Appeal Case Summaries

Tanwar v Aslam [2021] NSWPICPD 30

WORKERS COMPENSATION – Whether the decision is interlocutory – subs 352(3A) of the 1998 Act – Licul v Corney [1976] HCA 6; 180 CLR 213, P & O Ports Limited v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12, Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196; Edmund Diab v Salem Naji [2010] NSWWCCPD 33 applied; submissions filed out of time – Bale v Mills [2011] NSWCA 226 applied; admission of fresh evidence on appeal – subs 352(6) of the 1998 Act – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, CHEP Australia Ltd v Strickland  [2013] NSWCA 351, 12 DDCR 501, D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied – alleged errors of fact – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 discussed and applied

Wood DP

5 October 2021

Facts

Mr Aslam, the first respondent, brought proceedings in respect of an assault that occurred at about 3.45 am on 21 October 2006. Mr Aslam’s assailants were passengers in the taxi he was driving and, after the attack, attempted to flee but Mr Aslam chased them. With the assistance of passers by, Mr Aslam managed to apprehend the male assailant until police assistance arrived. The assailants were arrested and Mr Aslam was taken to hospital.

Mr Aslam brought a claim for compensation alleging he was a deemed employee (in accordance with cl 10 of Sch 1 to the 1998 Act) of Tanwar Enterprises Pty Ltd (the second appellant), and he also joined Mr Ramesh Tanwar, the first appellant, who was the sole director of the second appellant and also owned taxi cabs in his own right.

Liability for Mr Aslam’s alleged injuries was denied by the Nominal Insurer, the second respondent, who became involved in the proceedings because neither Tanwar Enterprises nor Mr Tanwar held a workers compensation policy at the time of Mr Aslam’s injury.

Mr Ghazi, the third respondent, was joined to the proceedings on the basis that Mr Tanwar and Tanwar Enterprises alleged that he was the bailor of the taxi.

Arbitrator Rimmer determined that Mr Tanwar was the bailor of the taxi, Mr Aslam suffered injury to his right knee and psychological injury in the assault on 21 October 2006, and Mr Aslam’s employment was a substantial contributing factor to the injuries.

Mr Tanwar and Tanwar Enterprises appealed.

The issues on appeal were whether the Arbitrator erred:

(a) by failing to take into account the evidence of Mr Saghapi (Ground 1);

(b) in her determination of the issue of bailment by failing to take into account the evidence of the various witnesses relied upon by Mr Tanwar and Tanwar Enterprises (Ground 2);

(c)  in rejecting the evidence of the driver’s daily worksheets on the basis that they lacked probative value (Ground 3);

(d) by affording weight to the evidence of Mr Qasim (Ground 4);

(e) in determining that Mr Aslam suffered physical and psychological injury, contrary to the notice issued pursuant to the then s 74 of the 1998 Act (Ground 5);

(f) by distinguishing Bolton v Ibrahim and Dimitrikakis [2002] NSWCC 39 (Bolton) from the present case on its facts (Ground 6);

(g) in rejecting the evidence of Mr Abhay Tanwar and Ms Shirley Tanwar (Mr Tanwar’s son and wife) on the basis that their evidence was unreliable because of their relationship to Mr Tanwar (Ground 7), and

(h) in determining that Mr Aslam’s employment was a substantial contributing factor to his injury in accordance with s 9A of the 1987 Act (Ground 8).

Held: The second appellant’s appeal was dismissed. The Arbitrator’s Certificate of Determination dated 11 January 2021, amended on 21 January 2021 and on 3 September 2021, was confirmed.

Consideration

1. Curiously, the second appellant (Tanwar Enterprises) joined with the first appellant in the appeal and in respect of the allegations of error on the part of the Arbitrator. The Arbitrator was not satisfied that the second appellant was the bailor of taxi T-1078 and found no liability rested with the second appellant. She made an order in favour of the second appellant in her Certificate of Determination. The appellants’ submissions did not point to any alleged error on the part of the Arbitrator that could in any way adversely affect the second appellant. This was a matter raised with the appellants at the telephone conference on 11 August 2021. The second appellant’s appeal was therefore incompetent and was dismissed. ([349])

Grounds 1

2. Ground 1 of the appeal asserted error on the part of the Arbitrator by failing to take into account the evidence of Mr Saghapi. The first appellant referred to Mr Ghazi’s evidence, in which Mr Ghazi suggested that Mr Saghapi was the day shift driver, and the evidence of Mr Qasim who claimed to be the day shift driver. The Deputy President observed that the Arbitrator reviewed the evidence of Mr Saghapi, noting that the statement was unsigned and undated, and that Mr Saghapi had never seen the daily driver’s worksheets stamped with the name Tanwar Enterprises even when Mr Ghazi was operating the taxis for Tanwar Enterprises. The Arbitrator observed that Mr Saghapi made no reference to being a driver of taxi T-1078. The first appellant said the Arbitrator was in error in making those observations. ([350]–[351])
3. There was no dispute that the statement was not signed and not dated. In some circumstances, an Arbitrator might consider that the fact that a statement is unsigned is not a bar to accepting the evidence put forward by the author. In this case, however, there was a considerable body of conflicting evidence and the issue of credit was at the forefront of both the appellants’ and the respondents’ cases. In those circumstances, whether a statement was signed and dated was an important factor to be taken into account in assessing the evidence and reaching conclusions of fact. This was particularly so in the context of the first appellant’s reliance on an unsigned statement of Mr Ghazi, of which the veracity of the contents was refuted by Mr Ghazi in a subsequent, signed document. ([352])
4. The first appellant’s arguments suggested that, in his view, once the Arbitrator admitted the document into evidence she was bound to accept its contents. Wood DP held the suggestion was erroneous. It was incumbent upon her, once a document was before her, to assess the probity of, and the weight to be afforded to that evidence, which she did in an appropriately reasoned manner. That path of reasoning included her observations that there was no reference in that document, or the numerous other statements relied upon by the appellants, to Mr Aslam driving taxi T-1078, or to Mr Saghapi driving that taxi, or Mr Saghapi in fact being the day driver of taxi T-1078. The first appellant submitted that these observations about Mr Saghapi’s statement were wrong. The first appellant pointed to no evidence that would establish that the Arbitrator’s observations were wrong and it was patently clear from a review of the document that there was indeed no mention of those matters. ([353]–[354])
5. The first appellant asserted that the Arbitrator’s observation was also wrong that none of the other witnesses, apart from Mr Tanwar’s wife and son, referred to Mr Aslam and any arrangements he may have had with either of the appellants or Mr Ghazi. The appellant did not identify any evidence that supported that assertion and a review of those documents disclosed that the Arbitrator was correct. The first appellant had failed to identify error on the part of the Arbitrator in respect of her assessment of the evidence referred to as “Mr Saghapi’s statement”. It followed that this ground failed. ([355]–[356])

