DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Secretary, Department of Communities & Justice v Cannell [2024] NSWPICPD 32	
		
APPELLANT:	Secretary, Department of Communities & Justice	
		
RESPONDENT:	Cindy Cannell	
		
INSURER:	QBE TMF	
		
FILE NUMBER:	A1-2754/18	
		
PRESIDENTIAL MEMBER:	Acting Deputy President Kylie Nomchong SC	
		
DATE OF APPEAL DECISION:	31 May 2024	
		
ORDERS MADE ON APPEAL:	1.	Leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 
2.	The appeal is upheld.
3.	The Certificate of Determination dated 9 May 2023 (as amended on 24 July 2023) is revoked.
4.	Pursuant to s 352(6A) of the 1998 Act a new decision is made in its place that the respondent’s application for reconsideration pursuant to s 350(3) of the 1998 Act is dismissed.	
		
CATCHWORDS:	WORKERS COMPENSATION – appeal from reconsideration application – former sections 350 and 378 of the Workplace Injury Management and Workers Compensation Act 1998 – section 66(1A) of the Workers Compensation Act 1987 – previous assessment of whole person impairment of 12% for the purposes of lump sum compensation – subsequent total knee replacement – section 327(7) of the Workplace Injury Management and Workers Compensation Act 1998 – worker seeks to have Certificate of Determination rescinded so an appeal or reconsideration can be made against previous assessment of whole person impairment – worker also seeks assessment of whole person impairment for the purposes of section 39 of the Workers Compensation Act 1987 – series of ‘trial and error’ attempts to have the worker’s permanent impairment assessment reviewed or reconsidered – whether reconsideration application made and determined – Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; UBS AG v Tyne [2018] HCA 45; Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 and Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113; 102 NSWLR 941 discussed and applied 	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr J Krieg, solicitor	
	Turks Legal	
		
	Respondent:	
	Mr C Hart, counsel	
	Michael Evers & Co	
		
DECISION UNDER APPEAL		
		
SENIOR MEMBER:	Ms E Beilby	
		
DATE OF SENIOR Member’s DECISION:	9 May 2023	

INTRODUCTION
1.	I utilise the terms ‘appellant’ and ‘respondent worker’ throughout for consistency – even though at the relevant times, the appellant was a respondent to various applications and the respondent worker was the applicant. 
2.	The respondent worker (Ms Cannell) was employed as a Sheriff’s Officer with the appellant (Department of Communities and Justice). The respondent worker injured her right lower leg during an incident at work on 3 October 2013, and thereafter received treatment, predominantly to her right knee. Liability was accepted for weekly payments and medical expenses. 
First claim – Matter No. 1436/18 (9 November 2017)
3.	On 9 November 2017, the respondent worker made a claim on the appellant for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (1987 Act). That claim was based on the report of Dr Bodel dated 1 November 2017. The claim was for 17% Whole Person Impairment (WPI). The report noted that the respondent worker had positive signs of persisting complex regional pain syndrome (CRPS). This was part of Dr Bodel’s diagnosis and he assigned 8% WPI to that condition. 
4.	That claim was denied by the appellant’s insurer on 17 January 2018 on the basis of reports obtained from Dr Panjratan dated 7 December 2017 and 29 January 2018.
5.	On 18 January 2018, the respondent worker made an amended claim in the following terms:
“s 66 lump sum $74,250.00 in respect of 36% whole person impairment for CRPS Type 1 of the right lower limb.”
6.	That claim was supported by a medical report from Dr Simon Tame, pain management physician, dated 12 December 2017. The report from Dr Tame disclosed that he had not recently examined the respondent worker and that he had based his diagnosis on the observations of Dr Bodel in his report. The appellant denied liability for the amended claim on 5 February 2018. 
7.	The respondent worker filed an Application to Resolve a Dispute (ARD) with the then Workers Compensation Commission (WCC) and it was assigned Matter No. 1436/18. The ARD claimed that the respondent worker suffered an injury on 3 October 2013 to her right knee, foot and ankle. The ARD made only one claim and that was for permanent impairment including pain and suffering in the amount of 36% WPI in respect of “CRPS Type 1 of the right lower limb.” The appellant filed a Reply on 10 April 2018. 
8.	The WCC referred the matter for assessment of the %WPI to an approved medical specialist (AMS), Dr Lewington, with the assessment to take place on 23 April 2018.
9.	However, following a teleconference, the WCC issued a Certificate of Determination (COD) on 20 April 2018 (noting that the orders were made by consent). The orders in the COD were as follows:
“(1) 	On the applicant’s [respondent worker’s] application the matter is discontinued and I dispense with the necessity for the [respondent worker] to lodge a notice of discontinuance.
(2) 	I direct that the appointment with the AMS for 23 April 2018 be cancelled.”
Second claim – Matter No. 2754/18 (23 May 2018)
10.	On 23 May 2018, the respondent worker submitted a new ARD to the WCC and it was assigned Matter No. 2754/18. 
11.	The ARD was identical to the ARD in Matter No. 1436/18 (save for one word). The ARD made the same singular claim for compensation for permanent impairment in the amount of 36% WPI but this time it was stated to be in respect of “CRPS Type 1 of the right lower extremity.” The typewritten word “limb” from the ARD in Matter No. 1436/18 had been crossed out and the word “extremity” written in by hand. The date and nature of the injury was the same.
12.	The ARD noted that the respondent worker had made the previous claim in respect of the same injury, being Matter No. 1436/18. 
13.	The respondent worker relied on the same report of Dr Simon Tame dated 12 December 2017, together with various clinical notes and reports from treating doctors and medical personnel. Dr Tame’s report was directed only to the condition of CRPS.
14.	The appellant filed its Reply on 19 June 2018, in which it maintained the concerns it had with the respondent worker being referred to an AMS in Matter No. 1436/18.
Medical assessment certificate (MAC) – 16 August 2018
15.	The matter was referred for assessment to the same AMS, Dr Lewington, and a medical assessment certificate (MAC) was issued on 16 August 2018 in which the respondent worker was assessed with 15% WPI. 
Appeal against MAC
16.	That MAC was appealed by both parties. 
17.	The respondent worker’s appeal dated 10 September 2018 relied on s 327(3)(a)–(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The appellant’s appeal dated 11 September 2018 relied only on ss 327(3)(c) and (d) of the 1998 Act. 
Amended MAC – 2 November 2018
18.	On 12 October 2018, Delegate McAdam issued a ‘gatekeeper’ decision in which the respondent worker’s appeal was rejected on the basis that none of the grounds of appeal were capable of being made out. The appellant’s appeal was referred back to the AMS for reconsideration. A new MAC was issued by Dr Lewington on 2 November 2018 of 12% WPI for the respondent’s right lower extremity (Amended MAC).
Appeal against Amended MAC – 27 November 2018
19.	The respondent worker filed an appeal against the Amended MAC on 27 November 2018, alleging that her condition had deteriorated and that there was fresh evidence available, relying on ss 327(3)(a) and (b) of the 1998 Act. On 12 December 2018, the appellant opposed the appeal. 
20.	On 25 January 2019 Delegate McGrowdie issued a ‘gatekeeper’ decision and allowed the respondent worker’s appeal to proceed to a Medical Appeal Panel (MAP).
Medical Appeal Panel Decision – 27 February 2019
21.	On 27 February 2019, the MAP confirmed the Amended MAC and found that there was no evidence of a deterioration in the respondent worker’s condition.
Certificate of Determination (Matter No. 2754/18) – 4 April 2019
22.	A Certificate of Determination was issued on 4 April 2019 (COD dated 4 April 2019) stating that the respondent worker had 12% WPI in respect of the injury to her right lower extremity and making an order for lump sum compensation under s 66 of the 1987 Act.
2019 Reconsideration Application (Matter No. 2754/18) – 16 May 2019
23.	On 16 May 2019, the respondent worker filed an application for reconsideration of the MAP decision asserting reliance on ss 325(3); 327(6); 329(1)(a) and/or 350(3) of the 1998 Act (as those provisions then stood) (2019 Reconsideration Application). The application was opposed by the appellant. The appellant filed a detailed response on 5 June 2019.
24.	On 11 July 2019, Ms Annette Farrell (Director, Operations – Workers Compensation Commission) sent an email to the parties stating that the request for reconsideration was declined because the COD dated 4 April 2019 had resolved the dispute and the matter could not be referred back to the MAP under s 378 of the 1998 Act. The respondent worker took no further action in relation to that decision.
Total knee replacement – 14 August 2019
25.	The respondent worker underwent a total knee replacement (TKR) on 14 August 2019.
Further lump sum claim – 15 December 2020 (Matter No. 2754/18)
26.	On 15 December 2020, the respondent worker submitted a further lump sum claim claiming 37% WPI in respect of the same injury to the right lower extremity arising from the accident on 3 October 2013 and based on a diagnosis of CRPS. This application was made on the basis of the report of Dr Marc Walden dated 1 September 2020. On 2 February 2021, the appellant disputed that claim on the basis that only one COD could be issued for permanent impairment pursuant to s 66(1A) of the 1987 Act and asserted reliance on s 322A of the 1998 Act. 
27.	On 16 March 2021, the respondent worker sought a review pursuant to s 287A of the 1998 Act in respect of that decision. On 29 March 2021, the appellant’s insurer advised that the request to review the decision to deny the claim for further lump sum compensation (including any new additional information) was denied. In that letter, the appellant advised that s 66(1A) of the 1987 Act prevented the respondent worker from pursuing any further claim for lump sum compensation in respect of the injury on 3 October 2013. Further the appellant advised that it considered that ss 322A and 350 of the 1998 Act prevented the respondent worker from being assessed again in relation to the degree of permanent impairment.
28.	No further action was taken by the respondent worker at that time. 
Cessation of weekly payments
29.	On 22 February 2021, the appellant’s insurer wrote to the respondent worker advising that her weekly payments would cease on 2 December 2021 (because her WPI was assessed at 12% and therefore she did not qualify for ongoing weekly payments). 
Further proceedings (Matter No. W2466/21) – 18 June 2021
30.	On 18 June 2021, the respondent worker filed an application (Form 7) for an assessment by a medical assessor in the Personal Injury Commission (Commission) and was assigned Matter No. W2466/21. This application sought a further assessment of permanent impairment to determine whether she had more than 20% WPI for the purposes of s 39 of the 1987 Act.
31.	On 12 July 2021, the appellant responded to that application. On 19 July 2021, the respondent worker discontinued that application prior to the first conference. 
Claim for further assessment – 13 August 2021
32.	On 13 August 2021, the respondent worker wrote to the appellant seeking a further assessment to determine whether she satisfied s 39 of the 1987 Act and the Work Injury Damages (WID) threshold. The respondent worker served the same report from Dr Walden dated 1 September 2020. The appellant disputed that application. This application was not pursued.
2021 Reconsideration Application (Matter No. 2754/18) – 6 September 2021 
33.	On 6 September 2021, the respondent worker filed an application for reconsideration of the Amended MAC and the COD dated 4 April 2019 (2021 Reconsideration Application) in the Second Claim proceedings, being Matter No. 2754/18. This was supported by submissions, a large volume of medical reports including the same report of Dr Marc Walden dated 1 September 2020 and a statement by the respondent worker dated 28 May 2021. The appellant opposed the application and filed detailed submissions dated 27 September 2021. At conciliation/arbitration on 25 January 2022 before Member Wright, the respondent worker discontinued that application. On 27 January 2022, Member Wright issued a COD making orders that the application was discontinued (COD dated 27 January 2022).
Further Proceedings (Matter No. W4287/22) – 8 July 2022
34.	On 15 June 2022, the respondent worker sought agreement from the appellant that the high needs worker threshold had been exceeded. On 4 July 2022, the appellant disputed the respondent worker’s status as a high needs worker.
35.	On 8 July 2022, the respondent worker filed a miscellaneous application in the Commission to determine whether she was entitled to a further assessment by a medical assessor. This application was assigned Matter No. W4287/22. Those proceedings were dismissed by Member Wright at the preliminary conference on 9 August 2022.
Current Reconsideration Application (Matter No. 2754/18) – 23 August 2022
36.	On 23 August 2022, the respondent worker wrote a letter to the Commission in respect of the Second Claim proceedings, being in Matter No. 2754/18 which sought a reconsideration of the COD dated 4 April 2019 “and any previous Certificates of Determination that may prevent the [respondent] worker from filing an Appeal Against the Medical Assessment Certificate of Dr Lewington” (Current Reconsideration Application). Submissions were attached to that letter. The appellant filed submissions opposing the Current Reconsideration Application dated 14 September 2022. The matter was listed for a conciliation/arbitration hearing on 15 November 2022 before Member Inglis, after which a direction was made for additional written submissions. Those additional submissions were filed in November and December 2022.
37.	Member Inglis was unable to complete the matter and it was transferred to Senior Member Beilby.
38.	On 9 May 2023, Senior Member Beilby issued a COD and Statement of Reasons. Senior Member Beilby set aside the COD “dated 25 January 2017”. The date was a typographical error and it was corrected on 24 July 2023 to refer to the COD dated 4 April 2019.
Appeal 
39.	On 6 June 2023, the appellant filed an appeal against the COD of Senior Member Beilby on four grounds:
(a)	Ground One: The Senior Member erred in exercising the discretion to set aside the Certificate of Determination dated 4 April 2019.
(b)	Ground Two: The Senior Member erred at law in her application of Sch 1, cl 14D of the Personal Injury Commission Act 2020 (2020 Act) and subsequently committed jurisdictional error by exercising a discretion under s 350(3) of the 1998 Act.
(c)	Ground Three: The Senior Member erred at law in finding that this matter amounted to a ‘threshold dispute’ that was distinct from a claim for lump sum compensation, and that the MAC dated 2 November 2018 could be appealed to determine a threshold dispute.
(d)	Ground Four: The Senior Member erred at law in failing to address the appellant’s argument relating to the impermissibility of a second appeal of the MAC dated 2 November 2018.
ON THE PAPERS
40.	I have read the material in this matter including all of the various applications, the clinical notes, the medical reports and the written submissions of both parties. I have read and considered the Senior Member’s Statement of Reasons. Both parties submit that it is appropriate for the appeal to be determined on the basis of the documents and their submissions.
41.	I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law.
42.	Pursuant to s 52(3) of the 2020 Act, I am satisfied that the materials, pleadings and submissions provided to me are sufficient for the Commission to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course.
THRESHOLD MATTERS
43.	There is no dispute between the parties that the threshold requirements as to the monetary limit pursuant to s 352(3) of the 1998 Act have been met. 
44.	There is no dispute between the parties that the threshold requirements as to time pursuant to s 352(4) of the 1998 Act have been met. 
Interlocutory or final decision
45.	The appellant contends that the Senior Member’s decision is not an interlocutory decision and therefore leave is not required pursuant to s 352(3A) of the 1998 Act.
46.	In Licul v Corney, Gibbs J (as his Honour then was) said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?” (footnotes omitted)
47.	The Senior Member’s determination was made in relation to the respondent worker’s application for reconsideration of the COD dated 4 April 2019. The reason for that application was because, on the respondent worker’s view, in order to apply to have the Amended MAC issued by Dr Lewington on 2 November 2018 (and confirmed by the Appeal Panel on 27 February 2019) reconsidered, the COD dated 4 April 2019 first had to be revoked. 
48.	The appellant submits that the decision of the Senior Member was a final one. The respondent worker contended that the application was an interlocutory one but that it satisfies the requirements for leave to appeal and cited Scone Race Club Limited v Cottom.
49.	The issue of whether a determination of this kind is interlocutory in nature was considered by Wood DP in DGL (Aust) Pty Ltd v Martino. 
50.	The Deputy President was taken to the Presidential decisions in Coates Hire Operations Pty Limited v Geddes and Visy Board Pty Limited v Nguyen. Both of those decisions involved appeals from determinations of arbitrators about a finding of injury before a remittal for assessment of the injured worker’s permanent impairment. Both of those decisions found that there had been a final decision which determined liability and that therefore, the determination was not interlocutory within the meaning of the then s 352(8) of the 1998 Act.
51.	However, Wood DP in DGL noted that these two cases were inconsistent with a number of subsequent Presidential decisions including Mosawi v Baron Forge (NSW) Pty Ltd in which the President found that a determination of injury prior to a medical assessment was interlocutory in nature. Wood DP also referred to Moore v Greater Taree City Council and South Western Sydney Area Health Service v Edmonds. In the latter case, the Court of Appeal held that an arbitrator’s determination in relation to injury but prior to the claim being referred to an approved medical specialist, was an interlocutory decision. On a consideration of those authorities, Wood DP found that the decision was interlocutory in nature and that therefore leave to appeal was required.
52.	In my view, the setting aside of the COD dated 4 April 2019 did not finally dispose of any rights. Indeed, it was designed to be an interim step for the respondent worker to pursue a further permanent impairment assessment.
53.	Accordingly, in conformity with the decisions referred to in DGL, I find that the decision was interlocutory in nature. Leave to appeal pursuant to s 352(3A) is therefore required.
54.	Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
55.	The appellant made submissions in support of the grant of leave (in the alternative to its primary submission that the decision was a final one). The appellant submitted that leave should be granted because the issue of whether the Senior Member had jurisdiction to revoke (sic) the COD dated 4 April 2019 pursuant to s 350(3) of the 1998 Act (as it then stood) should be determined prior to the respondent worker taking any further action to pursue an increase in the level of her permanent impairment. Further, the appellant submitted that a number of issues raised by the appellant were not properly considered or determined by the Senior Member in relation to the exercise of the discretion under s 350(3) of the 1998 Act. 
56.	I accept both of those submissions. The issue of whether there was jurisdictional error or an error of law in relation to the finding of jurisdiction under the savings and transitional provisions (noting that they may not be the same thing) is obviously a matter which is necessary to ascertain for the proper and effective determination of this dispute.
