Appeal Case Summaries

Brickworks Ltd v Wright [2022] NSWPICPD 21

WORKERS COMPENSATION – Section 11A(1) of the 1987 Act – reasonable action with respect to discipline: Commissioner of Police v Minahan [2003] NSWCA 239, having regard not only to the end result but to the manner in which disciplinary action was effected, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138: test of reasonableness is objective; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227: employer confined to matters raised in dispute notices; ss 22 and 22A of the 1987 Act: apportionment; reasons: NSW Police Force v Newby [2009] NSWWCCPD 75

Snell DP

7 June 2022

Facts

Whilst working for a previous employer driving semi-trailers, the worker was involved in a fatal accident in 2008. He suffered significant injuries. He was diagnosed with Post Traumatic Stress Disorder (PTSD) and received “psychological interventions” over about two years. He felt that he made a complete recovery.

The worker started working for the appellant (Brickworks) from January 2013. He was elected as union delegate in 2017. He considered that safety standards slipped and he raised a number of matters with management. He described an incident on 16 August 2019 involving a blocked loading bay. The worker was involved in an exchange with a manager who swore at him and told him to go home. The worker said to the manager “You’ve laughed at me one too many times. If I took you out the front and tapped you out, who would be laughing then?” The worker denied this was a threatening comment or situation.

The state manager of Brickworks spoke to the worker on 23 August 2019 and said the worker had threatened and intimidated the manager, which the worker denied. The worker was placed on two weeks’ leave and subsequently attended a meeting with the state manager. He was told he needed to attend an anger management seminar and was being reprimanded by way of a first and final warning. He indicated he would attend the seminar but would not accept the first and final warning. He left the building and went home. The worker deteriorated emotionally and stated that he subsequently moved out of his matrimonial home, lived with his brother, lived out of his car for periods, and found himself “being treated at St John of God – North Richmond”, where he had “a few admission periods”.

The worker claimed compensation from Brickworks, describing his condition as “Psychological injury, PTSD, aggravation of underlying PTSD.” The Member made an award of weekly payments in the worker’s favour. The orders noted that the worker had received compensation from another source, Employers Mutual Ltd (EML), for various periods. EML was the insurer of the worker’s employer at the time of the 2008 injury when he initially developed PTSD. Brickworks appealed.

The issues on appeal were whether the Member:

(a) erred in failing to have regard to evidence of words said to the manager which constituted a threat and grounds for discipline (Ground 1);

(b) erred in failing to refer to evidence of policy documents, that reflected Brickworks’ obligation to provide a safe workplace, and the worker’s obligation to behave in accordance with the ‘Code of Conduct’ (Ground 2);

(c) erred in failing to refer to the fact that the worker was not incapacitated until after disciplinary action was instituted in respect of the words said to the manager (Ground 3);

(d) erred in awarding compensation on the basis that the worker had no work capacity despite being paid compensation at rates of $858.56 to $888.96 per week (by EML) (Ground 4);

(e) erred by noting the receipt of compensation from another source where there was no provision in the 1987 Act for a reduction under ss 36 and 37 of the 1987 Act, and no joinder of the prior employer under s 22 was made (Ground 5);

(f) erred in awarding compensation where the effect of this was that, with the receipt of compensation from other sources, the worker would receive compensation in excess of his pre-injury average weekly earnings, offending the principle against double compensation (Ground 6), and

(g) failed to provide adequate reasons for awarding compensation pursuant to ss 36 and 37 when the worker had already recovered compensation for the same total incapacity from another insurer and for another injury (Ground 7).

The first three grounds of appeal related to the failure of the defence pursuant to s 11A(1) of the 1987 Act. The balance of the grounds related to the awarding of compensation in the particular circumstances where the worker also received compensation from another source.

Held: The Certificate of Determination dated 23 August 2021 was confirmed.

Grounds 1 to 3

1. Brickworks’ first ground was narrowly put, an alleged failure to have regard to the words said by the worker to the manager. The worker denied that the words were threatening, he denied that he had threatened and intimidated the manager. A witness described the incident as “pretty tame”. It was not common ground that the words were threatening. The witness’s recall of the words used was a little different: “if things were different and we were out the front …”. Brickworks submitted that it was entitled and obliged to investigate the complaint made about the worker’s behaviour. The worker accepted that Brickworks was entitled to investigate a complaint about threatening behaviour by an employee. ([51]–[52])
2. The primary contest, and the basis on which the s 11A defence failed, did not turn on whether Brickworks was entitled to conduct an investigation. It involved the deficiencies identified by the Member in the investigation that occurred. In considering ‘reasonableness’ it was appropriate that the Member consider “the entirety of the conduct” of Brickworks with respect to discipline. It was not disputed that the worker’s injury was a ‘psychological injury’ or that Brickworks’ relevant actions were with respect to ‘discipline’. ([53]–[54])
3. Ground 1 stated the Member failed to have regard to relevant evidence. This was a reference to the worker’s admission that he said the relevant words to the manager, these words constituting Brickworks’ grounds for discipline. Ground 2 was related, and stated that the Member failed to refer to Brickworks’ policy documents, which reflected its obligation to supply a safe place of work, and the worker’s obligation to behave in accordance with the Code of Conduct. The various policy documents referred to in Brickworks’ submissions were internal documents of Brickworks. Compliance (or non-compliance) with those documents did not, of itself, establish that the worker behaved in a fashion that justified disciplinary action, nor that Brickworks behaved reasonably in implementing disciplinary action. The necessary assessment of ‘reasonable action’ is an objective one. It is not sufficient that an employer believed it was acting reasonably. It is not sufficient that an employer believed it was compelled to act as it did in the interests of discipline. ([57])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255 and Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 applied)

