivity in the superficial branch of the radial nerve, which was the result of scarring from the surgery. He had a 5% upper extremity impairment as a result of decreased function in the superficial branch of his radial nerve. This equated to 3% WPI. 
48.	Dr Bentivoglio opined that there was no reason for the applicant to have any disability in his right shoulder, elbow, wrist, or thumb from the abnormality seen on investigation. He was unable to attribute the symptoms in the left wrist (some sensory blunting in the distribution of the left ulnar nerve) to employment. 
49.	Dr Bentivoglio believed it was “totally inappropriate” for the applicant to have any impairment rating, apart from the evidence of damage to the superficial nerve caused by multiple surgeries on his right wrist region. There was a “gross mismatch” between Dr Assem’s assessment and the abnormalities seen on the applicant’s investigations. 
Dr Tim Anderson – Medical Assessor 
50.	Dr Anderson recorded a history that the applicant experienced progressive strain and dysfunction, mostly of his right wrist, and then of his left wrist. 
51.	The applicant’s general practitioner referred him to orthopaedic surgeon, Dr Steve Marchalleck. 
52.	Dr Marchalleck identified dysfunction with the extensor tendon complex associated with the applicant’s thumb. He carried out an arthroscopy of the right wrist and de Quervain’s release and tenosynovectomy on 20 July 2018. This did not help Mr Bird. 
53.	The applicant was referred for pain management, and later came under the care of specialist hand surgeon, Dr Sean Nicklin. 
54.	A neurolysis procedure was performed on 26 March 2020, after which the applicant felt that his condition had deteriorated. 
55.	Dr Nicklin performed a de Quervain’s decompression in November 2020, but again there was no improvement. 
56.	Dr Willem Volschenk, pain management physician, also treated the applicant, including with pulsed radiofrequency neurotomies on the right radial and left ulnar nerves, at the end of 2021. This did not help.
57.	Dr Anderson tried to identify how the applicant’s left ulnar nerve became involved when the surgery was on the other side of the wrist on the radial extremity and associated with decompression of the extensor tendon complex. The applicant advised him that after this procedure in November 2020, he was aware of symptomatology that strongly suggested ulnar nerve dysfunction. 
58.	Dr Anderson recorded that the applicant had a history of pain, initially associated with his right wrist, affecting the radial side, and later with the left wrist. Three surgical procedures were performed on the right wrist, but he ended up no better off, and with the development of a chronic pain condition. This also predominantly affected the right radial nerve distribution. 
59.	The applicant had a similar development on the left side, initially associated with the extensor tendon complex. “For rather obscure reasons”, he ended up with gross dysfunction of the ulnar nerve, on the other side of the wrist complex. Dr Anderson opined that “it looks as though this may have been associated with surgery on the left wrist in early November 2020”. 
60.	The applicant had also developed a chronic pain condition of the left wrist and forearm. His condition had continued without improvement. At Dr Anderson’s assessment, he was grossly dysfunctional. Dr Anderson observed that his presentation seemed consistent. 
61.	Dr Anderson assessed the applicant with WPI of 23% as a result of injury to his right upper extremity, and WPI of 16% as a result of injury to his left upper extremity. He recorded gross dysfunction of the right medial nerve, and dysfunction of the left ulnar nerve. 
62.	In commenting on the other assessments, Dr Anderson noted that his assessment was closest to that of Dr Assem; and Dr Bentivoglio did not appear to acknowledge a chronic pain condition, confining his assessment to a minor finding on the right radial nerve. 
63.	Dr Anderson assessed the applicant’s WPI as 35%, and the MAC was duly issued. 
Respondent’s evidence
Evidence of Miriam Browne
64.	Ms Browne is the solicitor with carriage of the matter on behalf of the respondent. She made a statutory declaration on 2 May 2023. 
65.	Ms Browne referred to the sequence of events I have set out above, with respect to the receipt of an email from the Commission advising that the COD had been issued. 
66.	Ms Browne declared that she had no memory of receiving the email from the Commission on 17 March 2023. It was not saved to her electronic file, and she had not forwarded it to her assistant, asking her to access the MAC from the portal, each of which would have been in accordance with her usual practice. 