57.	Accordingly, I am of the opinion that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined. 
58.	I grant leave to appeal pursuant to s 352(3A) of the 1998 Act.
PRINCIPLES ON APPEAL 
59.	In terms of the ambit of the appeal, the Court of Appeal held in Iqbal v Hotel Operation Solutions Pty Ltd, that by reason of s 352(5) of the 2020 Act, the nature of an appeal is limited to a determination of whether the decision was affected by any error of fact, law or discretion. The appeal is not a review or new hearing. There can be no appellate intervention without a finding that there has been error.
60.	Here, the grounds of appeal are all directed to alleged errors of law.
THE MATERIALS AND SUBMISSIONS AT FIRST INSTANCE
Medical evidence
61.	Given that the appeal is based on alleged jurisdictional error or errors of law, it is not necessary to go into the factual material and medical reports concerning the respondent worker’s injuries in any great detail. However, it is important to note the following issues.
62.	First, there has only been one claim of injury, that of the incident on 3 October 2013.
63.	Second, the nature of the injury the subject of the claim has remained the same throughout all of the various applications made by the respondent worker and that is, CRPS Type I. This was the medical condition on which the assessments were made in the following reports:
(a)	Dr Bodel dated 1 November 2017 (for the respondent worker);
(b)	Dr Panjratan dated 7 December 2017 (for the appellant);
(c)	Dr Tame dated 12 December 2017 (for the respondent worker); 
(d)	Dr Panjratan dated 29 January 2018 (for the appellant);
(e)	Dr Lewington (AMS) dated 16 August 2018 and 2 November 2018 (AMS);
(f)	MAP dated 27 February 2019;
(g)	Dr Marc Walden dated 1 September 2020 (for the respondent worker), and
(h)	Dr Bodel dated 18 March 2022 (for the respondent worker).
64.	Third, in order to substantiate the assertion that there had been a deterioration in her condition, the respondent worker predominantly relied on a comparison of the reports of Dr Bodel dated 1 November 2017 and 18 March 2022, and the report of Dr Marc Walden dated 1 September 2020. 
Written submissions in previous applications
65.	A large number of written submissions were filed in the various applications made by the respondent worker. I summarise them below in order to identify the matters that were raised and the manner in which the respondent worker put her claims over time. 
Respondent worker’s submissions dated 16 May 2019 (2019 Reconsideration Application)
66.	The respondent worker filed no formal submissions in relation to the 2019 Reconsideration Application. Rather the letter in which the application was made contained an assertion that the report of Dr Osborne (treating knee surgeon) dated 1 April 2019 (which had been previously served) established that the worker was recommended for a TKR. Based on that, the respondent worker contended that she had not reached a situation of ‘maximum medical improvement’. The respondent worker sought a reconsideration or a referral for further assessment of the Amended MAC as an alternative to an appeal against the MAP decision dated 27 February 2019.
Appellant’s submissions dated 5 June 2019 (2019 Reconsideration Application)
67.	The appellant’s submissions addressed each of the statutory provisions relied upon by the respondent worker in the 2019 Reconsideration Application. It submitted that s 325(3) of the 1998 Act was of no assistance because the fact that the respondent worker was recommended for further right knee surgery did not mean that there was an obvious error in the Amended MAC. Further, it submitted that because the respondent worker was not assessed as needing the surgery as at the date of the initial medical assessment, the worker was deemed to have reached ‘maximum medical improvement’. 
68.	In relation to s 327(6) of the 1998 Act, the appellant submitted that this would only permit a referral back to the approved medical specialist if the matter could otherwise have proceeded on appeal under s 327 of the 1998 Act. However, because the matter could not have been the subject of an appeal by reason of the operation of s 327(7) of the 1998 Act, this provision was of no support to the respondent worker’s application.
69.	In relation to s 329(1)(a) of the 1998 Act, the appellant submitted that this provision empowered the former WCC to refer the matter back to the approved medical specialist (Dr Lewington) and relied upon the decision in Read v Liverpool City Council which held that s 329 may have been intended to provide a remedy where ‘the dictates of justice require further referral for assessment’. The appellant submitted that given the history of the proceedings, the dictates of justice did not enliven the provision.
70.	In relation to s 350(3) of the 1998 Act, the appellant submitted that the term “Commission” in that section referred to an arbitrator or Presidential member and therefore did not have any application to a decision of an Appeal Panel. As such, it argued that s 350(3) provided no avenue for relief for the respondent worker. 
71.	Finally, the appellant submitted that s 66(1A) of the 1987 Act provides that only one assessment can be made for permanent impairment compensation in respect of permanent impairment that results from an injury.
72.	This 2019 Reconsideration Application was dismissed by a decision made by Ms Annette Farrell on 11 July 2019. I will deal with this further below. 
Respondent worker’s submissions dated 6 September 2021 (2021 Reconsideration Application)
73.	I note that these submissions are dated ‘3 September 2021’. However, the 2021 Reconsideration Application was not lodged until 6 September 2021. I therefore assume that these submissions were filed at the same time as the application. 
74.	The respondent worker submitted that since the (original) MAC dated 16 August 2018, the respondent worker’s right lower extremity injury had deteriorated and noted that the respondent worker had undergone a right TKR on 14 August 2019. 
75.	Curiously, no mention was made in these submissions of the MAP confirmation of the Amended MAC on 27 February 2019.
76.	Further, I note that the 2021 Reconsideration Application made no reference to any statutory provision to underpin the application. 
77.	It was submitted that the respondent worker had not achieved maximum medical improvement and relied on the report of Dr Walden dated 1 September 2020. The respondent worker asserted that at the time of the original MAC, the respondent worker did not meet the requirement for CRPS.
78.	The respondent worker submitted that the application for reassessment of her WPI was being made for the purposes of s 39 of the 1987 Act. The respondent referred to the decisions of O’Callaghan v Energy World Corporation Limited and Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW.
Appellant’s submissions dated 27 September 2021 (2021 Reconsideration Application)
79.	The appellant noted that the respondent worker made no reference to the fact that she had already made an application for reconsideration, and that the COD dated 4 April 2019 remained in place. The appellant’s submissions then set out a chronology that included the 2019 Reconsideration Application.
80.	The appellant noted that s 57 of the 2020 Act was not available to support the application because the definition of “Commission” in s 5 of the 2020 Act meant the ‘Personal Injury Commission’ (Commission) and s 57 of the 2020 Act did not give the Commission jurisdiction to review a decision made by the former WCC.
81.	The appellant then submitted that the respondent worker was required to satisfy the savings and transitional provisions in Sch 1, cl 14D of the 2020 Act in order to have her application heard and thus, she was required to establish that she had an ‘unexercised right’ to commence the proceedings. In that regard, the appellant contended that the respondent worker had already exercised her right for reconsideration by virtue of the 2019 Reconsideration Application. For that reason, the appellant submitted that the 2021 Reconsideration Application should be dismissed.
82.	Further, the appellant submitted that s 66(1A) of the 1987 Act meant that the determination of permanent impairment had been finalised. The appellant referred to the decision of Stella Maris College v Robin-True and noted that in a similar application, a referral to an approved medical specialist was set aside on the basis of the decision in Cram Fluid Power Pty Limited v Green.
83.	The appellant noted that the 2021 Reconsideration Application was being made even though the respondent worker had already sought reconsideration on 27 November 2018 and again on 19 May 2019 (sic, 16 May 2019).
84.	The appellant submitted that an appeal against a medical assessment can only be made by a party to a ‘medical dispute’ under s 327(1) of the 1998 Act and asserted that, on the basis of the findings in Cram Fluid and applied in Robin-True, any such proposed appeal is defeated by the provisions of s 66(1A) of the 1987 Act.
85.	The appellant then made submissions about the application of s 350(3) of the 1998 Act (as it existed prior to the establishment of the Commission). The appellant submitted that the principles set out in Samuel v Sebel Furniture Limited applied to any consideration of s 350(3) of the 1998 Act. The appellant submitted that those considerations militated strongly against the exercise of any discretion in favour of the respondent worker’s application for reconsideration. In particular, the appellant noted that there was no explanation to explain the delay in bringing the application, some 12 months after Dr Walden’s report about the respondent worker’s further deterioration. The appellant relied on considerations 3, 4 and 8 in Samuel.
86.	The appellant also contended that the application was estopped by either res judicata or issue estoppel. The appellant referred to the High Court’s decision in Blair v Curran in which Dixon J (at 531) held that a determination directly involving an issue of fact or law disposes once and for all the issues, so that it cannot afterwards be raised by the same parties. In that regard, the appellant submitted that the MAP had determined the respondent worker’s permanent impairment by its confirmation of the Amended MAC on 27 February 2019. The appellant submitted that the estoppel argument was supported by s 66(1A) of the 1987 Act. 
87.	In the alternative, the appellant argued that issue estoppel should apply and again referred to the decision in Blair citing the passage from the Dixon J at 532. 
88.	I note that the decision in Blair was in relation to a judicial determination. 
89.	The appellant also relied on the decision in Ramsey v Pigram in which Barwick CJ held that issue estoppel was:
“… available to prevent the assertion in … proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities ... The issue thus determined, as distinct from the cause of action in relation to which arose, must have been identical in each case.”
90.	The appellant asserted the degree of permanent impairment was part of the medical dispute that was determined by the Amended MAC and that the current application posed the same question, thus enlivening issue estoppel.
91.	The appellant submitted that the decision in O’Callaghan had no application to the current proceedings and that the citation from Hochbaum did not assist the respondent worker in overcoming the issues with the present application.
92.	The 2021 Reconsideration Application was discontinued by the respondent worker and a COD dated 27 January 2022 was issued making an order to that effect.
Submissions in Current Reconsideration Application
Respondent worker’s submissions dated 23 August 2022 (Current Reconsideration Application)
93.	These submissions are identical to the submissions made by the respondent worker in the 2021 Reconsideration Application dated 3 September 2021, save for an additional paragraph in which the appellant referred to the decision in Sleiman v Gadalla Pty Ltd (Sleiman) at [96].
94.	That paragraph states as follows:
“For those reasons, Mr Sleiman’s primary ground of appeal fails, but he should be granted leave to appeal on the ground raised at and formalised after the hearing, and on that basis the appeal allowed and the matter remitted to the (newly constituted) Personal Injury Commission in order to determine his application on the basis that it is an application to reconsider the 2017 decision of the Appeal Panel. The Registrar’s Delegate’s decision was correct insofar as it concluded that no further appeal lay to the Appeal Panel, but incomplete insofar as it did not attend to the substance of the application for a reconsideration of the decision. The declaratory relief sought by Mr Sleiman is unnecessary, but the Delegate’s decision dismissing his application should be quashed and the application remitted for determination in accordance with law.”
95.	The respondent worker made no submissions as to how that paragraph applied to the Current Reconsideration Application.
96.	The respondent worker’s submissions did not identify the statutory provisions on which she relied for the application. 
Appellant’s submissions dated 14 September 2022 (Current Reconsideration Application)
97.	The first part of the appellant’s submissions was in identical form to those of its submissions dated 27 September 2021 in relation to the 2021 Reconsideration Application. However, these submissions then expanded considerably, as follows.
98.	First, in relation to Sch 1, cl 14D of the 2020 Act, the appellant submitted that the respondent worker did not have an ‘unexercised right’ of reconsideration because she had made the 2019 Reconsideration Application. The appellant submitted that the 2019 Reconsideration Application was based on the WCC determination (being the COD dated 4 April 2019) because it contained the extent of the WPI for the purposes of the respondent worker’s lump sum compensation under s 66 of the 1987 Act. 
99.	The appellant contended that the 2019 Reconsideration Application was based on the assertion that the respondent worker had been recommended for TKR surgery and that the Current Reconsideration Application was based on the fact that the respondent worker had actually undergone that surgery, and so the two applications were based on similar grounds. 
100.	The appellant then made submissions in the alternative that, if it was found that the Commission did have jurisdiction to reconsider the COD dated 4 April 2019, then the principles referred to in Samuel should be considered. 
101.	In that regard, the appellant submitted that there was nothing to explain the delay between the TKR surgery on 14 August 2019 and the bringing of the Current Reconsideration Application, some three years later, on 23 August 2022. It submitted that the absence of an explanation for the delay was a factor which counted against the exercise of the discretion.
102.	The appellant noted that the respondent worker relied on the reports of Dr Walden dated 1 September 2020 and Dr Bodel dated 18 March 2022. The appellant submitted that those doctors had vastly differing opinions as to how the respondent worker’s condition had deteriorated. Accordingly, the respondent worker could not point to the reason for her deterioration and this was a factor that also militated against the exercise of discretion.
103.	The appellant again relied on s 66(1A) of the 1987 Act and submitted that it was not open to the respondent worker to make an application to increase her WPI assessment. The appellant referred to the Court of Appeal decision in Skates v Hills Industries Ltd at [46]. The appellant’s argument was that the ‘medical dispute’ between the parties had been resolved by the Amended MAC, which was then the subject of the COD dated 4 April 2019 and that, at no point prior to the determination of the ‘medical dispute’ did the respondent worker amend the nature of the dispute to include an application that the worker exceeded the threshold for a high needs worker. 
104.	The appellant submitted that in order to proceed to an appeal against the Amended MAC, the respondent worker must establish that she is a party to a ‘medical dispute’ which includes the high needs threshold, so that she can satisfy for the requirement in s 327(1) of the 1998 Act. However, it was argued that the only ‘medical dispute’ in the proceedings (Matter No. 2754/18) is the dispute about lump sum compensation under s 66 of the 1987 Act. 
105.	The appellant referred to and relied on the decision in Lizdenis v Centrel Pty Limited. In that case, the worker had applied, pursuant to s 350(3) of the 1998 Act, for a reconsideration of a COD. That COD provided that the worker had suffered 14% WPI following the issuing of an MAC. An application to appeal the MAC, based on s 327(3)(c) and (d) of the 1998 Act, had been unsuccessful and the MAC was confirmed by an MAP decision. The worker therefore pursued a reconsideration to rescind the COD. The Arbitrator found that a claim for permanent impairment compensation is distinct from a threshold claim for the purposes of s 39 referring to the decisions in JC Equipment Hire Pty Ltd v Registrar of the Workers Compensation Commission of NSW, Wilkinson v Perisher Blue Pty Ltd and Wattyl Australia Pty Limited v McArthur. The Arbitrator found that s 66(1A) could not prevent a worker from pursuing a threshold claim by way of an appeal and utilising s 327(3)(a) where there had been a deterioration of the worker’s condition. The appellant contended that the decision in Lizdenis, whilst not binding, was of assistance and should be relied upon to support the view that s 66(1A) operates to prevent an appeal based on a deterioration of condition insofar as the claim is for further lump sum compensation, which (because of the ‘dispute’) was the basis of this reconsideration application.
106.	The appellant then made the same submissions, as it had done in the 2021 Reconsideration Application, that the Current Reconsideration Application should not be considered by reason of res judicata or issue estoppel. The appellant again relied on the decisions in Blair and Ramsey v Pigram. 
107.	However, the appellant also acknowledged that there was no estoppel in a changing situation and made reference to the decision in Abou-Haidar v Consolidated Wire Pty Limited (Abou-Haidar) but stated that the principle in that case should not apply in the context of an appeal. The appellant asserted that any conclusion to the contrary would allow for an unlimited number of appeals to be brought against an MAC. The appellant referred to the decision in Condensing Vaporisers Australia Pty Limited trading as RJ Tinker and Son v FDC Construction and Fitout Pty Limited (No. 2) as authority that double appeals are not favoured by the courts.
108.	The appellant submitted that the issue of whether or not there had been a deterioration or whether new evidence could be relied upon had already been determined. Therefore, the respondent worker could not appeal the amended MAC under s 327(3) of the 1998 Act as she had already done so and a further appeal would create a situation in which litigation would proceed indefinitely.
109.	The appellant, as it did in its submissions in the 2021 Reconsideration Application, denied the applicability of the decisions in O’Callaghan and Hochbaum. 
110.	In relation to the decision in Sleiman, the appellant submitted that this decision had no application because the respondent worker was not relying on s 378 of the 1998 Act. The appellant also cited paragraphs [91] to [95] in Sleiman and submitted that it was only authority for the proposition that the application for reconsideration in that case should have been framed under s 378 and therefore it did not support the respondent worker’s case. 
Respondent worker’s submissions in reply dated 24 October 2022 (Current Reconsideration Application – as amended)
111.	In these submissions, the respondent worker engaged with the argument that in order for her application to proceed she needed to satisfy the savings and transitional provisions found in Div 4A, Pt 2 of Sch 1 of the 2020 Act.
112.	The respondent worker submitted that there had been no exercise of any right because the exercise of the right (referring to the 2019 Reconsideration Application) was rejected by Ms Farrell and, in any event, it was submitted that Ms Farrell had not been ‘permitted’ to make the decision she did on 11 July 2019 by reason of the decision in Murray v Woolworths Group Limited. The respondent worker did not spell out any further reasoning for that submission. 
113.	The respondent worker submitted that she had never disengaged her right to exercise the reconsideration power in the former s 378 of the 1998 Act and that it remained operative and relevant to the Current Reconsideration Application, relying on the decision in Sleiman at [90]. The respondent worker then submitted that applying those principles, Ms Farrell's decision was incorrect insofar as it relied on s 378 of the 1998 Act. 
114.	The respondent worker agreed that the principles in Samuel were applicable to the exercise of the discretion under the former s 350(3) of the 1998 Act. In that regard, the respondent worker submitted that the TKR surgery had not been undertaken prior to the ‘rejection of the application’ (I assume that this is a reference to the 2019 Reconsideration Application).
115.	The respondent worker contended that the condition of ‘CPRS’ (sic), as assessed by Dr Walden in his report dated 1 September 2020 was not available at the time of the ‘earlier application’ (again, I assume that this is a reference to the 2019 Reconsideration Application). The respondent worker submitted that her claim is that the ‘CPRS’ (sic) condition has deteriorated.