4. As the worker submitted, the fact that the Member did not quote the words said to the manager did not indicate that the Member failed to consider the words. The words formed the starting point for the consideration of the reasonableness of the disciplinary process that was carried out. The Member discussed deficiencies in Brickworks’ conduct of the disciplinary process, leading to his conclusion that Brickworks’ disciplinary action was “not reasonable” within the meaning of s 11A(1) of the 1987 Act. Brickworks failed to identify error in the Member’s consideration of whether its relevant actions were ‘reasonable’. Grounds 1 and 2 failed. ([58]–[59])
5. Ground 3 related to the requirement that, for the defence in s 11A(1) to apply, the psychological injury must be ‘wholly or predominantly caused’ by the relevant reasonable action. This causation issue is one on which the employer carries the onus. The parties referred to Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad) regarding discharge of this onus. Hamad accepts that there will be cases where satisfaction of this onus will be possible without specific medical evidence, and that the need for medical evidence will depend on “the facts and circumstances of the individual case”. Where there are a number of potentially causative factors raised on the evidence, only some of which are matters within the scope of s 11A(1), it may well be that medical evidence will be necessary on this causation issue for an employer to discharge its onus. ([60])
6. In the current matter, Brickworks failed to establish the defence in any event, as the Member rejected the argument that its actions were ‘reasonable’. The Member’s finding did not engage with the causation issue. The worker correctly submitted that “if there was an error in respect of causation it would not alter the outcome”. It was unnecessary for the Deputy President to further deal with Ground 3. ([61]–[62])

Ground 4

7. The Member found that the worker had no current work capacity. In Ground 4, Brickworks asserted that it was an error of law to enter an award on the basis of no work capacity, when the worker was being compensated by EML for the same incapacity. Snell DP held that the argument that receipt of compensation payments from EML was inconsistent with a finding that there was ‘no current work capacity’ was misconceived. There was no legitimate basis on which it could be argued that the receipt of weekly compensation was inconsistent with a finding that a worker has no current work capacity. The receipt of compensation from EML was simply irrelevant to that issue. For that reason, Ground 4 failed. ([86]–[88])
8. There was an additional matter raised by the worker. The worker said the above issue was not raised in the dispute notice and objected to it being raised at the hearing. Brickworks issued two dispute notices, dated 14 May 2020 and 9 November 2020. Near the commencement of the hearing Brickworks’ counsel, identifying the issues, referred to the matters raised in the dispute notices. ([89])
9. Deputy President Snell observed that the worker did not have, and did not seek, an award against EML (or its insured) in respect of the 2008 injury. EML was not a party to these proceedings, or to any other relevant proceedings so far as could be ascertained from the material. On a fair reading of the dispute notices issued by Brickworks, the above issue was not raised in those notices. Brickworks did not seek leave pursuant to s 289A(4) of the 1998 Act to rely on unnotified matters. The worker’s counsel made it clear during the hearing that he relied on the absence of appropriate notice of the additional issue and objected to it being raised. He did not acquiesce in Brickworks’ attempts to raise the issue without appropriate notice. The Deputy President held the Member dealt with Brickworks’ submissions on the topic relatively briefly in the reasons at [13] to [14]. To the extent to which the Member permitted Brickworks to raise an unnotified matter, this did not affect the outcome and did not constitute appealable error. ([91]–[92])

(Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 applied)

Ground 5

10. Ground 5 alleged error in noting the receipt of compensation from EML, where there was no provision in the 1987 Act for a reduction under ss 36 and 37 of the 1987 Act, and no joinder of the prior employer under s 22 was made. It submitted the notation at [31] of the reasons was “meaningless and an error of law”. The worker submitted this did not constitute appealable error. The worker rhetorically asked what relief Brickworks sought in respect of this alleged error. Brickworks gave no meaningful response to this question. Snell DP found the worker’s argument on this ground was correct. On Brickworks’ submission, the effect of this alleged error was to include a notation that was meaningless. This was not dispositive and did not constitute appealable error. Ground 5 failed. ([93]–[94])

    (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 applied)