Ground 2

6. The first appellant asserted error on the part of the Arbitrator by failing to take into account the evidence from the witnesses relied upon by them, namely Mr Tanwar, Ms Kaur, Mr Saghapi, Mr Bary, Ms Tanwar, Mr Abhay Tanwar, Mr Arshad and Mr Carabine. The first appellant contended that, as a result, the Arbitrator erred in her determination of the issue of bailment. ([357])
7. The Deputy President observed that many of the submissions made by the first appellant constituted substantive submissions that were made to the Arbitrator as to why she should prefer the evidence relied upon by him. The appeal is not a rehearing and the first appellant cannot succeed by simply re-running the case he put to the primary decision-maker. It could not be said that the Arbitrator overlooked material facts, or afforded the first appellant’s evidence too little weight, or that the available inference in the opposite sense was so preponderant that her reasoned conclusions were wrong. ([368]–[369])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir); Workers Compensation Nominal Insurer v Hill[2020] NSWCA 54 (Hill), and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston) applied)

8. Deputy President Wood held that the first appellant had failed to establish that the Arbitrator erred by failing to take into account the evidence of their witnesses, or by preferring the evidence of Mr Ghazi, Mr Aslam and Mr Qasim over that evidence. It followed that this ground of appeal failed. ([370])

Ground 3

9. The first appellant submitted that the Arbitrator’s conclusion that the driver’s daily worksheets may not have been genuine and thus lacked probative value was wrong. The basis of the first appellant’s allegation appeared to be that the Arbitrator ought to have considered those documents to be a fraud and that the fraud was committed by Mr Aslam. Wood DP held that the Arbitrator appropriately determined that the documents were inconsistent with other documents, which were accepted by her as business records, and the daily worksheets did not assist her in the determination she was required to make, thus lacking probative value. The Deputy President concluded that the Arbitrator’s determination was open to her and disclosed no error. This ground failed. ([371]–[372])

Ground 4

10. The first appellant asserted that the Arbitrator erred by affording weight to the evidence of Mr Qasim. He submits that in the circumstances where there was no witness to Mr Qasim’s statement and it did not include a disclaimer, as well as the fact that Mr Qasim could not be located to appear and be cross-examined, his evidence was unreliable. Neither the 2021 Rules or the former 2011 Rules then in force require the signing of a statement sought to be relied upon to be witnessed. Nor is a legal disclaimer required in order to render the document admissible. ([373])
11. The Arbitrator provided a reasoned pathway to arrive at her conclusion that she considered Mr Qasim an independent witness and preferred that evidence over the evidence relied upon by the appellants. The Arbitrator’s approach disclosed no error and this ground failed. ([375]–[376])

Ground 5

12. The first appellant contended that the Arbitrator’s finding of injury was contrary to the notice issued pursuant to s 74 of the 1998 Act. As Mr Aslam submitted, the issues raised in the s 74 notice are mere allegations in respect of what injuries are disputed. The notice is of no evidentiary value, is not evidence of the facts asserted, and has no evidentiary bearing on the Commission’s factual determinations. ([377])
13. The task the Arbitrator was required to determine was whether Mr Aslam suffered the injuries, liability for which was disputed in the s 74 notice. That process involved an assessment of the whole of the medical evidence and other contemporaneous evidence, as well as the evidence from Mr Aslam about the circumstances in which he was injured and what injuries occurred. She determined that, on the balance of probabilities, the evidence established that, in accordance with s 4 of the 1987 Act, Mr Aslam suffered a right knee injury and a psychological injury in the assault. She was not satisfied that Mr Aslam injured his back as a result of the assault. Those determinations involved factual conclusions on a matter of causation. ([379])
14. The preference for, and acceptance of evidence is generally a matter that falls within the primary decision maker’s domain and a Presidential member can only interfere with the Arbitrator’s determination where the circumstances described in Whiteley Muir, Hill and Raulston are established. It was patently apparent from the Arbitrator’s review of the evidence and her reasons for preferring the evidence in favour of Mr Aslam over that in favour of the appellants that the Arbitrator did not commit any of the requisite errors. The Arbitrator dealt with the evidence in a balanced and appropriate manner and her reasons were soundly based. It followed that the appellants had not identified error in the Arbitrator’s determinations about injury, and this ground failed. ([386]–[387])

Ground 6

15. The first appellant alleged that the Arbitrator erred by distinguishing Bolton. The Deputy President held that the Arbitrator’s findings of fact were open to her on the evidence. Thus, the facts as found by the Arbitrator were clearly distinguishable from the facts in Bolton and the Arbitrator correctly explained that distinction. The first appellant had failed to show error on the part of the Arbitrator in distinguishing that authority and this appeal ground failed. ([388]–[394])

