CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Pallier v Freight Specialists Pty Limited [2022] NSWPIC 557	
		
APPLICANT:	Michael John Pallier	
		
RESPONDENT:	Freight Specialists Pty Limited	
		
Member:	Karen Garner	
		
DATE OF DECISION:	7 October 2022	
		
CATCHWORDS:	WORKERS COMPENSATION - Reconsideration application; section 57 of the Personal Injury Commission Act 2020; Samuel v Sebel Furniture Limited applied; Held - that application for reconsideration refused.
	
determinations made:	1.	The application for reconsideration of the Certificate of Determination issued on 13 July 2022 is refused.

STATEMENT OF REASONS

BACKGROUND
1.	On 12 October 2021, Mr Pallier (the worker) made a claim for permanent impairment lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act) against Freight Specialists Pty Limited (the employer), in respect of 37% whole person impairment (WPI) due to an injury at work on 21 June 2019 when he fell approximately 1.5 m onto a concrete floor.
2.	In a letter dated 14 January 2022, the employer’s solicitor advised that the employer’s insurer would make no offer in response to the claim on the grounds that its specialist, Dr Casikar, considered that the worker’s condition had not reached maximum medical improvement.
3.	On 25 January 2022, the worker filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission), claiming 37% WPI pursuant to s 66 of the 1987 Act, in respect of the worker’s lumbar spine, thoracic spine and scarring (TEMSKI). The worker’s claim was referred to a Medical Assessor (MA).
4.	On 18 March 2022, the MA issued a Medical Assessment Certificate (MAC) which stated an assessment of 35% total WPI which was calculated on the basis of:
(a)	23% for the lumbar spine after a one-tenth deduction for previous injury or pre-existing condition or abnormality;
(b)	15% for the thoracic spine, and
(c)	0% for scarring.
5.	On 11 April 2022, the employer filed an Appeal against the MAC.
6.	On 19 May 2022, the delegate referred the matter back to the MA pursuant to ss 327(6) and 329 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).
7.	On 8 June 2022, the MA issued a MAC on further assessment or reconsideration pursuant to s 329 of the 1998 Act, which stated:
“1.	The issue has been raised that the compression of the fractured T12 thoracic vertebral body may be 20% compression as opposed to 35% which was selected for calculation of the Thoracic Whole Person Impairment. It is believed more appropriate that this issue should initially be addressed by letter to the Commission for further consideration, since it may no be quite so simple as possibly thought.
2. 	In the MAC of 10/03/22, the Whole Person Impairment calculated for the thoracic spine was 15%. This depended on the extent of fracture compression identified radiologically. The radiological investigation which was quoted in the MAC to support this assessment was the MRI scan of 10/02/20. This was taken eight months after the original injury. It was considered that at that stage the vertebral fracture would have stabilised with little or no likelihood of further alteration. This has been confirmed by the results of a further MRI scan of 10/10/21 by Specialist Radiologist Dr Sanila George of Hunter Radiology. Her report specific [sic] states, ‘Superior endplate compression of T12 vertebral body with intact posterior cortical margin. This is stable from previous.’ (‘From previous’ is interpreted as meaning, ‘in comparison with previous radiological investigations’.)
2.	The most recent radiological investigation of the thoracic spine was taken on 18/01/22 and was report by Specialist Radiologist Dr Philip Janke of the same radiological practice. This was a plain X-ray in which he reported, ‘Fracture of T12 resulting in 20% height loss.’
Analysis
4.	The other specialist reports quoted in the MAC from Specialist Orthopaedic Surgeon Dr Zbigniew Poplawski of 24/09/21, and of 10/12/21, from Specialist Neuro-Surgeon Dr Vidyasagar Casikar both assess the same whole person impairment of 15% of the thoracic spine.
5.	There is a very large difference in compression of a vertebral body of 20% in comparison with 35%. With such a compression fracture, particularly with stabilisation which could reasonably have occurred well within the eight month period between the original injury and the MRI scan of 20/02/20, such significant change would not be anticipated, particularly with the demonstration of ‘apparent reduction’ of the extent of compression.