Ground 6

11. Ground 6 alleged error in awarding compensation where the effect was that this award, with the receipt of compensation from other sources, would exceed the worker’s pre-injury average weekly earnings, offending the principle against double compensation. ([95])
12. The basis on which voluntary payments were made by EML was submitted to be based on a “lower PIAWE” than would apply to the more recent claim. Whatever the reason, the weekly rate paid to the worker by EML from 24 September 2019 to 17 May 2021 ranged from about $858.56 to $888.96. The rate at which the award was made by the Member in respect of the 2019 injury, was $1,944.22 from 23 September 2019 to 23 December 2019, and $1,637.24 thereafter. The rate at which the worker was compensated by EML in its voluntary payments was a little more than one half of the rate found to be applicable in the current claim. The worker was not, in the absence of the current proceedings, being fully compensated. Brickworks declined the worker’s claim based on the psychological injury in 2019 (as it was entitled to do). ([104])
13. The only basis on which the worker could pursue his entitlements, based on his earnings in 2019, was by pursuing his claim against Brickworks. In doing that, the only orders sought by the worker were based on his statutory entitlements against Brickworks. ([105])
14. The Deputy President referred to Cluff v Dorahy Bros (Wholesale) Pty Ltd [1979] 2 NSWLR 435; 53 WCR 167. Application of that authority can lead to a position where there are two employers potentially liable for payment in respect of a single period of incapacity. Section 22(1) provides, amongst other things, for apportionment of liability where incapacity results from more than one injury to a worker. It is open to the parties to agree on apportionment (subs (3)). Subsection (5) provides for determination of a dispute regarding whether liability to pay compensation should be apportioned “on the application of any insurer or employer concerned or of the Authority”. The evidence did not suggest that any such application was made. There was no indication that Brickworks and EML had sought to come to any agreement on apportionment. ([107])
15. In short, ss 22 and 22A of the 1987 Act permit apportionment of liability where a liability to pay compensation results from more than one injury. Section 22(5) provides for an application to be made by “any insurer or employer concerned or of the Authority”. Section 22(7) provides that compensation is not to be reduced on account of the liability of a person who is not a party to the proceedings. It would have been open to Brickworks to bring an application for apportionment against EML or its insured, which it did not do. It then relied on the absence of EML or its insured, as a party to these proceedings, to submit that s 22(7) prevents the making of “some sort of apportionment order”. It submitted on the appeal that “the matter does not involve a question of apportionment under s 22 of the 1987 Act”. The Deputy President observed that it was open to Brickworks to bring an application pursuant to s 22 to seek apportionment orders should it wish. ([115])
16. The only orders for the payment of moneys were in respect of the claim based on the 2019 injury. Moneys paid by EML in respect of the 2008 injury were not the subject of orders of the Commission. If Brickworks utilised the machinery in s 22 of the 1987 Act, there was no reason to anticipate any over-compensation. The approach suggested by the worker’s counsel in the running of the case would have avoided any risk of over-compensation. Ground 6 failed. ([109]–[111], [116])

Ground 7

17. Brickworks submitted the Member failed to provide adequate reasons for making an award pursuant to ss 36 and 37 of the 1987 Act when the worker had already recovered compensation for the same total incapacity from another insurer and for another injury. It submitted the Member’s reasons were insufficient to permit it to understand why the findings were made and awards and notation were entered. The way in which the ground was framed restricted it to the reasons on this specific point. ([117])
18. In the Deputy President’s view, the reasons given by the Member satisfied his obligation to furnish adequate reasons in dealing with the issues that were before him. The orders were, of course, made only against Brickworks, it being the only employer that was a party to the proceedings. It is open to Brickworks to seek apportionment orders pursuant to s 22 of the 1987 Act, should it wish. Ground 7 failed. ([118]–[122])

(NSW Police Force v Newby [2009] NSWWCCPD 75 applied)

Devenish v Kizlock Pty Ltd [2022] NSWPICPD 22

WORKERS COMPENSATION – acceptance or rejection of expert evidence not the subject of contrary expert opinion – Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 applied – absence of contemporaneous complaints – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – error in the fact-finding process  – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – requirement for expert medical opinion Strinic v Singh [2009] NSWCA 15 applied

Wood DP

10 June 2022

Facts

The appellant worker suffered undisputed left knee injuries on 2 July 2010 and 14 September 2012 in the course of his employment with the respondent employer. Liability for the injuries was accepted by the respondent. Following increased symptoms in the knee, the appellant underwent surgery in the form of a total left knee replacement on 7 November 2017.

The appellant alleged that after the surgery, he experienced left knee instability which caused him to fall on 26 November 2017, resulting in an aggravation of his pre-existing lumbar spine pathology. He underwent a lumbar laminectomy and fusion at the L5/S1 level of the spine at the hands of Associate Professor Mark Davies, neurosurgeon, on 7 June 2018.

The appellant claimed compensation for the costs of and incidental to the surgery on the basis that the fall which caused his lumbar pathology to become symptomatic was caused by the left knee condition. The respondent denied the claim on the basis that the lumbar symptoms were not consequential to the left knee injury and the fall.

The Member found that he was not satisfied that the appellant had suffered an injury to his back in the fall and thus the treatment expenses sought by the appellant were not compensable. The worker appealed that decision.

The issues on appeal were whether the Member:

(a) failed to accept uncontradicted medical opinions (Ground 1);

(b) erred in the fact-finding process in:

(i) affording too much weight to the absence of a record of the appellant experiencing low back pain at the time of the fall;

(ii) placing too much weight on the appellant’s failure to provide a mechanism of injury to his physiotherapist, and

(iii) placing too much weight on inconsistencies in the appellant’s statements (Ground 2), and

(c) took into account irrelevant matters (Ground 3).

Held: The Certificate of Determination dated 14 October 2021 was revoked and was re-determined. The appellant was found to have suffered an injury. The fall occurred as a consequence of the appellant’s accepted injuries to his left knee on 2 July 2010 and on 14 September 2012. Pursuant to s 60 of the 1987 Act, the respondent was ordered to pay for the costs of lumbar laminectomy and L5/S1 fusion performed on 7 June 2018.