Ground 7

16. The first appellant asserted error on the part of the Arbitrator in rejecting the evidence of Ms Tanwar and Mr Tanwar’s son. He submitted that the Evidence Act 1995 provides that family members are entitled to give evidence. ([395])
17. The evidence of Mr Tanwar’s son, which was not accepted by the Arbitrator, was that Mr Ghazi purportedly told Mr Tanwar and his son certain things and Mr Tanwar’s son prepared a document on the basis of notes taken at that meeting. The notes were not in evidence, the document purporting to be a statement from Mr Ghazi was not signed, and in fact Mr Ghazi refuted the contents of the document in a signed statement and in oral evidence. There was ample reason for the Arbitrator to consider that Mr Tanwar’s son was not a truly independent witness and to reject his evidence. ([397])
18. The only submission made by the first appellant in respect of the Arbitrator’s conclusion that Ms Tanwar was not a truly independent witness was that the Evidence Actdid not preclude family members from giving evidence. The Arbitrator did not exclude Ms Tanwar’s evidence, or Mr Tanwar’s son’s evidence, because they were family members. Their evidence was admitted into the proceedings and assessed by the Arbitrator. It followed that this ground of appeal was not made out and failed. ([398]–[399])

Ground 8

19. The first appellant alleged error on the part of the Arbitrator in respect of her determination that Mr Aslam’s deemed employment was a substantial contributing factor to his injury, in accordance with s 9A of the 1987 Act. The first appellant contended that the Arbitrator was wrong because the injury occurred outside of the bailment period and it occurred while Mr Aslam was in pursuit of the assailants, which was not part of his duties as a driver of a taxi and was contrary to the training he would have received. ([400])
20. Deputy President Wood reviewed the transcripts and noted that those submissions were not made to the Arbitrator and in fact, no submissions were made in respect of the issue of whether Mr Aslam’s employment was a substantial contributing factor to his injury. The parties had the opportunity to make submissions about that issue. A matter which a party failed to address in submissions before the Arbitrator is not a matter in respect of which an error can be raised in an appeal from the Arbitrator’s decision to a Presidential member. ([401])

(Brambles Industries Limited v Bell [2010] NSWCA 162 applied)

21. The Arbitrator’s reasons for determining that Mr Aslam’s employment was a substantial contributing factor to the injury were soundly based, in accordance with the legislation and consistent with the relevant authorities. The first appellant had failed to identify error and this ground of appeal failed. ([402])

NOTE: On 3 September 2021 (whilst this appeal was on foot), Arbitrator Rimmer amended the Certificate of Determination and the appellants lodged a further appeal. Wood DP’s determination of the second appeal will be reported in the next publication of summaries.

Hall v Lindsay Brothers Management Pty Limited [2021] NSWPICPD 31

WORKERS COMPENSATION – Pre-injury average weekly earnings (PIAWE) – s 44C and s 44E of the 1987 Act – calculation of PIAWE in accordance with Enterprise Agreement – whether or not earnings calculated on the basis of ordinary hours worked – calculation of PIAWE for first 52 weeks and calculation of PIAWE after the first 52 weeks

Parker SC ADP

6 October 2021

Facts

The appellant was employed by the respondent as a B-Double line haul driver. He injured his back on 4 October 2018, and liability to make compensation payments was accepted. The appellant’s employment was subject to an Enterprise Agreement (EA). The EA contained clauses in respect of the appellant’s ordinary hours of work, over-time and pay rates with reference to kilometres travelled.

On 26 April 2019, the insurer made a calculation of the appellant’s pre-injury average weekly earnings (PIAWE) under the applicable PIAWE provisions at the time, which have since been repealed. It found the PIAWE to be $2,101.41, comprised of:

(a) $1,110.87 in ordinary earnings;

(b) $985.79 in overtime, and

(c) $4.75 in shift allowances.

On 3 December 2019, the insurer advised the appellant that he had received 52 weeks of weekly benefits and that from 17 December 2019, the overtime and shift allowance components of the PIAWE would be removed so that the continuing weekly benefit would be based on his ordinary earnings, which (after indexation) would be $1,120.00 per week.

A review by iCare found that the PIAWE for the first 52 weeks was $2,063.31. Pursuant to s 44C(1)(b) of the 1987 Act the overtime and shift allowances for the post 52 week benefit period were removed resulting in PIAWE for the period after the first 52 weeks of $1,086.11. This amount was indexed to provide a then current PIAWE of $1,120.00.

The Arbitrator ordered that the appellant be paid weekly compensation from 8 October 2018 based on a PIAWE of $2,143.73, and from 17 December 2019 based on a PIAWE of $1,166.53, and subject to indexation. The appellant appealed.

The issues on appeal were whether the Arbitrator erred in:

(a) conflating the definitional provisions in an Enterprise Agreement with the statutory test in s 44E which requires a bifurcated test of whether or not the earning were, in fact, calculated on the basis of ordinary hours worked (Ground 1), and

(b) fact and law in finding that the appellant’s earning were ‘calculated on the basis of ordinary hours worked’ (Ground 2).

Held: The Certificate of Determination was revoked in part and the matter was remitted to the Arbitrator to determine the appellant’s PIAWE after the first 52 weeks of weekly payments in accordance with this decision.

