Appeal Case Summaries

Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision

WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries “resulted from” and “arose out of” first incident

WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of the 1998 Act – error of law established and issue in question potentially a matter of some significance – leave to appeal granted

STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments

Macfarlan, McCallum JJA and Simpson AJA

12 April 2021

Facts

On 14 November 2011 the applicant worker had a work accident in which she suffered injuries to her lumbar spine, thoracic spine and right shoulder. In later work accidents on 3 May and 26 September 2012 she suffered further injuries to her lumbar spine and thoracic spine. The applicant claimed against her employer, the respondent, for permanent impairment compensation under s 66 of the 1987 Act.

The applicant was assessed by an AMS to determine the degree of any permanent impairment she suffered as a result of her injuries under s 322 of the 1998 Act. The AMS found that the applicant suffered WPI as follows: 3% from the injury to her right shoulder, 5% from that to her thoracic spine and 7% from that to her lumbar spine. The AMS found that the spinal injuries suffered on the first date contributed to the spinal injuries suffered on the two subsequent dates, but that the shoulder injury did not contribute to the later injuries.

On appeal from a decision of the Arbitrator, the Deputy President held that the spinal injuries could be assessed together, resulting in a WPI of 12%. The Deputy President however found that the WPI of 3% for the shoulder injury was unable to be aggregated with the 12% WPI for the spinal injuries, because the shoulder injury was obtained in a different injurious event, did not materially contribute to the subsequent spinal injuries and was “not the same injury (pathology)”. This meant that the applicant was not entitled to permanent impairment compensation in respect of her shoulder injury (compensation is only payable if the WPI resulting from an injury exceeds 10%: see s 66(1) of the 1987 Act).

The applicant sought leave to appeal to the Court of Appeal under s 353 of the 1998 Act. The principal issue on appeal was whether the Deputy President had misconstrued s 322(2) and (3) of the 1998 Act and therefore erred in finding that the applicant could not have all of her injuries assessed together (which would result in a total WPI of 15%).

Held: Leave to appeal granted, and the appeal was upheld.

Per Macfarlan JA, McCallum JA and Simpson AJA agreeing at [28] and [35] respectively

1. The applicant’s argument that she was entitled to have the 3% WPI in respect of her right shoulder injury assessed together with the 12% total WPI found in respect of her spinal injuries was correct. The Deputy President was correct to add the WPI percentages referrable to the thoracic and lumbar spine injuries suffered in the two later incidents to those suffered in the first incident. That approach fell within the second category identified in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley) and applied s 65(1) and (2) of the 1987 Act. If the later spinal injuries resulted from those suffered on the first date, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011. All the injuries therefore “resulted from” and “arose out of” the first incident. In consequence, all the injuries should have been “treated as one injury” and “assessed together”, as directed by s 65(2) of the 1987 Act and s 322(3) of the 1998 Act. ([13]–[16], [18])

   (Oakley considered)

2. It was not necessary or appropriate to express any concluded view concerning the correctness of the decision in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed). Edmed was distinguishable from the present case because it did not address any argument that an injury materially contributed to later injuries and therefore that the later injuries “arose out of” or “resulted from” the first. Even if correct, the approach in Edmed to s 322(2) of the 1998 Act does not have any limiting effect on s 322(3). ([22], [24])

   (Edmed discussed)

   Additional observations per McCallum JA, Simpson AJA agreeing at [35], regarding the “presumption from amendment”

3. The force or validity of the presumption from amendment rests on the confidence with which it can be concluded that the legislature knew of the decision and the relevant interpretation at the time the statute was amended, so that the absence of amendment may be seen to indicate a considered choice indicating adoption of that interpretation. In this case, it is highly unlikely that parliamentary counsel, in drafting various amendments to the workers compensation legislation, acted on instructions given after the decision in Edmed had not only been scrutinised for what it says about s 322(2) but also interpreted as having a necessary implication for the proper construction of s 322(3). This is an instance in which it is “artificial, and unpersuasive” to attribute Parliament with a consciousness of the judicial interpretation contended to have informed the relevant amendments. ([32], [34])

(Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627; Electrolux Home Products Pty Ltd v The Australian Workers’ Union[2004] HCA 40; 221 CLR 309 applied. Edmed discussed)

CSR Limited v Ewins [2021] NSWPICPD 1

WORKERS COMPENSATION – Section 352(3A) of the 1998 Act – interlocutory decision – Licul v Corney [1976] HCA 6; 180 CLR 213, Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others [No 2] (1990) 21 NSWLR 200, Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32, [21]–[22] discussed – Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 discussed and applied – acceptance or rejection of evidence – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118 applied – the exercise of discretion as to whether a matter should be referred for reconsideration of a Medical Assessment Certificate in accordance with s 329 of the 1998 Act – Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 discussed and applied

Wood DP

4 March 2021

Facts

The respondent worker suffered a psychological injury in the course of her employment with the appellant. In 2018, she lodged a claim in the (then) Workers Compensation Commission claiming weekly payments, treatment expenses and a lump sum in respect of whole person impairment resulting from the injury. Arbitrator Harris referred her claim for whole person impairment to a medical assessor (previously known as an AMS), who certified the respondent as having 17% WPI. That assessment was confirmed by a Medical Appeal Panel (MAP) and a summons seeking judicial review of that decision was dismissed.