Ground 1

1. The first ground of appeal asserted that the Member erred by failing to accept the uncontradicted medical opinions of Dr Giblin (orthopaedic surgeon qualified by the appellant) and A/Prof Davies. The appellant referred to the Member’s finding that both doctors had recorded inaccurate histories in respect of the onset of the symptoms. ([96])
2. Wood DP held that, as the appellant submitted, his lay recollection of the onset of the symptoms having occurred after the knee replacement, as well as Dr Grant’s (general practitioner) similar summation of the history of onset, was not evidence that was sufficiently inconsistent with the history relied upon by A/Prof Davies in reaching his conclusion. ([100])
3. In Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174, Ipp JA observed 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. On the basis of the principles discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11:

(a)     the assumptions underpinning an expert opinion must provide a “fair climate” to ground the expert’s opinion;

(b)     there does not need to be an exact correspondence between the assumed facts upon which the expert opinion is based and the facts proved in the case, and

(c)     it is sufficient to look at the overall context of the facts upon which the ultimate opinion is based. ([101])

4. The Member also rejected the opinion of Dr Giblin. He indicated that the history recorded that there was “no past history of this or a similar problem” was wrong. The appellant submitted that the Member erred in assessing the history relied upon by Dr Giblin, because of the absence of reference in the clinical notes to prior complaints. Wood DP observed that it was not clear whether Dr Giblin was referring to the left knee injuries or the back condition, or both, when he recorded that there was no past history of similar problems but, in respect of the back condition, there was certainly no reference to such symptoms in the clinical notes recorded by Dr Grant. The absence of prior recorded complaints was a factor relevant to the assessment of Dr Giblin’s opinion and the assessment of that opinion. ([103]–[104])
5. The Deputy President held that the appellant’s assertion that the Member failed to evaluate the absence of complaint in the clinical notes was correct. The Member adopted the history recorded in the letter of referral from Dr Grant to A/Prof Davies without consideration of the potential conflict between that history and the absence of a history of prior complaints recorded in the clinical notes. Whether such an analysis would result in a different outcome, however, was debateable. ([105])
6. In an assessment of the acceptance of evidence, the evidence must be read in the context of the evidence as a whole. There was no medical evidence that suggested that the delayed onset of worsening symptoms was relevant to the question of causation and that the delay countered against the asserted causal connection. ([107])
7. The Member rejected Dr Giblin’s opinion because he did not take into account the evidence referred to by the respondent of subsequent “aggravation injuries.” Those later events, if indeed they constituted aggravation injuries, occurred after 10 January 2018, when the appellant first complained of symptoms to his physiotherapist. The fact that Dr Giblin did not refer to the subsequent non-work related incidents did not amount to a failure to satisfy the requirements of expert evidence. In the circumstances of this case, there was no medical evidence that attributed the L5/S1 symptoms to subsequent causative events or that those events constituted a “novus actus” such that there was a break in the chain of causation. ([108])
8. Wood DP held it followed that the Member erred in his assessment of the evidence provided by Dr Giblin. The appellant had established that the Member’s rejection of the opinions of A/Prof Davies and Dr Giblin involved error, and this ground of appeal succeeded. ([109]–[110])

Ground 2

9. Ground 2 of the appeal asserted error on the part of the Member in the fact-finding process. The appellant asserted that the Member afforded too much weight to the absence of a contemporaneous record of the onset of back pain at the time of the fall. It was implicit in the Member’s reasons that he ultimately was not satisfied that the appellant experienced symptoms at the time of the fall. The appellant pointed to the explanation he gave for not reporting the symptoms earlier. That is, that his major concern was in relation to his left knee, until it improved, and his back pain worsened. While the appellant asserted that he hurt his back in the fall, he did not positively assert that the worsening symptoms, which prompted him to seek treatment, arose immediately after he fell. ([111]–[112])
10. The proximity of complaints or the passage of time between the injury and the onset of symptoms is not, of itself, determinative of the cause of injury. In the circumstances of this case, where the unchallenged expert evidence provided a rational causal nexus between the fall on 26 November 2017 and the development of worsening back symptoms within weeks of the fall (at some time in December 2017 or prior to 10 January 2018), the search for a contemporaneous record of immediate symptoms following the fall was misplaced. ([114])

(Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

11. The appellant also asserted that the Member placed too much weight on the failure by the appellant to provide the physiotherapist with a mechanism of injury. It was apparent that the appellant did not complain to a treatment provider that the fall caused an aggravation of his pre-existing back symptoms until after he received legal advice. His explanation was that he did not attribute his back symptoms to his left knee injury until he had been given that legal advice. That evidence did not explain why the appellant did not think it relevant to mention the fall in the context of the increase in back symptoms, regardless of the fact that the appellant was not appraised of the potential legal connection between the left knee injury and the aggravation of his lumbar spine. The failure by the appellant to provide a history of the fall, which he asserted caused him to hurt his back, was a factor that the Member was entitled to take into account. The weight to be afforded to the absence of that history, however, was a matter for the Member to assess in the context of the whole of the evidence. ([115])
12. The appellant asserted that the Member placed too much weight on the inconsistencies in the appellant’s statements. The appellant pointed to the inconsistency identified by the Member, namely that, on the one hand, the symptoms had arisen since the fall and on the other, that they had been present since the total knee replacement. He maintained that it was not inconsistent to assert that the back pain arose after the left knee surgery and also allege that the onset of symptoms was after the fall, or in December 2017. ([116])
13. In the context of the short period of time between the total knee replacement, the fall and the onset of symptoms, the reference to the onset being “after the total knee replacement” was not of great significance. A lay person may not always refer to a precise time when the symptoms became apparent or exactly when the worsening of the condition manifested when reporting those symptoms to a treatment provider. Deputy President Wood did not accept that such a description was so inconsistent with the appellant’s assertion that he injured his back in the fall that the appellant’s evidence should be considered unreliable. ([117])
14. The medical opinions in support of the appellant’s case did not rely upon there being contemporaneous complaints. The Member’s assessment of the evidence of the appellant’s delay in reporting lumbar symptoms was therefore irrelevant to the determination the Member was required to make. The onset of symptoms having occurred “after the knee replacement” and “since the fall”, in the context of the whole of the evidence, particularly that the evidence showed that the symptoms did not arise until at least December 2017, could not be considered to be inconsistent. The Member, having placed weight on those matters in order to reject the appellant’s case, disclosed error on the part of the Member in his fact-finding process, consistent with the principles enunciated in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156. Ground 2 succeeded. ([122]–[123])