67.	Ms Browne was unable to say why she had not followed her usual practice. Her firm’s IT department had confirmed that the email from the Commission regarding the MAC was deleted from her inbox. “All [she] can say” is that she must have accidentally deleted it. 
68.	After reviewing the MAC, Ms Browne sought advice from her colleague, Ms Nikki McPhan, on the assessment. Ms McPhan was familiar with the matter, having had carriage of it before it was litigated. 
69.	Ms Browne and Ms McPhan discussed the complexities of the matter. They agreed that it would take some time to review it and prepare an advice and recommendations for the insurer. Ms McPhan agreed to prepare the advice, as she had greater capacity at that time. 
70.	At 5pm on 21 April 2023, Ms Browne emailed the insurer, advising of the mistake, and that they would review the matter and provide an advice as soon as possible. 
71.	The advice was sent to the insurer at 4.41pm on 26 April 2023. 
72.	On 27 April 2023, at 3.34pm, the insurer provided instructions to proceed with an appeal, as recommended in the advice. 
73.	The submissions were finalised and sent to the insurer and iCare for approval on 2 May 2023. 
SUBMISSIONS
74.	Each party has provided written submissions, which I will summarise briefly. 
Respondent
75.	The respondent submitted that there were special circumstances to justify an increase in the period for an appeal, referring to Ms Browne’s evidence. 
76.	The respondent submitted that, upon becoming aware of the MAC, its legal representative had acted promptly to review it, and notify the insurer that it had been issued and contained errors constituting grounds of appeal. 
77.	The respondent referred to the decision of Acting Justice Smart in Robertson v Registrar of the Workers Compensation Commission & Beny’s Joinery Pty Ltd, in which his Honour found that special circumstances existed and quashed the decision of the Registrar in refusing to allow an increase in the appeal period. 
78.	The respondent also relied on the decision of Principal Member Harris in Marsh v Newcastle Stevedores Pty Ltd. The member found that there were strong prospects of success if the appeal proceeded. He concluded that the discretion to set aside the COD should be exercised, which was “consistent with the interests of justice”. 
79.	The respondent also referred to the decision of Deputy President Wood in K & W Haulage Pty Ltd v BCL, in which she concluded that the appeal had merit and the failure to extend time would cause the appellant substantial injustice. 
80.	The respondent submitted that neither it nor its insurer was responsible for the delay in filing the appeal and should not be prejudiced by the legal representative’s mistake. Upon becoming aware of the MAC and identifying grounds for appeal, the legal representative took prompt action to file the appeal. 
81.	The respondent submitted that the grounds for appeal against the MAC have merit and requested the Commission to exercise its discretion to extend time to file an appeal, in the interests of justice. 
82.	The respondent relied on ss 327(3)(c) and 327(3)(d) of the 1998 Act. 
83.	The respondent submitted that the MA erred in assessing permanent impairment of the right medial nerve when the body system referred was the right “radial” nerve. The MA had correctly referred to the right radial nerve injury throughout the report, until evaluating permanent impairment. 
84.	The respondent submitted that the MA relied on incorrect criteria and made a demonstrable error in assessing upper extremity impairment of the right medial nerve, for which the maximum sensory impairment is 39% UEI (upper extremity impairment) (Table 16-15 of AMA 5). 
85.	The respondent submitted that the MA should have applied the maximum sensory impairment for the radial nerve under the Table, equating to 5% UEI. On assessing a Grade 3 sensory deficit of 50% under Table 16-10, the resulting impairment of the right radial nerve should have been assessed at a total of 3% UEI (rounded up). An assessment of 3% UEI of the right radial nerve was consistent with the findings of Dr Assem.
86.	The respondent submitted that, as a result of relying on incorrect criteria, the MA arrived at a total assessment of 38% UEI of the right upper extremity, which converts to 23% WPI. Had the correct criteria for the radial nerve been applied, the assessment would be 22% UEI, which converts to 13% WPI. Combining this with the MA’s assessment of 16% WPI of the left upper extremity gives a combined assessment of 27% WPI. 
87.	As regards its application to set aside the COD, the respondent submitted that the applicable principles are set out in Samuel v Sebel Furniture Limited.
