CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Alm v Nimue Skin Pty Ltd [2024] NSWPIC 568	
		
APPLICANT:	Karen Alm	
		
RESPONDENT:	Nimue Skin Pty Limited	
		
Member:	Mitchell Strachan	
		
DATE OF DECISION:	15 October 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum compensation; prior Medical Assessment Certificate (MAC); section 322A; application for reconsideration of MAC; status of prior Certificate of Determination not responding to claim made; Pollard v Toll Helicopters NSW; Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley; DJL v Central Authority; Fairfield City Council v McCall (No 2); Samuel v Sebel Furniture Limited; Sleiman v Gadalla Pty Ltd; Held – Certificate of Determination a nullity; reconsideration application declined; appeal under section 327 preferable to exercise of discretion for reconsideration.	
determinations made:	The Commission determines:
1.	The Certificate of Determination (COD) issued by the prior Workers Compensation Commission (WCC) dated 29 September 2020 is a nullity and as such the further COD issued by the WCC dated 20 October 2020 is otiose. 
2.	The applicant’s request to reconsider the Medical Assessment Certificate dated 
24 August 2020 made pursuant to s 329 of the Workplace Injury Management and Workers Compensation Act 1998 is declined.  
3.	The current proceedings for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 are dismissed.  

A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS
BACKGROUND
1.	The applicant sustained injury in the course of her employment with the respondent on 
13 November 2013. Liability for injury to the left knee was initially accepted by the respondent’s insurer. 
2.	The applicant commenced proceedings in the Workers Compensation Commission (WCC) in 2018. In a Certificate of Determination (COD) and Statement of Reasons dated 
31 August 2018 Arbitrator Moore found the applicant had sustained injuries to her left knee and both hips on 13 November 2013 and a consequential condition to the right knee resulting from the injuries sustained on 13 November 2013. 
3.	On 19 May 2020, the applicant, through her solicitor, commenced further proceedings in the WCC (matter 2745/20) by filing a “Form 7 – Application for Assessment by an Approved Medical Specialist”. This application sought assessment as to whether the applicant’s degree of permanent impairment was more than 20% (for the purpose of s 32A of the Workers Compensation Act 1987 (the 1987 Act) and in the alternative more than 10% (for the purpose of s 59A of the 1987 Act).   
4.	As a result, the applicant was assessed by Approved Medical Specialist Greggory Burrow and the WCC issued a Medical Assessment Certificate (MAC) dated 24 August 2020 in which the applicant was assessed with 17% whole person impairment. 
5.	Due to what appears to have been a registry error, on 29 September 2020 the WCC issued a COD making an award in favour of the applicant for permanent impairment compensation pursuant to s 66 of the 1987 Act. This is despite no claim for permanent impairment compensation having been made in the proceedings. 
6.	The applicant’s solicitor immediately sought that the COD dated 29 September 2020 be amended to delete any reference to “s66 claim”. 
7.	A further COD was issued on 20 October 2020 which recorded: 
“The Certificate of Determination dated 29 September 2018 [sic] be rescinded, noting there was no claim for lump sum compensation in issue.” 
8.	There was clearly a typographical error in the 20 October 2020 COD, referencing 2018 rather than 2020. 
9.	Subsequent upon the finalisation of the 2020 proceedings, the applicant underwent a left total hip replacement in March 2022 and a right total hip replacement in March 2023. 
10.	On 26 July 2024, the applicant commenced the current proceedings by filing a Form 2 – Application to Resolve Dispute in the Personal Injury Commission (Commission). 
11.	The applicant seeks an award for lump sum compensation pursuant to s 66 of the 1987 Act with respect to injuries to the left and right lower extremities as well as scarring. 
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
12.	The matter was listed before me for preliminary conference on 9 September 2024, the respondent objecting to a referral of the claim to a Medical Assessor in circumstances where the applicant already held a MAC dated 24 August 2020 for the purpose of s 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). 
13.	Ms Tavianatos, solicitor, appeared for the applicant. Ms Gallagher, solicitor, appeared for the respondent. 
14.	During the preliminary conference, the applicant conceded that s 322A of the 1998 Act prevented a referral of the present claim to a Medical Assessor. The applicant’s solicitor advised that on 4 September 2024 an Application for Reconsideration of the original MAC pursuant to s 329 of the 1998 Act had been lodged with the Commission. 
15.	To ensure the just, quick and cost-effective resolution of the issues in dispute and consistent with ss 3 and 42 of the Personal Injury Commission Act 2020 (PIC Act), I directed that the reconsideration application be determined concurrently with the claim for permanent impairment compensation in proceedings W24221/24. This was to allow orders with respect to compensation under s 66 of the 1987 Act to be made following resolution of the reconsideration applicant and any subsequent referral to a Medical Assessor for reconsideration. 