Several weeks after the assessment, the appellant arranged for video surveillance of the respondent, which apparently disclosed that the respondent attended her local church, an activity which she had reported to the medical assessor that she did not do.

The appellant then applied for a reconsideration by the medical assessor of his assessment pursuant to s 329 of the 1998 Act. The basis of this application was that the surveillance evidence conflicted with the history provided to the medical assessor, which history the medical assessor had considered when assessing the respondent’s social and recreational activities. Arbitrator Young (the Arbitrator) refused the appellant’s application for a referral to the medical assessor for reconsideration. The appellant appealed that decision.

The issues on appeal were whether the Arbitrator erred in:

(a) law in determining the dispute without first satisfying the requirements of s 355(1) of the 1998 Act (Ground A);

(b) law in denying the appellant procedural fairness by determining the matter on a basis not put to or by the parties (Ground B);

(c) fact in considering that the surveillance material might have been obtained before the AMS assessment (Ground C);

(d) discretion in consideration of the public interest (Ground D), and

(e) law by failing to consider and apply the appropriate test (Ground E).

Held: Leave to appeal an interlocutory decision was granted. The Certificate of Determination dated 6 October 2020 was confirmed.

1. After the application for reconsideration had been heard and determined and before the appeal in this matter was finally determined, the New South Wales Workers Compensation Commission was abolished. The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021. The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. ([3])

   Whether the decision was, or was not, an interlocutory decision

2. The dispute before the Arbitrator was limited to the question of whether the appellant should be afforded the opportunity to have the assessment by the medical assessor reconsidered. The respondent’s entitlements to weekly payments and treatment expenses awaited determination before a different arbitrator to the Arbitrator who determined this reconsideration application. ([36])
3. Whether a decision made prior to a referral to a medical assessor is an interlocutory decision or is final and binding between the parties has been the subject of numerous Presidential decisions in the former Workers Compensation Commission, which are equally applicable in the Personal Injury Commission. ([38]–[46])

(Licul v Corney [1976] HCA 6; 180 CLR 213, Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others [No 2] (1990) 21 NSWLR 200, Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32, [21]–[22] discussed)

4. In this matter, a Certificate of Determination had yet to be issued in respect of the respondent’s whole person impairment. The proceedings remained on foot and there were still issues to be determined. It was theoretically possible that steps could be taken which could lead to a different result than that recorded in the MAC. If there were some appropriate other factual and legal basis, a further application pursuant to s 329 could be made. Deputy President Wood concluded the Arbitrator’s decision was interlocutory in nature and the appellant required leave to appeal the decision in accordance with s 352(3A) of the 1998 Act. ([47])

   (Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 discussed and applied)

5. The Deputy President reiterated that, in accordance with s 352(3A) of the 1998 Act, leave to appeal can only be granted if the Presidential member is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. ([48])
6. Wood DP ultimately granted leave to the appellant to appeal from the Arbitrator’s decision. ([49]–[50])

Ground A

7. The appellant asserted that, because the respondent herself did not participate in the telephone conference, the Arbitrator could not proceed to a determination of the matter.
8. The Arbitrator recorded in his reasons that there were discussions to attempt to resolve the issue during the conciliation phase of the proceedings and that he had “used [his] best endeavours to encourage resolution,” but that the matter had not resolved. The Arbitrator did not record that the respondent’s non-participation was an impediment to his ability to discharge this obligation and the appellant did not raise any complaint about the matter proceeding to arbitration. In fact, the appellant indicated to the Arbitrator that it was ready to proceed down that path. The appellant did not explain how the absence of the respondent herself somehow prevented the Arbitrator from discharging his obligation under s 355(1), in circumstances where she was legally represented, and the legal representatives were instructed to proceed on her behalf. ([111]–[112])
9. In the light of those matters, particularly the unchallenged fact that the Arbitrator recorded that he had attempted to achieve a resolution of the issue, the appellant had failed to establish that the Arbitrator did not satisfy his obligation under s 355(1), or that there was any impediment to the Arbitrator proceeding to determine the matter. It followed that this ground of appeal failed. ([113])