88.	The respondent acknowledged that the discretion to reconsider or rescind previous decisions must be exercised fairly, with due regard to the extent of any delay in bringing the application. It relied on Ms Browne’s evidence in submitting that appropriate steps had been taken in a timely manner and the delay had been minimal.
89.	The respondent submitted that either party is entitled to file an application to appeal a MAC out of time, provided there are “special circumstances” to justify an increase in the time to appeal. It has set out the special circumstances on which it relies. 
90.	The respondent did not seek to rely on any new evidence. 
91.	The respondent submitted that Samuel is not authority for the proposition that a mistake by legal representatives can never result in the exercise of the discretion to reconsider or rescind a decision. It merely establishes examples of guidelines or principles that can be followed. The decision in Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd  could be distinguished. 
92.	The respondent referred to the decision of Deputy President Roche in Atomic Steel Constructions Pty Ltd v Tedeschi.
93.	The respondent submitted that, consistent with Tedeschi, a decision to revoke the COD was in the interests of justice. The grounds in favour of an appeal of the MAC had substantial merit. 
94.	The respondent submitted that its legal representative’s mistake should not be attributed vicariously to it and its insurer. The current COD and MAC afforded the applicant the statutory entitlements and protections applicable to workers with the highest needs, to which he would not be entitled had the assessment been based on the correct criteria. (Emphasis in original.)
95.	The respondent sought that the COD be rescinded or revoked, pursuant to s 57(1) of the Personal Injury Commission Act 2020 (the 2020 Act); and the matter be referred to an appeal panel for redetermination, on the basis that the MAC contains a demonstrable error pursuant to ss 327(3)(c) and 327(3)(d) of the 1998 Act. Alternatively, it sought that the matter to be re-referred to the MA to reconsider the MAC. 
96.	In reply to the applicant, the respondent submitted that it maintained that special circumstances existed to warrant an extension of time to appeal. 
97.	Contrary to its previous submissions, the respondent submitted that it did not agree with the proposal to refer the matter back to the MA for clarification. 
98.	The respondent submitted that, in accordance with s 327(4) of the 1998 Act, grounds for appeal were made out, pursuant to ss 327(3)(c) and 327(3)(d) of the Act, so that the matter was appropriate for determination by a medical appeal panel.
Applicant 
99.	The applicant’s submissions are headed “Appeal of Medical Assessment Certificate of Dr Aman Suman dated 18 August 2022”. They nonetheless appear to relate to this matter.
100.	The applicant disputed that special circumstances existed, such as to warrant an extension of time to appeal. 
101.	The applicant submitted that the respondent received the MAC on 17 March 2023, referring to Ms Browne’s evidence that she must have accidentally deleted the email from the Commission.
102.	The applicant submitted that, on receiving the MAC for the second time on 21 April 2023, one week after the appeal period had expired, the respondent filed its submissions on 9 May 2023. He disputed that a delay of two and a half weeks supported the respondent’s submission that it had “acted promptly in reviewing the MAC”. He submitted that this further delay was unreasonable in the circumstances. 
103.	The applicant submitted that there was nothing in Ms Browne’s evidence that was sufficient to suggest a special reason existed for departure from the general rule that an appeal must be filed within 28 days: Robertson.
104.	 The applicant submitted that no special circumstances existed to warrant the extension of time to appeal the MAC to 9 May 2023.
105.	The applicant submitted that he had been prejudiced in that he had not been paid the compensation to which he was entitled, and (presumably) would not receive it until the matter was finalised. 
106.	As regards the respondent’s submission that the MA had failed to adequately assess the right radial nerve, and had instead assessed the right medial nerve, the applicant submitted that as a general proposition, the assessor’s reasons should not be scrutinised overzealously: Allianz Australia Insurance Ltd v Moo Ok Park. He further submitted that, for the assessor’s reasons to be found to be deficient, they must be “plainly inadequate”: Rahme v Bevan & Anor.
107.	The applicant referred to the respondent’s submissions at paragraphs 85 and 86 above. He submitted that at page 6 of the MAC, the MA provided an assessment pursuant to the medial nerve. It appears he had not provided any explanation as to why the medial nerve assessment, instead of the radial nerve assessment, was utilised. It was unclear whether this was an error.