16.	I made directions for the filing of the reconsideration application as an application to admit late documents and directed submissions be filed (mirroring the requirements of Procedural Direction PIC7). 
17.	The reconsideration request dated 4 September 2024, together with further submissions on behalf of the respondent prepared by Ms Warren of counsel dated 30 September 2024, and submissions in reply on behalf of the applicant prepared by Mr Carney of counsel dated 
4 October 2024 have now been received by the Commission. 
18.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  So far as possible, I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them, noting the limitations where the applicant is seeking the exercise of discretion by the Commission.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.  
19.	The parties have agreed to the determination of the matter without a conference or formal hearing. I am satisfied that sufficient information has been supplied in connection with the proceedings. 
ISSUES FOR DETERMINATION
20.	Following the preliminary conference and review of the submissions provided by both parties, it is evident the following issues require determination:
(a)	status of the Certificate of Determination dated 29 September 2020;
(b)	Application for Reconsideration of MAC dated 24 August 2020 pursuant to s 329 of the 1987 Act, and
(c)	referral of matter to the President for an appeal under s 327(3)(a) and (b) of the 1998 Act. 
REASONS 
21.	A brief statement is required for the reasons for determination.
Status of original certificates of determination 
22.	The procedural background with respect to the issues with the CODs issued in 2020 is set out above. 
23.	The respondent:
(a)	concedes that no prior claim for lump sum compensation has been made however submits that the COD dated 29 September 2020 may not have been correctly rescinded;
(b)	submits the Commission does not have jurisdiction to rescind the COD issued by the WCC unless the applicant establishes that she has an unexercised right under Division 4A of Schedule 1 of the PIC Act, and 
(c)	that the applicant needs to be able to enliven the power provided by the repealed s 350 of the 1998 Act as it stood prior to 1 March 2021 and that I would be limited to consideration of the documentation that would have been available prior to the establishment of the Commission on 1 March 2021.  
24.	The applicant submits:
(a)	there is no reason why the 20 October 2020 recession of the 29 September 2020 COD should not be accepted, and
(b)	the error in the 29 September 2020 COD is obvious and the certificate itself was without any force as it dealt with an issue that was not before the WCC. 
25.	The status of the 29 September 2020 COD is important to the parties for two reasons: 
(a)	firstly, s 66(1A) of the 1987 Act provides that only one claim can be made for permanent impairment compensation and if a valid award has been made for permanent impairment compensation under s 66 of the 1987 Act, this would prevent the applicant from progressing her current claim, and 
(b)	secondly, s 327(7) provides that an appeal under s 327(2) or a reconsideration under s 327(6) cannot proceed once the dispute has been the subject of a determination by a court or the Commission. A referral under s 329 of the 1998 Act is only available as an alternative to an appeal under s 327. This requires an appeal to be available to the applicant. 
26.	The Commission has exclusive jurisdiction with respect to matters arising under the 1987 and 1998 Acts. This jurisdiction extends to such “powers which are incidental and necessary to the exercise of its statutory jurisdiction”. Given the issues in dispute in the present matter, it is necessary to consider and determine the status of the 29 September 2020 Certificate of Determination.
27.	The WCC, like this Commission, only had jurisdiction to determine those issues which are properly before it. Those disputes that could be referred to the WCC were limited by s 289 of the 1998 Act. A claim for lump sum compensation could not be referred for determination by the WCC unless a claim had been made and the person on who the claim had been made had disputed liability, made an offer of settlement or failed to determine the claim as and when required by the 1998 Act. The WCC could not hear or otherwise deal with any dispute if s 289 of the 1998 provided the dispute could not be referred for determination by the WCC. 
28.	The 2020 proceedings, which sought assessment by an Approved Medical Specialist, made no claim for lump sum compensation and no dispute could be, nor was, referred to the WCC for determination with respect to lump sum compensation. 
29.	Therefore, the WCC had no jurisdiction to issue the COD of 29 September 2020 and it is a nullity. It further follows that the 20 October 2020 COD is otiose.  