Ground 1

1. Ground 1 of the appeal was made out and the appeal was upheld. ([64])
2. The Arbitrator was persuaded that the “fair work instrument”, being the EA, converted the kilometres travelled to ordinary hours of work such that there is a base rate of pay which is separate from the overtime and shift allowances. The Arbitrator did not fully address the requirements of s 44E(1). As the appellant correctly submitted, s 44E(1) provides for the determination of the “ordinary earnings” of a worker for the purpose of determining the PIAWE by addressing 2 categories of worker: firstly, workers whose “base rate of pay is calculated on the basis of ordinary hours worked” in s 44E(1)(a); and, secondly, “in any other case” s 44E(1)(b) applies. Section 44E(1)(b) provides that “ordinary earnings" is the sum of “actual earnings paid or payable” to a worker in respect of a week, including piece rates, commissions and the monetary value of non-pecuniary benefits. ([65]–[67])
3. The question to be addressed was in which category was the appellant’s employment? The essential factual question was whether the appellant’s base rate of pay was calculated on the basis of ordinary hours worked. The Acting Deputy President held that the Arbitrator did not make a determination as to whether the appellant’s base rate of pay under the EA was greater than his actual rate of ordinary pay. Neither the appellant nor the respondent made any submissions on this issue. ([68]–[72])
4. After considering the EA, Parker SC ADP held that the appellant’s base rate of pay was not calculated on the basis of the ordinary hours worked and the ordinary earnings of the appellant were to be calculated in accordance with s 44E(1)(b). The Acting Deputy President found the appellant’s submission to be correct and the Arbitrator’s conclusion to the contrary at [51] of the reasons was incorrect. ([73]–[79])
5. The Arbitrator did not determine the “actual earnings paid or payable” in relation to a week in the relevant period. It followed that the Acting Deputy President could not determine the ordinary earnings of the appellant under s 44E(1)(b). ([80])

Ground 2

6. In view of his reasons in Ground 1, Parker SC ADP held that the calculation of PIAWE should be based on s 44E(1)(b). He held that this ground was also made out. The appropriate remedy was to remit the matter to the Arbitrator to calculate the post 52 weeks PIAWE by reference to s 44E(1)(b). ([83]–[85])
7. The Acting Deputy President added that s 44C(1)(b) requires overtime and shift allowance payments to be deducted for the post 52 week period irrespective of whether s 44E(1)(a) or (b) applies. The EA expressly recognised overtime in clause 4 (sub-clauses 4.1.2, 4.1.3 and 4.1.4) and clause 5.2. ([86])
8. Although the starting point is different, depending on which of s 44E(1)(a) or (b) applies, s 44C of the 1987 Act requires that overtime and shift allowance payments be excluded in calculating the PIAWE for the period commencing after the first 52 weeks for which weekly payments are payable in all cases. ([87])
9. The reality was, contrary to the position of the appellant, as recorded by the Arbitrator, for the post 52 week period the overtime and shift components have to be excluded irrespective of whether s 44E(1)(a) or (b) is applied. This followed from the operation of s 44C(1)(b) and (5). ([88])

University of New South Wales v Labit [2021] NSWPICPD 32

WORKERS COMPENSATION – Monetary threshold – s 352(3) of the 1998 Act; pleadings on ‘injury’ – s 42(3) of the 2020 Act; dealing with disputed expert evidence – Hume v Walton [2005] NSWCA 148, [69]; duty to give reasons

Snell DP

7 October 2021

Facts

The respondent worker worked with the appellant as a research fellow within the Business School. She became a lecturer from May 2020. The respondent stated that each of these roles involved working primarily at the computer with a significant workload. She stated she developed occasional right wrist soreness from March 2019, and “constant symptoms in the hands and arms” by December 2019. Liability was initially declined on the basis that she had failed to give notice and make the claim within the time limits provided by the 1998 Act. A further claim was made and liability was declined, and the appellant denied ‘injury’, ‘substantial contributing factor’ and whether the relevant condition resulted from injury.

The respondent brought these proceedings, in which the claim was described as “Weekly benefits where liability in dispute” and “Medical expenses (where the amount is more than $9,468.10)”. The weekly claim pleaded in the Application to Resolve a Dispute (ARD) is for $317.74 per week from 17 August 2020 on a continuing basis. The pleaded claim in respect of medical and related expenses is for past costs of $2,521.24, together with a “carpal tunnel release operation and ongoing physiotherapy treatment”, estimated at “approximately $10,000”.

The Arbitrator made an award in favour of the worker pursuant to s 37 of the 1987 Act for weekly payments from 17 August 2020 to date and continuing. The Arbitrator also made an award in favour of the worker, “being a general award with respect to section 60 expenses”.

The employer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) in law in making an award for the payment of compensation without making any finding as to injuries (Ground 1);

(b) in law (denial of procedural fairness) in determining the matter on a basis not put by or to the parties (Ground 2);

(c) in law in going beyond the matters, the subject of the application in determining liability (Ground 3);

(d) in law and fact in failing to properly consider and weigh the evidence (Ground 4), and

(e) by failing to give adequate reasons (Ground 5).

Held: The Certificate of Determination dated 4 January 2021 was revoked and the matter was remitted to a different Member for re-determination.