Ground B

10. The appellant asserted that it was denied procedural fairness because the Arbitrator did not bring to the attention of the parties the matters he took into consideration when exercising his discretion. The first matter which the appellant says the Arbitrator failed to bring to the attention of the parties was the Arbitrator’s observations about the relevance and probative value of the surveillance report. As the respondent points out, the consideration of an application brought under s 329 of the 1998 Act involves the exercise of the Arbitrator’s discretion. The appellant was clearly mindful that the decision required of the Arbitrator was discretionary in nature. ([114])
11. In its submissions to the Arbitrator, the appellant submitted at length about the relevance of the surveillance report and why it was important information that ought to be provided to the medical assessor. The Arbitrator’s task was to assess the probative value of that evidence and its relevance, just as he would be required to do in relation to any application to admit evidence. The appellant had the opportunity to put forward submissions as to why the surveillance report should be made available to the medical assessor and availed itself of that opportunity. There was no denial of procedural fairness to the appellant. ([115])
12. The second matter raised by the appellant that it said was either not the subject of submissions put to the Arbitrator, or that the appellant was not given the opportunity to make submissions about, was the Arbitrator’s finding that the evidence did not compel him to conclude that the respondent was not telling the truth. In its application for reconsideration and in submissions made orally to the Arbitrator, the appellant put its case that the evidence showed either that the respondent had been untruthful to the medical assessor about her activities or she had experienced marked improvement in her condition since the medical assessor’s examination. The appellant described the evidence as “critical.” The Arbitrator was therefore required to assess the evidence and draw a conclusion as to whether that evidence made out the appellant’s case. ([116])
13. The appellant not only had the opportunity to submit on the nature of the evidence and its effect, but also made submissions relevant to that point. The Arbitrator considered those submissions and made his determination. There was no procedural unfairness in the Arbitrator’s approach. The appellant had not shown error on the part of the Arbitrator by denying the appellant procedural fairness, and Ground B of the appeal failed. ([119]–[123])

Ground C

14. The appellant submitted that if the respondent was being truthful about not attending church, then the surveillance material could not have been obtained prior to the medical assessment. It said that, on the other hand, if the material could have been available at that time, then the compelling conclusion must have been that the respondent was being untruthful. ([124])
15. Deputy President Wood agreed with the respondent’s submission that the Arbitrator’s remark was simply that the evidence would have been more persuasive if it had established that the respondent had attended church within a close time of the medical assessment. The remark was self-evident and was not demonstrative of error on the part of the Arbitrator. Under this ground, the appellant also asserted that the Arbitrator erred in determining that the nature of the activity was one of “self-contemplation”. Wood DP held the Arbitrator did not make such a finding. The Arbitrator merely reported that this was an observation made by the MAP. If the Arbitrator took that observation into account, he did not fall into error, as it was evidence pointing to the evaluation of the probative value of the surveillance material. Ground C was not made out. ([125]–[126])

Ground D

16. The appellant referred to the Arbitrator’s reason that it was in the public interest that matters do not proceed indefinitely. The appellant asserted that the Arbitrator erred because, contrary to the Arbitrator’s reasoning, the process of the reconsideration would not be protracted, and simply would involve forwarding the surveillance material for the medical assessor to reconsider his conclusion as to the respondent’s whole person impairment. The appellant argued that forwarding the material for reconsideration of the medical assessor would properly serve the interests of justice. ([127])
17. The public interest in finality of litigation is a very relevant matter to take into account in the exercise of discretion in circumstances where a party is seeking a reconsideration of a matter. The power to reconsider a matter should always be exercised with caution and should have some regard to the public interest in finality of litigation, even in a workers compensation setting. Such a consideration did not amount to an error of legal principle, or error by taking into account an irrelevant matter, or any of the other erroneous matters identified in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. This ground of appeal was not made out and failed. ([130]–[131])

(Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300, and Majdak v McDonnell Industries Pty Ltd [2008] SAWCT 58 applied)

Ground E

18. The appellant submitted that the “proper test” was whether the dictates of justice warrant the referral for reconsideration, relying on the observations made by Malpass AsJ in Read v Liverpool City Council [2007] NSWSC 320. The appellant reiterated that the surveillance report was evidence that was contrary to the evidence taken into account by the medical assessor. ([132])
19. Wood DP held that the Arbitrator considered the evidentiary value of the surveillance report and concluded that it was not sufficient to warrant a further referral to the medical assessor. That conclusion was not disturbed on appeal. It followed that Ground E of the appeal failed. ([135])

Ly v Jitt Offset Pty Ltd [2021] NSWPICPD 2

WORKERS COMPENSATION – principles applicable to the acceptance or rejection of expert evidence that is not rebutted by contrary expert opinion – Strinic v Singh [2009] NSWCA 15, Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174 considered and applied

Wood DP

18 March 2021

Facts

The appellant was employed by the respondent as a general factory hand. He suffered the onset of lower back pain on 20 October 1997 when he was stacking boxes from a machine. The appellant underwent surgery performed by Dr Giblin to his lower back on 10 June 1998.

There were prior proceedings before the Workers Compensation Commission, which amongst other things, involved an award being made in favour of the respondent with respect to a claim for permanent impairment of the neck.