Ground 3

15. Ground 3 asserted that the Member erred by taking into account irrelevant matters. The appellant complained that the Member took into account the fact that the appellant fell on his left side, but the pain initially was right sided. The appellant submitted that there was no medical basis for taking that record into account. ([124])
16. Deputy President Wood observed that the role of the Member is to assess the credit of the witnesses, assess what evidence to accept or reject, make findings of fact based on the evidence and apply the law to those facts. Familiarity with medical matters undoubtedly assists a decision-maker in understanding medical evidence but that does not permit the decision maker to become an expert in the case. The Member’s task is to determine what inferences can be drawn from the facts, not the inferences that can be drawn from medical expertise. The Member’s task in this case was to determine whether the fall caused an aggravation of the appellant’s pre-existing spondylolisthesis. Whether the fall on the left side would or would not produce right sided symptoms was a medical question to be answered by an expert medical opinion. The Member’s conclusion reached about that evidence was a medical conclusion and therefore beyond the evaluative task assigned to him and thus he fell into error. ([126])

(Strinic v Singh [2009] NSWCA 15 applied)

17. The appellant also asserted the Member erred by taking into account the fact that the appellant did not claim the costs of the surgery from the respondent prior to the surgery being performed. It was difficult to see how that fact was relevant to the question of causation. There may be many explanations as to why the appellant did not do so, the most obvious of which was that the appellant’s evidence was that he was unaware that the injury to his back could be compensable if it was causally related to the left knee injury. The appellant’s evidence was that he was appraised of that possibility when he received legal advice after the spinal surgery, in about September 2018. It followed that the appellant had established error on the part of the Member in his role as a finder of fact and by taking into account a further irrelevant matter. Ground 3 succeeded. ([127]–[128])

Re-determination

18. Deputy President Wood proceeded to re-determine the matter. She accepted the opinions of Dr Giblin and A/Prof Davies. She did not accept the appellant’s recollection was somewhat imprecise as to the timing of the onset. He complained of symptoms to his physiotherapist on 10 January 2018. Dr Grant did not refer to lumbar symptoms in the consultation note on 19 December 2017. Assuming the appellant did not complain to Dr Grant on 19 December 2017, but did to his physiotherapist on 10 January 2018, that evidence would tend to indicate that the worsening symptoms which were sufficient to warrant treatment occurred between those two dates. ([164]–[166])
19. Wood DP was satisfied that the appellant suffered worsening lumbar symptoms as a result of the fall on 26 November 2017, which resulted from the appellant’s injuries to his left knee. There was no issue raised by the respondent as to whether the surgery was reasonably necessary to address the appellant’s worsening lumbar symptoms. Deputy President Wood was satisfied that the surgery in the form of lumbar laminectomy and fusion at the L5/S1 level of the spine was reasonably necessary as a result of the injuries to the appellant’s left knee. ([167])

Haddad v The GEO Group Australia Pty Ltd [2022] NSWPICPD 23

WORKERS COMPENSATION – application to amend the Application to Resolve a Dispute – whether leave should have been refused – exercise of discretion on the leave application – taking into account irrelevant factors – error found – re-exercise of the discretion to determine an application for leave to amend the Application to Resolve a Dispute

Parker SC ADP

28 June 2022

Facts

The appellant worker was employed by the respondent between 3 August 1998 and 31 January 2001 working at Villawood Detention Centre. In an Application to Resolve a Dispute before the Commission, the appellant claimed weekly benefits from 17 February 2017 and medical expenses. The appellant described his injury as PTSD and major depression.

At the hearing before the Member, the appellant applied to make two amendments: firstly, to delete the claim for weekly payments of compensation, and secondly, to amend the particulars of injury. The first amendment was unopposed and orders were accordingly made.

With respect to the second amendment, which was opposed, the Member declined to grant the application.

The appellant applied for an adjournment, which was opposed. The Member, having been informed of the intention to appeal, granted the adjournment for that purpose. The appellant appealed.

The issues on appeal were whether the Member made an error of:

(a) law and/or discretion by failing to allow the appellant to amend his claim (Ground 1);

(b) law and discretion by indicating that there were two possible consequences of having a deemed date of injury and that the respondent may not be in a position to meet the case sought by way of the amendment (Ground 2);

(c) law by failing to provide the appellant with procedural fairness by not dealing with submissions made on his behalf (Ground 3);

(d) discretion by finding the appellant was not prejudiced if the amendment application was not allowed (Ground 4);

(e) discretion by failing to take into account or give sufficient weight to the medical evidence in the matter (Ground 5), and

(f) discretion by deciding that to permit the amendment sought would expose the respondent to “unacceptable prejudice” (Ground 6).