116.	The respondent worker submitted that the letter seeking a reconsideration or referral for further assessment of the MAC (again I assume that this is a reference to the 2019 Reconsideration Application) was a clear and unambiguous claim to be afforded procedural fairness. However, the respondent worker did not elucidate how that was said to be the case. I note that in the letter dated 6 May 2019 (being the 2019 Reconsideration Application) there was no reference to any claim for procedural fairness.
117.	In relation to the deterioration, the respondent worker submitted that a comparison of the reports of Dr Bodel dated 1 November 2017 and that dated 18 March 2022 revealed a deterioration from 17% WPI to 21% WPI. However, no reference was made of the fact that the Amended MAC and the COD dated 4 April 2019 stipulated that the respondent worker’s WPI was 12%. 
118.	The respondent worker contended that these ‘incontrovertible facts’ show that the application has merit and satisfied the criteria for reconsideration on the principles in Samuel. However the respondent worker did not identify which facts were said to be incontrovertible or which of the Samuel criteria she was referring to. 
119.	The respondent worker submitted that the chronology demonstrated that she had been “‘banging on the door’ of the variously constituted commissions constantly through the period” and that at, all relevant times she had been asserting a right to have the WPI reassessed for the purposes of s 39 of the 1987 Act. However, the respondent worker did not engage with the chronology at all, nor provide any explanation for the series of applications she had made and the various discontinuances. 
120.	The respondent worker, relying on the decisions in Sleiman and Hochbaum, submitted that the reassessment of WPI for the purposes of s 39 of the 1987 Act could be pursued. 
121.	The respondent worker stated that the reconsideration should be dictated by the overriding principles for the “fair, just, timely and cost-effective resolution of workers compensation disputes”. No submission was made as to how the respondent worker’s conduct complied with that principle. 
122.	Finally, the respondent worker submitted that the construction of the former s 378 is analogous to that of s 350 with the intent to “leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties” and referred to the decision in Hilliger v Hilliger. 
123.	In the final part of the respondent worker’s submissions (at paragraph [19]), the application was fundamentally changed. Instead of pursuing a reconsideration under s 350(3) of the 1998 Act, the respondent worker submitted that:
“[T]he Member should exercise the discretion conferred under section 378 and direct:
(a)	The MAC and COD be revoked, on the grounds that the [respondent worker’s] WPI has not reached maximum medical improvement.
(b)	Alternatively, the appeal be remitted to the President, for remittal to a medical assessor appointed to re-assess the [respondent worker’s] whole person impairment.”
Appellant’s submissions dated 11 November 2022 (Current Reconsideration Application – as amended)
124.	In these submissions, the appellant notes that the respondent worker’s submissions as to why Ms Farrell’s decision on 11 July 2019 (in respect of the 2019 Reconsideration Application) should be disregarded are not clear but assumes that it is an assertion that Ms Farrell’s decision was ‘a purely administrative one’, based on the decision in Murray. The appellant submitted that the decision in Murray could be distinguished because:
(a)	the decision in Murray rejected a request for a teleconference due to an alleged error in a COD, whereas in this matter, the decision related to a substantive application for a reconsideration under ss 325(3), 327(6), 329(1)(a) and 350(3) of the 1998 Act and that Ms Farrell’s decision was a substantive one – that the operation of s 378 of the 1998 Act prevented the application;
(b)	in this matter, both parties made submissions in relation to the application which did not occur in Murray;
(c)	by relying on s 378 of the 1998 Act in this matter, it was clear that Ms Farrell was exercising the power of the Registrar;
(d)	the statutory framework at the time of Ms Farrell’s decision included that the Registrar could exercise all the functions of an arbitrator including those to dismiss proceedings before the WCC and that the Registrar could delegate to any member of staff any of the Registrar’s functions under s 371(1) to (3) of the 1998 Act;
(e)	under s 378(1) the Registrar had a statutory obligation to reconsider any matter that had been dealt with by an Appeal Panel or Registrar under s 378(1) of the 1998 Act;
(f)	Ms Farrell, in declining the 2019 Reconsideration Application, could only have been exercising delegated power from the Registrar, and
(g)	in conformity with Hot Holdings Pty Ltd v Creasy, Ms Farrell’s decision was subject to judicial review but the respondent worker elected not to pursue any such judicial review.
125.	Accordingly, the appellant contended that the 2019 Reconsideration Application meant that the respondent worker had exercised that right and therefore the Commission had no jurisdiction to deal with the Current Reconsideration Application.
126.	Further, the appellant submitted that because the 2019 Reconsideration Application specifically sought reconsideration of the MAC “dated 27 February 2019”, the respondent worker was clearly seeking a reconsideration of the MAP decision handed down on that date. As such, given that a decision of a MAP could only be reconsidered under s 378, the 2019 Reconsideration Application must be seen to have included reliance on that provision. As such, the Current Reconsideration Application (now being based on s 378) was not available because that right had already been exercised. 
127.	The appellant went on to make submissions as to the factors going to the exercise of the discretion under s 350(3) of the 1998 Act as follows.
128.	In relation to the delay, the appellant rejected the respondent worker’s submissions that she had been “banging on the door” since the COD dated 4 April 2019 was issued and that she had “at all relevant times … been asserting a right to have the WPI re-assessed pursuant to section 39.” The appellant submitted that notwithstanding the multiple applications, the respondent worker discontinued each of those proceedings and has not provided any explanation for doing so.
129.	In relation to the evidence available as to a deterioration in the respondent worker’s condition, the appellant submitted that because there is such a disparity in the medical reports relied on by the respondent worker as to the cause of her alleged deterioration, it cannot be accepted that she has established deterioration of her condition as required in Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission.
130.	The appellant again submitted that s 66(1A) of the 1987 Act would operate to prevent any further appeal and noted that the respondent worker had not addressed this legal issue at all. The appellant noted that in Murray at [63], Campbell J doubted whether a subsequent application to appeal from a MAC would be competent. 
131.	The appellant noted that the respondent worker had not addressed the issue of estoppel.
132.	Finally, the appellant submitted that the respondent worker had shifted the grounds upon which the application for reconsideration was being made. The appellant noted that initially, the respondent worker sought a reconsideration of the COD dated 4 April 2019 so that she could pursue a further appeal of the Amended MAC. However, the respondent worker had now changed the grounds upon which she wished to proceed and, as and from her submissions dated 24 October 2022, she asserted reliance on the former s 378 of the 1998 Act and requested that her application is now one to have the MAP decision of 27 February 2019 reconsidered.
133.	In the context of that changed application, the appellant submitted that the 2019 Reconsideration Application had already been determined on the basis that s 378 of the 1998 Act prohibited any referral back to the MAP and accordingly, the Commission had no jurisdiction to entertain the respondent worker’s case. Further, the appellant submitted that the Commission could not exercise the discretion under s 378 of the 1998 Act without offending s 66(1A) of the 1987 Act because a reconsideration of the MAP decision dated 27 February 2019 would change the outcome of the ‘medical dispute’ between the parties. The appellant submitted that the combined application of ss 350(1) and 378(5) of the 1998 Act results in it being impermissible to reconsider the Appeal Panel decision because of the issuance of the COD dated 4 April 2019. 
Respondent worker’s submissions dated 21 November 2022 (Current Reconsideration Application – as amended)
134.	In these submissions, the respondent worker contended that the decision in Murray binds the Commission and that the decision of Ms Farrell dated 11 July 2019 must be considered as one of “a purely administrative nature”. Accordingly, it was submitted that the respondent worker had not exercised the right to have the Commission determine ‘the reconsideration’. However, I note that in this part of her submissions, the respondent worker did not identify which reconsideration she was discussing – that under s 350(3) originally contended for, or the one contended for in her submissions dated 24 October 2022, being a reconsideration under s 378 of the 1998 Act.
135.	In the next part of her submissions, the respondent worker contended that the Commission did not need to determine anything other than the merit of the application for reconsideration and submitted that it was not necessary to deal only with the application under s 350(3) of the 1998 Act, placing reliance on the decision in Sleiman at [95]. 
136.	The respondent worker submitted that she was not seeking any further lump sum compensation but rather a determination of her rights to continuing compensation which would otherwise be extinguished under s 39 of the 1987 Act. 
137.	The respondent worker submitted that both Sleiman at [95] and Hochbaum at [51]–[58] (and elsewhere), dealt with the question of whether an earlier MAC must be set aside before a determination under s 39 of the 1987 Act was made – but did not say what that was.
138.	On that basis, the respondent worker submitted that she should be assessed at 21% WPI but it is not clear from the submissions as to why this should be the inevitable outcome of a reconsideration of the Amended MAC. 
139.	On the basis of Sleiman, the respondent worker submitted that the dispute should be considered to be an application under s 378 of the 1998 Act. 
140.	In relation to the merits of that application, the respondent worker contended that, on the basis of the reports of Dr Walden dated 1 September 2020, there is evidence that her ‘CPRS’ (sic) had worsened and also relied on the reports of Dr Bodel dated 1 November 2017 and 22 August 2022. The respondent worker submitted that this “fits the criteria for the grant of discretionary relief prescribed in section 379 [sic]”. I note that there was no former s 379 of the 1998 Act as at November 2022, as such I assume that this is a typographical error and the reference is meant to be to s 378. There was no elucidation of what the “criteria for the grant of discretionary relief” were in relation to s 378 of the 1998 Act. I note that the terms of the former s 378 referred only to a criterion of “obvious error” (see paragraph [319] below).
Appellant’s submissions dated 13 December 2022 (Current Reconsideration Application – as amended)
141.	In these submissions, the appellant contended that the decision of Ms Farrell on 11 July 2019 was an exercise of the power of the Registrar of the WCC and that the 2019 Reconsideration Application should be seen as dealing with both an application under the former ss 350(3) and 378 of the 1998 Act. Accordingly, the appellant contended that the Commission has no jurisdiction under the savings and transitional provisions to hear and determine the matter – because there is no ‘unexercised right’.
142.	In relation to the application of s 378 of the 1998 Act, the appellant submitted that there can be no reconsideration under that provision unless and until the COD dated 4 April 2019 is revoked. In that regard, the appellant says that the respondent worker’s reliance on the decision in Cottom is misplaced because it was the subject of a successful appeal in which the original decision was set aside.
143.	The appellant submitted that the decision in Hochbaum also had no relevance since that decision concerned a worker who was assessed as high needs for the purposes of s 39 of the 1987 Act and in the present matter, the respondent worker has not yet established that she is a high needs worker.
144.	The appellant agreed that the decision in Sleiman is binding on the Commission and that the respondent worker is able to make an application pursuant to s 378 of the 1998 Act but only if the respondent worker establishes that the Commission has jurisdiction to hear such an application in the context of the savings and transitional provisions. 
145.	Finally, in relation to the merits of the application, the appellant noted that there had still been no explanation for the delay in pursuing the present application and secondly, it submitted that any reconsideration under s 378 of the 1998 Act would contravene s 66(1A) of the 1987 Act because any amendment to WPI would necessarily lead to further lump sum compensation.
Respondent worker’s submissions in reply dated 19 December 2022 (Current Reconsideration Application – as amended)
146.	In these submissions, the respondent worker contended that because the decision of Ms Farrell was not undertaken as a delegate of the Registrar, the respondent worker’s rights are unexercised. There was no expansion or further submissions as to why this was the case.
147.	The respondent worker continued her reliance on the decision in Cottom stating that it confirmed the power to reconsider without the necessity of the steps alleged by the respondent to be required. 
148.	The respondent worker addressed the issue of delay by stating that she had been pursuing the current application in a timely manner given the procedure took place after the last assessment.
THE SENIOR MEMBER’S DETERMINATION AND REASONS: 9 MAY 2023
149.	The Senior Member characterised the application as one to have the COD flowing from the MAC issued by Dr Lewington on 16 August 2018 revoked or set aside so that the respondent worker could be reassessed to determine her WPI, following the TKR and deterioration of her condition. Whilst this characterisation reflected the respondent worker’s original submissions in support of the application, this was an erroneous description. The only COD under consideration in these proceedings followed from the Amended MAC dated 2 November 2018 which was confirmed by the MAP on 27 February 2019 and that was the COD dated 4 April 2019.
150.	In describing the appellant’s opposition to the application, the Senior Member summarised it as being that: 
(a)	the Commission lacks jurisdiction to reconsider the COD;
(b)	deterioration has not been demonstrated;
(c)	the application lacks merit because there has been no explanation as to the delay, and
(d)	any application under s 378 of the 1998 Act offends s 66(1A) of the 1987 Act.
151.	The Senior Member’s description did not identify that the appellant also opposed the application on the grounds of estoppel, that the respondent worker’s reliance on various authorities was misplaced, that the 2019 Reconsideration Application should be characterised as one made under the former s 378 of the 1998 Act, and that the Current Reconsideration Application, insofar as it relied on the former s 378 of the 1998 Act, was unavailable because it offended s 66(1A) of the 1987 Act and the former s 350(1) of the 1998 Act.
152.	The Senior Member stated that she had been provided with an audio copy of the submissions made at arbitration and a copy of the written submissions made by the parties.
153.	The Senior Member set out what she titled “Prior Proceedings” as follows:
(a)	an assessment by the approved medical specialist, Dr Lewington, which led to a MAC dated 16 August 2018 certifying that the respondent worker had a 15% WPI;
(b)	an appeal by both the appellant and the respondent worker against that MAC which resulted in a delegate of the Registrar referring the matter back to Dr Lewington to clarify the assessment;
(c)	a fresh MAC being issued by Dr Lewington at 12% WPI;
(d)	an appeal by the respondent worker being dismissed by the MAP on 2 November 2018, at which time the MAC of 12% WPI was confirmed;
(e)	the issuing of the COD dated 4 April 2019;
(f)	an application to reconsider the MAC filed by the respondent worker on 27 February 2019, which was declined, and
(g)	an application on 15 December 2020 by the respondent worker for further lump sum compensation.
154.	The Senior Member stated that the application was one seeking an order to rescind the COD dated 4 April 2019 pursuant to s 350(3) of the 1998 Act so that an appeal against the MAC could be filed pursuant to s 327 of the 1998 Act. The Senior Member noted that the respondent worker had asserted that there had been a significant deterioration in her condition and that she was entitled to appeal the MAC under s 327(3)(a) and (b) of the 1998 Act. 
155.	However, the Senior Member did not identify that the respondent worker had altered her application in October 2022 to one seeking to have the Amended MAC reconsidered under the former s 378 of the 1998 Act.
156.	The Senior Member referred to the respondent worker’s statement dated 22 August 2022 in which she described deterioration “following Dr Lewington’s assessment”, and noted that she had been assessed by Dr Walden as having a 37% WPI.
157.	In relation to the issue of jurisdiction, the Senior Member referred to Div 4, Subdiv 3 of Sch 1 of the Savings, Transitional and Other Provisions to the 2020 Act. The Senior Member characterised the appellant’s contention as being that the 2019 Reconsideration Application was based on the need for a TKR and that the Current Reconsideration Application was based on the fact that the surgery had been performed and that therefore the applications were similar. However, the appellant’s submissions as to the jurisdictional issue under the savings and transitional provisions were much wider than that and involved detailed arguments as to why the 2019 Reconsideration Application should be characterised as the exercise of a right to reconsideration under the former ss 350(3) and 378 of the 1998 Act. This included submissions as to why the decision in Murray should be distinguished in relation to the decision of Ms Farrell dated 11 July 2019.
158.	On the Senior Member’s characterisation of Div 4, Subdiv 3 of Sch 1 of the Savings, Transitional and Other Provisions, the Senior Member held that she was not persuaded that the respondent worker had “exercised her rights” because the respondent worker’s condition was not the same as it was when that prior application had been made (but did not identify which prior application was being referred to). The Senior Member held that the respondent worker’s condition, as it is now, had not been assessed and therefore her rights had not been exercised. 
159.	The Senior Member held that the characterisation of the ‘right’ as being a reconsideration of the COD dated 4 April 2019 was too narrow a reading of the relevant legislation and that the relevant inquiry ought be what right the respondent worker is seeking to be exercised and that, according to the Senior Member, was the ‘right’ to be assessed after surgery and that right had not been exercised. 
160.	In relation to the substance of the claim, the Senior Member stated that the respondent worker wanted to be re-assessed to see whether she qualifies for further weekly payments and possibly Work Injury Damages. On the basis of the decision in JC Equipment, the Senior Member held that there was a distinction between a claim for permanent impairment compensation and that of a threshold claim for the purposes of s 151H of the 1987 Act. However, I note that nowhere in the Current Reconsideration Application or any of the respondent worker’s submissions was it asserted that the respondent worker was seeking to have her permanent impairment assessed for the purposes of making a WID claim. The application is confined to a claim under s 39 of the 1987 Act.
161.	The Senior Member characterised the present matter as an appeal under s 327 of the 1998 Act and held that the respondent worker had a right and entitlement to appeal against the MAC for the purposes of establishing a threshold such as that provided by s 39 of the 1987 Act, referring to the decision in Galea v Colourwise Nursery (NSW) Pty Limited (in relation to the principles which apply to an appeal under s 327 of the 1998 Act). 
162.	In relation to the argument based on estoppel, the Senior Member held that she was not persuaded that it applied because there is no estoppel in a changing situation, referring to Abou-Haidar. 
163.	The Senior Member held that she had formed the view that the respondent worker had a strong case of showing a deterioration in her assessment of permanent impairment. 
164.	In relation to the exercise of the discretion, the Senior Member held that the delay was not one which militated against the exercise of the discretion. The Senior Member pointed to the assessment by Dr Walden on 1 September 2020 which described a deterioration in the CRPS and found that there had been no significant delay in bringing the application in the circumstances of a possible deteriorating CRPS, TKR and ongoing treatment. The Senior Member did not explain why she regarded the period between the date of Dr Walden’s report (1 September 2020) and the making of the Current Reconsideration Application (23 August 2022) as not amounting to a delay. 