6.	Whilst the techniques of measurement of vertebral compression may vary between radiologists, this large divergence of recorded measurements suggests that the more recent assessment may have been incorrectly recorded and could well be a ‘typographical error’. Therefore, unless convincing radiological evidence can be produced which unequivocally identifies that the extent of the compression of the vertebral body is significantly less than 35%, I feel duty bound to advise that I believe my original assessment of whole person impairment of the thoracic spine of 15% (as previously described by Dr Zbigniew Poplawski and by Dr Vidyasagar Casikar) is correct and should remain”. 
7.	If this is further contested, and since this issue rests on specific radiological techniques and expertise, I would respectfully suggest that the Commission might well consider referring the question of the extent of the T12 compression fracture back to Hunter Radiology for further review by the two radiologists concerned. If this course of action is selected by the Commission, and there is any significant divergence from the original radiological assessment of 35% compression, I should be only too happy to take this into account and re-calculate the associated Whole Person Impairment”.
8.	On 23 June 2022, the employer’s solicitor emailed the Commission and enquired whether the Commission would take any action in relation to the comments of the MA and refer the question of the extent of the T12 compression fracture back to the radiologists concerned. 
9.	On 4 July 2022, the employer’s solicitor received a negative response from the Commission.
10.	On 13 July 2022, the Commission issued a Certificate of Determination (COD) which stated:
“The Commission orders:
1.	The employer pay the worker, as lump sum compensation under section 66 of the Workers Compensation Act 1987, $113,809.50 in respect of 35% permanent impairment resulting from injury on 21 June 2019.
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 amount of permanent impairment compensation has been increased by 5% in accordance with section 66(2A) of the Workers Compensation Act 1987.
4.	The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”
11.	By submissions dated 1 August 2022, the employer’s solicitor sought a reconsideration of the COD and the following orders:
(a)	an order that the COD made on 13 July 2022 is rescinded pursuant to s 57 of the Personal Injury Commission Act 2020 (PIC Act), and
(b)	an order that the employer is granted leave to proceed with a further reconsideration of the MAC pursuant to ss 329 and 327(6) of the 1998 Act.
12.	The worker opposes the orders sought by the employer and requests that the COD of 
13 July 2022 be confirmed.
ISSUES FOR DETERMINATION
13.	The issues for determination are:
(a)	whether the COD made on 13 July 2022 should be rescinded pursuant to s 57 of the PIC Act, and
(b)	whether the employer should be granted leave to proceed with a further reconsideration of the MAC pursuant to ss 329 and 327(6) of the 1998 Act.
PROCEDURE BEFORE THE COMMISSION
14.	At a conference conducted by me by audio-visual link on 19 September 2022, Ms Reichelle Jackson of LHD Lawyers appeared for the worker and Ms Nina Israil of Bartier Perry Lawyers appeared for the employer.
15.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
16.	The parties have agreed to the determination of the matter without a formal hearing.
17.	Directions were made for filing of written submissions.
EVIDENCE
Documentary evidence
18.	The following documents were in evidence before the Commission and considered in making this determination: 
(a)	ARD and attached documents;
(b)	Reply to ARD and attached documents;
(c)	MAC issued by the MA on 18 March 2022;
(d)	MAC on reconsideration issued by the MA on 8 June 2022, and
(e)	COD made on 13 July 2022.