Held: The Certificate of Determination dated 2 November 2021 was revoked. The injury details in the Application to Resolve a Dispute were amended, and the matter was remitted to another Member for determination.

1. One difficulty with this matter was the appellant’s failure to comply with the 2021 Rules with respect to amendments. The Acting Deputy President drew attention to rr 19–21 of the 2021 Rules. He said that if rr 19–21 inclusive had been complied with, everyone, including the Member, would have had a much better understanding of what amendments were proposed and with what consequence(s). ([10]–[14])

Ground 1

2. Ground 1 of the appeal did not in its terms identify the error said to have occurred. The ground of appeal as formulated challenged the Member’s determination without identifying any particular error of law, fact or discretion. It appeared that the appellant’s challenges under this ground were:

   (a) to an incorrect conclusion by the Member that the appellant had failed to make clear that the injury pleaded was a disease injury at any time before the application to amend was made, and

   (b) the Member erred in her conclusion that having ticked the deemed date of injury box the consequence was that “the injury was a nature and conditions type of injury or a disease injury”. ([89]–[90])

3. Acting Deputy President Parker SC found that the appellant had not made out the challenge in his submissions with respect to notice; but had established error on the part of the Member with respect to the Member’s incorrect conclusion as to the significance of the deemed date of injury. ([91])
4. The Member took into account an irrelevant matter when she directed her attention to the fact that a deemed date of injury had two possible consequences bearing upon the relevant test. That was in error for two reasons. Firstly, the appellant was correct that ss 15 and 16 are premised and preconditioned on the notion of disease as determined by reference to s 4 of the 1987 Act. In other words, by identifying a deemed date of injury for the purpose of s 15 the premise was that there was a disease injury as defined by s 4. Secondly, what the deemed date of injury could not do was generate an injury in the form of traumata or personal injury within the meaning of s 4(a). Contrary to the Member’s statement, the effect of identifying a deemed date of injury in the present matter was not to have two possible legal consequences. The proposed amendment did not generate the ambiguity with which the Member seemed to have been concerned. ([92]–[93])
5. The Member misdirected herself when she relied on that conclusion to refuse the proposed amendment; The consequence was that the discretion to refuse the amendment miscarried. Ground 1 was made out. ([95]–[96])

Ground 2

6. The Acting Deputy President referred to his earlier conclusion that the Member was in error in her conclusions with respect to the effect of the proposed amendment. He said, furthermore, it was plain from the respondent’s submission that the real complaint was not as to the amendment, but its inability to meet the amendment on 2 November 2021. But that complaint in effect of prejudice could have been easily met by granting the respondent an adjournment to obtain material to meet the amendment. ([101]–[102])
7. There was simply no basis upon which to conclude that the proposed amendment should not have been allowed because the respondent had not had an opportunity to investigate the consequence of the amendment. The appellant could not have resisted an application by the respondent to adjourn the proceedings to enable the respondent to put itself in a position to meet the claim. There was no convincing argument advanced as to why that obvious remedy to any prejudice the respondent might have sustained could not have been adopted as a consequence of the amendment being allowed. Ground 2 was made out. ([103]–[104])

Ground 3

8. Acting Deputy President Parker SC held it was not correct to assert, as the appellant asserted, that the Member failed to understand that the prejudice claimed by the appellant was the inability to articulate the claim he wished to make on the basis of the evidence. ([109])
9. To describe the non-allowance of the proposed amendment as “punishment” of the appellant was inapt and inappropriate. The Member was correct to reject the suggestion that in not allowing the proposed amendment the appellant was being punished. The Member was required to exercise the jurisdiction given by the Commission on the merits of the case as she saw them. It was not a question of punishing the appellant or, for that matter, the respondent. The Acting Deputy President was satisfied that the Member addressed the evidence and the submissions made. Ground 3 was not made out. ([111]–[112])

Ground 4

10. The fact that the proceedings could be discontinued and recommenced without penalty was an irrelevant consideration with respect to the proposed amendment. Furthermore, if proceedings incorporating the amendment can after the discontinuance be re-commenced then, with respect, what purpose is served by not allowing the amendment and making consequential directions in favour of the respondent? ([117]–[118])
11. The only outcome was, as the appellant submitted, to make the appellant discontinue and recommence or compel the appellant to proceed to a hearing in which the true issues between the parties could not be ventilated because of the state of the pleadings. That conclusion, with respect, was directly contrary to ss 42 and 43 of the 2020 Act. ([119])
12. The Acting Deputy President held that the Member’s failure to allow the amendment meant that the appellant had the unacceptable choice of discontinuing the proceedings and reissuing or conducting the proceedings on a basis unsupported by the evidence. The latter would have led inevitably to a conclusion adverse to the appellant. Parker SC ADP concluded that the Member took into account an irrelevant consideration. Ground 4 was made out. ([121]–[122])