Threshold matters

1. There was an issue regarding whether the monetary thresholds in s 352(3) of the 1998 Act were satisfied. The appellant submitted that the medical expenses and proposed medical expenses claimed exceeded $12,500 without any consideration of weekly compensation. The respondent submitted that the monetary threshold of $5,000 was not met. Snell DP observed the award for medical and related expenses made in the current matter was described in the Certificate of Determination as “a general award with respect to section 60 expenses”. There was doubt regarding the extent to which a general award for s 60 expenses satisfied the threshold in s 352(3) of the 1998 Act. It depends on the circumstances of the specific case, the extent to which the expenses the subject of the award were particularised or agreed and the extent to which they were the subject of specific findings regarding whether they were properly recoverable. ([6], [17]–[19])

   (Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23; Grimson v Integral Energy [2003] NSWWCCPD 29 (Grimson); Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 , [17]; NSW Department of Education and Communities v Colefax[2012] NSWWCCPD 63, [22]–[24]; D’Er v Glemby International (Aust) Pty Ltd [2016] NSWWCCPD 42, [49] applied)

2. The Deputy President found that it would be inappropriate to regard the award made by the Arbitrator as restricted to the general award for s 60 expenses only. This may have been the intention of the parties in terms of the matters litigated at the arbitration hearing, but it did not reflect the orders ultimately made. The Arbitrator pronounced a continuing award pursuant to s 37 of the 1987 Act for an unspecified sum, in circumstances where he made a finding relevant to one aspect of the quantification of the weekly entitlement and otherwise gave the parties liberty to apply. It appeared likely that steps were taken to withdraw the claim for weekly payments at the telephone conference. Notwithstanding this, it was not possible to meaningfully deal with quantum of the award on that basis when the Arbitrator has subsequently made an ongoing award for weekly compensation (albeit unquantified) accompanied by liberty to apply. ([20])

   (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)

3. The claim the Arbitrator identified and sought to deal with was one for ongoing weekly compensation at $317.74 from 17 August 2020, the cost of future treatment approximated at $10,000, and past medical and related treatment in the amount of $2,521.24. These figures exceeded the sum of $5,000. The monetary threshold in s 352(3) of the 1998 Act was satisfied. ([21])

   (Grimson applied)

Grounds 1, 2 and 3

4. Ground 2 dealt essentially with whether it was open to the Arbitrator to make the finding of injury which he did, having regard to how the injury allegation was made. The outcome of Grounds 1 and 3 was to a significant extent dependent on the approach taken to Ground 2. It was convenient to consider these grounds together. ([24]
   

   Did the respondent amend her pleadings to plead ‘disease’?

5. The respondent submitted that at the arbitration hearing, before the submissions commenced, she amended the ARD to tick a box indicating she relied on a deemed date of injury, consistent with reliance on the ‘disease’ provisions. The transcript of the arbitration hearing did not record any such amendment being made orally. The Arbitrator, at the commencement of the transcript, recorded agreements between the parties regarding the tender of various late documents during the conciliation phase, there was no recorded reference to amendment of the ARD. Snell DP held that the way in which the case was conducted was inconsistent with the submission that there was an amendment made, before submissions commenced, to tick a box in the ARD indicating that the date of injury was one deemed pursuant to the disease provisions. The Deputy President rejected that submission. ([34]–[38])
   

   How the Arbitrator dealt with the ‘pleadings issue’

6. The effect of the Arbitrator’s reasons was that the Arbitrator considered the matter by reference to the ‘disease’ provisions of the 1987 Act, and made an injury finding accordingly, notwithstanding the appellant’s ‘pleadings issue’. The appellant submitted the Arbitrator erred in this regard. ([39])
7. A central issue in the appeal related to the Arbitrator dealing with the ‘injury’ issue on its merits, on the basis of the ‘disease’ provisions, notwithstanding the difficulty in the pleadings identified by the appellant. The Arbitrator’s approach was consistent with the former s 354 of the 1998 Act which applied at the time. It was consistent with relevant authority. The Arbitrator’s approach to this issue was, in the Deputy President’s view, clearly correct. Ground 2 did not succeed. ([75]–[76])
8. Ground 1 was based on the premise that the Arbitrator did not make a valid finding of injury, because his finding did not relate to “any incident or any pathology resulting from it”, referring to “injury on one day only being the 10 January 2020”. This submission was deprived of force by the conclusion that the Arbitrator’s approach to the proof of injury and the ‘pleadings issue’ was a correct one. The respondent correctly submitted that an injury finding was made at [23] and [26] of the reasons. Ground 3 similarly was based on the proposition that the Arbitrator erred in law in going beyond the allegation that injury was suffered on a single day, 10 January 2020. Grounds 1, 2 and 3 did not succeed. ([77])

Grounds 4 and  5

9. Snell DP observed that there was a clear conflict of medical opinion. Dr Bodel regarded the respondent’s condition as constitutional but considered it had been aggravated by the respondent’s work with the appellant. Dr Reiter and Dr Edwards also considered the respondent’s condition was not caused by her work, but additionally rejected the proposition that work had relevantly aggravated it. If Dr Bodel’s opinion was accepted on causation, the respondent was entitled to succeed on the issue of ‘injury’ on the basis of s 4(b)(ii) of the 1998 Act. If the opinions of Dr Reiter and Dr Edwards were accepted, she was not. ([90])
10. The Deputy President held that the reasons provided by the Arbitrator did not comply with his duty. The Arbitrator gave reasons for why he did not accept that part of Dr Reiter’s opinion which relied on scientific studies, in part because the studies did not concern themselves with the issue of aggravation. Dr Reiter additionally opined that employment was not a contributing factor to any aggravation. The Arbitrator referred to the fact that Dr Reiter was asked about “disease and aggravation (etc) of disease”, but did not refer to her opinion on the issue nor to why he did not accept it. The Arbitrator’s preference for the opinion of Dr Bodel over that of Dr Reiter on the aggravation issue was essentially unexplained. ([83], [87], [91])

(Hume v Walton [2005] NSWCA 148 applied)

