Appeal Case Summaries

Morris v Woolworths Group Limited [2022] NSWPICPD 30

WORKERS COMPENSATION – section 4(b) of the 1987 Act – failure to discharge the onus of proof to establish injury – Department of Education and Training v Ireland [2008] NSWWCCPD 134 applied – approach to contemporaneous documents - Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 and ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 considered

Phillips P

3 August 2022

Facts

The appellant worker was employed by the respondent from 1978 to her retirement in August 2019. On 31 January 2019, whilst working as a customer service manager at the respondent’s Medowie store, the appellant allegedly suffered an injury to her left knee.

The appellant said that in the course of obtaining a product requested by a customer, she turned and put weight on her left side and immediately felt a burning pain. She ultimately underwent an MRI scan which revealed a meniscal tear and osteoarthritis. The appellant made a claim for her injury on 7 August 2020. The insurer denied liability for weekly payments and treatment expenses on the basis that she did not sustain an injury within the meaning of ss 4, 4(b)(ii) or 9A of the 1987 Act.

The issues before the Member for determination were whether the appellant suffered an injury on 31 January 2019; the precise nature and mechanism of injury, and if an injury was sustained, whether the appellant suffered any incapacity for work or had a reasonable necessity for medical treatment. The Member was not satisfied that the appellant had suffered a work injuryand found in favour of the respondent. The worker appealed.

The issues on appeal were whether the Member erred in fact and law in failing to find that the appellant:

(a) suffered an aggravation, acceleration, exacerbation or deterioration of osteoarthritis, and a tear of the medial meniscus, in her left knee on 31 January 2019 arising out of or in the course of her employment with the respondent (Ground 1), and

(b) was entitled to an award of weekly compensation and a general order providing for payment of her medical expenses (Ground 2).

Held: The Certificate of Determination dated 31 October 2021 was confirmed.

Consideration as to Ground 1

1. The appellant asserted that the Member made the following eight factual errors:

   (a) failing to find that the injury sustained on 31 January 2019 to the appellant’s left knee caused the aggravation of osteoarthritis in that knee and a tear of the meniscus ([60(a)]);

   (b) failing to find that the symptoms in the appellant’s left knee did not resolve ([60(b)]);

   (c) failing to accept that the relevant mechanism of injury involved the twisting of the left knee ([60(c)]);

   (d) failing to appreciate that there was no other event or explanation for the pathology revealed by the MRI other than the injury to the appellant’s left knee on 31 January 2019 ([60(d)]);

   (e) placing misconceived and erroneous weight on the record of injury; recorded by a fellow worker in the Safety Incident Report ([60(e)]);

   (f) erroneously characterising and treating the sparse detail recorded in the Safety Incident Report as a comprehensive record of the circumstances of injury ([60(f)]);

   (g) rejecting the sole forensic report before him – the report of Dr Reece (orthopaedic surgeon qualified by the appellant) who had taken an essentially reliable (“broadly consistent” in the words of the Member) history of injury ([60(g)]);

   (h) failing to find the absence of any resolution of symptoms ([60(h)]). ([59]–[60])

As to [60(a)]

2. The President found that the Member did not make a finding that the agreed injury on 31 January 2019 caused the aggravation of osteoarthritis in the appellant’s left knee and a tear of the meniscus on the basis that the Member was not satisfied that the appellant had discharged her onus of proof. This was a finding that was open to the Member based upon a consideration of the evidence, not just the selected assertions pursued by the appellant. No error had been identified and this particular of error had not been established. ([73])

As to [60(b)]

3. On the appellant’s evidence, she worked in her same role performing the same duties from the date of the injury until 18 June 2019, a period of approximately four and a half months. However, the appellant’s statement seemed to limit the pain and discomfort to the days immediately following the injury on 31 January 2019. That passage of the appellant’s statement could not be considered to provide a history of unabated pain and discomfort as it had been submitted. The post injury evidence of disability from the appellant herself was not strong, or consistent with ongoing pain. In particular, her statement talked about feelings of pain, swelling and discomfort in the days immediately following the 31 January 2019 incident. This could not be construed as covering the entirety of the period from the injury until the appellant commenced her long service leave. It left the reader to speculate about pain and disability during that period. Whilst the Member made no particular factual finding that the appellant’s pain had resolved itself, it was not a factual error for the Member to fail to make the finding complained of in this aspect of the appeal. The state of the evidence was not such as to compel the making of such a finding. This particular of the first appeal point was dismissed. ([82]–[83])

As to [60(c)]

4. The President held that whilst the appellant used the terms “turning, pivoting or twisting” interchangeably, the specific failure alleged in this ground was that the Member failed to accept the relevant mechanism of injury involved “twisting” of the left knee. The Member found that the “injury occurred in the manner described in that contemporaneous document”, meaning the Safety Incident Report. Having closely examined that document, the Member found that it “does not, in my view, support the submission that [the appellant] suffered a twisting injury to her left knee on 31 January 2019”. ([89])
5. Given the description of the injury in the appellant’s own statement and how it was recorded in the Safety Incident Report, it was entirely within the proper exercise of the Member’s fact finding discretion to make the ultimate finding which appeared at [69] of the reasons, namely, that he did not accept that the appellant suffered a twisting injury. This alleged error was not established. ([90]–[91])

As to [60(d)]

6. The appellant submitted there was no evidence as to a cause for the pathology revealed in the MRI “other than the undisputed traumatic frank incident on 31 January 2019, which resulted in the immediate onset of severe pain in that body part.” The appellant further submitted there was no evidence of any left knee symptoms prior to that incident. ([92])
7. The President noted that this argument was dealt with by the Member at [87] and [88] of the reasons. His Honour did not accept the appellant’s submission that there was “no other event or explanation” for the pathology revealed in the MRI as was alleged in this appeal ground. The evidence revealed at least one other incident which pre-dated the MRI about which the specialist relied upon by the appellant, Dr Reece, made no remark. In any event, the submissions in support of this ground ignored that at all times, the onus of proof resided with the appellant and this was precisely the point made by the Member at [88] of the reasons when dealing with the mechanism of the injury. This error as presented by the appellant had not been made out. As a consequence, this particular error was dismissed. ([93], [97]–[99])

As to [60(e)]