165.	The Senior Member found that the respondent worker had discharged the onus of deterioration but held that the extent of the deterioration was a matter for assessment.
166.	The Senior Member concluded that the respondent worker was entitled to file an application to appeal the MAC.
167.	On 9 May 2023 the Senior Member issued a COD stating that:
“The Certificate of Determination dated 25 January 2017 is set aside.”
168.	On 24 July 2023, that COD was amended to refer to the correct date of 4 April 2019.
SUBMISSIONS ON APPEAL
Appellant’s submissions dated 1 June 2023 
169.	In respect of Ground One, the appellant submits that the Senior Member erred in exercising the discretion to set aside the COD dated 4 April 2019. Reference was made to the decision in House v R and it was submitted that the Senior Member had erred by reason of the matters contained in Grounds Two, Three and Four.
170.	In relation to Ground Two, the appellant submits that the Senior Member engaged in jurisdictional error by exercising the discretion under s 350(3) of the 1998 Act. It was submitted that the Senior Member erroneously turned her mind to the wrong question when she characterised the ‘unexercised right’ in Sch 1, cl 14D of the 2020 Act as being the right to be reassessed after surgery. The appellant submits that the proper construction of the term “right” in that provision is the legal entitlement to have or be able to do something. It contends that following the issuance of the COD dated 4 April 2019, the respondent worker had only one legal entitlement and that was to make an application to reconsider the COD under the former s 350(3) of the 1998 Act. The appellant submits that the proper inquiry that the Senior Member was required to make was whether the respondent worker had previously exercised a legal entitlement to make such an application. It contends that the motives for pursuing such an application are irrelevant. The appellant submits that the respondent worker exercised the right to make an application to reconsider the COD dated 4 April 2019 in the 2019 Reconsideration Application and that application was determined on 11 July 2019. Accordingly, there was no jurisdiction under Sch 1, cl 14D of the 2020 Act for the Commission to entertain the respondent worker’s application.
171.	In relation to Ground Three of the appeal, the appellant contends that the Senior Member erred in law by finding that the Current Reconsideration Application was in relation to a threshold dispute as distinct from a claim for further lump sum compensation and by applying the decisions of JC Equipment and Galea. The appellant submits that the decision in JC Equipment is not applicable because in that matter, the issue was about high and highest needs worker thresholds, and secondly that there was no binding MAC that had been issued. 
172.	The appellant cited s 322A of the 1998 Act which provides:
“322A One assessment only of degree of permanent impairment
(1) 	Only one assessment may be made of the degree of permanent impairment of an injured worker.
(1A) 	A reference in subsection (1) to an assessment includes an assessment of the degree of permanent impairment made by the Commission in the course of the determination of a dispute about the degree of the impairment that is not the subject of a referral under this Part.
(2) 	The medical assessment certificate that is given in connection with that assessment is the only medical assessment certificate that can be used in connection with any further or subsequent medical dispute about the degree of permanent impairment of the worker as a result of the injury concerned (whether the subsequent or further dispute is in connection with a claim for permanent impairment compensation, the commutation of a liability for compensation or a claim for work injury damages).
(3) 	Accordingly, a medical dispute about the degree of permanent impairment of a worker as a result of an injury cannot be referred for, or be the subject of, assessment if a medical dispute about that matter has already been the subject of—
(a) 	assessment and a medical assessment certificate under this Part, or
(b) 	a determination by the Commission under Part 4.
(4) 	This section does not affect the operation of section 327 (Appeal against medical assessment) or 352 (Appeal against decision of Commission constituted by non-presidential member).”
173.	The appellant submits that the decision of Galea should no longer be available as authority that a COD which stands in the way of an appeal of the MAC relating to a threshold issue can be set aside. This is said to be the case because, in order to be assessed as a high or highest needs worker, there has to be a ‘medical dispute’ as defined by s 319 of the 1998 Act; and that the ‘medical dispute’ must be in connection with a claim (as defined in s 4 of the 1998 Act). The appellant submits that the decision in Skates found that a ‘medical dispute’ is ascertained by comparing the competing claims. In that context, the appellant referred to s 327(1) of the 1998 Act which restricts an appeal of a MAC to situations where the parties are in a ‘medical dispute’. 
174.	The appellant argues that in this matter, the ‘medical dispute’ is confined to the only claim that has been made in the proceedings and that is for lump sum compensation in respect of the respondent worker’s right lower extremity. Therefore, the application for alteration to the extent of the permanent impairment can only be in the context of a claim for further lump sum compensation. Such a claim, however, submits the appellant, is prevented by the operation of s 66(1A) of the 1987 Act. The appellant also relies on the observations in Cram Fluid.
175.	The appellant argues that to be assessed for permanent impairment for threshold purposes, the respondent worker would need to make a new claim for compensation and therefore create a new ‘medical dispute’ in connection with that claim. However, the appellant submits even if that were done, s 322A(2) would prevent any new medical assessment.
176.	Accordingly, the appellant submits that any purported application by the respondent worker to revoke the COD dated 4 April 2019 in order to make an application for reconsideration of the MAP decision dated 27 February 2019 pursuant to s 378 of the 1998 Act would be impermissible because the respondent has already exercised her right for reconsideration under the former s 378 of the 1998 Act and further, the power to reconsider under s 378 of the 1998 Act only extends to matters previously dealt with by the MAP. 
177.	In relation to Ground Four, the appellant alleges that the Senior Member erred in law by failing to address the appellant’s argument relating to the impermissibility of a second appeal of the MAC dated 2 November 2018. It is submitted that by failing to address a significant matter that was brought before her, the Senior Member engaged in an error of law and reliance was placed on Dranichnikov v Minister for Immigration and Multicultural Affairs and Wang v State of NSW.
178.	The appellant points out the fact that in its submissions dated 14 September 2022, it made clear and significant submissions that the respondent worker was estopped from pursuing a second appeal of the MAC dated 2 November 2018, by reason that it was the same issue – being that the respondent worker’s condition had deteriorated. The appellant acknowledged that there was ‘no estoppel in a changing situation’ as noted in Abou-Haidar but submits that this was not applicable and that its estoppel argument was not addressed properly by the Senior Member.
Respondent worker’s submissions dated 6 July 2023 
179.	In relation to Ground One, the respondent worker submitted that the Senior Member properly found that, following Murray, the email of Ms Farrell dated 11 July 2019 was not an exercise of any delegated power of the WCC. Accordingly, it was submitted that the respondent worker’s rights had remained unexercised for the purpose of the transitional provisions.
180.	In relation to Ground Two, the respondent worker submitted that the appellant was wrong to assert that there is no legislative right to seek reconsideration, appeal against or apply for a re-assessment in relation to WPI and cited Galea, Lizdenis and Sleiman. The respondent worker did not identify the particular parts of those decisions that she relied upon.
181.	In relation to Ground Three the respondent worker submitted that the appellant’s submissions about the applicability of Galea should be rejected but did not elucidate the basis for the opposition. 
182.	The respondent worker submits that the ‘medical dispute’ has been clearly defined in the correspondence between the parties whereby the respondent worker has asserted that her condition has now exceeded 20% WPI for the purposes of s 39 of the 1987 Act and the appellant has denied that assertion.
183.	In relation to Ground Four, the respondent worker submits that it is plainly wrong to assert that the Senior Member failed to address the appellant’s arguments below but did not articulate the reasons for that, nor did the respondent worker respond to the appellant’s contention that the issue of estoppel had not been addressed by the Senior Member. 
184.	The respondent worker submits that there is a presumption of regularity such that the failure to patently deal with all of the matters raised in written argument does not displace the presumption that the Senior Member considered them, and cited Bojko v ICM Property Service Pty Ltd. 
Appellant’s submissions in reply dated 4 August 2023 
185.	In response to the respondent worker’s submissions on Ground One, that the Senior Member had made a finding, on the basis of Murray, that the email of Ms Farrell was not an exercise of any delegated power of the WCC, the appellant submitted that finding had not been made at all. Indeed, it was said that the Senior Member did not refer to Ms Farrell’s decision, save that it was stated that the prior application for reconsideration had been declined.
186.	The appellant repeated its submission that the Senior Member had turned her mind to the wrong question because there was no legislative right for an injured worker to be re-assessed for permanent impairment following surgery or after any treatment for that matter. Accordingly, the mischaracterisation of the relevant question rendered the Senior Member’s decision as involving an error of law.
187.	The appellant submitted that there was no legislative provision in the workers compensation legislation that provided any right of appeal or review of Ms Farrell’s decision and referred to ss 375(1), 371(1)–(3) and 374 of the 1998 Act. In the context of that legislative scheme, the appellant submitted that it was evident that Ms Farrell was acting upon a delegated power from the Registrar in dismissing the respondent worker’s application and that there is no question that the application relied on the former s 350(3) of the 1998 Act. 
188.	The appellant submitted that the relief open to the respondent worker to challenge Ms Farrell’s decision was by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). However, the respondent worker did not seek judicial review and the appellant submits that the respondent worker cannot now say that the decision of Ms Farrell was not properly made.
189.	In relation to Ground Two of the appeal, the appellant submits that the respondent worker had mischaracterised its submissions. The appellant’s case is that there is no legislative right for an injured worker to be re-assessed for permanent injury following surgery. Once the COD dated 4 April 2019 was issued, the only right open to the respondent worker was to seek a reconsideration of that COD. Accordingly, the appellant submits, the relevant issue before the Senior Member was whether the respondent worker had previously exercised a right for reconsideration of the COD dated 4 April 2019. The appellant submits the 2019 Reconsideration Application was the exercise of that right and therefore, the Senior Member was in error in finding that there was no unexercised right.
190.	In relation to Ground Three, the appellant submits that the respondent worker has not grappled with the appellant’s submissions and has provided no justification for its assertion that the appellant was plainly wrong. The appellant submits that its argument is that the only ‘medical dispute’ in proceedings Matter No. 2754/18 is in relation to a claim for lump sum compensation, being the same proceedings as was before the Senior Member. As such, it must be the case, says the appellant, that the underlying claim in respect of the ‘medical dispute’ is that for lump sum compensation arising out of permanent impairment. That claim having been decided, means that s 66(1A) applies to prevent a claim for further impairment.
191.	In relation to Ground Four, the appellant submits that the respondent worker’s reliance on Bojko is misplaced because that decision was concerned with the reasons provided by a MAP (as an administrative decision-maker) and the findings of the Court of Appeal turned on the particular facts of that case. It does not support the proposition postulated by the respondent worker that it should be presumed that the Senior Member considered all of the arguments.
Appellant’s further submissions dated 11 April 2024
192.	On 4 April 2024, I directed the parties to file supplementary submissions in relation to principles 4, 5, 7 and 8 in Samuel at [58].
193.	On 11 April 2024, the appellant filed submissions in response to that direction. In relation to principle 4 in Samuel (the public interest that litigation should not proceed indefinitely), the appellant argued that this was a paramount consideration in the case, arguing that the granting of the discretion to allow a reconsideration under s 350(3) of the 1998 Act would have the effect of circumventing s 66(1A) of the 1987 Act and s 322A of the 1998 Act. The appellant submitted that the respondent worker had been attempting unsuccessfully to agitate a further permanent impairment assessment since 2019 and that a reconsideration would only lead to futile further litigation.
194.	In relation to principle 5 in Samuel (whether new evidence is available and if so, whether it would be likely to change the outcome), the appellant referred to the fact that the report of Dr Osborne dated 1 April 2019 identified that the respondent worker required a TKR. The appellant referred to the decision in Galea v Ralph Symonds Pty Ltd where it was held that it was necessary to make a distinction between new evidence and more evidence. The appellant asserted that the report of Dr Bodel dated 18 March 2022 is simply ‘more evidence’ as to the impairment resulting from that TKR. The appellant also pointed to the fact that there were also other medical reports available in early 2019 going to the issue of the TKR that were not utilised. The appellant submitted that because there were no time limitations on appeals against the MAC, the respondent worker should have waited to bring her appeal after the TKR had been performed and an investigation of any additional problems arising from it had been done. As such, the appellant contends that, had the respondent worker acted with reasonable diligence, she would have waited to appeal the Amended MAC and thereby would have avoided the issues which now attend this matter – including whether a second appeal against the Amended MAC is permissible. The appellant submits that this weighs against the exercise of the discretion.
195.	In relation to principle 7 in Samuel (Anshun estoppel), the appellant submitted that this principle is relevant because it applies where a litigant did not act with reasonable diligence to ensure that all relevant matters were determined in earlier proceedings. The appellant argues that the Current Reconsideration Application should have been brought in earlier proceedings, specifically in response to the decision of Ms Farrell dated 11 July 2019. In the submissions, the appellant refers to the “May 2016 application” which I take to be a typographical error and that the appellant is referring to the 2019 Reconsideration Application (Matter No. 2754/18) dated 16 May 2019.
196.	The appellant argues that if, as now contended by the respondent worker, the decision of Ms Farrell dated 11 July 2019 was in fact not a decision at all and not capable of disposing of the 2019 Reconsideration Application, then it was incumbent upon the respondent worker to pursue that issue at the time. Instead the respondent worker proceeded to act on the basis that Ms Farrell’s decision did in fact dispose of the application. As such, the appellant submits that it would be contrary to the Anshun principle to permit the respondent worker to seek a further reconsideration in this proceeding.
197.	In relation to principle 8 in Samuel the appellant submits that if the failure to engage in an application for judicial review following Ms Farrell’s email of 11 July 2019 was by reason of mistake or oversight then that should support the dismissal of the Current Reconsideration Application because, according to Samuel, mistake or error on the part of the legal representatives is not a relevant factor.
Respondent worker’s submissions dated 18 April 2024
198.	In relation to principle 4 in Samuel, the respondent worker contends that the decision in Hilliger was made prior to the enactment of the 2015 amendments which established a right for a worker to have a WPI assessment for the purposes of the application of s 39 of the 1987 Act. The respondent worker submits that the 2015 amendments were designed to carve out and benefit seriously injured workers.
199.	The respondent worker concedes that she may have no further rights to lump sum compensation but the intention of the 2015 amendments is to allow workers to claim the benefit of ongoing weekly payments and medical expenses by reference to a higher WPI. 
200.	The respondent worker submits that her submissions were consistent with the principles in Lizdenis, Hochbaum and Sleiman (but did not elucidate on what parts of those decisions reliance was placed). It was contended that the appellant’s reliance on Goudappel is misconceived because that decision was concerned with second lump sum claims. Finally, the respondent worker submits that previous adverse decisions in respect of the previous applications made by her do not support any adverse discretionary considerations as the TKR occurred after the COD.
201.	In relation to principle 5 in Samuel, the respondent worker submits that, through her solicitor, she has acted reasonably in that she made a claim for reconsideration “as soon as the evidence was available that demonstrated that increase, for the purposes of the effect of section 39.” The respondent worker submits that there is fresh and material evidence such that her WPI, if reassessed, will lead to a different result. The respondent worker submits that evidence of her current deterioration did not come into being until after Dr Bodel's report of 18 March 2022.
202.	The respondent worker considers that the rejection by Ms Farrell (of the 2019 Reconsideration Application) was not a determination relevant to any right that could be the subject of administrative review, as Ms Farrell was not acting as a delegate of the Registrar of the WCC. The respondent worker submits that she has acted “immediately [upon being] provided with the relevant materials to bring the current dispute to the tribunal.”
203.	In relation to principle 7 in Samuel, the respondent worker submits that there is no estoppel arising from Ms Farrell’s decision as it was not one that gave rise to any appeal within the tribunal nor in the Supreme Court. The respondent worker submits that estoppel principles have no application to the circumstances of this case. 
204.	In relation to principle 8 in Samuel, the respondent worker says that there was no oversight or mistake but rather the respondent worker has acted on sound legal advice.
Appellant’s submissions in reply dated 26 April 2024
205.	In reply to the respondent worker’s submissions about principle 4 in Samuel, the appellant contends that those submissions are plainly wrong. It says that the reference to the 2015 amendments is confusing and it rejects the submission that it was the intention of those amendments to permit workers, such as the respondent worker, to claim the benefits of a potential increase in WPI. The appellant notes that the respondent worker did not any identify any particular provision inserted by the 2015 amendments that would allow for a reassessment of her permanent impairment, and says that the 2015 Amending Act did not affect the provisions inserted by the Workers Compensation Legislation Amendment Act 2012, which included s 66(1A) of the 1987 Act and s 322A of the 1998 Act, both of which are patently not beneficial.
206.	The appellant contends that the decision in Lizdenis would, by analogy, operate to restrict an application for a MAP to reconsider its decision under the former s 378 of the 1998 Act because of the operation of s 66(1A) of the 1987 Act. 
207.	However, the appellant notes that in Lizdenis, it was held that s 66(1A) of the 1987 Act would not restrict an appeal under s 327(3)(a) of the 1998 Act if it were for the purposes of establishing one of the relevant impairment thresholds. However, the appellant submits that Lizdenis, at least insofar as that finding is concerned, is no longer good law in light of the decision of the Court of Appeal in Skates. The appellant submits that, following Skates, any appeal of a MAC or reconsideration of a MAP decision must be on the basis of an existing ‘medical dispute’. It says that the only medical dispute in these proceedings is a claim for lump sum compensation for permanent impairment. In Skates, the Court of Appeal determined that the medical dispute between the parties is ascertained by reviewing the competing claims in the correspondence between the parties (which in this matter is the claim for lump sum compensation). The appellant submits that the authorities relied upon by the respondent worker do not support her submissions. The appellant submits that the principle of finality of litigation is paramount and that this should have weighed heavily against the application for reconsideration.