30.	If I am wrong in this regard, I am satisfied that at all times since 30 October 2020 the applicant had an unexercised right to the correction of the 20 October 2020 COD, correcting the obvious error that the reference to 2018 should be a reference to 2020. 
31.	Further, no documentation other than the original 29 September 2020 COD, the request to amend dated 29 September 2020 and the COD dated 20 October 2020 said to rescind the original COD would be required to be considered in exercising power under the repealed s 350 of the 1998 Act, all which pre-date 1 March 2021.      
Reconsideration application 
32.	The applicant’s initial correspondence to the Commission dated 4 September 2024 sought reconsideration of the MAC of Approved Medical Specialist Dr Gregory Burrows dated 
24 August 2020 in WCC proceedings 2745/2020. 
33.	The application was said to be made pursuant to s 329 of the 1998 Act. 
34.	The respondent submits that should the COD of 29 September 2020 have been truly rescinded then there is no barrier to the applicant seeking an appeal under s 327(3)(a) and (b) of the 1987 Act. The respondent further submits that a reconsideration under s 329(1)(a) is not appropriate where an appeal is open to the applicant. The respondent submits that a discretion to reconsider is not intended to be a substitute for an appeal under s 327 of the 1987 Act.
35.	In written submissions in reply, the applicant has adopted the position of the respondent in this regard, noting a right to appeal the MAC of 24 August 2020 is preferable to a reconsideration application. As such, the primary relief sought in the submissions is that the matter is referred to the President for an appeal under s 327(3)(a) and (b) of the 1998 Act.
36.	Essentially, the reconsideration application of 4 September 2024, made pursuant to s 329 of the 1987 Act, has been abandoned by the applicant.  
37.	The reconsideration request of 4 September 2024 provides no substantive submissions. ADP Roche (as he then was) reviewed the reconsideration power and relevant principles with respect to its exercise in Samuel v Sebel Furniture Limited. It is not necessary to set out the principles. The applicant’s application and submissions have not addressed these issues and principles nor provided any reasons as to why the reconsideration discretion ought to be exercised in her favour.  
38.	I accept the respondent’s submission that a reconsideration request should not be a substitute to an appeal. Further, the reconsideration powers should not be seen as expanding the elements of an appeal.
39.	In circumstances where the applicant’s submissions abandon the relief sought, do not expound a basis for the exercise of the Commission’s discretion and the applicant has an apparent right to appeal under s 327 of the 1987 Act, I decline the applicant’s reconsideration request with respect to the MAC of 24 August 2020. 
Referral for appeal under s 327 of the 1987 Act
40.	There is conformity in the position of the applicant and respondent that the most appropriate course is an appeal under s 327 of the 1987 Act. There is the issue however as to how this is best achieved. 
41.	The applicant seeks that I refer the matter to the President for consideration of an appeal under s 327 of the 1987 Act. This is not appropriate. 
42.	Consideration of an application for appeal under s 327 falls outside the jurisdiction of a Member of the Commission. Submissions dealing specifically with an appeal under s 327 of the 1987 Act are not before the Commission. Procedural Direction PIC7 has not been complied with by the applicant. 
43.	It is most appropriate that the applicant file a “From 10 – application – appeal against decision of a medical assessor” with supporting submissions in the usual manner and in compliance with PIC7.   
SUMMARY
44.	The applicant currently has a MAC for the purpose of s 322A of the 1998 Act which it is evident the applicant now seeks to appeal. Given the applicant has undergone bilateral hip replacements, subsequent to the 2020 MAC, and the possibility of subsequent deterioration, it is appropriate the applicant be given the opportunity to exhaust any rights to appeal. 
45.	The current proceedings cannot be maintained pending the outcome of any appeal to a Medical Panel. 
46.	Once the outcome of any appeal is known, if agreement can be reached, the parties can enter into a “complying agreement” in accordance with s 66A of the 1987. In the absence of agreement, the applicant can commence further proceedings in the Commission. 
47.	The parties have both made submissions that scarring cannot be included in any appeal or reassessment as it did not form part of the original referral. It is not necessary for me to make any formal determination of this issue, where I have declined the Application for Reconsideration.  
48.	For the reasons above the Commission determines: 
(a)	the COD issued by the prior WCC dated 29 September 2020 is a nullity and as such the further COD issued by the WCC dated 20 October 2020 is otiose;
(b)	the applicant’s request to reconsider the MAC dated 24 August 2020 made pursuant to s 329 of the 1987 Act is declined, and 
(c)	the current proceedings for permanent impairment compensation pursuant to s 66 of the 1987 Act are dismissed.