The appellant brought further proceedings in the former Commission in 2020, alleging that the neck symptoms he was experiencing were a consequence of the lower back injury. He also claimed further impairment of his back and lower left leg, and 18% permanent impairment of the neck. The appellant also sought assessment of his whole person impairment for the purposes of bringing a work injury damages claim.

The Member found against the appellant in relation to the allegation that the appellant’s neck condition was a consequential condition resulting from injury. The appellant appealed.

The issues on appeal were whether the Member erred in:

(a) applying “common sense” in his reasoning process in respect of matters that were beyond those for which lay inferences could be drawn and which required expert evidence in accordance with Strinic v Singh[2009] NSWCA 15 (Strinic) (Ground 1), and

(b) the reasoning process concerning the non-acceptance of Dr Giblin’s views in that he failed to comply with the principles of Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 (Wiki) (Ground 2).

Held: The Certificate of Determination was revoked.

Consideration

1. The basis upon which the Member rejected the opinion of Dr Giblin was firstly, that on a common sense evaluation of the proposition put by Dr Giblin, the causal connection was not established (the subject of Ground 1). The second basis upon which the Member found against the appellant was the perceived difficulties in the reliability of Dr Giblin’s evidence (Ground 2). The appellant asserted error by the Member in rejecting the opinion of Dr Giblin. The Court of Appeal authorities of Strinic and Wiki are both relevant in considering whether the Member’s reasoning process disclosed error of the kind that warranted Presidential intervention. ([80])

   Ground 1

2. Deputy President Wood agreed with the appellant’s submission that the reference to a common sense evaluation, as referred to in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, is about the lay inferences that can be drawn which require expertise. ([83])
3. The Member’s task was to determine whether, because of chronic tension in the lumbar muscles, the spinal balance was altered and caused an aggravation of underlying degenerative changes in the cervical spine. There was no challenge to the fact relied upon by Dr Giblin that there was chronic muscle tension. Whether such tension could cause spinal imbalance was a question of causation that, in the circumstances of this case, was a medical question which required expert medical opinion. Dr Giblin provided that opinion in his 2018 report. The Member’s task was to assess the proposition put forward by Dr Giblin against any contrary expert views. ([84], [86])
4. In the absence of acceptance of any competing expert evidence, the conclusion that the Member relied upon his own lay assessment of the causal connection was compelling. In doing so, in the manner discussed in Strinic, in order to assess the evidence the Member had stepped beyond the scope of using his familiarity with medical matters to understand the medical evidence. ([88])
5. The appellant also complained that he had been denied procedural fairness by the Member determining the matter on the basis of his own understanding of the connection between muscle tension in the back and the development of symptoms in the degenerative changes in the appellant’s cervical spine. That is, that the Member had failed to give judicial notice that he intended to use his special knowledge as a member of a specialist tribunal. The Deputy President did not accept that the Member rejected the causal connection on the basis of what he perceived to be his specialist knowledge. He found against the appellant because he did not accept that the connection put forward by Dr Giblin was a matter of common sense. ([89])
6. Wood DP held that approach was clearly in error, but it was not the only basis upon which the Member rejected Dr Giblin’s opinion. In the context of having considered but not accepted the evidence of Dr Breit (orthopaedic surgeon qualified by the respondent), the Member was required to provide cogent reasons for rejecting Dr Giblin’s evidence, as described in Wiki. It was thus necessary to discuss the principle enunciated in Wiki and consider the second ground of appeal. ([90])

Ground 2

7. Wiki establishes that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons. It was important to note that the Member did not reject the opinion of Dr Giblin because of the evidence of Dr Breit. There was no suggestion that Dr Giblin was attempting to mislead. In those circumstances, and in the absence of an accepted rebuttal by a medical expert, the Member was required to  give cogent reasons as to why he rejected Dr Giblin’s opinion expressed in his 2018 report. ([92]–[93])

   (Wiki applied)

8. Deputy President Wood held the absence of contemporaneous evidence from Dr Giblin or the appellant’s treatment providers of the onset of symptoms and the context in which those symptoms arose was relevant to the weight to be afforded to the opinion ultimately expressed by Dr Giblin. She held the extent to which the Member took other matters into account, as summarised in the parties’ submissions, had led to error on the part of the Member and that error had affected the outcome. Having rejected the opinion of Dr Giblin in circumstances where there was no expert rebuttal of that opinion, the Member was required to provide cogent reasons as to why he did not accept the proposition put forward by Dr Giblin. The Member’s reasons fell short of that standard. ([101])