108.	The applicant submitted that, in the circumstances, and assuming time to appeal was extended, the matter should be referred back to the MA for further assessment pursuant to s 327(6) of the 1998 Act as an alternative to an appeal. The applicant proposed that the MA be asked to clarify whether the assessment under the medial nerve was a mistake, or provide further clarification of the assessment. 
109.	The applicant concluded that it submitted that special circumstances did not exist, sufficient to warrant an extension of time to appeal to 9 May 2023. If an extension of time was permitted, the matter should be referred back to the MA for further assessment, as an alternative to an appeal. 
SUMMARY
110.	Section 327 of the 1998 Act provides:
“327 Appeal against medical assessment
(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).
Note : 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.
Note : 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.”
111.	Section 329 of the 1998 Act provides:
“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.”
112.	Section 57 of the 2020 Act provides:
“Reconsideration of decisions of Commission
(1) 	The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2) 	If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may--
(a) 	alter the decision to correct the error, or
(b) 	direct a registrar to alter the decision to correct the error.
(3) 	Without limiting subsection (2), if the decision is contained in a certificate, the President may--
(a) 	issue a replacement certificate with the error corrected, or
(b) 	direct a registrar to issue a replacement certificate with the error corrected.
(4) 	If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5) 	If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6) 	Examples of obvious errors in a decision are where--
(a) 	there is an obvious clerical or typographical error in the text of the notice or statement, or
(b) 	there is an error arising from an accidental slip or omission, or
(c) 	there is a defect of form, or
(d) 	there is an inconsistency between the stated decision and the stated reasons.”
113.	The MAC in this matter was issued on 17 March 2023. 
114.	It is common ground that the respondent did not appeal against the medical assessment within 28 days after the assessment. In those circumstances, the Commission issued a COD on 21 April 2023. The dispute was therefore determined on that date.
115.	Pursuant to s 327(7) of the 1998 Act, there is to be no appeal against a medical assessment once the dispute has been determined by the Commission. 
116.	The applicant did not consent to the COD being rescinded. The respondent’s proposed appeal therefore cannot proceed unless the Commission reconsiders its decision and rescinds the COD.
117.	I do not have the power to extend the time for an appeal to be lodged, pursuant to s 327(5) of the 1998 Act. That power is reserved to the President. 
118.	Pursuant to s 329(1)(b) of the 1998 Act, I do have the power to refer the matter again for assessment, but I must first consider whether to exercise the power to set aside the COD. 
119.	In Samuel, Acting Deputy Roche, as he then was, discussed the matters to be taken into account in an application for reconsideration (in that case pursuant to s 350(3) of the 1998 Act). Roche ADP referred to the following:
(a)	the section gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Pty Ltd );
(b)	while the word “decision” is not defined in s 350, it is defined for the purposes of s 352 to include “an award, order, determination, ruling and direction”. In Roche ADP’s view, “decision” in s 350(3) included, but was not necessarily limited to, any award, order or determination of the Commission;
(c)	while 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 applicant for reconsideration (Schipp v Herfords Pty Ltd );
(d)	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 v Hilliger);
(e)	reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained during the first proceedings 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 v J Robins & Sons Pty Ltd); 
(f)	given the broad power of “review” in s 352 (which was not universally available in the Compensation Court of New South Wales) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators; 
(g)	depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd 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;
(h)	a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Hurst), and 
(i)	the Commission has a duty to do justice between the parties according to the substantial merits of the case (Hilliger and s 354(3) of the 1998 Act). 
120.	It should be noted that s 352 of the 1998 Act no longer provides for a power of “review”, but rather for an appeal against a decision, limited to a determination of whether the decision was affected by error of fact, law or discretion, and the correction of any such error. 
121.	Section 354 of the 1998 Act has been repealed, but s 43(3) of the 2020 Act provides that the Commission is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms.
122.	Samuel was referred to with approval in Railcorp NSW v Registrar of the WCC of NSW, in which Harrison AsJ said:
“It is my view that the discretion of the Court, when it conducts a reconsideration, is wide ranging. Overall, the task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. One of the circumstances where a reconsideration can take place is where there is fresh evidence (as opposed to more evidence).”