11. The only reference to the report of Dr Edwards in the reasons was that at [27], where the Arbitrator referred to recording a submission from the appellant that Dr Edwards’ history was not “consistent with what was alleged in the Application”. The Arbitrator dealt with the submission on the basis that it was a reference to the ‘pleadings issue’. The reasons did not otherwise refer to Dr Edwards’ report. The appellant’s submissions on Dr Edwards relied on other matters. There was reference to Dr Edwards’ discussion of the MRI of the cervical spine that was carried out and to the doctors’ view that he could not find evidence of carpal tunnel syndrome on examination. The appellant addressed on Dr Edwards’ opinion that the respondent’s condition “has nothing to do with the work activities at university”. The reasons did not deal in any meaningful way with the evidence of Dr Edwards. They did not “enter into the issues canvassed” and explain why the Arbitrator preferred the respondent’s medical case over that relied on in the appellant’s case. Grounds 4 and 5 succeeded. ([92]–[94])
    

    Another matter

12. Telephone conferences are not ordinarily recorded. It has been said repeatedly, in Presidential decisions, that where there are amendments made or foreshadowed, issues narrowed, concessions made or other procedural developments of significance, these should be recorded. It will generally be sufficient if such matters are simply read onto the transcript, with the consent of the parties, so that there is a record of what transpired. The task of dealing with this appeal, particularly on the contested issue of the monetary threshold, was frustrated by the absence of any reliable record of such matters and by differing versions of what happened. ([97])

Scone Race Club Limited v Cottom [2021] NSWPICPD 33

WORKERS COMPENSATION – Section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision; s 352(6) of the 1998 Act – additional evidence admitted on the appeal – CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 considered and applied – s 329 of the 1998 Act – referral of a matter for further assessment or reconsideration – Read v Liverpool City Council [2007] NSWSC 320 discussed; procedural fairness – decision should be based on the issues litigated in matter – Chanaa v Zarour [2011] NSWCA 199 applied; a party must have an opportunity to deal with matters adverse to their interests – Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966; 190 ALR 601; Blacktown Workers’ Club Ltd v O’Shannessy [2011] NSWCA 265 applied

Wood DP

19 October 2021

Facts

The respondent worker suffered an injury to his right knee on 23 May 2008 in the course of his employment as a handyman/labourer with the appellant. He was paid weekly compensation and his treatment expenses were met. On 30 November 2015, the respondent made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 20% whole person impairment of the right knee. The parties entered into a complying agreement in respect of 20% whole person impairment.

The respondent’s weekly payments of compensation ceased on or about 26 December 2017 because s 39 of the 1987 Act precludes payments of weekly compensation after 260 weeks of payments, unless the injured worker’s permanent impairment as a result of the injury exceeds 20%.

The respondent commenced a work injury damages claim which was ultimately unsuccessful. In the course of those proceedings, the respondent was provided with a copy of a report by Dr Isaacs, who opined the respondent suffered from 41% whole person impairment as a result of the injury.

The respondent commenced proceedings in the Workers Compensation Commission, seeking to have his whole person impairment assessed in order to determine whether it was greater than 20%, which would entitle him to ongoing weekly compensation. The Arbitrator issued consent orders remitting the matter to an orthopaedic surgeon AMS to assess whole person impairment. A delegate of the Registrar referred the respondent to Dr Burns, an AMS who was an occupational physician, who assessed 20% whole person impairment.

On 17 November 2020, prior to the issuing of the Certificate of Determination, the respondent wrote to the Commission seeking a reconsideration of the MAC under s 329 of the 1998 Act.

The Arbitrator determined the reconsideration application in favour of the respondent and remitted the matter to the Registrar for referral to an Approved Medical Specialist orthopaedic surgeon for determination of the extent of the respondent’s whole person impairment, if any, that resulted from injury to the respondent’s right lower extremity. The Arbitrator also requested that the Registrar withhold the Medical Assessment Certificate issued by Dr Burns. The employer appealed.

The issues on appeal were whether the Arbitrator:

(a) erred by misconceiving his task and in the exercise of his discretion by accepting that a referral to an occupational physician was within the Registrar’s power and then concluding that the “interests of justice” favoured a reconsideration (Ground 1);

(b) erred in fact by finding that the respondent “mistakenly” agreed to the assessment with Dr Burns, which finding was material and central to the Arbitrator’s decision (Ground 2);

(c) failed to provide the appellant with procedural fairness by exercising his discretion on a basis not put to him by either party (Ground 3), and

(d) erred by wrongly withholding the assessment by Dr Burns from the Approved Medical Specialist appointed to conduct the reconsideration (Ground 4).

Held: Leave to appeal an interlocutory order was granted. The Certificate of Determination dated 1 February 2021 was revoked, and the matter was remitted to another non-presidential member for re-determination.

Consideration

1. In this case, the Arbitrator was required to make a determination pursuant to s 329(1)(b) of the 1998 Act as to whether the respondent’s assessment of whole person impairment should be referred for further assessment by an Approved Medical Specialist. The observations of Malpass AsJ in Read v Liverpool City Council [2007] NSWSC 320 (approved by Roche DP in Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 ) were that s 329(1)(b) may have been intended to provide a remedy in cases where no grounds of appeal could be made out but the “dictates of justice” required a further referral for assessment. Thus, the exercise of discretion vested in the Arbitrator to grant or refuse the application should embrace notions of procedural fairness. The Arbitrator’s task therefore was to examine the facts and circumstances in this case and determine whether it was just to order the referral. ([69])