   Re-determination

9. Having found error, the Deputy President proceeded to re-determine the matter. She was satisfied that, on the evidence before her, the appellant suffered a consequential condition in his neck as a result of the back injury sustained in the incident on 20 October 1997. It followed that the appellant was entitled to an assessment by a medical assessor of the permanent impairment of his neck in accordance with s 66 of the 1987 Act and the Table of Disabilities. He was also further entitled to reasonably necessary treatment expenses related to his neck condition pursuant to s 60 of the 1987 Act. ([136]–[137])
10. Wood DP noted the appellant brought separate proceedings seeking a referral to a medical assessor for the purpose of assessing whether the appellant’s whole person impairment reached the necessary threshold to bring a claim for work injury damages. Those proceedings were not before the Deputy President, although the resolution of the issue in these proceedings also resolved the impediment to the progression of those proceedings. ([138])
11. The Deputy President also noted that the Member entered an award in favour of the appellant in respect of the further permanent impairment of the appellant’s back and loss of use of the appellant’s left leg at and above the knee. The transcript disclosed that the respondent consented to those awards, contingent upon the Member determining that the appellant’s neck symptoms did not result from the injury to back on 20 October 1997. Given the conditional nature in which the consent was given, it was appropriate for the matter to be remitted to a non-presidential member so that both parties could make submissions in relation to the terms of the referral to a medical assessor. ([139])

Mani v Secretary, Department of Education [2021] NSWPICPD 3

WORKERS COMPENSATION – section 11A(1) of the 1987 Act – procedural fairness – alleged factual error – application of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 – ‘reasonable action’

Snell AP

26 March 2021

Facts

The appellant was a primary school teacher employed by the respondent. She most recently worked at Kings Langley Public School, where she commenced in the first term of January 2018. The appellant claimed she was subjected to racism during 2018, which she reported to the Executive. At the end of the year, she was informed that she would be moving to a role as the ‘Learning Support and Relief from Face to Face’ teacher in 2019.

In 2019, the Principal of the school, Mr Lambert, and Deputy Principal, Ms Hutton, had three meetings with the appellant in relation to complaints made by parents. After the third meeting, the appellant said she felt intimidated, embarrassed and anxious. She stated that she struggled to continue working for a further three days and then went off work. The respondent denied liability on the basis of s 11A(1) of the 1987 Act, relying on its allegedly reasonable actions in respect of performance appraisal and discipline.

The Arbitrator accepted that a defence was made out pursuant to s 11A(1) of the 1987 Act on the basis of discipline. There was an award in favour of the respondent. The appellant appealed the decision.

The issues on appeal were whether the Arbitrator:

(a) erred by failing to determine whether the respondent afforded the appellant procedural fairness (Ground 1);

(b) erred in finding that the respondent’s conduct was reasonable by accepting generally the contemporaneous evidence of the principal based on his statement and the minutes over that of the appellant (Ground 2);

(c) erred in finding that the appellant’s evidence showed a lack of insight about her previous claims and took into account a material irrelevant consideration by making findings about the appellant’s prior claims and further making a finding based on a history to doctors that the appellant had a lack of insight regarding the complaints (Ground 3);

(d) erred in failing to find that the respondent’s conduct in not following policy to inform the appellant of the complaint within five days was nonetheless reasonable (Ground 4);

(e) erred in determining that the respondent’s conduct was reasonable for the purposes of establishing a defence pursuant to s 11A of the 1987 Act (Ground 5), and

(f) ignored or otherwise failed to engage with the submissions advanced by the appellant that the respondent failed to follow its own processes and acted unreasonably or did not discharge its onus (Ground 6).

Held: The Arbitrator’s Certificate of Determination dated 8 September 2020 was confirmed.

Ground 1

1. The appellant argued that, before the first meeting, she was entitled to be provided with actual details of the allegations, together with a reasonable opportunity to make enquiries, to seek advice, to prepare a written response to each and every one of the allegations and to seek further particulars. The appellant submitted this was “a fundamental process of disciplinary action” which was not followed. The appellant’s submissions stated this was “critical to enable the appellant to face the meeting the following day”. She submitted that otherwise she would “face, for the very first time, allegations of misconduct in a room with witnesses which would have been intimidating and frightening”. ([78])
2. The appellant made no developed submission, and referred to no authority, in support of her argument that the content of procedural fairness in the circumstances of the case required compliance with all of the matters she nominated, and that such steps needed to be taken prior to the first meeting. Snell AP rejected the appellant’s submissions on these matters. The appellant’s submissions on the content of procedural fairness in the circumstances “over-judicialise” the duty. Snell AP ultimately did not accept that the absence of procedural fairness alleged by the appellant in this ground was made out and Ground 1 failed. ([74], [83], [87], [96])

(Kioa v West [1985] HCA 81; 159 CLR 550; Bushell v. Environment Secretary [1980] UKHL 1; (1981) AC 75, and Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 applied)