Oral evidence
19.	No oral evidence was sought nor given.
SUBMISSIONS
20.	Oral and written submissions were made on behalf of the employer and the worker.
Submissions of the employer
21.	On behalf of the employer, Ms Israil submitted:
(a)	the employer seeks to have the COD issued on 13 July 2022 revoked so that it can seek further reconsideration of the MAC;
(b)	the employer relies on s 57 of the PIC Act;
(c)	the employer can seek an appeal based on fresh evidence, but it considers that a further reconsideration is the best way of dealing with the issue;
(d)	the MAC issued on 10 March 2022, contained an error and applied incorrect criteria for the thoracic spine by failing to consider all the available evidence, which included evidence of a 20% compression, specifically an X-ray report of the worker’s thoracic spine dated 19 January 2022 (contained in an Application to Admit Late Documents dated 24 February 2022) which was commissioned to ‘assess the level of compression at T12’ and stated a 20% height loss at T12;
(e)	the employer appealed against the MAC issued on 10 March 2022;
(f)	on 19 May 2022, the delegate referred the matter back to the MA pursuant to ss 327(6) and 329 of the 1998 Act, and noted the MA was to consider the radiological evidence relied on and determine whether it changes the outcome of his previous assessment;
(g)	on 8 June 2022, the MA issued the MAC on reconsideration. The MA stated that most recent assessment may have been incorrectly recorded and could have been a “typographical error” and suggested that the Commission “consider referring the question of the extent of the t12 compression fracture back to Hunter Radiology for further review by the two radiologists concerned”;
(h)	on 20 June 2022, the employer’s solicitor requested the worker provide his signed authority to access the radiological films from Hunter Radiology, but no response was received;
(i)	the MA has power to call for production of the documents pursuant to s 324 of the 1998 Act and Guideline 1.38 and 1.39 of the NSW workers compensation guidelines for evaluation of permanent impairment;
(j)	on 23 June 2022, the employer’s solicitor wrote to the Commission asking whether it intended to take any action in relation to the comments of the MA. The employer’s solicitor noted that the MA had the power to address the issue himself and stated that the MA did not address the issues raised. The employer’s solicitor requested the appeal be referred back to the Delegate for a direction to be made to obtain the radiological films and for the making of further submissions regarding whether the report contains a typographical error as suggested by the MA;
(k)	the Commission had the power to order documents from Hunter Radiology pursuant to s 49 of the PIC Act;
(l)	the Commission declined to take action requested by the employer’s solicitor;
(m)	the employer independently took active steps to obtain the radiological films from Hunter Radiology, which were released directly to the insurer on 13 July 2022. On 19 July 2022, the radiological films were made available to the employer’s solicitor. The documents were provided to an independent radiologist for further review who “issued reports on 23 July 2022 and 1 August 2022 respectively confirming the x-ray is the most commonly used modality in assessing the level of depression”;
(n)	the MA could have benefited from having that evidence considered and the Commission has erred in failing to order the documents from Hunter Radiology;
(o)	the COD made on 13 July 2022 should be rescinded pursuant to s 57 of the PIC Act, and
(p)	the employer should be granted leave to proceed with a further reconsideration of the MAC pursuant to ss 329 and 327(6) of the 1998 Act.
Submissions of the worker
22.	On behalf of the worker, Ms Jackson submitted:
(a)	the worker opposes the revocation of the COD issued on 13 July 2022 and further reconsideration of the MAC;
(b)	the employer has not demonstrated an obvious error in the MAC and has failed to clearly identify the grounds for reconsideration and provide submissions in support; 
(c)	the worker and worker’s solicitor has not had a reasonable opportunity to consider the new or additional evidence that the employer now seeks to rely on;
(d)	the employer’s application for reconsideration should be dismissed on the basis that it failed to comply with a number of procedural requirements, in particular:
i.	the employer failed to comply with Procedural Direction PIC 7 by failing to identify the grounds for reconsideration with appropriate subheadings addressing each ground for consideration and why the decision should be reconsidered rather than appealed;
ii.	the employer failed to comply with Procedural Direction PIC 7 by failing to provide a schedule of the evidence, including the author and date of the evidence and a clear copy of the additional evidence and, further, the employer failed to provide submissions as to why the evidence could not have reasonably been obtained before the decision of the MA was made;
iii.	the employer failed to comply with Procedural Direction PIC 7 by failing to provide a notification to the parties that the parties have 21 days to reply, prior to the lodgement in the Commission and failed to attach such notification to the application;
(e)	it is inappropriate for the Commission and MA to now consider the radiological films and other evidence sought to be relied on by the employer because it could with reasonably diligence have been reasonably obtained by the employer before the MA took place, in particular:
(i)	the employer relies on an X-ray report of the thoracic spine dated 19 January 2022 which was served in an Application to Admit Late Documents dated 24 February 2022;
(ii)	the employer had ample opportunity to obtain the radiological films at the time of the scan or shortly thereafter;
(iii)	multiple radiological scan reports were provided in the Application to Resolve a Dispute which assessed the loss of vertebral height at T12 in the thoracic spine and were considered by the MA, including the CT Scan report dated 13 August 2019 and the MRI scan report dated 11 March 2020;