8. The appellant mounted a serious attack upon the veracity of the Safety Incident Report document. The appellant went as far as to submit that the cautionary direction with respect to medical records arising from the Court of Appeal authority of Mason v Demasi [2009] NSWCA 227 (Mason) should be applied in those terms to a different class of document, namely a contemporaneous record of injury. The President noted there were a number of problems with this submission. On appeal, error of fact, law or discretion must be identified. At no stage before the Member did the appellant assert that the Safety Incident Report needed to be treated with caution, to the contrary its veracity was urged upon the Member as being a contemporaneous record consistent with the appellant’s account of injury. ([100])
9. Having urged the Member to accept the contents of the Safety Incident Report, it could not by definition be an error to reject that submission and proceed to treat the document with caution as was alleged on the appeal. ([101])
10. In any event, the President did not accept that the principles arising from Mason with respect to medical records were applicable to the circumstances of this case and the completion of the Safety Incident Report. As Basten JA said in Mason, apparent inconsistencies should be approached with caution for the reasons set out at [2] of Mason. This is a well-known principle which directs caution because the purpose of medical treatment is different from a later forensic exercise. Unsurprisingly, the record is more likely to reflect the purpose of medical treatment and will not purport to be a complete history or proof of evidence for use in later legal proceedings. ([102])
11. This was to be contrasted with the context and purpose of the Safety Incident Report. Contrary to the purpose of medical records, the specific purpose of the Safety Incident Report was to record, in question and answer form, details of the incident. In this case, it was a contemporaneous record made on the day of the occurrence of the accident. It was not a medical record created days, weeks or months later for a different purpose. Indeed, the purpose of this document was to record and capture details of the incident in a timely manner. The context in which the document was created was also important. As soon as the appellant raised the fact of the injury having occurred, she was directed to and did in fact report the injury and have it recorded. The appellant’s evidence confirmed this and took no issue with the document. ([103])
12. The President found that the fact this contemporaneous document may not have the detail of a proof of evidence was not to the point. ([104])

(ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 (Cheung) considered)

13. Referring to Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, the President noted the law has traditionally placed weight upon a contemporaneous record. The appellant’s submission in this appeal would seek to deviate from that longstanding approach. That is not to say that contemporaneous documents cannot be challenged, and there can be many reasons as to why the veracity of such a document can be challenged, but no such challenge to the integrity of the document was made before the Member. This particular of error had not been established and was consequently dismissed. ([105])

As to [60(f)]

14. This particular was a differently expressed attack upon the Member’s reference and reliance upon the Safety Incident Report. One of the criticisms under this particular of asserted error was that the Safety Incident Report contained “sparse detail”. As per Cheung, particularly at [28], such documents will never be a complete record of events, and such a document must be understood and read in its context. There was no submission advanced to the Member which said that due to the “sparse detail” in the Safety Incident Report, it could not be relied upon. It was an important document which the Member gave close and careful attention to. The appellant urged the Member to accept the veracity of the Safety Incident Report as establishing injury and could not complain on the appeal that the Member in fact relied upon that same document. There was no error in this approach and no submission that the Member should have treated the document as was alleged in this particular was made below. ([106])

    (Cheung applied)

As to [60(g)]

15. Under this particular of error, the appellant asserted that the Member rejected the report of Dr Reece. The President held that strictly, this submission was not correct. The Member’s approach to considering Dr Reece’s report was consistent with how such expert material is dealt with in a jurisdiction such as the Commission where the rules of evidence do not apply. ([107]–[108])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock) applied)

1. The President observed that the appellant was clearly complaining about how the Member dealt with Dr Reece’s report and pointed to an apparent inconsistency in terms of the criticism of Dr Reece’s history at [83] of the reasons, and the Member’s remark that the history taken by the doctor was “broadly consistent with what is recorded in the Safety Incident Report”. Rather, his Honour dealt with this particular of the error alleged on a broader basis than simply that the report was rejected. ([109])

2. The President did not accept this submission. Firstly, the Member having made the remark that the history was “broadly consistent” at [66] of the reasons then went on to describe a number of “discrepancies” between three documents. These were the Safety Incident Report, the appellant’s statement and the history recorded by Dr Reece. The Member detailed the discrepancies between these three sources of evidence. The President held this was a proper enquiry for the Member to undertake. ([110])

3. Ultimately, the Member at [86]–[89] of the reasons discussed both parties’ submissions regarding the utility of Dr Reece’s report and was ultimately not satisfied. The Member dealt with the respondent’s submissions about the delay in symptoms that Dr Reece had not commented upon, which the Member remarked was a submission “consistent with the onus remaining upon the [appellant] to prove the necessary elements of her case in respect of injury, incapacity, and the reasonable necessity for medical treatment she claims in the proceedings.” Contrary to the appellant’s submission in this particular of error, the report of Dr Reece was not relied upon by the Member for a number of reasons, the history taken by Dr Reece being one of them. ([111]–[114])

4. The President found that no error had been established in this approach to the report of Dr Reece. Indeed, the Member’s approach was consistent with the approach to expert evidence taken in a Commission such as this and consistent with authorities such as Hancock. This particular of error was dismissed. ([115]–[116])

As to [60(h)]

20. The President stated that in many respects, this particular of error was a repetition of the failure asserted in the ground [60(b)] above. For the reasons for dismissing the error asserted at [60(b)], this particular error was also dismissed. ([117])

Consideration as to Ground 2

21. The appellant submitted that as a consequence of matters in support of Ground 1 of her submissions, there must be error in the Member’s award. Ground 2 relied upon, for its establishment, the upholding of the errors alleged in Ground 1. ([118]–[119])
22. As the President had dismissed the errors contained in Ground 1, Ground 2 as a logical consequence also failed and was dismissed. ([120]–[121])

Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31

WORKERS COMPENSATION – procedural fairness – Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; Allesch v Maun [2000] HCA 40; Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 applied – determinations of fact – principles applicable – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Najdovski v Crnojlovic [2008] NSWCA 175; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [19]–[20] applied

Wood DP

3 August 2022

Facts

The appellant alleged that she suffered an injury on 25 October 2020 in the course of her employment as a security guard. The appellant made a claim for weekly payments and treatment expenses against the respondent, Nova Security Group Pty Limited, which company she alleged was her employer at the time of injury.

The claim was initially accepted and the appellant was paid weekly compensation until about 15 July 2021. On 8 February 2021, the appellant made claims for lump sums for whole person impairment, pain and suffering pursuant to the former s 67 of the 1987 Act and damages as provided for in s 151G of the 1987 Act.

Liability for the injury and the claims for compensation were declined in dispute notices issued by icare. In a notice dated 27 July 2021, it was disputed that the appellant was a worker or deemed worker within the meaning of the 1987 Act and that the appellant was ever employed by the respondent. It was asserted by the respondent that the appellant was employed by Heckenburg Group Pty Ltd t/as Heckenburg Protection Agency (Heckenburg), which company sub-contracted to the respondent.