Ground 2

3. The appellant submitted that the Arbitrator preferred the “contemporaneous evidence of the [m]inutes and the emails” but did not make findings about the “contemporaneous evidence” from the appellant, recorded in the minutes and the appellant’s contemporaneous emails, which it was submitted refuted the truth or accuracy of the allegations. The appellant submitted that issue of a letter of direction dated 13 May 2019 could not have been reasonable, in the absence of findings dealing with the contemporaneous evidence of the appellant. ([103])
4. Minutes of the meeting were recorded by Mr Lambert. The appellant said that there were inaccuracies in the minutes taken at the first meeting, and referred to “some very erroneous statements which I did not make”. The Arbitrator dealt with this issue accepting the accuracy of the minutes. This was open to the Arbitrator. In the absence of any specific challenge to the minutes, it was difficult to see what other approach the Arbitrator could reasonably have taken. ([104])
5. The Arbitrator rejected the factual propositions asserted by the appellant to demonstrate that the respondent’s actions were not reasonable. The Arbitrator said that she accepted “the generally contemporaneous evidence in Mr Lambert’s statement and the minutes of the meeting over that of [the appellant]”. The reference to the “meeting” appeared to be a slip and should have referred to the plural. The finding came towards the end of a long passage that discussed all of the meetings together with the handing over of the letter, in which it is noted that the appellant relied on “events between 19 March 2019 and 22 May 2019 as causing her injury”. ([115])
6. Reading the reasons as a whole, it is necessary that the factual finding preferring the evidence of Mr Lambert and the minutes be read in context. Contrary to the approach the appellant had sought to take in arguing Ground 2, the Arbitrator did not prefer all contemporaneous evidence, including that of the appellant. She preferred the “generally contemporaneous evidence in Mr Lambert’s statement and the minutes” over the evidence of the appellant. “Mr Lambert’s statement and the minutes” included the material in the minutes which dealt with the performance difficulties preceding and during the improvement program and Mr Lambert’s assessment of such matters. ([116])
7. The Acting President concluded that it could not be said that the Arbitrator’s conclusion was wrong. Ground 2 failed. ([120])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, and Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied)

Ground 3

8. This ground challenged two aspects of the Arbitrator’s reasoning:

   (a)     the references to the appellant’s previous claims, and

   (b)     the references to the appellant demonstrating a lack of insight. ([121])

9. Snell AP observed that evidence relating to the previous claims could have a bearing on the reasonableness of the respondent’s actions, notwithstanding that they were not part of the entirety of the conduct with respect to discipline that was at issue. Such matters could “be a guide to the reasonableness of the particular action” notwithstanding that they did not form part of it. Depending on the circumstances of the case, such evidence may or may not carry great weight. It was not irrelevant. Snell AP rejected the submission that the Arbitrator, in referring to the prior claims, was dealing with matters that were either irrelevant or not before her. Further, he held the Arbitrator did not err in referring to the appellant’s lack of insight about these complaints. ([136], [138])
10. With respect to the appellant’s assertion of a denial of procedural fairness, Snell AP held the appellant had an opportunity to address these matters. The Arbitrator did not deny the appellant procedural fairness in failing to specifically invite the appellant to address these matters. Ground 3 failed. ([144]–[145])

(SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 231 ALR 592; 81 ALJR 515 applied)

Ground 4

11. The appellant, before the Arbitrator, submitted the respondent was dutybound to follow its own processes and in not doing so acted unreasonably. On appeal she submitted the entire defence of the respondent and its asserted resistance of the claim was based on the fact it observed the relevant protocols. This was inconsistent with Department of Education & Training v Sinclair[2005] NSWCA 465; 4 DDCR 206. It was also an oversimplification of the basis on which the respondent defended the claim. The disciplinary process may be reasonable notwithstanding the presence of “blemishes”. It is necessary to look at the “whole course of the conduct”. ([156])
12. The submission that the appellant was left with less than 24 hours’ notice and inadequate time to prepare for the meeting agitated matters that were dealt with in the discussion regarding Ground 1. Ground 4 failed. ([160]–[161])

Ground 5

13. Grounds 5 and 6 raised issues going to the finding of reasonableness pursuant to s 11A(1). The series of principles set out by Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 should be borne in mind. “Action with respect to discipline [extends] to the entire process involved in disciplinary action, including the course of an investigation”. The employer carries the burden of proof on the issue of whether its action was ‘reasonable’. The test is objective. It is insufficient that the employer believed in good faith that its actions were reasonable, or that it was compelled to act as it did. “The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.” ([167])
14. The Acting President rejected various attacks made by the appellant on the Arbitrator’s fact finding. In one instance the alleged erroneous finding involved the Arbitrator doing little more than summarising a relevant passage from the minutes. In another instance the appellant misstated the nature of the finding about which it complained. Some of the complaints were about matters that were not of substance, and it was not apparent, if established, how they would affect the result. Reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. ([172])

(Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259 applied)

15. Snell AP held that the Arbitrator’s findings were well open to her on the evidence overall and he agreed with them. The Acting President referred to authorities that a finding on ‘reasonableness’, for the purposes of s 11A, involves a “broad evaluative judgment” which confers a very wide discretion. On appeal a degree of restraint should be exercised, of the same order as that applicable to a discretion. ([168]–[169], [174]–[177])