(iv)	the employer appealed the MAC on the basis that the MA did not consider the X-ray report of the thoracic spine dated 19 January 2022 and the matter was referred back to the MA for further consideration;
(v)	it is evident from the MA’s Further Assessment or Reconsideration dated 8 June 2022, that the MA did then consider the X-ray report dated 19 January 2022;
(vi)	it is further evident from the MA’s Further Assessment or Reconsideration dated 8 June 2022, that notwithstanding consideration of the X-ray report dated 19 January 2022, the MA maintained that his original assessment of 15% WPI of the thoracic spine (as described by Dr Zbigniew Poplawski and by Dr Vidiyasagar Casikar) was correct and that the most recent radiological assessment may have been incorrectly recorded and a typographical error;
(f)	the employer’s application for reconsideration is not consistent with the context and purpose of the reconsideration procedure under s 329 of the 1998 Act or the appeal procedure under s 327 of the 1998 Act;
(g)	the test for whether fresh evidence should be received on appeal is that described by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance (Ross):
“Firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at the time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case. These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
(h)	the new or additional evidence not satisfy the test for admission of fresh evidence on appeal which was set out by Deputy President Fleming in Ross;
(i)	in any event, the new or additional evidence is not of such probative value that it would have any impact on the outcome of the MA;
(j)	the new or additional evidence does not fall within s 327(3)(b) of the 1998 Act because it could have been reasonably obtained by the employer before the MA took place: it is not additional information which would give rise to a ground of appeal pursuant to s 327(b) of the 1998 Act;
(k)	the employer’s application is prejudicial to the worker, is against the public interest policy that litigation should not continue indefinitely: Hilliger v HIlliger (Hillinger). To allow the employer’s application would not do justice between the parties according to the substantial merits of the case (Hillinger);
(l)	the substantial merits are overwhelmingly in favour of refusal of the application for reconsideration;
(m)	it is in the public interest, and the interests of the parties, that the litigation should be finalised;
(n)	there is no valid reason for requiring further reconsideration of the MAC;
(o)	the evidence that the employer seeks to rely upon is not additional information and is not of such probative value that it would have any impact on the outcome of the decision of the MA;
(p)	the MAC of the MA is correct and it has been confirmed by way of a COD, and
(q)	the employer’s request for reconsideration should be dismissed and the COD dated 13 July 2022 should be confirmed.
FINDINGS AND REASONS
Legislation
23.	Section 57 of the PIC Act states:
“57 Reconsideration of decisions of Commission
(1)	The Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter or amend any decision previously made or given by the Commission in that Division.
(2)	If after the making of a decision by the Commission (and without limiting subsection (1)), the President is satisfied that the decision contains an obvious error, the President may—
(a)	alter the decision to correct the error, or
(b)	direct a registrar to alter the decision to correct the error.
(3)	Without limiting subsection (2), if the decision is contained in a certificate, the President may—
(a)	issue a replacement certificate with the error corrected, or
(b)	direct a registrar to issue a replacement certificate with the error corrected.
(4)	If a decision is altered, the altered decision is taken to be the decision and notice of the alteration is to be given to the parties in the proceedings in the manner directed by the President.
(5)	If a replacement certificate is issued, the certificate prevails over any previous certificate.
(6)	Examples of obvious errors in a decision are where—
(a)	there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)	there is an error arising from an accidental slip or omission, or
(c)	there is a defect of form, or
(d)	there is an inconsistency between the stated decision and the stated reasons.”

24.	Section 3 of the PIC Act provides as follows, in part:
“3 	Objects of Act
The objects of this Act are as follows—
…
(c)	to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d)	to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) 	to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…”.
25.	Section 4 of the PIC Act directs, amongst other things:
“4 	Interpretation and application of Act by reference to objects		
(1)	…
(2) 	In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned.”
Principles governing reconsideration applications
26.	The following principles regarding the exercise of the reconsideration power under the now repealed s 350(3) of the 1998 Act was set out in Samuel v Sebel Furniture Limited (Samuel) (at [58]) and is useful in considering the operation of s 57(1) of the PIC Act which is in similar terms:
“58.	Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:
1. 	the section gives the Commission a wide discretion to reconsider its previous decisions (‘Hardaker’);
2.	whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include ‘an award, order, determination, ruling and direction’. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
3.	whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration (‘Schipp’);
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 (‘Hilliger’);
5.	reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result (‘Maksoudian’);
6.	given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
7.	depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 (‘Anshun’) may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings (‘Anshun’);
8.	a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (‘Hurst’), and
9.	the Commission has a duty to do justice between the parties according to the substantial merits of the case (‘Hilliger’ and section 354(3) of the 1998 Act).”