The Member issued a Certificate of Determination in which she accepted the respondent’s submissions that the appellant was not employed by the respondent and entered an award for the respondent. The appellant appealed that decision.

The issues on appeal were whether there was error on the part of the Member by:

(a) failing to provide procedural fairness to the appellant (Ground 1);

(b) failing to award the appellant weekly compensation (Ground 2);

(c) wrongly calculating the appellant’s pre-injury average weekly earnings (Ground 3);

(d) failing to award the appellant her treatment expenses pursuant to s 60 of the 1987 Act (Ground 4);

(e) failing to award the appellant pain and suffering in accordance with (the former) s 67 of the 1987 Act (Ground 5);

(f) failing to reject the evidence of Dr Teychenné (treating neurologist) contained in his report dated 18 April 2021 (Ground 6);

(g) failing to refer her lump sum claim pursuant to s 66 of the 1987 Act to a medical assessor for assessment (Ground 7), and

(h) failing to find that the appellant was employed by the respondent (Ground 8).

Held: The Member’s Certificate of Determination dated 11 November 2021 was confirmed.

Ground 1

1. The appellant asserted error on the part of the Member by allowing the respondent to be legally represented in these proceedings. The appellant complained that, as a result, she had been denied procedural fairness. The appellant contended that she was not served with any application made by the respondent to be legally represented and that she was not asked whether she consented to any such application, yet further submitted that she wrote to the Commission and the respondent indicating her objection. Those submissions were internally inconsistent. ([70]–[71])
2. Wood DP held the obligation to provide procedural fairness is concerned with giving a person, whose rights are to be potentially affected, the opportunity to deal with issues arising in the trial. However, a party cannot assert procedural unfairness where the party failed to make proper use of the opportunity provided to be heard. ([73]–[75])

(Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; Allesch v Maunz [2000] HCA 40 and Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 applied)

3. On the evidence, it was clear that the appellant had the opportunity to oppose the respondent’s application and did not avail herself of the opportunity to do so. The appellant could not therefore assert that the Member failed to provide her with procedural fairness in respect of allowing the respondent to be legally represented. The Member also gave valid reasons as to why it was appropriate for the respondent to be represented. It followed that Ground 1 failed. ([76]–[77])

Ground 8

4. The Deputy President dealt with this ground before the remaining grounds. The question of whether the appellant was employed by the respondent or by some other entity is a question of fact to be determined on the basis of the available evidence and the inferences that can be drawn from that evidence. Findings of fact made by a primary decision maker will not normally be disturbed if they have rational support in the evidence. ([78], [85]–[86])

   (Fox v Percy [2003] HCA 22; 214 CLR 118, and Najdovski v Crnojlovic [2008] NSWCA 175 discussed)

5. The appellant must show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that it establishes that the Member’s decision is wrong. ([87]–[89])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied)

1. The evidence relied upon by the appellant included numerous text messages sent by “Noah” (the person to whom she reported) to the appellant about the arrangements for attending each shift. Relevantly, those arrangements included a reminder to sign on for the shift by indicating that she was working for the respondent. The appellant otherwise relied upon her own testimony that she had not been aware of Heckenburg until 21 July 2021 and her assertions that the documents relied upon by the respondent were fabricated. ([90])
2. The Member considered the appellant’s submissions about the authenticity of the documentary evidence and the probative value of the evidence provided by the respondent. She also referred to the appellant’s reliance on the text messages, which reminded the recipient to sign on as working for the respondent. The Member explained that such a reminder would probably not have been necessary if in fact the worker signing on for the shift was actually employed by the respondent. The Member pointed to the text message sent by the appellant to the respondent requesting work with the respondent because the “subcontractor” was not giving her enough shifts. The Member also pointed to the Induction Agreement, which referred to Heckenburg as the employer and was signed by the appellant. She reasoned that those documents indicated that the appellant was aware that she was employed by Heckenburg and that she had been aware of Heckenburg’s existence prior to 21 July 2021. The Member referred to the tax invoices submitted by Heckenburg to the respondent in respect of work performed by the appellant (and other workers). ([91])
3. On the basis of that evidence, the Member concluded that the evidence relied on by the respondent was more persuasive than that of the appellant. There was other evidence that indicated that it was more probable that the appellant was employed by Heckenburg. The appellant’s bank records showed four direct deposits by “HQ Group” of varying amounts. Given that Heckenburg’s correct legal name was Heckenburg Group Pty Ltd t/as Heckenburg Protection Agency, it was not difficult to infer that those payments were more likely to have been made by Heckenburg than by the respondent. ([92])
4. It followed, in Wood DP’s view, that the Member gave due consideration to the evidence relied upon and the submissions by the appellant and provided reasons for her conclusion that she found the respondent’s evidence persuasive. The Member determined the matter in a manner consistent with cl 1 of Sch 1 to the 1998 Act. The Member did not overlook material facts, or give undue or too little weight to the evidence, or arrive at her conclusion when an opposite inference was so preponderant that the Member’s decision must be wrong. The Member was entitled to conclude, on the basis of the evidence before her, that the appellant was not employed by the respondent. No error on the part of the Member had been identified and this ground failed. ([93]–[94])

The remaining grounds of appeal

10. The remaining grounds of appeal related to the appellant’s claims for weekly compensation (including the calculation of her pre-injury average weekly earnings), treatment expenses, s 66 lump sums, pain and suffering pursuant to the former s 67 of the 1987 Act and work injury damages. The Member determined that the respondent was not liable to pay the appellant compensation of any type because the respondent did not employ the appellant. If that finding was correct, then the appellant was not entitled to claim compensation from the respondent. ([95])
11. The Member noted that, given her finding in relation to the liability issue, she was not required to determine the appellant’s claim for those entitlements but proceeded to explain why those claims were not payable. ([96])
12. The Deputy President noted that grounds 1 and 8 of the appeal had not succeeded and the finding that the appellant was not employed by the respondent stood. As a consequence, the appellant had no entitlement to claim compensation of any kind from the respondent within the meaning of the 1987 and 1998 Acts. On that basis, the remaining grounds of appeal could not succeed, and the Member’s Certificate of Determination was confirmed. ([102])

OneSteel Reinforcing Pty Ltd t/as Liberty OneSteel Reinforcing v Dang [2022] NSWPICPD 32

WORKERS COMPENSATION – Anshun Estoppel – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 discussed and applied – Bruce v Grocon Ltd [1995] NSWCC 10 discussed – reasonableness – Ling v Commonwealth [1996] FCA 1646; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 applied – raising a new issue on appeal Mamo v Surace [2014] NSWCA 58 applied – factual error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied

Wood DP

15 August 2022

Facts

The respondent worker commenced employment with the appellant as a process worker in 2003. He made a claim for workers compensation in May 2017, alleging injury to his back (lumbar spine). The appellant disputed the claim.