Ground 5

13. The Member said at pages 24–25 of the transcript that she took into account the evidence. The appellant had not established any basis upon which to challenge that proposition. He did not, for example, identify any specific medical evidence that the Member overlooked or any specific medical evidence that would conclude the issue in favour of the appellant. It was difficult to see what assistance on an application to amend the Application to Resolve a Dispute the medical evidence was likely to have. Ground 5 was not made out. ([126]–[127])

Ground 6

14. This ground of appeal seemed to be covered to a substantial extent in the previous grounds. The Member found that the amendment would expose the respondent to unacceptable prejudice. It was unclear from the reasons precisely what prejudice the Member had in mind. Presumably the Member’s concern was that the respondent would be prejudiced unacceptably if it was required to meet a claim it was not in a position to meet because up to that point of time it had not been properly pleaded in the Application to Resolve a Dispute. Such prejudice would have been unacceptable if the respondent was not given an opportunity by the granting of an adjournment to investigate the amended claim. No submission was advanced to the Member or on appeal, that any such prejudice could not be readily overcome by granting the respondent an adjournment. Therefore, although the amendment would have prevented the respondent from proceeding on 2 November 2021, that was a prejudice that could readily be ameliorated by an adjournment. Ground 6 was made out. ([131]–[135])

Re-exercise of the discretion

15. The Acting Deputy President was of the view the Member’s exercise of the discretion miscarried because:

    (a) the legal consequence of the amendment in terms of the deemed date of injury was not correctly understood;

    (b) the prospect that the appellant could commence fresh proceedings was not a relevant consideration for the determination of whether to allow or disallow the amendment, and

    (c) the consideration given to the conclusion that the amendment presented the respondent with “unacceptable prejudice”, failed to include a consideration as to whether such prejudice could be remedied by an adjournment of the proceedings to enable the respondent to investigate the amended claim. ([136])

16. Parker SC ADP considered he was in a position to re-exercise the discretion, which he did in favour of the appellant. He directed that, if necessary, the respondent was to be given time to further investigate the circumstances of the appellant’s claim. ([137]–[139])

Bunnings Group Limited v Collins [2022] NSWPICPD 24

WORKERS COMPENSATION – Section 11A(1) of the 1987 Act – reasonable action with respect to proposed transfer: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 – test of reasonableness is objective

Phillips P

30 June 2022

Facts

The respondent worker was employed by the appellant as a team member, initially at its Norwest store, before being transferred to the appellant’s Rouse Hill premises. On 28 October 2019, the respondent commenced in a position described as team member SSA (stock shortage allowance) which involved travelling to multiple stores.

The respondent made a claim for workers compensation for a psychological injury as a result of a number of interpersonal work-related difficulties with her supervisor, ultimately culminating on 3 November 2020 following a telephone call during which the suggestion of a transfer was made.

The appellant made provisional payments of compensation until 25 January 2021, before issuing a dispute notice under s 78 of the 1998 Act. The appellant disputed the respondent’s claim on a number of bases, including s 11A of the 1987 Act.

At the arbitration hearing, the only issue in dispute before the Senior Member was a consideration of s 11A(1) of the 1987 Act. There was no dispute that the respondent suffered a psychological injury as a result of her work. The Senior Member found that the action taken by the appellant on 3 November 2020 was action proposed to be taken with respect to a transfer within the meaning of s 11A(1) of the 1987 Act, however, this action was not reasonable. The Member therefore made orders in favour of the respondent in a Certificate of Determination dated 30 August 2021. The employer appealed.

The issues on appeal were whether the Senior Member:

(a) erred in law in failing to observe that the test of reasonableness is objective, not subjective, from the point of view of the injured worker (Ground 1);

(b) made a critical error of fact in concluding there was evidence permitting him to find the employer’s representative, Ms Da Silva, was aware or ought to have been aware prior to making the suggestion, that for her to suggest a transfer would cause the worker emotional distress (Ground 2), and

(c) in considering the reasonableness of the employer’s action, neither identified nor restricted himself to the facts giving rise to the transfer (Ground 3).

Held: The Certificate of Determination dated 30 August 2021 was confirmed.

Ground 1

1. The appellant alleged the Senior Member erred in law by applying the wrong test, namely that the test of reasonableness is not objective and not subjective from the point of view of the injured worker. The appellant asserted the error was in the first two sentence of the Senior Member’s reasons at [249], which stated:

   “There seems little doubt that Ms Da Silva had good intentions, given the issues that had troubled the [respondent] over the previous six months or so, and it might be said that she was sensitive in the manner that she spoke to her, but that was not how the [respondent] perceived their discussion. She felt that she was being coerced and in her fragile state, this led to her decompensation.” (appellant’s emphasis) ([40])

2. The President held that the submission that how the worker perceived Ms Da Silva’s suggestion as a transfer had somehow infected the Senior Member’s reasoning that the appellant’s action was not reasonable could not be sustained. It was clear that in the sentence immediately following the alleged error pointed to by the appellant, the Senior Member made the finding that the manner in which the suggestion was made and its timing could not be seen to be reasonable. The Senior Member then went on to discuss why this was so. ([45])
3. His Honour held that in the passages of the reasons referred to, the Senior Member was engaged with the passages from Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [59(iv), (v), (vi)]. The appellant, both below and on appeal, had emphasised the reasonableness of Ms Da Silva’s actions and intentions in defending its position. The problem for the appellant was that the Senior Member had made a number of findings which were not challenged on appeal, namely that its action was not reasonable and this was a finding of fact. Clearly the Senior Member was most concerned about the manner in which the option of transfer was raised with the worker. The Senior Member made unchallenged factual findings that the manner in which the proposal about a possible transfer was made was not reasonable. These considerations of the Senior Member were consistent with Ivanisevic v Laudet Pty Limited (Unreported, 24 November 1998), which was cited with approval by Foster AJA in Commissioner of Police v Minahan [2003] NSWCA 239. Namely, that when considering the concept of reasonable action, regard is had to not only the end result but to the manner in which it was effected. This was precisely what the Senior Member was undertaking in the passages referred to by the appellant in the decision. ([46])
4. The President noted that the findings of fact made by the Senior Member regarding the reasonableness of the appellant employer’s actions were not under challenge on this appeal. His Honour concluded that the alleged error had not been made out and Ground 1 failed. ([49]–[50])