208.	In response to the respondent worker’s submissions concerning principles 7 and 8 of Samuel, the appellant notes that there is a significant dispute between the parties as to whether the decision of Ms Farrell dated 11 April 2019 was the decision of the WCC made with delegated authority. Regardless, it says the issue is whether any estoppel may apply or whether any mistake or oversight can be relied upon. The appellant notes that the authorities of Murray and Sleiman, upon which the respondent relies to justify why she took no action in terms of seeking judicial review of Ms Farrell's decision, were decided well after 11 July 2019 and could not, therefore, have been the basis upon any decision made at that time. 
CONSIDERATION
209.	This appeal is governed by s 352(5) of the 1998 Act, which is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
210.	As such, in order for the appeal to succeed, I must be persuaded that the Senior Member was in error. 
211.	I note the principles as to the approach that needs to be taken to appeals of this kind as summarised by Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd.
Ground One – The Senior Member erred in exercising the discretion to set aside the Certificate of Determination dated 4 April 2019 
212.	This Ground identifies the appellate principles in House v R and asserts that the errors of law on which the appellant relies are as set out in Grounds Two, Three and Four. 
213.	By reason of my findings below that I uphold Grounds Two, Three and Four, I am of the view that the Senior Member erred in the exercise of the discretion under the former s 350(3) of the 1998 Act, to reconsider and rescind (or set aside) the COD dated 4 April 2019. I therefore uphold Ground One.
Ground Two – The Senior Member erred at law in her application of Schedule 1, clause 14D of the 2020 Act and subsequently committed jurisdictional error by exercising discretion under s 350(3) of the 1998 Act
214.	It was accepted by both parties and the Senior Member, that in order for the respondent worker’s application to be entertained by the Commission, the Senior Member had to be satisfied that the application fell within the savings and transitional provisions in Div 4A, Pt 2 of Sch 1 of the 2020 Act. 
215.	Clause 14D is as follows:
“14D 	Unexercised rights to commence non-court proceedings
(1) 	This clause applies in relation to an unexercised right to commence pre-establishment proceedings before an original decision-maker other than a court.
(2) 	A person who has the unexercised right to commence proceedings may commence the proceedings with the new decision-maker for the exercise of the same functions that could have been exercised by the original decision-maker to which the right relates.
(3) 	The following provisions apply to the commencement of proceedings under this clause—
(a) 	the new decision-maker has and may exercise all the functions that the original decision-maker would have had in relation to the proceedings if they had been commenced before the establishment day, including any functions relating to the granting of leave or other permission to commence proceedings,
(b) 	the provisions of any Act, statutory rule or other law, including provisions concerning the time within which to commence the proceedings, that would have applied to or in respect of the determination of the proceedings had this Act not been enacted continue to apply,
(c) 	despite paragraph (b), Division 3.2 of this Act applies to the proceedings, including section 30, but only if—
(i) 	the proceedings concern a compensation claim within the meaning of Division 3.2, and
(ii) 	a person with standing to whom section 26(1) applies makes an application to the District Court in accordance with that section.
(4) 	To avoid doubt, if the District Court remits a matter to which subclause (3)(c) applies to the new decision-maker under section 26, the modifications made by this clause to proceedings, other than subclause (3)(c), continue to apply in relation to the determination of the proceedings.”
216.	The term “unexercised right” is defined in cl 14A as:
“unexercised right means a right, including a right exercisable only with leave or other permission, that—
(a) 	was available to be exercised immediately before the establishment day, and
(b) 	had not yet been exercised before that day.”
217.	The term “pre-establishment proceedings” is defined (relevantly to workers compensation matters) in cl 14A as:
“(b) 	proceedings that, before the establishment day, were required or permitted under the workers compensation legislation to be dealt with by—
(i) 	the WCC or a member of the WCC, or
(ii) 	the Registrar of the WCC or a delegate of the Registrar, or
(iii) 	an approved medical specialist appointed under Chapter 7, Part 7 of the Workplace Injury Management and Workers Compensation Act 1998, including a senior approved medical specialist, or
(iv) 	an Appeal Panel for a medical assessment constituted under Workplace Injury Management and Workers Compensation Act 1998, or
(v) 	a mediator appointed under section 318F of the Workplace Injury Management and Workers Compensation Act 1998.”
218.	The Senior Member held that the power to reconsider (and rescind, alter or amend) the COD dated 4 April 2019 was to be found in the former s 350(3) of the 1998 Act. The Senior Member then characterised the current application as one seeking an order to rescind the COD dated 4 April 2019 pursuant to s 350(3) of the 1998 Act so that an appeal against the MAC could be filed pursuant to s 327 of the 1998 Act. However, the Senior Member did not identify that the respondent worker had altered her application in October 2022 to one seeking to have the Amended MAC reconsidered under the former s 378 of the 1998 Act. Accordingly, the Senior Member only dealt with the application as one under s 350(3) of the 1998 Act. Curiously, the respondent worker did not refer to the failure of the Senior Member to address the changed basis of her claim in any of her appeal submissions.
219.	Accordingly, the first question addressed by the Senior Member was whether the respondent worker had exercised her right to have the COD dated 4 April 2019 reconsidered under the former s 350(3) of the 1998 Act prior to making the Current Reconsideration Application. 
220.	The Senior Member commenced her consideration by identifying what she titled “Prior Proceedings”. However, the Senior Member’s recitation was inaccurate in relation to the matter which was part of that list described at paragraph [153(f)] above, in that no such application was filed by the respondent worker on 27 February 2019. What occurred on that date was that the MAP dismissed the respondent worker’s appeal (which had been filed on 27 November 2018) and affirmed the Amended MAC of 12% WPI.
221.	In addition, the Senior Member’s recitation of prior applications was incomplete as is illustrated by a comparison with the various applications and matters listed in paragraphs [12] to [35] above.
222.	The comparison undertaken by the Senior Member between the “Prior Proceedings” (as the Senior Member described them) and the Current Reconsideration Application was confined to the 2019 Reconsideration Application and the Senior Member then found that the difference between the two was that the former was based on the anticipated need for a TKR and the current one was based on the respondent worker’s condition after that surgery. The Senior Member’s conclusion was that the respondent worker had not exercised her rights on the basis that the right was the ‘right’ to be assessed after surgery. 
223.	I accept the appellant’s submissions that the Senior Member erroneously turned her mind to the wrong question when she so characterised the ‘unexercised right’ in Sch 1, cl 14D of the 2020 Act. 
224.	The relevant chronology is that on 16 May 2019, the respondent worker sent a letter to the appellant’s solicitors seeking a reconsideration of the MAC dated 27 February 2019 (being the 2019 Reconsideration Application). However, there was no MAC issued on 27 February 2019, rather that was the date on which the MAP confirmed the Amended MAC that had been issued on 2 November 2018 certifying that the respondent had a 12% WPI in relation to the right lower extremity. 
225.	The MAP decision arose because the respondent worker had filed an appeal against the Amended MAC based on s 327(3)(a) and (b) of the 1998 Act. That section provided the grounds of appeal against a medical assessment as follows:
“(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)”.
226.	As stated above, the MAP rejected the respondent worker’s appeal and confirmed the Amended MAC.
227.	At the time that the 2019 Reconsideration Application was made (16 May 2019), the WCC had already issued the COD dated 4 April 2019 which stated:
“1. 	The respondent [appellant] pay the applicant [respondent worker], as lump sum compensation under section 66 of the Workers Compensation Act 1987, $17,050 in respect of 12% permanent impairment resulting from injury on 3 October 2013.
Brief statement of reasons
2. 	This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
3. 	The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
228.	After the COD dated 4 April 2019 was made, the respondent worker had only one legal entitlement to have the Amended MAC dated 27 November 2018 set aside and that was to make an application to reconsider the COD under the former s 350(3) of the 1998 Act. 
229.	Section 350 of the 1998 Act (as it stood as at May to July 2019) provided:
“350 	Decisions of Commission
(1) 	Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2) 	A decision of or proceeding before the Commission is not:
(a) 	to be vitiated because of any informality or want of form, or
(b) 	liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3) 	The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
230.	I find that the Senior Member erred in law in her determination of the construction of an “unexercised right” in the context of this matter. The Senior Member misdirected herself when she stipulated that the test for whether or not the respondent worker had an “unexercised right” was dependent on the nature of the respondent worker’s condition at the time of the Current Reconsideration Application and held that because the worker’s current condition had not been assessed, her rights had not been exercised. 
231.	The Senior Member’s construction of the savings and transitional provisions that held the respondent worker had not exercised her right ‘to be reassessed after surgery’ was erroneous. This is because the application made by the respondent worker was not an application for assessment of her current condition nor for an assessment of her condition subsequent to her TKR surgery. The application was one which sought a reconsideration of the COD dated 4 April 2019 “and any previous Certificates of Determination that may prevent the [respondent] worker from filing an Appeal Against the Medical Assessment Certificate of Dr Lewington”. Accordingly, the Senior Member was required to direct her decision-making to whether the respondent worker had exercised her right to seek a reconsideration of the COD dated 4 April 2019 prior to making this application. 
232.	I accept the appellant’s submission that the motive for making a reconsideration application is irrelevant. The statutory provision is directed to the exercise of a right, not the reason for it.
233.	Further, the respondent worker amended her application in her submissions dated 24 October 2022 to seek that the MAC (presumably but not expressly the Amended MAC) and the COD dated 4 April 2019 be revoked, on the grounds that the respondent worker’s WPI has not reached maximum medical improvement pursuant to the former s 378 of the 1998 Act and, an application in the alternative that the appeal be remitted to the President, for remittal to a medical assessor appointed to reassess the respondent worker’s WPI, again under the former s 378 of the 1998 Act.
234.	The Senior Member did not engage with that application at all and made no determination as to whether the respondent worker had made a prior application in those terms.
235.	Whilst I accept that the making of an application for reconsideration of an earlier COD is an administrative process, that is not the question here and the Senior Member was wrong to characterise it so. The ‘right’ in this matter was the right to seek a reconsideration of the COD dated 4 April 2019 under the former s 350(3) of the 1998 Act, for the purposes of appealing against the Amended MAC, in order to have an increased WPI assessment made in its place. Accordingly, the correct question is whether the respondent worker had exercised that right prior to the Current Reconsideration Application. 
236.	As noted above, the Commission only had power to entertain the Current Reconsideration Application if the criteria in Sch 1, cl 14D of the 2020 Act had been satisfied. 
237.	The appellant contends that the Senior Member engaged in jurisdictional error in her decision-making in relation to this issue. 
238.	In Re Refugee Review Tribunal; ex part Aala Hayne J held:
“The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”
239.	In Minister for Immigration and Border Protection v Stretton the Full Court of the Federal Court held:
“A more sophisticated approach is required, one which focuses central attention on the question whether an administrative decision is one which is within the authority of the decision maker to make. This necessarily requires that close attention be given to relevant features of the particular statutory framework which that authority rises.”
240.	The threshold question of construction of Sch 1, cl 14D of the 2020 Act was critical in determining jurisdiction in this matter. The construction of the statute meant that the Senior Member was required to find that the application being made by the respondent worker was an “unexercised right” within the meaning of that provision. That was a jurisdictional fact.
241.	As such, the Senior Member was required to form an opinion or reach a state of actual satisfaction on that issue.
242.	In Timbarra Protection Coalition Inc v Ross Mining NL & Ors Spiegelman CJ held: 
“The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (‘objectivity’) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (‘essentiality’). 
‘Objectivity’ and ‘essentiality’ are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of ‘essentiality’ will often suggest ‘objectivity’.”
243.	In Stanley v Director of Public Prosecutions (NSW) his Honour Justice Gageler (as he then was) analysed the basis for jurisdictional error. At [15], his Honour held:
“When used to express a conclusion that a decision made in a purported exercise of judicial power exceeds the limits of decision-making authority legislatively conferred on a court, ‘jurisdictional error’ has the same meaning as it has when used to express a conclusion that a decision made in a purported exercise of non-judicial power exceeds the limits of decision-making authority legislatively conferred on a person or body other than a court. Except in the case of an order of a superior court, the import of the conclusion is the same. The import of the conclusion is that the purported exercise of power lacks the authority of law: the decision made in fact ‘is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as ‘no decision at all’’.”
244.	In the recent case of LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the High Court held (citations excluded):
“2. 	Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. Though a decision affected by jurisdictional error is a decision in fact, it is ‘in law ... no decision at all’ and is in that sense ‘void’.
3. 	Because an express or implied condition of a statutory conferral of decision‑making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness. 
4. 	A statute which contains an express or implied condition of a conferral of decision-making authority is not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition. Only by construing the statute so as to understand the limits of the statutory conferral of decision‑making authority is it possible to determine, first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force). 
5. 	Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn – ‘[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute’.
6. 	In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7. 	In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a ‘threshold of materiality’ in the event of non‑compliance.” (emphasis in original)
245.	In my view, the Senior Member failed to properly determine the jurisdictional fact as to whether the respondent worker was pursuing an unexercised right within the meaning of 
Sch 1, cl 14D of the 2020 Act. That jurisdictional fact was whether the respondent worker had, prior to the Current Reconsideration Application, exercised her right to make an application for reconsideration of the COD dated 4 April 2019 under s 350(3) of the 1998 Act, for the purposes of appealing against the Amended MAC, in order to have an increased WPI made in its place. The failure of the Senior Member to ask herself the correct question rendered her determination of the jurisdictional fact erroneous.
246.	Accordingly, I find that the Senior Member engaged in jurisdictional error, or if I am wrong on that, that the Senior Member engaged in an error of law within jurisdiction. 
247.	I uphold Ground Two of the appeal.
Ground Three – The Senior Member erred at law in finding that this matter amounted to a ‘threshold dispute’ that was distinct from a claim for lump sum compensation, and that the MAC dated 2 November 2018 could be appealed to determine a threshold dispute
248.	The Senior Member held there was no statutory impediment to the respondent worker seeking a re-assessment of her WPI because it was for the purposes of ascertaining whether she qualified for payments pursuant to s 39 of the 1987 Act and possibly Work Injury Damages. However, as I have stated above in paragraph [160] above, no part of the respondent worker’s claim for reconsideration included a reference to a possible WID claim. It was restricted to a claim under s 39 of the 1987 Act.
249.	The appellant contends that any application for a further claim for permanent impairment cannot succeed by reason of the operation of s 66(1A) of the 1987 Act. 
250.	Section 66(1A) provides that:
“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”
251.	The appellant relies on the decision of the Court of Appeal in Cram Fluid. In that case it was held that:
(a)	where a second claim, although arising out of the same injury, was a different claim to the first, the effect of the transitional provisions is that the second claim was subject to the operation of the amending provision, including the one claim provision in s 66(1A);
(b)	notwithstanding that s 66A(3) permits a claim for additional compensation, the one claim limitation is “the leading provision and the Commission’s power under s 66A(3) must give way to it”, and
(c)	as such s 66A(3) has limited operation with respect to claims for lump sum compensation additional to that payable under a complying agreement, where the further claim is made before 19 June 2012, the relevant date for the commencement of the lump sum compensation amendments introduced by the 2012 amending Act.
252.	The appellant also referred to the decision of Robin-True which applied the reasoning in Cram Fluid and held that there could be no referral for a further WPI assessment where a claim had already been made and determined in relation to permanent impairment.
253.	The appellant’s argument is that the medical dispute the subject of this matter crystallised in the original claim whereby the respondent worker sought a claim for lump sum compensation (Matter No. 2754/18). That claim resulted, eventually, in the Amended MAC dated 2 November 2018. This application arises in that same claim – Matter No. 2754/18. The respondent worker has not amended the dispute to one in which the only dispute is in relation to meeting the threshold for a high or highest needs worker in s 39 of the 1987 Act. As such, the appellant says that the medical dispute remains one in relation to a claim for lump sum compensation under s 66 of the 1987 Act and therefore, it cannot be expanded, on appeal, to go to the threshold issue in s 39. 
254.	There is force in this submission because the statutory regime is based upon the making of a claim for compensation arising out of an injury: ss 261 to 263 of the 1998 Act, and the acceptance or rejection of that claim: s 274(1) of the 1998 Act, and the issuing of a s 78 notice. There is an avenue for a review of the employer’s decision about a claim for compensation under s 287A of the 1998 Act. As such, the scope of the dispute that is ultimately referred to the Commission is determined by that exchange. The jurisdiction of the Commission is expressly defined by “a dispute in connection with a claim for compensation”: s 287(1) of the 1998 Act, and the referral is for the purposes of there being a determination by the Commission: s 288(1) of the 1998 Act. Further, s 289A(1) stipulates that there can be no referral for determination unless the “dispute” has been previously notified as a dispute.
255.	The decision in Skates held that the dispute between the parties is crystallised by the correspondence attached to the ARD and referred to the Commission, and in that matter, the Court of Appeal held the “medical dispute” was about the degree of permanent impairment. 
256.	In my view, in this matter, being (Matter No. 2754/18), the dispute is about the degree of permanent impairment for the purposes of the respondent worker’s claim for lump sum compensation. 
257.	I reject the respondent worker’s submissions that the ‘medical dispute’ has been clearly defined in the correspondence between the parties whereby the respondent worker has asserted that her condition has now exceeded 20% WPI for the purposes of s 39 of the 1987 Act. That assertion was not part of the dispute that was referred to the WCC and later to the Commission in these proceedings, being Matter No. 2754/18. The only times that a ‘dispute’ of that kind was raised in correspondence between the parties prior to referral of the dispute to the Commission was in:
(a)	Matter No. W2466/21 wherein the respondent worker made such an application on 18 June 2021 but discontinued those proceedings: see paragraphs [30] to [31] above; and
(b)	Matter No. W4287/22 which proceedings were commenced on 8 July 2022 and where the respondent worker made an application to be assessed for the high needs threshold, but those proceedings were dismissed: see paragraphs [34] to [35] above.