In May 2019, the respondent commenced proceedings in the Workers Compensation Commission, claiming weekly compensation for a closed period and treatment expenses pursuant to s 60 of the 1987 Act. The back injury was described as a personal injury or in the alternative an aggravation of a disease as a result the “nature and conditions” of the respondent’s employment between 2003 and 25 September 2016, with the deemed date of injury pleaded as 25 September 2016. At the conciliation/arbitration hearing, the parties agreed to a resolution of the claim and consent orders were made. Amongst other orders made was an order for weekly payments for a closed period and an order that “The [appellant] to pay section 60 expenses to $5,500 on production of accounts receipts or Medicare Charge; otherwise award for the [appellant].”

On 1 March 2021, the Workers Compensation Commission was abolished and the Personal Injury Commission was established. The Workers Compensation Division hears matters that previously were dealt with by the Workers Compensation Commission.

The respondent commenced the present proceedings in the Personal Injury Commission on 8 September 2021, claiming treatment expenses pursuant to s 60 (including the cost of the MRI scan) and the lump sum in respect of the whole person impairment of his lumbar spine. The date of injury was pleaded as 25 September 2016.

The Senior Member issued a Certificate of Determination on 19 November 2021, in which he determined (among other things) that the respondent was not estopped by way of an Anshun estoppel in accordance with Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 (Anshun) from bringing his claim and that the appellant was liable to pay the respondent the amount claimed in respect of his whole person impairment of the lumbar spine. The appellant appealed that decision.

The issues on appeal were whether the Senior Member erred in:

(a) law as to the nature of an Anshun estoppel (Ground 1);

(b) law as to the nature of an Anshun estoppel, the Senior Member erred by failing to exercise his discretion to apply the Anshun principles to the case (Ground 2);

(c) fact by accepting that the respondent only made the decision not to proceed with the surgery in 2021 (Ground 3), and

(d) law by taking into account an irrelevant consideration (Ground 4).

Held: The Senior Member’s Certificate of Determination dated 19 November 2022 was confirmed.

Ground 1

1. The appellant asserted that the Senior Member erred in law as to the nature of an Anshun estoppel. The appellant submitted that the supplementary report by Dr Giblin (orthopaedic surgeon qualified by the respondent) was clearly available in the earlier proceedings, which was a very relevant factor. The fact that the supplementary report was available was not disputed. Deputy President Wood noted that it was indeed relevant that the report was available and that the respondent elected not to rely on it to bring the lump sum claim at that time. ([106]–[107])
2. The Deputy President held that an abuse of process and an Anshun estoppel are two distinct concepts, although may have overlapping features. ([108]–[110])

(Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28 (Tomlinson) discussed and applied)

3. In its submissions to the Senior Member, the appellant referred to the concept of “abuse of process” and included the above extracts from the judgment in Tomlinson in which the overlap between the concepts of estoppel and abuse of process were discussed. The appellant did not, however, actively submit that in this case, there had been an abuse of process, or that the respondent’s action was unjustly oppressive or had brought the administration of justice into disrepute. The appellant’s case before the Senior Member was that an Anshun estoppel applied. ([112])
4. The Senior Member could not be seen to have fallen into error in circumstances where the argument that the conduct of the respondent constituted abuse of process now put forward by the appellant was not the subject of submissions at arbitration. ([113]–[114])

(Mamo v Surace [2014] NSWCA 58 and Brambles Industries Limited v Bell [2010] NSWCA 162 applied)

5. The appellant’s submission that the cases that preceded Tomlinson are no longer “good law” could not be accepted. The Senior Member succinctly identified the principles established in Tomlinson, including that an estoppel arose in circumstances where the claim or issue was so closely connected to the subject matter of the prior proceedings that it was unreasonable for it not to have been made in those proceedings. That is, that an estoppel could arise where the respondent had split his case, and it was unreasonable for him to have done so. The Senior Member’s conclusion to reject the submission made by the appellant that the earlier cases were no longer good law was consistent with Tomlinson and was correct. ([115]–[120])
6. An estoppel arises in circumstances where the claim or issue is so closely connected to the subject matter of the prior proceedings that it was unreasonable for the claim or issue not to have been made in those proceedings. It proceeds on the basis that the party has split his or her case, and it was unreasonable to do so. It is a composite concept. ([122])
7. Although he considered it improper of the respondent to withhold the supplementary report, the Senior Member commented that it was not a matter that he was required to deal with. The undisclosed supplementary report was evidence that tended to show that the respondent could have brought his lump sum claim at that time. It did not go to the assessment of whether the action in not pursuing the lump sum claim was or was not reasonable. Ground 1 was not made out and failed. ([123]–[125])

Ground 2

8. The appellant asserted that by virtue of the Senior Member’s finding that an Anshun estoppel did not apply, the Senior Member further erred by failing to apply the principles relevant to that estoppel. The appellant submitted that the fact that Ms Nancarrow (self insurance and fitness for work partner for GFG Alliance) was surprised by the claim was a factor to take into account in the exercise of his discretion as to whether to impose the estoppel. The appellant submitted that the discretionary factors that the Senior Member was required to consider included that:

   (a) the appellant was prejudiced in the claims handling process;

   (b) additional costs were incurred on its part;

   (c) the consent orders entered into were intended to be a final resolution of the respondent’s entitlements, and

   (d) the respondent withheld the supplementary report. ([127])

9. Wood DP held that the Senior Member considered the evidence and said that the appellant did not show evidence of any real prejudice in the handling of the claim. The appellant had the opportunity to address the claim had it chosen to do so. The fact that the respondent consented to orders in relation to the respondent’s claim for weekly payments and treatment expenses, which disposed of the earlier claim, was unpersuasive. There was no provision in the consent orders to protect the appellant from a later lump sum claim being brought pursuant to s 66 of the 1987 Act, in circumstances where such a claim was at large. ([128])
10. The Senior Member considered the question of costs and observed that he must weigh that factor against the reasons given by the respondent as to why the respondent did not pursue his claim in the earlier proceedings. The Senior Member weighed that evidence against the respondent’s evidence that he did not pursue the claim initially because he had not finally decided whether to have surgery and because he could only make one lump sum claim. ([131]–[134])