Ground 2

2. In this ground, the appellant complained that there was no basis upon which to determine that the respondent mistakenly agreed to attend the assessment with Dr Burns. The respondent submitted that the “mistake” referred to by the Arbitrator was that the referral was to an occupational physician and not an orthopaedic surgeon. The Arbitrator’s reasoning was that the mistake was that of the respondent’s solicitor’s office. Wherever the Arbitrator intended to lay the responsibility for the purported “mistake”, there was no evidence that the respondent mistakenly agreed to the referral, or that the respondent’s legal representatives mistakenly allowed or recommended the respondent to attend, or that the referral itself was a mistake. ([70])
3. Further, the respondent attended the assessment without objection. There was no evidence to support the Arbitrator’s conclusion that the referral was a mistake, wherever the mistake was said to have arisen. While the full email chain was not before the Arbitrator, the emails that were in evidence were insufficient of themselves to provide a foundation for the Arbitrator’s finding. The emails in evidence before the Arbitrator were, firstly, from the appellant to the Commission, pointing out that the referral was intended to have been with an orthopaedic surgeon, and secondly, the Commission’s response explaining why the respondent was referred to Dr Burns. The respondent was copied into those emails, using the email address provided in the Application to Resolve a Dispute as the email address to be used to contact the respondent’s legal representatives and thus the address for service of documents. ([71])
4. Wood DP found that no argument was raised by the respondent that he mistakenly attended the assessment, no evidence was adduced that provided a basis to conclude that there was any mistake, and the full email chain clearly disclosed that the Arbitrator’s conclusion in that regard was contrary to the facts. The Arbitrator’s finding that the referral was a “mistake” had no basis in the evidence and constituted an error of fact. It followed that Ground Two of the appeal succeeded. ([72])

Ground 3

5. In this ground, the appellant alleged that the Arbitrator breached the requirements of procedural fairness by determining the matter on a basis not put by either party. ([73])
6. Wood DP held that the Arbitrator’s conclusion that the respondent was not afforded an opportunity to consent to the variation in the specialty was clearly wrong. The consent was readily apparent from the email sent by Ms Oliver, paralegal, which was not in evidence because the respondent had not raised any issue that he had not consented or that he had not had the opportunity to consent to attend the assessment. ([89])
7. An arbitrator’s finding must be based upon the evidence and a decision based on a point not raised by the parties or the Commission constitutes a denial of procedural fairness. ([90]–[92])

(Chanaa v Zarour [2011] NSWCA 199; Strinic v Singh [2009] NSWCA 15; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; and Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966 ; 190 ALR 601, and Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 applied)

8. The Deputy President held that the Arbitrator was not entitled to decide an entirely different issue which was not raised for his consideration, without giving notice to the parties that he proposed to take that course. Had the Arbitrator brought to the attention of the parties that he proposed to decide the matter on the basis that there had been a “mistake” in the referral and that the respondent had not had the opportunity to raise an objection to the referral, the appellant would have had the opportunity to seek to rely upon the email from Ms Oliver. That email was directed to the Commission and copied to the appellant. It advised that neither party had requested the referral be to an orthopaedic surgeon, the respondent was happy to attend the appointment, and the appointment with Dr Burns should be confirmed. ([93])
9. The information contained in the email was clearly at odds with the Arbitrator’s conclusions and the appellant ought to have been provided with the opportunity to address the Arbitrator’s considerations. Having failed to be afforded that opportunity, the appellant was denied procedural fairness and the real potential to achieve a different outcome. It followed that Ground 3 succeeded. ([94]–[95])

State of New South Wales (NSW Police Force) v Nguyen [2021] NSWPICPD 34

WORKERS COMPENSATION – Section 352(6) of the 1998 Act – leave to rely on fresh or additional evidence – application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; alleged factual error in finding injury pursuant to s 4(b)(ii) of the 1987 Act – application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 and associated authorities; causation – application of Calman v Commissioner of Police [1999] HCA 60; 167 ALR 91; 73 ALJR 1609, Sutherland Shire Council v Baltica General Insurance Co. Ltd (1996) 39 NSWLR 87

Snell DP

20 October 2021

Facts

The respondent worker was employed by the appellant in a senior role as Principal Executive Officer. She was based at Police Headquarters at Parramatta. She took approved leave from 19 December 2019. On 20 December 2019 (whilst on leave), she attended a function at a hotel in Parramatta, a send-off for a senior officer, arriving at about 5 pm. The respondent stated that she was sexually assaulted that night by a senior police officer, initially at the hotel and later in a park at Parramatta. The respondent reported the assault on the following day. She was off work on sick leave until 3 February 2020.

During January 2020 the respondent enquired about what was happening with the person who assaulted her, who ordinarily worked in the same building as the respondent. She was initially offered work on a part-time basis, at Parramatta Headquarters. It was to be in a job different to her usual position, so that she would not be working on the same floor as the senior officer involved in the assault. She stated her “boss” expressed concerns about her coming into contact, with both the person involved in the assault and witnesses, and she was instead offered a transfer to premises at Woolloomooloo, which she agreed to.

The respondent said the tasks she was allocated at Woolloomooloo were outside her normal duties. She formed the view that many of those working at Woolloomooloo were “injured in one way or another”, some were on return-to-work plans or were not “operational”. She stated that the person who assaulted her was doing his normal job at Parramatta and no action was taken against him, yet her job was taken from her. Her hours gradually increased to three days per week. The respondent was twice offered chances to move back to Parramatta, which were then withdrawn. She perceived this to be associated with the appellant awaiting advice from the Office of the Director of Public Prosecutions (DPP) regarding whether charges would be laid in respect of the assault. She felt she was dealt with “inappropriately”.

The respondent stated her “boss” telephoned her on 11 June 2020, and she told him of the status of the workers compensation claim she had made. He “expressed his disagreement with her claim”, which she regarded as a withdrawal of support when she needed it. She took sick leave from 15 to 30 June 2020. From 1 July 2020, the respondent accepted a position as the manager of the Woolloomooloo office. On 4 August 2020, the respondent returned to working at Parramatta Headquarters, but in a different role.