    (Vines v Australian Securities and Investment Commission [2007] NSWCA 126 [8], St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, [147]–[148] referred to)

16. One submission was based on an assertion that the conduct of Mr Lambert was excessive and unnecessary. The Arbitrator did not make such a finding about Mr Lambert’s actions. The Arbitrator sufficiently summarised the substance of what transpired at the meetings (which was described in the minutes). The appellant’s submissions did not indicate other specific factual findings the Arbitrator allegedly failed to make in arriving at her conclusions. Ground 5 failed. ([180]–[181])

    Ground 6

17. The appellant submitted the Arbitrator failed to consider, and make findings about, why it was appropriate for the respondent to employ formal (rather than informal) procedures. The respondent submitted that informal procedures were the most appropriate and the Arbitrator made such a finding. The appellant, in reply, submitted the respondent failed to engage with its submissions on Ground 6. The parties’ positions passed like ships in the night. ([187])
18. Snell AP said the evidence did not support the fundamental proposition on which Ground 6 was based, which was that formal procedures were employed in dealing with the complaints, when an appropriate assessment would have supported the use of an informal process. It was apparent that Mr Lambert forwarded the matter to EPAC (the Department’s Employee Performance and Conduct Directorate), which determined that it was not a serious matter and returned it to Mr Lambert to deal with under a local management process. This was an informal procedure. The appellant submitted there was no attempt to resolve the matter informally. To the contrary, that was the basis on which the respondent dealt with it. Snell AP was not satisfied that the errors alleged in support of Ground 6 were made out, and Ground 6 failed. ([195], [197])

University of New South Wales v Lee [2021] NSWPICPD 4

WORKERS COMPENSATION – section 119 of the 1998 Act – suspension of benefits due to alleged non-compliance – application of Workers Compensation Guidelines (Parts 7.1 and 7.7) – alleged factual error – alleged procedural unfairness

Snell DP

29 March 2021

Facts

The respondent worker claimed weekly compensation and treatment expenses in respect of psychological injury in the course of her employment with the appellant. On 10 February 2020, the appellant informed the respondent it had arranged for her to be examined by an Independent Medical Examiner (IME), Dr Miller. The notice stated “Clinical notes requested from Broadway General Practice, Dr John Cosgriff have not been received. Therefore, information from treating medical practitioner(s) is unavailable.”

There was correspondence between the parties’ solicitors, the crux of which was that the clinical notes would be provided by the treating doctor once the appellant paid the doctor’s invoice for producing them. On 17 February 2020, the appellant threatened to suspend payments in accordance with s 119(3) if the respondent did not attend the IME. The respondent contended that the appellant had no entitlement to the examination with an IME pursuant to the Guidelines.

The respondent did not attend the IME and the appellant suspended the weekly payments. Proceedings were commenced in the then Workers Compensation Commission, where the respondent sought resumption of weekly payments. The matter first came before Arbitrator Rimmer and the appellant appealed an interlocutory decision of Arbitrator Rimmer. Wood DP refused to grant the appellant leave to appeal an interlocutory decision. The matter returned to Arbitrator Rimmer, who disqualified herself on the basis of apprehended bias, following an application by the appellant.

The matter was ultimately heard by Arbitrator Batchelor (the Arbitrator), who found that the respondent was not obliged to undergo the medical examination arranged by the University, and that the University was not entitled to suspend the provisional weekly payments in the circumstances. It was ordered the provisional payments be reinstated from 18 March 2020 for the balance of the maximum period of 12 weeks. The Arbitrator declined an application by the respondent for interest. The appellant appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) law in purporting to make an order in the nature of declaratory relief (Ground 1);

(b) fact in determining that there had relevantly been a claim for weekly compensation (Ground 2);

(c) law in the consideration and application of the ‘Guidelines’ (Ground 3);

(d) fact in determining that the University had not complied with the Guidelines (Ground 4);

(e) law and discretion in making orders not sought in the Application (Ground 5), and

(f) law on the basis that the Arbitrator determined the matter on a basis not put by or to the parties, constituting a denial of procedural fairness (Ground 6).

Held: The Certificate of Determination dated 15 September 2020 was confirmed.

Grounds 1, 2 and 5

1. The Arbitrator referred to the appellant’s letter to the respondent dated 22 January 2020. Snell DP held the letter plainly was capable of supporting the Arbitrator’s conclusion, that it conceded receipt by the University of a claim for compensation. Provisional payments pursuant to s 267 of the 1998 Act can commence in the absence of a claim for compensation if there is notice of injury. This was not what the letter said. It was within the capacity of the University to adduce evidence that its concession of a claim for compensation was erroneous if that was its position. It did not do so. The Arbitrator’s finding on this point was one of fact. The University could not successfully challenge it on appeal. The Arbitrator did not err in finding that a claim for compensation had been made. ([22]–[26], [45])

   (Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227; Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