(Ling v Commonwealth [1996] FCA 1646; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, and Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33 (Manojlovski) applied)

11. The critical reasons given for not pursuing the claim in the earlier proceedings were that the respondent only had an entitlement to make one claim for lump sum compensation. The surgery, if undertaken, might likely alter the assessment of his whole person impairment and he was yet to make a final determination whether to undergo the surgery. Those facts found support in the evidence. The Deputy President found that the Senior Member clearly addressed the relevant factors relied upon by the appellant to show that the failure to bring a claim was unreasonable. ([135]–[136])
12. The appellant’s case substantially rested on an assertion that because the respondent could have brought his case in the earlier proceedings, he should have. That submission fell foul of the observations of Allsop P in Manojlovski. ([137])
13. There was no basis upon which to assert that the Senior Member failed to “apply the Anshun principles”, which involved a consideration of whether the respondent’s decision to split his claim was unreasonable. Ground 2 failed. ([138])

Ground 3

14. The appellant asserted that the Senior Member erred in accepting the fact that the respondent “only” decided against surgery in 2021. The Deputy President noted that, as the respondent submitted, the Senior Member did not make that finding. ([139])
15. The appellant had mis-stated the Senior Member’s conclusion, which was a finding of fact. It is well settled that, in order to disturb a Member’s finding of fact, the appellant must show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member is so preponderant that it establishes that the Member’s decision is wrong. ([144])

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

16. It could not be said that, in this case, the Senior Member’s finding of fact was arrived at by committing any such errors. The inference drawn by the Senior Member that the respondent finally decided against undergoing surgery in 2021 was available to him and the appellant had not pointed to any persuasive evidence to the contrary. This ground of appeal failed. ([145])

Ground 4

17. The appellant asserted that the Senior Member erred in law by taking into account an irrelevant consideration. The appellant referred to the Senior Member’s observation that the appellant did not obtain independent medical evidence in respect of an assessment of the respondent’s whole person impairment. In a rather circular argument, the appellant asserted that it should not have been expected to obtain such evidence when it had available to it the doctrine of estoppel. ([146])
18. The Deputy President held it was clear that the Senior Member, in considering the fact that the appellant could have, but elected not to, qualify its own independent medical examiner to address the question of the respondent’s whole person impairment, was applying the requirement in Tomlinson. It was most relevant when considering whether the appellant had been denied the opportunity to adduce evidence, a factor to be taken into account when assessing whether an Anshun estoppel should apply. ([149])
19. The appellant’s grounds of appeal did not point to any error on the part of the Senior Member by proceeding to determine the respondent’s lump sum claim. If this ground was intended to raise such a contention, it was not apparent from the manner in which the ground was articulated or in the submissions purportedly addressing this ground. The appellant had failed to establish that the Senior Member took into account an irrelevant matter and this ground of appeal failed. ([151]–[152])

Gonzalves v Wideline Pty Ltd [2022] NSWPICPD 33

WORKERS COMPENSATION – Medical and related expenses pursuant to section 60 of the 1987 Act – expert evidence – factual error

Snell AP

23 August 2022

Facts

The appellant was employed from about March 2019 by the respondent as a driver. He drove a truck that was loaded with windows and doors. On 21 March 2019, the appellant was making a delivery when another employee began untying frames that were stacked on a trailer and the frames fell towards the appellant, striking him on the head and body. He suffered injuries involving the neck and left arm, together with a left ankle fracture which required internal fixation. He was in hospital for three weeks.

A cervical MRI scan dated 26 April 2019 reported the presence of disc pathology at C3/4 and C4/5. On 18 August 2020 Dr Singh, an orthopaedic and spine surgeon, recommended an anterior cervical decompression and fusion from C3 to C5. In a report dated 21 May 2021 addressed to the insurer, Dr Singh described this proposed surgery as treatment that was likely to significantly improve the appellant’s condition and assist in his return to work. Liability was disputed by the insurer on the basis that the proposed surgery was not ‘reasonably necessary’.

The Member found the proposed surgery was not ‘reasonably necessary’ medical treatment as a result of the injury. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) finding that Dr Singh failed to provide sufficient reasons for his opinion that the proposed surgery was reasonably necessary (Ground 1);

(b) finding that Dr Singh’s opinion did not satisfy the requirements for an expert opinion (Ground 2);

(c) ignoring the opinion of Dr Gehr (orthopaedic surgeon qualified by the appellant) set out in his report dated 30 September 2021, which supported the opinion of Dr Singh in respect of the reasonable necessity of the proposed surgery (Ground 3);

(d) ignoring the opinion of Dr Singh set out in his report dated 29 September 2021 (Ground 4), and

(e) misapplying the test of ‘reasonable necessity’ resulting in findings that were wrong and contrary to the evidence (Ground 5).

Held: The Certificate of Determination dated 18 November 2021 was revoked and the matter was remitted to a difference Member for re-determination.