123.	The respondent has referred to the decision of Principal Member Harris in Marsh. In that matter, Principal Member Harris discussed the authorities. He was considering an application pursuant to s 350(3) of the 1998 Act, saved as an unexercised right to proceedings pursuant to Schedule 1, cl 14D of the 2020 Act, to set aside a COD. That power now appears in s 57(1) of the 2020 Act. 
124.	Principal Member Harris referred to the description by Santow JA in Hatfield Engineering Pty Ltd v Fitzgerald  of the discretion of the Compensation Court in exercising its reconsideration power pursuant to s 17 of the Compensation Court Act 1984 (which was the predecessor to s 350 of the 1998 Act) as “…virtually without limit”. 
125.	Principal Member Harris also referred to the decision of Roche DP in Tedeschi. Roche DP said at [83]:
“The discretionary power conferred by the reconsideration power is in ‘extremely wide terms’ (Hardaker v Wright & Bruce Pty Ltd). It is important, however, to remember the distinction between the existence of the reconsideration power and the occasion of its exercise, and that courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably (Street CJ in Hilliger v Hilliger). Nevertheless, as Street CJ further observed, it is clear that the legislature intended to leave with certain tribunals the power of reviewing any decision to see ‘that justice is done between the parties’.” (Citations omitted.)
126.	In this matter, the failure to lodge an appeal against the MAC within the requisite period was due to error or oversight on the part of the respondent’s solicitor. As the respondent submitted, that does not mean that the discretion to reconsider or rescind a decision may not be exercised. 
127.	In Tedeschi, an arbitrator refused to set aside consent orders, which went outside the actual authority of counsel for the respondent, pursuant to the reconsideration power in s 350(3) of the 1998 Act. 
128.	Roche DP said at [53]-[54]
“In the present case, the Arbitrator’s statement (at [14]) that a mistake or oversight by a legal adviser would not give rise to a ground for reconsideration failed to have regard to the context in which that statement was made in Hurst. In that case, the issue was not one concerning a settlement that went beyond counsel’s instructions, but concerned a failure in the preparation and presentation of a case, and a lengthy delay in bringing subsequent proceedings for relief.
The Arbitrator also failed to have regard to the principles discussed in Sorcevski , where it was held that a party (in that case, a worker) was held not to be bound by the assent of her counsel, even though it was within his ostensible authority and the other party acted on it in good faith.”
129.	In Marsh, Principal Member Harris considered that the respondent’s description of the delay by the applicant’s solicitors as “…not mere administrative oversight…but gross oversight causative of substantial delay” was “a generous description of the legal practitioner’s neglect in prosecuting the appeal”. He nonetheless exercised his discretion to reconsider the matter and set aside the COD. 
130.	I do not accept the applicant’s submission that in this case the respondent did not act promptly in reviewing the MAC. The sequence of events is set out in Ms Browne’s evidence. That period included the Anzac Day public holiday on 25 April 2023. I do not believe there was significant delay in bringing the application for reconsideration. 
131.	The principles in Samuel require that I consider the public interest in finality of litigation. However, I also have a duty to do justice between the parties. 
132.	As I have noted, I do not have the power to extend the time for an appeal against the MAC to be lodged. It is not part of my function to determine whether grounds of appeal exist.
133.	However, the respondent has submitted that the MA has incorrectly assessed the applicant’s right medial nerve, when the referral required assessment of the right radial nerve. The respondent submitted that the MA had in any event incorrectly assessed the right medial nerve.
134.	The applicant submitted that the assessor’s reasons should not be scrutinised overzealously; and “it appears he has not provided any explanation as to why the medial nerve assessment, instead of the radial nerve assessment, was utilised.” It was unclear whether this was an error. (Emphasis added.)
135.	It appears to me that the proposed appeal has merit, and that the failure to extend time would cause a substantial injustice to the respondent. It is in the interests of justice that I reconsider the matter and revoke the COD dated 21 April 2023. 
136.	In my view, the preferable course is that the respondent lodge an appeal, rather than that the matter be referred for assessment again.
137.	As Principal Member Harris held in Marsh, I do not have the power to order that the appeal be filed within any period. However, if the respondent does not file an appeal with proper expedition, then I will hear a further application by the applicant to reconsider this order.
138.	The order is set out in the COD.