2. The University challenged the awarding of compensation in circumstances where there was not evidence to support an entitlement to benefits. This argument was without merit. The respondent correctly submitted that matters such as incapacity and her employment circumstances had not been placed in issue by the University. The matters the University referred to in its submissions, injury, incapacity and main contributing factor, had not been placed in issue between the parties. It was clear the sole issue between the parties was whether the University had proper grounds pursuant to s 119(3) of the 1998 Act to cease making provisional payments. ([46]–[48])
3. Consistent with the notice that was given on 23 March 2020, the respondent at the hearing on 19 August 2020 sought precisely the orders of which it had previously given notice. The Arbitrator made such orders, save for that in respect of interest. The University was clearly on notice of those matters and had the opportunity to address on them. The University’s argument that those matters were not before the Commission, on the basis that they were not pleaded, was without merit. It was inconsistent with settled practice in the Commission. It was inconsistent with Far West Area Health Service v Radford [2003] NSWWCCPD 10, and the other decisions that apply it. The orders that were made in the circumstances did not merely consist of a declaration of liability. Grounds 1, 2 and 5 failed. ([57]–[58])

(Woolworths Ltd v Wagg [2017] NSWWCCPD 13, [96]; Rinker Group Ltd v Mackell (No.2) [2009] NSWWCCPD 97, [241]; BHP Billiton Ltd v Bourke [2009] NSWWCCPD 117; 7 DDCR 535, [58], and Harding v Westpac Banking Corporation [2018] NSWWCCPD 7 applied)

Grounds 3 and 4

4. The University’s submission that the Guidelines represent “a non-binding indication of policy” was inconsistent with what Basten JA said in Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council [2009] NSWCA 59. It was also consistent with the structure of s 119 and its interrelationship with the Guidelines. The Guidelines control the manner of operation of s 119. The Deputy President accepted the respondent’s submission that the Guidelines “regulate the circumstances in which a worker may be required to submit to a medical examination at the direction of an employer”. It followed that Snell DP accepted the respondent’s submission that the Arbitrator did not err in relying on the Guidelines, as he was bound to do. ([61], [65]–[66])
5. The University’s submission that it was prevented, by the “Workers compensation guide for medical practitioners”, from prepaying Dr Cosgriff’s fee for the supply of clinical records was plainly wrong. There was no suggestion from the guide that it possessed any regulatory authority at all. The University’s submissions did not suggest any basis on which it would have such authority. The only parts of the document put into evidence were its contents pages together with the page which stated that “Prepayment (in whole or part) cannot be made for reports.” The guide appears to be what its name suggests, a “guide for medical practitioners” (emphasis added). Additionally, what it purports to prohibit is prepayment for medical reports, it does not prohibit paying a fee for the supply of clinical notes. It did not assist the University. Grounds 3 and 4 failed. ([67]–[68])

Ground 6

6. This ground dealt with the assertion that the Arbitrator dealt with the matter on bases not put by or to the parties. The appellant referred to various passages of the Arbitrator’s decision that allegedly fell into this error, without further explanation, or precise identification, of the alleged errors.
7. The reasons at [64]–[65] contained an apparently unexceptional description of the 1998 Act regarding, in a general sense, the giving of notices where liability is disputed. The University’s submissions gave no indication whatsoever of how this involved a denial of procedural fairness. There was no suggestion that there were submissions that could otherwise have been made or anything of that nature. At [66] there was a finding that the University’s communications (referred to at [60] to [62] of the reasons) were sufficient to dispute liability for weekly benefits. The University did not suggest the reasons at [60] to [62] involved any breach of the principles of procedural fairness. It was there found (at [63]) that the correspondence dated 23 March 2020, suspending provisional payments, disputed the entitlement to weekly benefits and entitled the respondent to refer the dispute for determination by the Commission. The passage at [66] did little more than repeat the reasoning at [62] to [63]. The University’s submissions did not identify any basis why the passage at [64] to [65] constituted procedural unfairness. ([74])
8. The reasons at [78] dealt largely with whether there was inconsistency between s 119 and the Guidelines. This was a matter raised by the University in its submissions. It was appropriate that the Arbitrator consider it. The reasons at [95] dealt with the alleged paucity of evidence going to matters such as incapacity. This was a matter raised in the University’s submissions. The reasons here also dealt with the basis on which the University made payments of provisional compensation. That was a topic raised in the respondent’s submissions. ([75]–[76])
9. The University’s submissions on this added ground were put in very general and unhelpful terms, that the nominated paragraphs contained matters not the subject of submissions by the worker or addressed to the parties by the Arbitrator. In general terms, the Arbitrator’s reasons addressed the basis on which the matter was conducted before him. The University’s submissions did not address, with any specificity, the matters that were allegedly outside the submissions and how the case was conducted. They did not address how procedural unfairness allegedly resulted, for example, or on what matters the University was not afforded an opportunity to make submissions. They did not address whether any such denial of procedural fairness could have affected the result. The University had not made good its argument in Ground 6. ([77])