258.	Whilst the respondent worker asserted in her submissions in the Current Reconsideration Application (and in this appeal) that her purpose is to achieve a higher WPI for the purposes of s 39 of the 1987 Act, that claim is not part of the ‘dispute’ that was referred to the WCC and/or the Commission. 
259.	Accordingly, that means that the Amended MAC which resolved the medical dispute for the purposes of the claim which was in dispute (being the claim for lump sum compensation) cannot be appealed for a different purpose than that which underscored the medical dispute, such as a threshold issue. 
260.	Further, if it needs to be said, the decision in Cram Fluid (as applied in Robin-True) applies so that s 66(1A) prevents any further claim for lump sum compensation. It is also my view, but this is not central to my decision-making, that the decision in Galea ought be restricted to matters where the underpinning ‘dispute’ incorporates claims for WPI assessment for both lump sum compensation and threshold issues such as those for WID and/or applications under s 39 of the 1987 Act. 
261.	I find error in the Senior Member’s findings on this point.
262.	I uphold Ground Three.
Ground Four – The Senior Member erred at law in failing to address the appellant’s argument relating to the impermissibility of a second appeal of the MAC dated 2 November 2018
263.	The Amended MAC was made on 2 November 2018. The respondent worker lodged an appeal against that Amended MAC on 27 November 2018 on the basis that there had been a deterioration of her condition and that fresh evidence was available. The respondent worker relied on ss 327(3)(a) and (b) of the 1998 Act. On 27 February 2019, the MAP dismissed the respondent worker’s appeal and confirmed the Amended MAC. 
264.	The appellant’s arguments before the Senior Member in this matter included a submission that the respondent worker is estopped from pursuing a second appeal on the same grounds. The appellant argued that if there was no estoppel, it could lead to an unlimited number of appeals against an MAC. Both res judicata and issue estoppel were put forward, on alternate bases, by the appellant. 
265.	The Senior Member held that there was “no estoppel in a changing situation” and cited the decision in Abou-Haidar at [66]. The Senior Member then proceeded to make a finding that there had been a significant change in the WPI. 
266.	Further it is not clear whether that statement was made in support of the Senior Member’s view about estoppel not being available in a changing situation or whether it was in support of her view that the respondent worker has a strong case for showing “a deterioration in her assessment of permanent impairment.”
267.	I am of the view that it was erroneous of the Senior Member to make the finding about a significant change in the respondent worker’s WPI because that is the very factual finding that has not yet been determined by any MAC or by the Commission. That finding was not open to the Senior Member to make and it is set aside. 
268.	Further, I find that the Senior Member did not engage with the appellant’s argument about whether multiple appeals against the Amended MAC were permissible, or the merits of the appellant’s arguments about the application of res judicata or issue estoppel. 
269.	The appellant argues that the Senior Member erred in law by failing to properly engage with its arguments in relation to estoppel.
270.	In Soulemezis v Dudley (Holdings) Pty Ltd the Court held that:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” (emphasis added)
271.	In the recent decision of the NSW Court of Appeal, in Fisher v Nonconformist Pty Ltd, the Court looked at whether the Commission was required to give reasons and the nature of the test for adequacy of reasons:
“There is no general common law duty on executive decision-makers to give reasons for their decisions: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 662; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43]. The position is different for judges, for whom the requirement to give reasons is a normal, though not universal, incident of the judicial process: see Osmond at 666–667. Not infrequently, however, some statutory duty is imposed on executive decision-makers.
Such a duty is found in s 294 of the [1998] Act:
(1) 	If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) 	A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
Such an obligation is also addressed in the Personal Injury Commission Rules 2021:
78 	Statement of reasons for decision
(1) 	This rule applies only in relation to the following applicable proceedings—
(a) 	Commission proceedings,
(b) 	merit review proceedings.
(2) 	A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) 	the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) 	the appropriate decision-maker’s understanding of the applicable law,
(c) 	the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) 	Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”
272.	The Court of Appeal held that the standard was summarised in Ming v Director of Public Prosecutions (NSW) as follows:
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”
273.	I find that the Senior Member did not elucidate her reasons for resolving the argument put to her by the appellant as to whether or not multiple appeals were available or whether res judicata or issue estoppel arose and that this failure occurred in circumstances where there was a contest between the parties on that issue. 
274.	In my view, the argument on estoppel was a ‘substantial’ argument. The submissions of the appellant also disclose that it was a ‘clearly articulated argument’. 
275.	It is well settled that a decision-maker must address substantial, clearly articulated claims and that a failure to consider and engage with such claims may constitute jurisdictional error.
276.	Whilst it is not necessary for a decision-maker to address each and every submission in detail, it is necessary for the decision-maker to engage with and make decisions about substantive arguments that are raised in the proceedings, providing reasons for either accepting or rejecting those submissions. 
277.	In this matter, I find that the Senior Member erred in law in failing to engage with this argument and provide reasons.
278.	I uphold Ground Four of the appeal. 
CONCLUSION
279.	Leave to appeal the Senior Member’s interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act.
280.	I uphold all grounds of the appeal.
281.	The Certificate of Determination dated 24 July 2023 (which amended the 9 May 2023 COD) is revoked.
NEW DECISION
282.	The provisions of s 352(5) of the 1998 Act not only permit the determination of a finding of any error of fact, law or discretion but also the correction of any such error. Section 352(6A) of the 1998 Act states that, on appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
283.	Given the very lengthy history of this matter and the comprehensive nature of the materials and the submissions (including those at first instance), I have determined that it is in the interests of the efficient administration of justice to correct the errors by making a new decision in place of that made by the Senior Member.
Jurisdiction
284.	The application the subject of this matter was commenced by the letter dated 23 August 2022. The relief sought by the respondent worker in that letter was “the reconsideration of the above [referring to Matter No. 2754/18] Certificate of Determination and any previous Certificates of Determination that may prevent the [respondent] worker from filing an Appeal Against the Medical Assessment Certificate of Dr Lewington.” The submissions attached to that letter referred only to the (original) MAC dated 16 August 2018 and did not refer to the Amended MAC dated 27 February 2019. Notwithstanding that, the only relevant COD that had been issued by the WCC was that dated 4 April 2019 which was based on the Amended MAC. Accordingly, I proceed on the basis that the application is for the reconsideration of that COD for the purposes of filing an appeal against the Amended MAC.
285.	Neither the respondent worker’s letter dated 23 August 2022, nor the submissions attached to it, identified the statutory power under which the reconsideration was sought, nor did the respondent worker’s documents identify any jurisdictional issue in proceeding with the application. 
286.	These issues were raised by the appellant in its submissions dated 14 September 2022. The appellant correctly identified that the only statutory power available to the Commission to reconsider the COD dated 4 April 2019 was that in the repealed s 350(3) of the 1998 Act. As such, the appellant correctly identified that the respondent worker would be required to satisfy the savings and transitional provisions in Div 4A, Subdiv 3 of Sch 1 to the 2020 Act in order to proceed. This is because the COD dated 4 April 2019 was made prior to the establishment of the Commission and whilst s 57 of the 2020 Act permits the Commission to reconsider its own decisions, that power does not extend to a reconsideration of decisions made by WCC.
287.	In October 2022, the respondent worker amended her application to seek relief in the form of reconsideration of the Amended MAC under the former s 378 of the 1998 Act. The respondent worker pursued that application in its submissions dated 21 November 2022 and 19 December 2022, relying on the decision in Sleiman. 
288.	Section 378 of the 1998 Act (as it stood prior to the 2021 amendments) provided:
“378	Reconsideration of decisions of Registrar or Appeal Panel
(1) 	The Registrar or an Appeal Panel may reconsider any matter that has been dealt with by the Registrar or an Appeal Panel, respectively, and rescind, alter or amend any decision previously made or given.
(2) 	Without limiting subsection (1), if the Registrar is satisfied that there is an obvious error in the text of a decision, the Registrar may alter the text of the decision to correct the error.
(3) 	Without limiting subsection (1), if an Appeal Panel is satisfied that its decision or any medical assessment certificate it has issued contains an obvious error, the Appeal Panel concerned may correct that error and, if necessary, issue a replacement medical assessment certificate (which is to prevail over any previous certificate).
(4) 	The reconsideration of a matter that is in response to an application for reconsideration must be completed within 2 months after the application is received.
(5) 	This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”
289.	It is apparent that the former s 378 is directed to the decisions of a Registrar or an Appeal Panel and it provides power to those persons or entities to reconsider, rescind, alter or amend any previous decision made by the Registrar or an Appeal Panel respectively. As such, s 378 is inapt for this application because the COD dated 4 April 2019 was made by an arbitrator. There can be no reconsideration of the Amended MAC whilst the COD dated 4 April 2019 is in place: s 327(7) of the 1998 Act. It is only if the COD dated 4 April 2019 is rescinded, that the former s 378 of the 1998 Act may be engaged. 
290.	However, I note that in the decision of Sleiman, Leeming JA held that the Commission is required to address disputes or applications on the basis of substance not form, most significantly because it is a tribunal “commanded to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. 
291.	As the substance of the application is for reconsideration of the COD dated 4 April 2019 in order to get to an application under s 378, I shall proceed to determine the issue of jurisdiction on the basis of the power available under the former s 350(3) of the 1998 Act. 
292.	By reason of the fact that s 350 was repealed by the 2021 amendments, in order for the Commission to have the power to deal with the respondent worker’s application, I must be satisfied that the provisions of Div 4A, Pt 2 of Sch 1 of the 2020 Act are met. 
293.	Clause 14D has been set out in paragraph [214] above. Insofar as this matter is concerned, in order for the Commission to have the power to make the orders sought by the respondent worker, I have to be satisfied that the respondent worker had an ‘unexercised right to commence these proceedings’ under s 350(3) of the 1998 Act, being the functions that could have been exercised by the WCC: see cl 14D(2) of Div 4A, Pt 2 of Sch 1 of the 2020 Act.
294.	I have taken into consideration the definitions of “unexercised right” and “pre-establishment proceedings” as set out in paragraphs [216] and [217] above respectively. 
295.	Section 350(3) of the 1998 Act provided a power to the WCC to reconsider any decision that has been dealt with by the WCC and rescind, alter or amend any such decision. Section 350(3) of the 1998 Act was repealed on 1 March 2021. As such the right to commence proceedings under s 350(3) of the 1998 Act was available to be exercised immediately before the establishment day.
296.	An application to the WCC under s 350(3) of the 1998 Act was permitted under the 1998 Act to be dealt with by the WCC or a member of the WCC. Accordingly, the requirement that “pre-establishment proceedings” were available has also been met. 
297.	In my view, this requires me to determine whether the respondent worker had, prior to the Current Reconsideration Application, exercised her right to make an application for reconsideration of the COD dated 4 April 2019 under s 350(3) of the 1998 Act, for the purposes of appealing against the Amended MAC, in order to have an increased WPI made in its place.
298.	The respondent worker made a claim for lump sum compensation under s 66 of the 1987 Act on 9 November 2017. Liability was disputed and the matter was referred to the WCC on 23 May 2018 (Matter No. 2754/18). The medical dispute as to the extent of the WPI was referred to an approved medical specialist, Dr Lewington and on 16 August 2018, Dr Lewington issued an MAC assessing the respondent worker as having 15% WPI. Following a request for reconsideration of that MAC, Dr Lewington issued the Amended MAC assessing WPI at 12% on 2 November 2018. Following an appeal to the MAP, the Amended MAC was confirmed on 27 February 2019. 
299.	On 4 April 2019, the WCC issued the COD dated 4 April 2019.
300.	After the COD dated 4 April 2019 was made, the respondent worker had only one legal entitlement to have the Amended MAC dated 27 November 2018, set aside and that was to make an application to reconsider the COD under s 350(3) of the 1998 Act. 
301.	On 16 May 2019, the respondent worker filed the 2019 Reconsideration Application.
302.	There is nothing in the materials filed in these proceedings which indicates how or in what form the 2019 Reconsideration Application made its way to the WCC but from the written submissions filed by the appellant’s solicitors, I assume it was in the same format and had the same wording as the letter dated 16 May 2019 addressed to the appellant.
303.	The 2019 Reconsideration Application stipulated that the application was being made pursuant to ss 325(3), 327(6), 329(1)(a) and/or 350(3) of the 1998 Act (as those provisions then stood).
304.	The 2019 Reconsideration Application stated that the application relied on the report of Dr Osborne dated 1 April 2019, which opined that the respondent worker required a right TKR.
305.	The 2019 Reconsideration Application contained the following submissions:
“The Application is made on the grounds that the report [of Dr Osborne dated 1 April 2019] demonstrates that the worker is now recommended for TKR, and this procedure will be delayed, as set out in that report.
The current situation is, therefore, not one of ‘maximum medical improvement’.
The degree of permanent impairment is, therefore, not ‘fully ascertainable’ (Section 319(g) [of the 1998 Act]).
For these reasons the [worker] seeks a reconsideration, or referral for further assessment of the medical assessment certificate, as an alternative to an Appeal to the MAP.”
306.	Turning to each of the statutory provisions relied on by the respondent worker in the 2019 Reconsideration Application, s 325(3) of the 1998 Act (as it stood as at May 2019) provided:
“(3) 	If the Registrar is satisfied that a medical assessment certificate contains an obvious error, the Registrar may issue, or approve of the approved medical specialist issuing, a replacement medical assessment certificate to correct the error.”
307.	Section 327(6) of the 1998 Act (as it stood as at May to July 2019) provided:
“(6) 	The Registrar 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 Registrar to refer a medical assessment back to the approved medical specialist for reconsideration (whether or not the medical assessment could be appealed under this section).”
308.	Section 329(1)(a) of the 1998 Act (as it stood as at May to July 2019) provided:
“(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 Registrar as an alternative to an appeal against the assessment as provided by section 327, or ….”
309.	As noted above, on 5 June 2019, the appellant filed written submissions opposing the 2019 Reconsideration Application which addressed each of the above statutory provisions in turn.
310.	On 11 July 2019, Ms Farrell sent an email to the respondent worker’s solicitor in the following terms:
“I refer to the application for reconsideration and the opposition from the respondent.
The Commission issued a Certificate of Determination in this matter on 4 April 2019. The dispute has resolved and the matter cannot be referred back to the Appeal Panel under section 378 of the 1998 Act.
The request for consideration is declined.”
311.	The signature block for the email stated:
“Annette Farrell
Director, Operations 
Workers Compensation Commission”.
312.	The respondent worker made no complaint about Ms Farrell’s decision at the time. Rather, the respondent worker accepted the decision and took no further steps to agitate her claim for a higher WPI assessment until about 17 months later. 
313.	There are a number of matters which must be examined in relation to Ms Farrell’s email. 
314.	First, despite acknowledging that the respondent worker had made a formal application for reconsideration and that the appellant had opposed it, Ms Farrell’s decision was contained in an email, rather than a more formal document. That of itself was not fatal because, as at the date of the email, s 350(2)(a) of the 1998 Act provided that decisions were not to be vitiated because of any informality or want of form.
315.	The second issue is the content of the decision. The respondent worker’s submissions were short, to say the least, but they did identify that the basis of the application was that the degree of permanent impairment was not fully ascertainable, and the submissions did specify the four statutory provisions upon which the application was based. The appellant’s detailed submissions addressed each of those statutory provisions as follows:
(a)	s 325(3) could not be engaged because there was no obvious error in the Amended MAC;
(b)	s 327(6) was not able to be engaged because the COD dated 4 April 2019 had been issued;
(c)	s 329(1) ought not be engaged because the dictates of justice militated against a referral back for further assessment and also because the COD dated 4 April 2019 had been issued, and
(d)	s 350(3) was not available because it only empowered the reconsideration of a matter dealt with by the Commission, not an approved medical specialist or an appeal panel.
316.	Ms Farrell did not engage with any of those submissions but rather limited her decision to a single fact being the issuing of the COD on 4 April 2019.
317.	In terms of the role of a COD, s 294 of the 1998 Act (as it stood at July 2019) provided:
“Certificate of Commission’s determination
(1)	If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)	A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3)	If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
318.	The respondent worker did not seek to engage s 294(3) in the 2019 Reconsideration Application but, it is difficult to see how such an argument would have been successful.
319.	In any event, the only statutory provision referred to by Ms Farrell in her email was s 378 of the 1998 Act.
320.	The reference to s 378 was odd and unwarranted because the respondent worker had not identified nor sought to rely on s 378 of the 1998 Act in the 2019 Reconsideration Application and the appellant had also not referred to that provision in its submissions. 
321.	Section 378 permitted a reconsideration of a MAP decision by the MAP. It did not permit any reconsideration of a MAP decision by a Registrar – that is made clear by the use of the word “respectively” in s 378(1) and by the delineation of decisions of the Registrar in s 378(2) and decisions of a MAP in s 378(3) of the 1998 Act. Further, despite the statement made by Ms Farrell in her email, there is nothing in s 378 that stipulates that a matter cannot be reconsidered by a MAP if a COD has been issued. 
322.	There was, however, a prohibition on commencing an appeal against a medical assessment, once a determination had been made by the WCC in s 327(7) of the 1998 Act. However, it is clear from the wording of the 2019 Reconsideration Application that the respondent worker specifically sought a reconsideration and eschewed an appeal. 
323.	Ms Farrell made no reference to any of the statutory provisions relied on in the 2019 Reconsideration Application, to the grounds put forward by the solicitor for the respondent worker, nor did Ms Farrell refer to or deal in any way with the submissions made by the appellant. There was no indication in Ms Farrell’s email as to whether or not she had referred the matter to the Registrar or any other member of the WCC and was simply conveying a decision made by that other person. Similarly, there is no indication in the email that Ms Farrell had been delegated power by the Registrar to determine the application. 
324.	The third matter to be considered is that in issuing the decision, Ms Farrell did so using her signature block of “Director, Operations” of the WCC. Given that it was Ms Farrell who issued the COD on 4 April 2019 in her role as an arbitrator, it is not apparent why Ms Farrell did not opt to provide her decision in relation to the 2019 Reconsideration Application in her role as arbitrator but it is clear that she did not.