Before the Arbitrator, the respondent did not argue that the function at the hotel was a “work function”. Reliance was placed on how the appellant treated the respondent subsequent to the assault, being returned to a different workplace so that she felt she was “being punished for reporting the crime”. The Arbitrator issued a Certificate of Determination on 3 February 2021, in which there was a finding that employment between 4 February 2020 and 5 July 2020 was the main contributing factor to an aggravation or exacerbation of a psychological condition pursuant to s 4(b)(ii) of the 1987 Act. There was an award on the basis of partial incapacity during the period from 29 February 2020 to 5 July 2020.

The employer appealed.

The issues on appeal were whether the Arbitrator erred in fact and law in finding that:

(a) there had been an aggravation injury (Ground 1), and

(b) the respondent’s incapacity for work flowed from the aggravation injury rather than the events of 20 December 2019 (Ground 2).

Held: The Arbitrator’s Certificate of Determination dated 3 February 2021 was confirmed.

Ground 1

1. The letter from the respondent’s solicitors qualifying Dr Takyar (a psychiatrist), was dated 12 May 2020. It clearly informed the doctor that the “farewell was not a function organised or sanctioned by NSW Police”. It stated that the respondent “was obligated to report the sexual assault and has had to participate in a lengthy investigation process”. The letter stated that the claim was “in respect to the treatment of the worker by her employer after reporting the assault including the processes undertaken by her employer as opposed to the sexual assault itself”. The “Referral Information” in the doctor’s report quotes from the letter qualifying him, it can be readily inferred that the doctor read the letter of referral. The appellant described the doctor as assuming the assault occurred at “a work-related event”. That term was a general one which, in the circumstances, had the capacity to be misleading. The doctor recorded a history, repeated in his report, that the respondent attended the hotel “for the main purpose of farewelling a senior police officer”. ([54])
2. In dealing with this ground, the appellant based its submissions on the weight to be afforded to the opinions of Drs Bennett and Takyar. The appellant submitted that Dr Takyar was asked to assume the existence of an ‘aggravation injury’. Dr Takyar’s letter of instruction said that “[b]ased on our client’s instructions, we understand that the employer’s treatment of our client after the assault, including the reporting of the assault and the investigation process, has aggravated our client’s pre-existing psychological injury” (emphasis added). Some of the questions asked of the doctor were of a leading nature. For example, the doctor was asked for the “history of our client relative to the psychological injury which arose out of the course of employment”. This assumed the existence of such an injury and additionally misstated the test in s 4 of the 1987 Act. ([57])
3. Snell DP observed that Dr Takyar regarded the relevant psychological condition as having two causes, one of these (the assault) was not alleged to be compensable and this was made clear in the doctor’s letter of instruction. The other was the appellant’s actions in managing the respondent after the assault. The doctor distinguished between these causative factors and said that each was an “equal main contributing factor”. ([59])
4. The basis on which the case was conducted by the parties was that the appellant, if the respondent succeeded, was liable for the consequences of the events that post-dated the assault. Dr Takyar’s opinion drew a distinction between those events and the assault. A combination of the lay evidence, together with the specialist medical evidence from Dr Takyar and Dr Bennett, was sufficient to support the finding of injury by way of aggravation which the Arbitrator made. The appellant submitted that Dr Takyar and Dr Bennett failed to separate the effects of the assault from the effects of the respondent’s return to work and the associated difficulties. Both doctors were asked by the respondent’s solicitors to make that distinction, and it was apparent from their opinions that they sought to do so. The appellant relied on no medical evidence of its own, a matter to which the Arbitrator referred. ([61])
5. The Deputy President held that the finding that there was an injury by way of aggravation, as a result of the respondent’s work duties subsequent to 20 December 2019, was available on the evidence overall, in particular that of the respondent, Dr Takyar and Dr Bennett. It was not inconsistent with the view expressed by Dr Lander (the respondent’s general practitioner). ([63])
6. The appellant argued that Dr Lander was the best placed to assess whether the psychiatric injury from the sexual assault had recovered and whether there had been an aggravation due to the conduct of the appellant. Whether the respondent had recovered from the effects of the sexual assault was not a matter on which her entitlement to compensation for the effects of any aggravation injury depended. Injury or loss can have multiple causes. Dr Lander did not give the appellant any great assistance on the issue of whether there was aggravation due to the conduct of the appellant. Dr Lander’s comments in the doctor’s certificate dated 4 July 2020 were consistent with the respondent suffering aggravation as a result of events associated with the appellant’s actions after the assault. Snell DP held that to the extent to which there was inconsistency between the reports of the two psychiatrists, as opposed to the material from Dr Lander, the Arbitrator dealt with her preference for the opinions of Dr Bennett and Dr Takyar. ([64]–[65])

(ACQ Pty Limited v Cook [2009] HCA 28; 237 CLR 656, and Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 2 NSWLR 435 applied)

7. The appellant had not identified appealable error within the meaning of s 352(5) of the 1998 Act and Ground 1 failed. ([66])

Ground 2

8. Snell DP held that the appellant’s submission, that incapacity “flowed not from the aggravation injury but rather from the alleged sexual assault” (emphasis added) asked the wrong question. It assumed an ‘either/or’ approach which was inconsistent with authority. An argument that incapacity resulted from the alleged sexual assault was not necessarily inconsistent with the proposition that incapacity also resulted in the relevant sense from the ‘aggravation injury’. The applicable question was whether the ‘aggravation injury’ caused or materially contributed to the relevant period of incapacity. There was ample evidence to support this proposition. The lay evidence, like the psychiatric evidence, was consistent with the conclusion that the ‘aggravation injury’ materially contributed to the incapacity. ([73]–[75], [78])
9. Snell DP rejected the submission that the assessed incapacity to work within proximity of the offender did not result from the found ‘aggravation injury’. Ground 2 failed. ([80]–[81])