(citations omitted)
27.	Now repealed s 354(3) of the 1998 Act (‘Procedure before Commission’), referred to above in Samuel, stated that “[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. It was similar to the ‘Guiding Principle to be applied to practice and procedure’ outlined in s 42 of Part 5, Division 5.1 of the PIC Act. 
28.	I accept that I have a wide power to reconsider under s 57(1) of the PIC Act although that power must be exercised fairly with due regard to relevant considerations. The discretion to reconsider provided by s 57 of the PIC Act is to be exercised for reasons and with a view to advancing the objects of the PIC Act. 
Alleged failure by employer to comply with procedural requirements in relation to application for reconsideration
29.	The procedure for making requests for reconsideration of decisions of the Commission is set out in Procedural Direction WC7, which relevantly provides:
“...
Preliminary
3.	This Procedural Direction is made by the President under section 21 of the Personal Injury Commission Act 2020 (the PIC Act).
4.	The President or a member before whom a matter is listed may excuse a party from complying with any aspect of this Procedural Direction before or after the time for compliance with any action required.
...
6.	This Procedural Direction is to be read with and subject to any provision of the PIC Act, the enabling legislation, and the Personal Injury Commission Rules 2021 (the PIC Rules).
Lodgement and service
7.	There is no applicable Form for a reconsideration application. It may be lodged by letter, setting out the grounds for the reconsideration and the orders sought. It should be made as soon as practicable after the party becomes aware of the basis for seeking reconsideration.
8.	The reconsideration application will be accepted if the President is satisfied that it complies with the relevant procedural requirements. The parties will be notified in writing whether the reconsideration application is accepted.
Submissions in support
9.	Submissions must be attached, divided into numbered paragraphs with appropriate subheadings, addressing:
(a)	each ground for reconsideration;
(b)	where relevant, the circumstances that justify any delay in the making of the reconsidered application, and
(c)	where relevant, why the decision should be reconsidered, rather than appealed;
(d)	include references to relevant legislation and case authorities, together with the relevant section, page or paragraph reference, and
(e)	include the relevant page or paragraph reference to the evidence.
10.	The applicant must include the date of service of the reconsideration application on the other parties to the dispute.
11.	If a party seeks to rely on fresh evidence, additional evidence or substituted evidence in relation to a ground for reconsideration, they must provide:
(a)	a schedule of the evidence, including the author and date of the evidence;
(b)	a clear copy of the evidence;
(c)	submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and
(d)	submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the party before the decision was made.
...
15.	The following matters may be considered in deciding the reconsideration application:
(a)	the objects of the Commission under ss 3 and 42 of the PIC Act;
(b)	the reason for and extent of any delay in bringing the application;
(c)	any fresh evidence, additional evidence or substituted evidence, that could not have reasonably been obtained prior to the decision and which would have likely led to a different result if before the original decision maker;
(d)	the public interest in finality of litigation;
(e)	the mistake or oversight by a legal representative or agent may not, in itself, be determinative of whether relief should be granted, and
(f)	the interests of justice.
...”
30.	The worker’s solicitor submitted that the employer failed to comply with a number of requirements set out in Procedural Direction WC7, particularly by:
(a)	failing to file submissions which comply with the requirements of the Procedural Direction WC7;
(b)	failing to provide a schedule of evidence in respect of new or additional evidence sought to be relied on, a clear copy of the evidence, submissions as to why the evidence is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision made, and submissions as to why the evidence was not available to, and could not reasonably have been obtained by, the employer before the decision was made, and
(c)	failing to provide sufficient prior notification to the worker. 
31.	It is apparent that the employer has not complied with Procedural Direction WC7 in all respects. However, the Commission may excuse a party from complying with Procedural Direction WC7 at any time.