325.	In that regard, this case has similarities to Murray. That was a case concerning an application for judicial review of decisions made by the WCC, including one by the same Ms Farrell. In that case, Ms Farrell had entered a determination in her role as an arbitrator (as she had done in this matter) and had then declined an application for a “review” requesting for the matter to be referred to an arbitrator to correct an alleged error in the COD pursuant to s 294(3) of the 1998 Act, but did so in her role as Director, Operations. 
326.	In that case, his Honour Justice Campbell set out the composition and character of the WCC as follows:
“Section 371 WIM[] deals with the functions of the Registrar in the following terms:
(1) 	The Registrar has and may exercise all the functions of an Arbitrator.
(2) 	The Registrar can delegate to any member or member of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except this power of delegation.
(3) 	The Registrar may exercise any of the functions of the Commission constituted by an Arbitrator to dismiss proceedings before the Commission.
By s 372 WIM the members of the WCC, other than Arbitrators are in the exercise of their functions, subject to the general control and direction of the President. Arbitrators are subject to the general control and direction of the Registrar.
By s 374 WIM so far as is presently material ‘persons may be employed in the Public Service ... to enable the [WCC] to exercise its functions’. By s 374(2), ‘the persons so employed are, in the exercise of their functions, subject to the general control and direction of the Registrar’.”
327.	The correspondence in Murray from Ms Farrell was in the following terms:
“I note your appeal was rejected on the basis that the [WCC] had issued a Certificate of Determination dated 2 November 2018 and the issue of said Certificate prevented an appeal again[st] the decision of the Approved Medical Specialist (s 327(7) of the 1998 Act).
Your email suggests there is an obvious error in ‘the Certificate’. Unless such error is in the Certificate of Determination, there is no basis for correction under section 294.
If the error is in the Medical Assessment Certificate, I note this issue has been finalised by the decision of the Registrar’s delegate dated 28 September 2018.
...
On the basis of the information to hand and in the absence of further submissions, the request for a teleconference is declined.”
328.	In Murray at [42], Campbell J found that in her correspondence, Ms Farrell did not purport to act as the delegate of the Registrar and at [60], his Honour found that Ms Farrell’s decision could not be characterised as a purported exercise of the power of the Registrar under s 327(4) and at [61] held that the letter was:
“… a decision of a public servant employed within the Registry and was of a purely administrative nature not affecting Mr Murray’s rights. It was not a decision under s 327(4). Nor did it fall into that category of a preliminary decision having affect upon some later determination. The gravamen of the decision was that it had not been shown that s 294(3) was regularly invoked.”
329.	I note that Campbell J in Murray was dealing with an application for judicial review of an administrative decision and was required to make a determination as to whether Ms Farrell’s administrative decision affected Mr Murray’s rights in order to determine whether an order in the nature of certiorari could be made. Looking at the terms of the letter from Ms Farrell in Murray, it notes that a prior appeal had been rejected because of the operation of s 327(7) of the 1998 Act; it states that there is no identification of an obvious error in the COD and says that in the absence of further submissions, no teleconference would be listed. 
330.	In contrast, in this matter, it is my view that the decision of Ms Farrell was in a different category because it effectively dismissed the 2019 Reconsideration Application. As such, it was a decision affecting the respondent worker’s rights. 
331.	Following receipt of the email from Ms Farrell, the respondent worker:
(a)	made no inquiry or application to have it confirmed that Ms Farrell’s decision was authorised by a delegation from the Registrar or by an arbitrator of the WCC. As such it must be inferred that the respondent worker treated the decision as competently made by having been so authorised;
(b)	made no complaint nor sought any WCC review of Ms Farrell’s decision based on either a failure to give reasons or a rejection of the 2019 Reconsideration Application on grounds not raised by either party, and 
(c)	made no application for judicial review of the decision.
332.	A further three years passed before the Current Reconsideration Application was made. In that time six (6) other applications were made by the respondent worker seeking to revisit and increase the percentage permanent impairment, but those applications were either not pursued or discontinued: see paragraphs [26], [30], [32], [33], [34] and [35] above.
333.	On 23 August 2022, the respondent worker filed the Current Reconsideration Application.
334.	Accordingly, in order to determine whether the respondent worker had exercised her right to make an application for reconsideration of the COD dated 4 April 2019 under s 350(3) of the 1998 Act, for the purposes of appealing against the Amended MAC, in order to have an increased WPI made in its place, requires a careful look at those prior applications.
335.	In my view, both the 2019 Reconsideration Application and the 2021 Reconsideration Application should be considered closely. The other applications were not made in terms of s 350(3) of the 1998 Act. 
336.	In relation to the 2019 Reconsideration Application made on 16 May 2019, that application was stated to be for a reconsideration of the Amended MAC, not the COD dated 4 April 2019. As the appellant pointed out in its submissions dated 5 June 2019, s 350(3) of the 1998 Act did not provide any power to reconsider the decision of the Appeal Panel. In Hochbaum the Court of Appeal held that an MAC could not be the subject of a reconsideration under s 350(3) of the 1998 Act because that provision is concerned with decisions of the Commission constituted by an arbitrator or a Presidential member, not assessments by approved medical specialists. 
337.	Accordingly, I find that the respondent worker never sought a reconsideration of the COD dated 4 April 2019 in the 2019 Reconsideration Application and therefore she had an unexercised right to make an application of that kind. 
338.	However, if I am wrong on that issue, I find that the decision of Ms Farrell dated 11 July 2019 which dealt with the 2019 Reconsideration Application was not a ‘decision’ of the WCC, for the reasons which follow.
339.	Firstly, although Ms Farrell’s email dismissed the 2019 Reconsideration Application and was therefore a decision affecting the respondent worker’s rights, I find, on the balance of probabilities, that the decision was not an exercise of delegated power from the Registrar or the WCC. I note the appellant in its submissions dated 11 November 2022 contended that the decision could only have been made exercising delegated power from the Registrar but I do not agree with that submission. 
340.	Whilst the content of the email made it clear that Ms Farrell was determining the 2019 Reconsideration Application and that she had taken into account the respondent worker’s application as well as the appellant’s submissions, Ms Farrell conveyed the decision using the signature block of her role as Director, Operations of the WCC. It was open and available to Ms Farrell to have considered that application in her role as an arbitrator (as she had done when she issued the COD dated 4 April 2019) or to have referred the application for consideration to another arbitrator of the WCC but she did not. Further, if the decision had been an exercise of delegated power from the Registrar, that was not evident on the face of the email from Ms Farrell. It cannot be assumed to be so.
341.	Secondly, the purported decision was itself attended by an error of law in that Ms Farrell failed to treat the application as the commencement of an application in proceedings and failed to engage at all with the arguments put forward by the respondent worker or the statutory provisions on which the 2019 Reconsideration Application were based. Similarly, Ms Farrell did not engage with the appellant’s submissions dated 5 June 2019. 
342.	I have referred to the recent decision of the NSW Court of Appeal in Fisher and set out the salient findings in paragraph [271] above. 
343.	As at 11 July 2019, s 294 of the 1998 Act was in the same form. Rule 15.6 of the Workers Compensation Commission Rules 2011 was in substantially the same form as r 78 of the Personal Injury Commission Rules 2021. Accordingly, I find that there was a duty on Ms Farrell to give reasons as to why the provisions relied on by the respondent worker to support her application were rejected.
344.	Thirdly, and significantly, there was a failure to accord procedural fairness to the respondent worker and to the appellant. Ms Farrell did not advise the parties that she intended to determine the matter solely on the basis of s 378 of the 1998 Act and she did not give the parties an opportunity to make submissions on that issue.
345.	This is particularly egregious when neither party had raised s 378 and where s 378(5) provided:
“This section does not affect any other power under this Act or the 1987 Act to review or amend a decision.”
346.	Accordingly, I find that even if the 2019 Reconsideration Application could be considered to have encapsulated an application to reconsider the COD dated 4 April 2019, the right to make such an application had not been ‘exercised’ because of the failure of Ms Farrell in determining that application in accordance with the statutory role of the WCC. 
347.	I find that the proper statutory construction of the term “unexercised right” in Sch 1, cl 14A and 14D of the 2020 Act extends not only to a situation where an application of the same kind had not been made prior to the establishment day but also to the situation here – where an application had been made but where that application had not been properly determined in accordance with the law by the WCC prior to the establishment day.
348.	On both the primary and alternative reasoning set out above, I find that the respondent worker had an unexercised right to commence proceedings for a reconsideration of the COD dated 4 April 2019.
349.	In relation to the 2021 Reconsideration Application, the respondent worker made an application in identical terms to the Current Reconsideration Application. The letter dated 6 September 2021 stated:
“The purpose of this letter is to seek a reconsideration of the above Certificate of Determination and any previous Certificates of Determination that may prevent the [respondent] worker from filing an Appeal Against the Medical Assessment Certificate of Dr Lewington. Reasons in support of the reconsideration are set out in detail in the submissions and supporting documents enclosed.”
350.	As noted above, the submissions which supported the 2021 Reconsideration Application were identical to those which were filed with the Current Reconsideration Application save that the latter had an additional paragraph.
351.	The respondent worker discontinued that application at the conciliation/arbitration on 25 January 2022 and on 27 January 2022, Member Wright issued a COD making orders that the application was discontinued.
352.	As such, I find that the 2021 Reconsideration Application was an exercise of the very same right that is sought to be exercised in the Current Reconsideration Application. According to r 76 of the Personal Injury Commission Rules 2021, an applicant may discontinue proceedings, at any time before the proceedings are finally determined. However, the discontinuance does not preclude an applicant from claiming the same relief in fresh proceedings. However, and I will refer to this in more detail below, in UBS AG v Tyne the High Court held that a subsequent claim could amount to an abuse of process.
353.	As I have indicated, on 24 October 2022, the respondent worker changed the grounds of her application in the proceedings and asserted that the application was now for a reconsideration under s 378 of the 1998 Act, relying on the principles in Sleiman, and sought an order under that section for the MAC and COD to be revoked and that the matter be remitted to the President for remittal to a medical assessor. Putting aside the fact that s 378 is not available to revoke a COD, the application encapsulated a reconsideration of the MAC under s 378. Accordingly, I find that, for abundant caution, I should also determine whether or not the respondent worker had exercised a right to commence proceedings under s 378 of the 1998 Act to seek a reconsideration of the Amended MAC, prior to commencing these proceedings. 
354.	As set out above, no part of the 2019 Reconsideration Application referred to s 378 and yet, that was the basis on which it was declined by Ms Farrell. As I have said, the ‘decision’ of Ms Farrell, even if it could be seen to be an exercise of delegated power from the Registrar, accorded no procedural fairness to the parties in relation to her decision based on s 378 and as such was vitiated by jurisdictional error or an error of law. It was ‘no decision at all’. For the reasons that I have expressed in paragraph [347] above, I find that the respondent worker had an unexercised right to commence proceedings for a reconsideration of the Amended MAC under s 378 of the 1998 Act.
355.	As such, I find that I have the power to decide the Current Reconsideration Application.
Exercise of the discretion under s 350(3) of the 1998 Act
356.	An application for reconsideration is “not available as of right but is discretionary”. As such, the next task is to determine whether the discretion under s 350(3) of the 1998 Act should be exercised so as to allow the reconsideration of the COD dated 4 April 2019. 
357.	In Hatfield Engineering Pty Ltd v Fitzgerald Santow JA described the discretion in the 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”.
358.	In Samuel Acting Deputy President 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):
(1)	the section gives the Commission a wide discretion to reconsider its previous decisions:
(2)	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;
(3)	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;
(4)	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;
(5)	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;
(6)	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;
(7)	depending on the facts of the particular case the principles enunciated by the High Court in Anshun may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
(8)	a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration, and
(9)	the Commission has a duty to do justice between the parties according to the substantial merits of the case.
359.	Section 352 of the 1998 Act no longer provides for a power of “review”. It allows 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.
360.	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.
361.	The application of the principles in Samuel was referred to with approval in RailCorp NSW v Registrar of the WCC of NSW, Ljubisavljevic v Workers Compensation Commission of New South Wales, Ali Ali v Rockdale City Council, and Martinovic v Workers Compensation Commission of New South Wales. In RailCorp Harrison AsJ held:
“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).”
362.	Accordingly, I accept that these are appropriate principles to apply when considering the exercise of the discretion under s 350(3) of the 1998 Act.
The nature of the discretion
363.	In applying the principles in Samuel, it is necessary in the interests of justice to look at the whole of the proceedings. I acknowledge that the discretionary power in s 350(3) is a wide one and I note that the decision under consideration falls within the purview of s 350(3) of the 1998 Act (as it stood in the pre-establishment framework).
The decision
364.	The decision under consideration here is the COD dated 4 April 2019 and it is a decision that may be reconsidered under the former s 350(3) of the 1998 Act.
Finality in decision-making
365.	In my view, one of the primary considerations in the exercise of the discretion is the desirability of the finality of decisions. The appellant submitted it was a paramount consideration. 
366.	The appellant argues that the Current Reconsideration Application flies in the face of the limitations imposed by s 66(1A) of the 1987 Act and s 322A of the 1998 Act. It submits that at the time of the Amended MAC, those provisions had been enacted for more than 5 years and notes that the respondent worker has been legally represented by the same solicitor for that time. 
367.	The respondent worker’s submissions as to the effect of the 2015 amendments to the workers compensation legislation were put at a generalised level including that they were made to allow workers to claim the benefits of a potential increase in WPI for the purposes of receiving compensation benefits beyond the minimum statutory period. However, I accept the appellant’s submissions that s 66(1A) of the 1987 Act, amongst others, was clearly not beneficial and had the effect of protecting against ongoing litigation in respect of lump sum compensation claims.
368.	The respondent worker has made repeated attempts over more than 4 years to have her WPI assessment increased, including attempts to have the Amended MAC and/or the COD dated 4 April 2019 reconsidered or appealed or otherwise reviewed. In addition, the respondent worker commenced and then discontinued two claims to have her WPI assessed for the purposes of s 39 of the 1987 Act. 
369.	On each occasion, the applications have had, at their heart, the contention that the respondent worker’s condition had deteriorated since the original MAC was made on 16 August 2018:
(a)	On 10 September 2018, the respondent worker appealed against the original MAC and relied on all four grounds under s 327(3) of the 1998 Act but Delegate McAdam found, as a gatekeeper decision, that none of those grounds were capable of being made out, but on the basis of the appellant’s appeal, referred the matter back to the approved medical specialist for reconsideration. This led to the Amended MAC dated 2 November 2018.
(b)	On 27 November 2018, the respondent worker appealed against the Amended MAC, relying on s 327(3)(a) and (b) of the 1998 Act asserting that there had been a deterioration of the worker’s condition and fresh evidence was available. This led to the Appeal Panel decision on 27 February 2019 which confirmed the Amended MAC at 12% WPI.
(c)	On 16 May 2019, as set out in detail above, the respondent worker sought a reconsideration (not an appeal) relying on ss 325(3), 327(6), 329(1)(a) and 350(3) of the 1998 Act and submitted that the worker had been recommended for a TKR and therefore the percentage permanent impairment needed to be revisited. That application was the subject of the ‘decision’ in the email from Ms Farrell on 11 July 2019. As noted above, the respondent worker took no steps to review or otherwise challenge Ms Farrell’s decision, even though it was open to do so, for the reasons that I have given.
(d)	Although not a formal challenge to the Amended MAC or the COD dated 4 April 2019, on 15 December 2020, the respondent worker made a further lump sum claim for 37% WPI notwithstanding the provisions of s 66(1A) of the 1987 Act. That claim was not pursued but the respondent worker made an application to have a further permanent impairment assessment to determine if it was greater than 20% WPI for the purposes of s 39 of the 1987 Act. That claim was discontinued.
(e)	On 16 March 2021, the respondent worker sought a review from the appellant pursuant to s 287A of the 1998 Act in respect of a decision not to agree to an increased WPI. On 29 March 2021, the appellant rejected the review on the basis that s 66(1A) prevented the respondent worker from pursuing any further claim for lump sum compensation and that ss 322A and 350 of the 1998 Act prevented the respondent worker from being assessed again in relation to the degree of permanent impairment. The respondent worker did not further pursue the matter at that time. 
(f)	On 18 June 2021, the respondent worker commenced fresh proceedings in Matter No. W2466/21 seeking an assessment for the purposes of s 39 of the 1998 Act but discontinued those proceedings.
(g)	On 13 August 2021, the respondent worker wrote to the appellant seeking a further assessment to determine whether she satisfied s 39 of the 1987 Act and the WID threshold but again, did not pursue this application.
(h)	On 6 September 2021, the respondent worker filed the 2021 Reconsideration Application but elected to discontinue those proceedings on 25 January 2022.
(i)	On 8 July 2022, the respondent worker filed an application for a further assessment by a medical assessor (Matter No. 4287/22) but those proceedings were dismissed at the preliminary conference on 9 August 2022.
(j)	Finally, on 23 August 2022, the respondent worker made this application for reconsideration to have the COD dated 4 April 2019 (and any other CODs which might impede the ability to have the Amended MAC reconsidered) set aside. 
370.	The High Court in Burrell v The Queen held at [16]: 
“… It is that the principle of finality serves not only to protect parties to litigation from attempts to re‑agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time‑consuming, and it is almost always costly.”
371.	In my view, the respondent worker has engaged in a series of ‘trial and error’ attempts to have her permanent impairment assessment reviewed or reconsidered. Some of these applications relied on inapplicable grounds – see for example, the 2019 Reconsideration Application where the majority of the statutory provisions relied upon were simply inapplicable. Further, in the 2021 Reconsideration Application, the respondent worker focused on the MAC issued by Dr Lewington on 16 August 2018, not the Amended MAC, and sought a reconsideration of the COD stemming from the original MAC (which had been revoked) and did not identify the basis on which the application was made. 