Grounds 1, 2, 3 and 4

1. Both parties addressed on the basis that Diab v NRMA Limited [2014] NSWWCCPD 72 (Diab) correctly described the test posed by s 60 of the 1987 Act , in considering whether medical or related treatment was ‘reasonably necessary’. The Member, with apparent acceptance, set out a lengthy excerpt of the reasons in Diab dealing with the meaning of ‘reasonably necessary’. It was not argued on this appeal that Diab was wrongly decided. ([78])
2. The essential issue between the parties was whether the proposed surgery was ‘reasonably necessary’ having regard to their competing medical cases. The Member accepted that Dr Singh had the specialised knowledge to provide an opinion on whether the surgery was reasonably necessary. She accepted that the reports of Dr Singh should be read together. The Member said that the requirements of r 73 of the 2021 Rules should be borne in mind when determining whether the appellant’s onus was met to establish that the proposed treatment was reasonably necessary. ([79])
3. The Member described Dr Singh’s report dated 21 May 2021, responding to a letter from the insurer, as “a series of ‘bare ipse dixits’”. Snell AP held this description did not take appropriate account of the need to read Dr Singh’s reports together. It was illuminating to compare the substance of Dr Singh’s report dated 21 May 2021, considered in concert with his reports as a whole, with the evidence (“in general all the problems are work-related”) described by McColl JA as a “bare ipse dixit” in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds). ([112])
4. The rationale behind the passage from Rolleston v Insurance Australia Ltd [2017] NSWCA 168, at [32], is that frequently an expert’s specialised knowledge will be made clear by the reasoning process that forms the relevant opinion. Dr Singh practised as a spinal surgeon. His specialised knowledge was not in issue. Although the Evidence Act 1995 does not have application in the Commission, authorities dealing with expert evidence, in the context of the Evidence Act, may be relevant in Commission proceedings. Expert evidence in the Commission is subject to Rule 73 of the 2021 Rules. In Edmonds McColl JA referred to “the desirability [in the former Workers Compensation Commission] of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value”. Her Honour referred to her reasons in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 , 2 DDCR 271 in which she said “a court ... should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In Edmonds her Honour, after concluding that a piece of medical evidence was a bare ipse dixit, said it was “not probative of the issue before the Arbitrator”. ([121])
5. The Acting President said that the Member did not analyse the medical evidence from both parties and conclude that she preferred that of the respondent for stated reasons. Rather, she found that Dr Singh’s reports were not probative of the issue between the parties, they lacked any probative value. On a fair reading of Dr Singh’s reports, considered as a whole, the doctor’s opinion could not appropriately be dismissed as a bare ipse dixit which lacked any probative force. Acting President Snell accepted the appellant’s submission that this finding could not be sustained. This was not properly open on the evidence and comprised error within the meaning of s 352(5) of the 1998 Act. Dr Singh’s expressed opinion complied sufficiently with the requirements of expert evidence in the Commission, consistent with the principles outlined in Edmonds, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282. It was material upon which the Commission was entitled to act. ([122])
6. Grounds 1, 2 and 4 succeeded. ([123])
7. Ground 3 related to the Member’s finding that the reports of Dr Gehr (an orthopaedic surgeon qualified in the appellant’s case) lacked any probative force due to their lack of reasoning. The Acting President held that Dr Gehr’s opinion on this central issue contained some briefly stated conclusions. It did not seek to explain the reasoning for any of them. For Ground 3 to succeed it would be necessary that Snell AP conclude the Member’s finding, that Dr Gehr’s opinion lacked probative force due to its lack of reasoning, was wrong. The Acting President was not persuaded that that was so. Ground 3 failed. ([123]–[129])

Disposition of the appeal

8. The finding that the reports of Dr Singh and Dr Gehr lacked any probative force effectively deprived the appellant’s case of any specialist medical support. The outcome in those circumstances became inevitable. In the case of Dr Singh, this involved error. It clearly affected the result and constituted appealable error. It was unnecessary for the Acting President to deal with Ground 5. It was appropriate that the matter be remitted to a different Member for re-determination. ([130]–[132])

ISS Property Services Pty Ltd v Bosevska [2022] NSWPICPD 34

WORKERS COMPENSATION – failure to lodge a Notice of Opposition to the appeal – failure to deal with an issue raised – failure to take into account evidence in determining the nature and date of the injury

Wood DP

23 August 2022

Facts

The respondent worker commenced employment with the appellant on 1 February 2014 as a cleaner at the University of New South Wales.

The respondent alleged that she injured her right knee in the course of her employment while pulling bins to the bin area. An incident report dated 8 December 2014 indicated that the respondent had injured her knee on 3 December 2014 and had reported the incident to the workplace supervisor on 5 December 2014.

The injury description was that the respondent was “taking full bins across to the bin area and felt cramp on right knee”. She lodged a claim for compensation for weekly payments and treatment expenses on 19 January 2015. The injury claim form did not specify a date of injury, but indicated that the respondent noticed the injury on 29 November 2014 and reported it to the workplace supervisor on that day.

Liability was disputed on the basis that the respondent did not suffer an injury to her right knee in accordance with s 4 of the 1987 Act on the dated alleged or in the circumstances described. Liability was also disputed on the basis that the respondent’s employment was not a substantial contributing factor under s 9A or if the injury was alleged to be a disease injury within the meaning of s 4(b) of the 1987 Act, the respondent’s employment was not the main contributing factor to the disease or aggravation of the disease.

The respondent made a further claim for compensation on 31 March 2021, in which she claimed a lump sum in respect of the whole person impairment to her right lower extremity and scarring from surgery to her right knee. The date of injury was cited as 3 December 2014. Liability for this claim was also disputed.

The respondent lodged proceedings in the Commission, nominating the injury as a “personal” injury and the date of injury as 3 December 2014. Prior to the commencement of the arbitration, the respondent amended the pleadings to allege the date of injury to be “on or about” 3 December 2014.

The Member determined that the respondent suffered an injury to her right knee in the course of her employment with the appellant on or about 3 December 2014. He referred the claim for lump sum entitlements in respect of the right lower extremity and post operative scarring to the President of the Commission for referral to a medical assessor for assessment of the whole person impairment. The appellant appealed the decision.

The issues on appeal were whether the Member erred in:

(a) law in failing to make any finding that employment was a substantial contributing factor or the main contributing factor to the injury (Ground 1), and

(b) fact and law in finding that the respondent sustained an injury by way of a symptomatic aggravation of an asymptomatic knee “on or about 3 December 2014” (Ground 2).

Held: The Certificate of Determination dated 19 October 2021 was revoked and the matter was remitted to a different non-presidential member for re-determination.

The failure to file a Notice of Opposition to the appeal

1. The appeal was lodged on 15 November 2021. The respondent was directed to file her Notice of Opposition to Appeal Against the Decision of a Member (opposition) by 17 January 2022. An opposition was not filed within that time. After the Commission had sent the respondent’s legal representatives several emails, as well as a Direction requesting that they indicate whether the respondent intended to file an opposition, on 12 July 2022, the Commission wrote to the respondent requesting she advise whether she intended to oppose the appeal and if so, the details of her legal representative. On 18 July 2022, Prominent Lawyers wrote to the Commission confirming they retained instructions on behalf of the respondent who had an intention to provide an opposition. The legal representative also enquired “if the [respondent was] still permitted to serve a Notice of Opposition … and if so, what [is] the allowed timeframe for the Claimant to serve the notice?” ([7]–[10])
2. The legal representative did not give any explanation as to why there was a failure to respond to the Deputy President’s Direction or to the Commission’s repeated enquiries. The Commission responded to the legal representative, advising that the time for lodgment of the opposition expired on 17 January 2022, the matter had been allocated to Wood DP for determination, and any application for an extension of time to lodge an opposition would require an explanation for the delay. No further communication from the respondent’s legal representative was received by the Commission by 9 August 2022. The Deputy President therefore formed the conclusion that it was appropriate to proceed to determine the matter, noting that the respondent opposed the appeal but made no submissions. ([11])
3. In circumstances where the appeal is opposed but there is an absence of submissions in opposition to the appeal, the Presidential Member is still required to be satisfied that the decision is affected by error as described, and therefore the Deputy President was required to assess the appeal on its merits. ([13])