Ground 2

5. The appellant asserted error in the Senior Member’s last sentence of [247] of the reasons where he said “Therefore, it is not surprising that the [respondent] was not prepared to move to a store.” The appellant alleged that this statement had absolutely no evidence to support it. The appellant complained that there was no evidence that supported the statement that Ms Da Silva ought to have been aware that the suggestion of a transfer of location would be strongly resisted by the worker. This, the appellant said, was a conclusion which clearly affected the outcome of the case. ([51]–[52])
6. With respect to [247] of the reasons, the President noted it comprised of three sentences. In relation to the first sentence, Ms Da Silva’s evidence confirmed that this was the case. Additionally, the evidence was that there were no performance issues with respect to the respondent worker. With regards to the second sentence of [247], this was the respondent’s evidence and it was not challenged. In relation to the final sentence, his Honour did not consider that this constituted a factual finding, rather it was an inference available to the Senior Member to draw based upon the facts as found. Contrary to the appellant’s submission, there was “foundational material” for this conclusion to be drawn. The problem with this appeal point was clear. Ms Da Silva on her own evidence was well aware of the respondent’s problems with her recent bereavement. Indeed Ms Da Silva had offered the respondent counselling on 4 or 5 occasions, which in itself evidenced an awareness of the respondent’s fragility. However, Ms Da Silva was then given further information in the telephone call of 3 November 2020 (which in Ms Da Silva’s mind was a significant escalation of the respondent’s plight describing it thus: “She was just in a really bad state”). The President concluded that on the basis of the evidence, this was an available inference or conclusion to be drawn with respect to the first limb of this appeal ground. ([69]–[70])
7. The appellant proceeded to rely upon an alternate ground which was based upon the decision of Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Branir). In light of the President’s conclusion with respect to the first limb of this ground, his Honour held that the alternate argument could not succeed. The Senior Member was not wrong in reaching the conclusion that he did, which was that the respondent worker would not be prepared to move back into a store. Ms Da Silva had knowledge of the respondent’s fragility at the time the conversation on 3 November 2020 started. Tellingly, Ms Da Silva recounted the escalation in the severity of the respondent’s condition during the course of that call. Ms Da Silva’s evidence was that the respondent was “in a really bad state”. This conclusion was asserted to be an error of fact. It was not. Rather, it was a conclusion which the Senior Member had drawn from established facts and as a consequence it had the necessary basis. The Senior Member was not wrong and as a consequence the alternative basis advanced in reliance upon Branir was not established. ([71]–[73])
8. The President noted that the real difficulty for the appellant on the appeal was the Member’s finding at [252] of the reasons, which struck at the heart of a defence to the s 11A claim. His Honour noted that there was no challenge to this on the appeal. The President concluded that Ground 2 failed. ([74]–[75])

Ground 3

9. In Ground 3, the appellant relied upon Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 (Jeffery). The appellant asserted that consistent with Jeffery, the Senior Member should have had regard to the following facts:

   (a)     the disclosed illness of the worker;

   (b)     the physical demands of the duties required of an SSA member, and

   (c)     Ms Da Silva’s responsibility for the worker’s safety and wellbeing.

   The appellant asserted that in accordance with what Basten JA said in Jeffery, these matters should have been considered and were not. ([76]–[77])

10. In respect of (a), the President held that contrary to the submission under this ground, the Senior Member had in fact referred to the “disclosed illness of the worker”. In relation to (b), his Honour found the Senior Member was aware of the physical demands of the SSA role. The only reason why the appellant, through Ms Da Silva, suggested a capacity assessment was to discern whether or not the respondent could continue to perform those duties. A fair reading of the Senior Member’s decision, read as a whole, discerned that contrary to the appellant’s submission, the Senior Member was aware of and did refer to these matters. In respect of (c), the President was of the view that the statements at [198]–[201] of the reasons, which were not challenged, all exhibited Ms Da Silva demonstrating care and concern for the respondent worker’s safety and wellbeing. Not only was the Senior Member aware of these matters, he had specifically referred to them. ([85], [90], [96])
11. The President concluded that the appellant made a very specific allegation that the Senior Member failed to reference three specific factual circumstances. These were the three factual scenarios said to give rise to the proposal of the transfer, and that the Senior Member’s failure to reference them was an error. The specific complaint raised in Ground 3 had not only failed, it was incorrect. The Senior Member was clearly aware of these matters at the time that he made his finding that the appellant’s conduct, through its servant Ms Da Silva, was unreasonable. All three factual scenarios were specifically addressed by the Senior Member. Ground 3 was dismissed. ([97]–[98])