372.	As I have set out above, the respondent worker took no steps to appeal or review the decision of Ms Farrell in relation to the 2019 Reconsideration Application but waited nearly 18 months before taking any further steps, then made the multiple approaches and application referred to above, all of which were aborted prior to this matter. No explanation has been proffered in these proceedings as to why the multiplicity of claims and applications were made or why they were not pursued. 
373.	I note that in Murray, Campbell J held, albeit in obiter that:
“In view of this conclusion it is not necessary to consider the question whether a second or subsequent application to appeal from a MAC is competent, which I doubt. The issue was referred to but not fully argued. It seems to me that the provisions of s 66(1A) [of the 1987 Act] and s 322A [of the 1998 Act] …, the wide statutory powers of reconsideration and the important public interest in disputes being brought to finality tells against a party’s entitlement to apply to appeal more than once from the same MAC.”
374.	The respondent worker has placed considerable reliance on the decision of the Court of Appeal in Sleiman. In that case, Leeming JA held at [78]:
“It is true that the right to apply for reconsideration is not available as of right but instead is discretionary, and that may be disadvantageous to the worker. However, there is a sound basis in the legal system generally for there to be a single appeal as of right, with any further appeal being discretionary. That is seen in a wide variety of situations, most obviously by the avenue of further appeals by way of special leave to the High Court from this Court. Double appeals have long been perceived to be an evil, as was noted in this Court in Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [27].”
375.	In Sleiman, the worker had an initial 2% WPI assessment and then successfully appealed to a MAP with the result of a 14% WPI. Two years later the worker claimed his condition had deteriorated and made a second appeal. This appeal was rejected under s 327(4) of the 1998 Act on the basis that no appeal lay from a decision of a MAP. The Court accepted that but found that s 378 allowed a MAP to reconsider its decision and that the application should have been treated (in substance rather than form) as an application under s 378. 
376.	However, the alternative s 378 orders sought by the respondent worker in this matter are inconsistent with the powers available under the former s 378 of the 1998 Act. Most significantly, there is no power in s 378 for the Commission to ‘revoke’ (which I assume is a reference to the power to ‘rescind’) the COD dated 4 April 2019. The power under the former s 378 is directed to the Registrar or Appeal Panel to reconsider, rescind, alter or amend a decision that the Registrar or Appeal Panel had previously made. 
377.	As such, I find that Sleiman cannot assist the respondent worker here because in order to get to any reconsideration of the MAP decision dated 27 February 2019, the respondent worker must have the COD dated 4 April 2019 revoked because of the operation of s 327(7) of the 1998 Act.
378.	There is nothing in any of the respondent worker’s submissions which addresses why the inherent desirability of the finality of decision-making should be disturbed, particularly in the absence of any contention of fraud or error. 
379.	The overall chronology discloses a process that has clearly been a costly one – to both parties, to the WCC and to the Commission. Further, even if the COD dated 4 April 2019 was rescinded under s 350(3) of the 1998 Act, that brings no finality at all. Rather, it paves the way for a further application(s) for the Amended MAC to be appealed, and then the possibility of any such decision to itself be the subject of a further MAP determination and the possibility of further Commission or Court processes after that. 
380.	My consideration of this principle weighs against the exercise of the discretion under s 350(3) of the 1998 Act.
Fairness including the reason and extent of any delay in bringing the application
381.	I acknowledge that the discretion must be exercised fairly and I do so taking into consideration the lengthy history of the matter. I consider that to be a relevant consideration. I have set out in detail the chronology of the matter above and I take into account each of the steps (and omissions) taken by the respondent worker and the appellant in relation to the pursuit of a reconsideration of the COD dated 4 April 2019 in order to have her WPI increased. I have dealt with that, in part, in my consideration above in relation to the desirability of the finality of decision-making and I adopt that view in relation to this criterion.
382.	In that context, it is my view that the consideration of delay is a significant one. It has been raised squarely by the appellant and I agree with the appellant’s submissions on this point.
383.	The respondent worker contends that she has been pursuing the current application in a timely manner, given the TKR took place after the last assessment. The respondent worker phrased her efforts as “‘banging on the door’ constantly since the earlier COD was issued” and that “at all relevant times [she] has been asserting a right to have the WPI re-assessed pursuant to section 39.”
384.	However, the chronology does not support those submissions and I reject them unreservedly. The COD was issued on 4 April 2019. The respondent worker filed the first application for re-assessment about 6 weeks later on 16 May 2019. However, that was on the basis that the TKR had been recommended. The ‘decision’ of Ms Farrell on 11 July 2019 dismissed that application.
385.	The respondent worker underwent the TKR surgery on 14 August 2019 but it was not until 15 December 2020 that the respondent worker made a further lump sum claim seeking 37% WPI. That was on the basis of a report from Dr Marc Walden dated 1 September 2020. That application for a 37% WPI is the same application that has been made consistently in all of the applications made after 1 September 2020 including the Current Reconsideration Application: see sub-paragraphs [369(b)] to [369(j)] above. 
386.	Further, the only two formal applications that addressed the s 39 issue were made on 18 June 2021 and 8 July 2022 and again, there is no explanation as to why those applications were not pursued. 
387.	There is nothing in the respondent worker’s statement dated 22 August 2022 to explain the delay between receiving the report of Dr Walden dated 1 September 2020 and the application for reconsideration filed on 23 August 2022. Nothing is put by the respondent worker’s solicitors to explain the delay.
388.	Having said that, I note that an additional report was obtained from Dr Bodel dated 18 March 2022. However, there is also nothing to explain why a report from Dr Bodel was not obtained sooner, given that it was Dr Bodel’s report of 1 November 2017 that was used to support the initial claim for lump sum compensation. I also note that the report of Dr Bodel dated 18 March 2022 provides a significantly lower WPI assessment and as such, would be likely to be seen as supplementary to the assessment of Dr Walden. 
389.	I find that the delay was significant. I find that the lack of any adequate explanation for the delay is a significant factor militating against the exercise of the discretion.
New evidence
390.	From the materials provided, the alleged deterioration appears to have been based originally on the need for (and later, the carrying out of) a TKR. That surgery took place on 14 August 2019. In her statement dated 22 August 2022, the respondent worker describes the onset of CRPS, sleeping difficulties, weight gain and mobility issues. The respondent worker has received treatment from Dr Tame, specialist pain management physician over the years for chronic pain and she has had a spinal stimulator implanted. I have read the reports of Dr Tame and it appears to me that, subject to some minor changes in medication, the presentation of the respondent worker and her symptoms following her TKR surgery in August 2019 was as expected. However, in 2021 the respondent worker developed insomnia as a result of chronic pain. Notwithstanding the symptoms, the respondent has been able to work up to 18 hours per week and the medical reports indicate that she has been managing well in that regard.
391.	Dr Bodel was qualified to provide a report supporting the Current Reconsideration Application and in that report dated 18 March 2022, he opined that the respondent worker has had a “fair” outcome for a TKR and his assessment was that she has a 21% WPI.
392.	Clearly, the evidence as to the deterioration of the respondent worker’s condition following the TKR in August 2019 and the worsening of her CRPS was not evidence available at the time of the Amended MAC. I note that an attempt was made by the respondent worker to have the Amended MAC reconsidered on the basis of the then recommended TKR in May 2019. In my view, that application, on any view of it, was premature. An assessment of any deterioration (or improvement) in the worker’s level of permanent impairment could only really have been made after the TKR had been performed.
393.	As I have stated above, a further lump sum claim under s 66 of the 1987 Act was made by the respondent worker on 15 December 2020 supported by the report of Dr Walden dated 1 September 2020. As such, I am of the view that as and from, at least, 1 September 2020 the respondent worker had available the new evidence it needed. 
394.	Again, I acknowledge that the report from Dr Bodel was obtained in March 2022 but, as stated above, there is no indication as to why this report was not obtained sooner. 
395.	The second part of this criterion is directed to whether the new evidence, if placed before the decision-maker, would have been likely to lead to a different result. The report of Dr Walden dated 1 September 2020 opined that the respondent worker was suffering from CRPS Type 1 of the right lower limb with Post Traumatic Stress Disorder and depressed mood and assessed her as having 37% WPI (but based solely on the CRPS). As such, it is reasonable to find that this evidence, if accepted, would be likely to lead to a different result to the MAP decision which confirmed the Amended MAC.
396.	However, overall and predominantly due to the unexplained delay in making the application, I find that this is not a factor which militates one way or the other in relation to the exercise of discretion.
397.	The respondent worker in her original submissions contended that a reconsideration of the permanent impairment assessment was available on the basis of the decision in O’Callaghan. However, that decision is not relevant at all to the current dispute. In O’Callaghan, the worker’s application was to add a body part that was not previously considered by the original medical assessor as part of an allegation that there has been a deterioration in the permanent impairment. There is no contention in this matter that the respondent worker is seeking to add additional body parts to the permanent impairment assessment which were not considered in the Amended MAC.
398.	Further, for the reasons that I have given above in paragraphs [254] to [260] in relation to nature of the ‘dispute’ and the consequent scope of the jurisdiction of the Commission in this matter (Matter No. 2754/18), that her purpose is to achieve a higher WPI for the purposes of s 39 of the 1987 Act, that claim is not part of the ‘dispute’ that was referred to the WCC and/or the Commission. 
399.	Finally, it is clear that the Amended MAC is not subject to reconsideration under s 350(3) because that provision is concerned with decisions of the Commission constituted by an arbitrator or a Presidential member, not an assessment by an approved medical specialist. While a decision of an MAP in respect of an MAC can be reconsidered under s 378, that does not mean that the degree of permanent incapacity changes; it means that, upon reconsideration, the correct degree is determined and substituted. Section 329 (Referral for further assessment) does not extend to permanent impairment, because of s 322A.
Anshun estoppel
400.	Under this principle, I consider the decision in Port of Melbourne Authority v Anshun Pty Ltd. This principle from Samuel is directed to the failure to properly and diligently pursue the application. 
401.	The Court of Appeal in Miller v Secretary, Department of Communities and Justice carefully analysed why the principle of Anshun estoppel should apply to the statutory scheme in the workers compensation legislation. 
402.	Ward P, who delivered the primary judgment, referred to the decision of the High Court in Tomlinson v Ramsey Food Processing Pty Ltd:
“The third form of estoppel is now most often referred to as ‘Anshun estoppel’, although it is still sometimes referred to as the ‘extended principle’ in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a ‘true estoppel’ and not as a form of res judicata in the strict sense.” (emphasis added)
403.	Ward P carefully went through all of the relevant authorities including where his Honour Kirby P (as he then was) held in O’Brien v Tanning Research Laboratories Inc:
“... With the development of arbitration and of administrative tribunals, both of which enjoy significant standing and follow procedures akin to those used in the courts, there would appear to be no reasons of principle why, at least in cases such as the present, estoppel should not arise to prevent the needless re-opening or unwarranted re-agitation of matters formally concluded by an appropriate tribunal, according to law. ...”
404.	Her Honour concluded that Anshun estoppel is neither a formality, nor a technicality, but a principle of law of fundamental importance which bears squarely upon the rule of law and issues of fairness and justice. Her Honour found that Anshun estoppel applies to the workers compensation legislative scheme.
405.	The issue therefore is whether or not the respondent worker unreasonably refrained from pursuing the application in earlier proceedings and if so, whether that should militate against the exercise of the discretion for the respondent worker to pursue the Current Reconsideration Application.
406.	It is clear from the chronology set out at paragraph [369] above that the respondent worker made multiple attempts to have her WPI re-assessed. In my view, however, and in this I accept the appellant’s submissions, the respondent worker should have waited until after the TKR surgery and have an assessment made at that time as to whether there were any further symptoms which would increase her WPI. 
407.	In that regard the report of Dr Walden was available from 1 September 2020 in which he assessed the respondent worker’s WPI at 37%. I note however that that is only slightly more than the 36% WPI assessed by Dr Tame, the respondent worker’s treating pain management specialist in his report dated 12 December 2017 – well before the TKR surgery.
408.	In any event, I find it appropriate to determine the Anshun estoppel issue as and from 1 September 2020. Putting aside the various letters and applications to the appellant’s insurer, the respondent worker commenced three sets of proceedings after that date:
(a)	Matter No. W2466/21 commenced on 18 June 2021;
(b)	the 2021 Reconsideration Application made on 6 September 2021, and
(c)	Matter No. W4287/22 commenced on 8 July 2022.
409.	I find that it was open and available to the respondent worker to have included in those three sets of proceedings the matters that it now agitates in the Current Reconsideration Application. I am particularly persuaded by the 2021 Reconsideration Application since it was in identical terms and there is no explanation given as to why the respondent worker did not pursue the claim at that time, having put the appellant and the Commission to the time and expense of addressing that claim. 
410.	Further, given that the respondent worker has been at pains to argue that what she is really seeking is a WPI assessment for the purposes of seeking further weekly payments under s 39 of the 1987 Act, the unexplained failure to pursue Matters W2466/21 and W4287/22 is wholly inconsistent with the fair, just, timely and cost-effective resolution of the disputes about this issue.
411.	I find that the Anshun estoppel principles apply in this matter against the exercise of the discretion. 
412.	I interpolate here that Samuel was decided in 2006, before the High Court decisions in Tomlinson and UBS AG and in my view, the principles in relation to abuse of process enunciated in those decisions may also be utilised in relation a consideration of the exercise of the discretion under s 350(3) of the 1998 Act. I note that those principles arose in the context of the exercise of a discretion to grant a stay of proceedings which, like a refusal to exercise the discretion to conduct a reconsideration, has the effect that the proceedings go no further. As such, in my view, they may be apt. For example, those decisions include the following:
(a)	Abuse of process may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings, or which ought reasonably to have been made or raised in the earlier proceeding, as well as attempts to re-litigate a claim that has been determined. 
(b)	There is an overlap between abuse of process and Anshun estoppel.
(c)	Whilst not every claim that could have been brought in an earlier proceeding constitutes an abuse of process when raised in a later proceeding, if the claim should have been brought in the earlier proceeding it will be an abuse of process even though it may not be precluded by an estoppel. 
(d)	In UBS AG, his Honour Justice Gageler (as he then was) said that the public interest is the timely and efficient administration of justice: at [72]; and that abuse of process was demonstrated because a party was required to respond to a proceeding which it had already gone to the cost and expense of bringing to completion (even though there had been no final determination on the merits): at [75].
(e)	Relevant factors (in abuse of process) include significant delay in resolving the dispute, increased costs and the inconvenience of having to deal with the matter again after lengthy litigation.
(f)	Vexation arises from both significant delay and being required to deal again with claims that should have been resolved in the first proceeding.
413.	However, as the parties have only focused on the principles enunciated in Samuel, I have restricted my consideration to the established principles concerning Anshun estoppel and, as set out above, it is my view that those principles militated quite strongly against the exercise of the discretion.
414.	I note that the appellant also argued that res judicata and issue estoppel also applied. 
415.	The doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties. Consistent with the findings in Miller I find that issue estoppel applies in the statutory scheme. 
416.	Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings, between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue.
417.	For issue estoppel to apply there must be the requisite level of identity between the issues in the prior decision and the issues for determination in the current litigation. The issues under consideration must be the same. Barwick CJ in Ramsay v Pigram held that it applies where:
“that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties ... The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.”
418.	This is because issue estoppel (and res judicata) are predicated on the desirability of finality in decision-making.
419.	However, issue estoppel and res judicata are to be applied strictly. Issue estoppel will apply only to prevent the assertion in later proceedings of the precise matter of fact or law that has already been necessarily and directly decided in the earlier decision. There are three conditions which must exist for issue estoppel to apply:
(a)	the first decision was final;
(b)	the same question has been decided, and
(c)	the same parties, or at least parties with the same legal interest, are the same.
420.	For the reasons set out above, I have found that the ‘decision’ of Ms Farrell on 11 July 2019 in relation to the 2019 Reconsideration Application was ‘no decision at all’. I note that the 2021 Reconsideration Application was discontinued and that although a COD was issued, it does not represent a finding on the question in issue. It follows that, on my view, there has been no prior binding decision and as such, I find that neither issue estoppel nor res judicata can apply in this matter. 
Mistake on the part of the legal advisor
421.	This issue can be dealt with quickly. The respondent worker’s solicitor does not allege any mistake in relation to the manner in which he has agitated the issue of seeking a reconsideration of the COD dated 4 April 2019 in order to have the Amended MAC set aside and a new WPI assessment made. As such, there is nothing to consider in relation to this principle.
Duty to do justice 
422.	I acknowledge that I have a duty to do justice between the parties according to the substantial merits of the case: s 354(3) of the 1998 Act. I note that in Hilliger it was held that the discretion in s 350(3) was made with the intent “to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties”. 
423.	In that regard, I have given the history of the matter due consideration. I have considered in detail all of the applications made and the submissions that have been made in support of those applications. I have carefully considered each of the principles enunciated in Samuel and I make my decision on those terms. As such, I have complied with s 354(3) of the 1998 Act.
CONCLUSION
424.	I find that consideration of the discretionary factors in Samuel weigh against the exercise of the discretion under s 350(3) of the 1998 Act. 
425.	Accordingly, the Current Reconsideration Application is dismissed. 
DECISION
426.	For the reasons set out above, leave to appeal against an interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act. 
427.	I uphold all four grounds of the appeal. 
428.	The COD made by Senior Member Beilby dated 9 May 2023 and later amended on 24 July 2023, is revoked.
429.	I have, pursuant to s 352(6A) of the 1998 Act corrected the identified errors in the Senior Member’s decision and made a new decision in its place.  That decision is that the respondent’s application for reconsideration pursuant to s 350(3) of the 1998 Act is dismissed.

Kylie Nomchong SC
Acting Deputy President
31 May 2024