Ground 1

4. The appellant submitted that the Member failed to determine whether s 9A applied, as is required if an injury is found to be a personal injury under s 4(a) of the 1987 Act, or whether the test of ‘main contributing factor’ in accordance with s 4(b) of the 1987 Act applied if the injury was a disease or aggravation of a disease. The appellant said that the Member did not turn his mind to whether either the test in s 9A or s 4(b) was satisfied. ([95])
5. The respondent’s case was that she suffered a frank injury when she was pulling the bin up the incline of the ramp, and that the injury was a personal injury within the meaning of s 4(a). The Member noted but rejected the appellant’s submissions that the onset of symptoms was more akin to an aggravation of a pre-existing condition within the meaning of s 4(b) than to the pleaded s 4(a) injury. ([96])
6. Deputy President Wood observed that it was apparent from the Member’s reasons that the Member concluded that the respondent suffered a frank injury within the meaning of s 4(a) of the 1987 Act. On the basis of that conclusion, the relevant test was that prescribed in s 9A. It was not necessary to consider whether the Member turned his mind to the issue of whether the respondent’s employment was the main contributing factor to any injury as required by s 4(b) of the 1987 Act or to make any determination of that issue. ([98])
7. The Member acknowledged that if the injury consisted of a personal injury within the meaning of s 4(a) of the 1987 Act, then he was required to determine whether the respondent’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the 1987 Act. The Member referred to the opinion of Dr Wilcox (consultant surgeon and trauma specialist qualified by the appellant) that the respondent’s employment duties would not have been a substantial contributing factor to the development of the degenerative knee condition. The Member thereafter made no reference to the issue of whether the respondent’s employment was a substantial contributing factor or to the requirement to satisfy s 9A of the 1987 Act. The Deputy President noted that both the appellant and the respondent made submissions that if the injury was an injury pursuant to s 4(a), then s 9A applied. ([99]–[100])
8. Section 9A imposes a constraint on the payment of compensation. The test is a different test to that which arises in a consideration of whether the injury occurred in the course of or arising out of the employment concerned. It is a causal test and is a more stringent test than that imposed by s 4. The purpose of s 9A is to remove the possibility of payment of compensation where the connection between the injury and the employment was “remote or tenuous.” ([101])

(Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 applied)

9. The Member was required to determine whether the respondent’s employment was a substantial contributing factor to the injury and, in doing so, he was required to take into account the factors referred to in s 9A(2), where they were relevant. The Member failed to determine a substantive issue raised in the proceedings and in doing so fell into error. Ground 1 of the appeal succeeded. ([102]–[103])

Ground 2

10. The appellant submitted that, while in some cases the precise date of injury need not be identified, this matter was not such a case. The appellant said that the date of the injury was critical to the question of injury and to the question of causation, and submissions were made to the Member on that point. Further, the appellant submitted that it made extensive submissions to the Member in relation to the clinical notes and other evidence, which it maintained were inconsistent with the respondent’s statement evidence and with the assertion that at the time the injury occurred, the right knee was asymptomatic. The appellant submitted that the Member did not address those submissions. The appellant pointed out that there was evidence of right knee symptoms well before 3 December 2014, so that it was necessary to fix a date of injury in order to ascertain whether or not it was asymptomatic. The appellant asserted that the Member’s observations and conclusions were erroneous, in that they were contrary to the evidence. ([104], [107])
11. The Member concluded from the evidence in Dr Awada’s (treating general practitioner) clinical notes that, because the incident was a “tipping point”, the injury was a frank or personal injury within the meaning of s 4(a) of the 1987 Act. The Member determined that the injury was an aggravation of a pre-existing asymptomatic knee. The difficulty with the Member’s conclusion was that he did not reconcile the occasion of the frank injury in the context of the respondent’s complaints noted by the doctor that pre-dated the complaint made on 30 December 2014. Nor did he reconcile what he considered to be evidence of a frank injury with the doctor’s note made on that day that the incident was a “further trauma” to the knee which had been damaged over the previous months. ([111])
12. The appellant contended that the Member’s statement that there was no evidence to suggest that the knee was symptomatic before the incident could only be correct once the date of injury had been identified. Wood DP accepted that submission to the extent that before the Member could conclude that the right knee condition was asymptomatic prior to the injury, it was incumbent upon him to determine when in the clinical picture the condition in fact became symptomatic. That is, whether it was before or after the incident relied upon. It was also incumbent upon the Member to determine, on the basis of the evidence before him, whether the incident relied upon by the respondent initiated the symptoms, or was a “further trauma”, as described by Dr Awada. The appellant had established error on the part of the Member and this ground of appeal also succeeded. ([112]–[113])

Conclusion

13. Both grounds of appeal brought by the appellant disclosed error on the part of the Member and the appeal succeeded. The Certificate of Determination dated 19 October 2021 was revoked. In the circumstances of this case, where the respondent indicated that it opposed the appeal but failed to participate in the appeal proceedings, the Deputy President did not consider it appropriate to re-determine the matter at the presidential level. The matter was therefore remitted to a different non-presidential member for re-determination. ([114]–[115])

Kiama Municipal Council v Manning [2022] NSWPICPD 35

WORKERS COMPENSATION – Sections 4(b)(i) and 4(b)(ii) of the 1987 Act – competing medical opinion as to the cause of the worker’s skin cancer – treatment of the medical evidence – main contributing factor within the meaning of s 4(b) of the 1987 Act – adequacy of reasons – Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 discussed and applied

Parker SC ADP

31 August 2022

Facts

The respondent worker was employed by the appellant for 33 years. His duties included working outside driving various machinery for the purpose of mowing lawns and maintaining the appellant’s parks and gardens.

He commenced proceedings in the Commission claiming weekly benefits from 15 May 2019. The injury alleged was aggressive cutaneous squamous cell carcinoma, with a deemed date of injury of 11 September 2018.

The Member found that in the course of his employment with the appellant, the respondent, in working outdoors, was exposed to ultraviolet radiation which resulted in acceleration or exacerbation of skin damage (acceleration) being injury within the meaning of s 4(b)(ii) of the 1987 Act. The Member found that the respondent’s employment with the appellant between approximately 1986 and 15 May 2019 was the main contributing factor to the acceleration, and found in favour of the worker. The Member ordered the appellant to pay weekly compensation under ss 36 and 37 of the 1987 Act.