32.	Of particular concern is that the employer has not provided a clear copy of the new or additional evidence that it seeks to rely on. It is apparent from the employer’s submissions that the employer seeks to rely on new or additional evidence being radiological films and reports of an independent radiologist. The employer’s solicitor submitted that the radiological reports of the independent radiologist were “issued on 23 July 2022 and 1 August 2022 respectively confirming the x-ray is the most commonly used modality in assessing the level of depression”. The new or additional evidence has not been provided to the Commission. The worker’s solicitor stated that she had received some evidence only on the day of the conference or shortly prior and it is not clear if all of the evidence was provided. The worker’s solicitor submitted that there has been inadequate time to properly consider the new evidence. The employer’s solicitor has not given evidence nor significantly explained the specific content and relevance of the new or additional evidence in the context of the MA’s assessment of thoracic WPI. For example, it is unclear whether, and if so to what extent, the new or additional evidence supports the assessment of a 20% height loss at T12 or possibly a 35% height loss at T12.
 Alleged delay in obtaining the new or additional evidence
33.	The employer’s solicitor explained the steps that it took to obtain the new or additional evidence after receiving the MAC on reconsideration issued on 8 June 2022 and the negative response from the Commission on 4 July 2022.
34.	The worker’s solicitor submitted that the employer could with reasonably diligence have obtained the new or additional evidence well prior to that time, and in any event, prior to the assessment by the MA and the issue of the MAC on reconsideration and the COD.
35.	The employer relies on an X-ray report of the thoracic spine dated 19 January 2022 which (it has been stated) was served in an Application to Admit Late Documents dated 24 February 2022. 
36.	Multiple radiological scan reports were provided in the ARD which assessed the loss of vertebral height at T12 in the thoracic spine including a CT scan report dated 13 August 2019 and an MRI scan report dated 11 March 2020. Those documents were considered by the MA. The employer appealed the MAC on the basis that the MA did not consider the X-ray report of the thoracic spine of 19 January 2022 and the matter was referred back to the MA for further consideration. 
37.	Whilst the possibility of obtaining further evidence from the radiologists concerned to clarify whether the X-ray report of 19 January 2022 contained an error was raised by the MA in the MAC on reconsideration issued on 8 June 2022, it is the position that the integrity of the 
X-ray report of 19 January 2022 was clearly always of particular relevance to determination of thoracic WPI, particularly in the context of the different assessment of loss of vertebral height at T12 supported by the previous reports.
38.	If it had acted with reasonable diligence, the employer could have obtained the new or additional evidence at any time after it was provided with the X-ray report of 19 January 2022. It did not need to wait until after the issue of the MAC on reconsideration issued on 8 June 2022 nor the negative response from the Commission on 4 July 2022 to do so.
Likelihood of a different outcome
39.	The employer has not demonstrated any error in the MAC on reconsideration issued on 8 June 2022 nor in the COD and I am not satisfied that there is an error in the MAC which requires to be corrected.
40.	It is evident from the MAC on reconsideration dated 8 June 2022 that the MA considered the X-ray report dated 19 January 2022 and that, notwithstanding that consideration, the MA maintained that his original assessment of 15% WPI of the thoracic spine was correct and that the report of the most recent radiological investigation likely contained an error.
41.	As noted above, the employer’s solicitor has not given evidence nor significantly explained the specific content and relevance of the new or additional evidence in the context of the MA’s assessment of thoracic WPI. It is unclear whether, and if so to what extent, the new or additional evidence sought to be relied upon would support the assessment of a 20% height loss at T12 or possibly a 35% height loss at T12.
42.	In the circumstances, I am not satisfied that the new or additional evidence is of such probative value that it is reasonably clear that it would change the outcome of the COD. Accordingly, I am not satisfied that a different result would be likely if the new or additional evidence had been put to the MA.
Other matters
43.	The ARD was filed on 25 January 2022. The MAC was issued on 18 March 2022. After the employer filed an appeal against the medical assessment, a further MAC on reconsideration was issued on 8 June 2022. The COD was issued on 13 July 2022. The public interest that litigation should not proceed indefinitely is one of several relevant factors.
44.	The objects of the PIC Act include the disposition of proceedings with “as little formality as possible” in a timely, fair, consistent and high quality manner.
45.	It follows, for the reasons set out above, that I am not satisfied the discretion under s 57(1) of the PIC Act should be exercised as requested.
SUMMARY
46.	The application to rescind the COD and the application for reconsideration is refused.