The appellant appealed.

The issues on appeal were whether the Member erred in:

(a) his finding that the respondent suffered injury within the meaning of s 4(b)(ii) of the 1987 Act (Ground 1);

(b) his treatment of the medical evidence and his conclusion that employment was the main contributing factor within the meaning of s 4(b) of the 1987 Act (Ground 2), and

(c) failing to provide adequate reasons (Ground 3).

Held: The Certificate of Determination dated 25 October 2021 was confirmed.

Consideration: Ground 1 and the Notice of Contention

1. The appellant submitted that the medical evidence pointed strongly to injury falling within the ambit of s 4(b)(i) of the 1987 Act. It asserted that the Member’s categorisation of the injury as a disease pursuant to s 4(b)(ii) was flawed and unexplained. It contended this demonstrated clear error of fact and law on his part. ([67])
2. Parker SC ADP held that the appellant’s contention, if accepted, would make no difference to the outcome of the dispute. Section 4 of the 1987 Act provides a definition of “injury”. In Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 Leeming JA (Bell P (as his Honour then was) and White JA agreeing) made the point that s 4(b) is concerned with the definition of injury providing that the two limbs distinguish between diseases which are contracted during the course of employment and diseases which are aggravated, accelerated, exacerbated or deteriorate by reason of the employment. The worker establishes injury if he satisfies either limb. ([68]–[69])
3. In this matter, on the appellant’s submissions, if Ground 1 of the appeal were to be upheld, the respondent would nevertheless have established that he had sustained an injury within the definition of injury in s 4(b) albeit on the basis that the “injury” was “a disease that is contracted by a worker in the course of employment”. The appellant’s point was that the Member should have found that the worker satisfied s 4(b)(i) rather than, as found by the Member, s 4(b)(ii). ([70])
4. The Acting Deputy President was not persuaded that the Member was in error when he concluded at [35] of the reasons, that the respondent’s employment between approximately 1986 and 15 May 2019 working outdoors exposed to ultra-violet radiation resulted in acceleration or exacerbation of damage to the respondent’s skin and that the injury was properly classified as an aggravation of an underlying disease condition. Furthermore, he thought the conclusion was supported by A/Prof Shumack’s (dermatologist qualified by the appellant) opinion. ([80])
5. It was apparent from the parties’ additional submissions, that the real matter at stake in the appeal concerned the “main contributing factor” issue. ([81])
6. Acting Deputy President Parker SC was not persuaded that the Member committed an appealable error in relation to his determination that the respondent suffered a disease injury within the meaning of s 4(b)(ii). It followed that in the absence of this error, the respondent’s Notice of Contention did not require determination. Ground 1 of the appeal was rejected. ([82]–[83])

Ground 2

7. The appellant submitted that the Member did not discuss “the finer details” of how one interprets “the main contributing factor” as it is used within s 4(b). The Member clearly determined the issue on the basis that the main contributing factor was the most causally potent factor. The appellant accepted that for the purpose of considering the main contributing factor, regard has to be had to the entire period of the worker’s life and that the Member did have regard to this in his consideration for the purpose of the respondent’s case. ([84]–[85])
8. The appellant submitted that the Member’s reasons for rejecting A/Prof Shumack’s opinion were unsound and the rejection of A/Prof Shumack’s opinion was in error. ([87])
9. Acting Deputy President Parker SC observed that in AV v AW [2020] NSWWCCPD 9, Snell DP provided a detailed analysis of the test for main contributing factor. The Deputy President said that the test involved the broad evaluative consideration of potential competing causative factors which should be decided on the evidence overall and was not purely a medical question. ([114])
10. The appellant’s complaint was that the Member was wrong to reject the evidence of A/Prof Shumack contained in response to question 11 of the report of 14 April 2020. In the Acting Deputy President’s view, the rejection of A/Prof Shumack’s opinion was based on the Associate Professor’s failure to relate the opinion to the respondent’s specific exposure. ([118]–[119])
11. Acting Deputy President Parker SC held that the Member was entitled to rely upon the evidence of Dr Lobel (consulting dermatologist) and Dr Wykes (treating head and neck surgeon) and was not shown to have been in error in his rejection of the evidence of A/Prof Shumack. ([120]–[128])
12. The Acting Deputy President found the Member’s finding that the respondent’s employment was the main contributing factor to the injury was based on the evidence available to him to be accepted. That he did so did not amount to error. Ground 2 was rejected. ([129]–[130])

Ground 3

13. The appellant submitted that there will be a failure to give adequate reasons where the decision maker ignores evidence critical to an issue and contrary to assertions of fact made by one party and accepted by the decision maker. The appellant submitted that for the reasons articulated with respect to Ground 1, the Member failed to explain and provide a rational analysis for concluding that the injury fell within s 4(b)(ii) of the 1987 Act. ([131]–[132])
14. In the Acting Deputy President’s view, the Member’s statement of reasons adequately fulfilled the primary function of reasons as identified by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, namely, the reasons were sufficient to enable the parties to understand why the decision had been made and to allow the parties to exercise any right of appeal. ([145])
15. As the Acting Deputy President understood it, there was no objection from the appellant to the admission of the reports from Drs Wykes and Lobel. That meant that those reports were before the Member. The acceptance of that evidence in circumstances where there were rational and cogent reasons for rejecting A/Prof Shumack’s conclusions did not demonstrate error in the adequacy of the reasons. ([148])
16. There is a difference between reasons which are subject to challenge as being wrong and the failure to give reasons at all or to give adequate reasons. The appellant challenged the conclusions of the Member in Ground 2 on the basis of the reasons expressed by the Member for rejecting A/Prof Shumack’s report. The Acting Deputy President found that that challenge failed. That was not a ground of appeal based on demonstration of an error as manifested in the reasons. ([149])
17. The reasons given by the Member were relied on by the appellant to show error. It followed that the reasons were sufficient to satisfy the requirements for reasons on the part of the Commission, namely that the reasons should demonstrate the Member’s reasoning sufficient for the parties and the appeal court to understand the basis of the decision. ([150])
18. In relation to Ground 1 of the appeal, the challenge was again based on the reasons expressed and while in the event the challenge in Ground 1 was otiose, the appellant was nevertheless able to ventilate the complaint by reference to the Member’s expressed reasons. In the Acting Deputy President’s view, the Member’s reasons were adequate and Ground 3 of the appeal was rejected. ([151]–[152])