Appeal Case Summaries

Summers v Sydney International Container Terminals Pty Limited t/as Hutchison Ports [2021] NSWPICPD 35

WORKERS COMPENSATION – section 60 of the 1987 Act - whether the proposed surgery is reasonably necessary as a result of injury - Diab v NRMA Ltd [2014] NSWWCCPD 72 considered and applied

President Judge Phillips

4 November 2021

Facts

The appellant sustained an injury to his neck and back during the course of his employment as a stevedore with Sydney International Container Terminals Pty Ltd t/as Hutchison Ports (the respondent). The appellant’s injuries were accepted by the insurer with a deemed date of injury of 10 October 2019, but a claim for an anterior cervical decompression and fusion surgery proposed by Dr Singh, orthopaedic and spine surgeon, was disputed on the basis that it was not reasonably necessary treatment as required by s 60 of the 1987 Act.

Throughout 2019 and 2020, the appellant underwent several radiological scans, including an X-ray of the cervical spine, MRI of the cervical and lumbar spines and a whole-body nuclear bone scan. The appellant was seen by Dr Dalton, rehabilitation specialist in November 2019 and was first examined by Dr Singh in January 2020. Dr Singh provided several reports and diagnosed the appellant with C3/4 disc bulging and foraminal stenosis. The appellant received a CT-guided right C3/4 intervertebral foramen corticosteroid injection at the recommendation of Dr Singh, but this only provided temporary relief. In a report of 21 August 2020 addressed to the appellant’s legal representatives, Dr Singh proposed surgery as reasonably necessary treatment as it was “likely to correct the structural problem at C3/4, decompress the nerve roots, and stabilise a motion segment thereby having a resultant improvement of his pain and function.” ([36])

Dr James Bodel, orthopaedic surgeon, provided further two medico-legal opinions for the appellant in June 2020 and October 2020. Initially, Dr Bodel opined that surgery was not reasonably necessary, and believed the appellant presented with significant pathology at the C6/7 level rather than the C3/4 level. Dr Bodel changed this view after reviewing Dr Singh’s report of 21 August 2020, and accepted Dr Singh’s assessment that surgery was reasonably necessary, with reliance on the appellant’s experience of temporary relief following the injection to the C3/4 level of the cervical spine.

Dr Stephen Rimmer, orthopaedic surgeon, examined the appellant for the respondent and provided a medico-legal opinion in April 2020 that the radiological investigations revealed pathology at the C6/7 level of the cervical spine, rather than the C3/4 level as opined by Dr Singh. Dr Rimmer concluded that the appellant’s clinical presentation was normal and that the appellant did not require the proposed surgery.

Arbitrator Wynyard found that the proposed surgery was not reasonably necessary pursuant to s 60 of the 1987 Act. The Arbitrator held that the appellant had not discharged his onus of proof to establish on the balance of probabilities that the proposed treatment would be effective, nor did the medical experts accept it to be appropriate. The Arbitrator was not satisfied with Dr Singh’s opinion and instead preferred the opinions of Dr Bodel and Dr Rimmer that the proposed surgery was not reasonably necessary.

The issues on appeal were raised in the following 16 grounds:

(a) $1,110.87 in ordinary earnings; (a) An error of mixed fact and law in that the Arbitrator failed to find that the proposed anterior cervical decompression and fusion proposed by Dr Singh was reasonably necessary as a result of the injury the appellant is deemed to have received on 10 October 2019. (Ground 1)

(b) An error of mixed fact and law in that the Arbitrator erroneously understood that the appellant was seen by the treating surgeon, Dr Singh, on a single occasion, an error which led to the Arbitrator’s failure to appreciate the reliability and probative value of Dr Singh’s assessment of the need for surgery. (Ground 2)

(c) An error of mixed fact and law in that the Arbitrator overlooked the evidence provided by the whole body nuclear medicine bone scan which confirmed severe pathology at the C3/4 level. (Ground 3)

(d) An error of mixed fact and law in that the Arbitrator purported to rely on the report of Dr Dalton as indicating that the proposed surgery was not reasonably necessary. (Ground 4)

(e) An error of mixed fact and law in that the Arbitrator relied on the opinion of Dr Rimmer, notwithstanding the manifest deficiencies in that opinion. (Ground 5)

(f) An error of fact in that the Arbitrator erroneously stated that Dr Bodel, on examination of the appellant, “found them [sic] to be normal”, contrary to the abnormalities recorded by Dr Bodel in the same report. (Ground 6)

(g) An error of mixed fact and law in that the Arbitrator failed to understand, and be guided by, the diagnostic relevance of the relief provided by the CT-guided injection at C3/4, and purported to offer an unqualified medical opinion of his own. (Ground 7)

(h) An error of mixed fact and law in [that] the Arbitrator’s decision does not engage with Dr Bodel’s revised opinion, and is reliant on an earlier opinion which Dr Bodel changed in accordance with evidence he had not previously considered. (Ground 8)

(i) An error of mixed fact and law in that the Arbitrator failed to acknowledge that on the date of the hearing the preponderance of medical opinion (as constituted by both Dr Singh and Dr Bodel) was that surgery at the C3/4 level was reasonably necessary. (Ground 9)

(j) An error of mixed fact and law in that the Arbitrator considered that the appellant’s case “is dependent obviously on my being persuaded that Dr Singh knew that the x-ray dated 31 December 2019 [sic, October] demonstrated pathology that justified the surgery, but that all other medical specialists ignored the x-ray for whatever motive”; when the appellant’s case was based on a substantially greater foundation than what was revealed in the October 2019 x-ray. (Ground 10)

(k) An error of fact and law in that the Arbitrator required pathology revealed by investigations to be “overwhelming”, in order to provide a basis for surgery. (Ground 11)

(l) An error of mixed fact and law in that the Arbitrator purported to diminish Dr Singh’s opinion as to the causal relationship between the appellant’s condition and his employment (a matter that is not in dispute) by suggesting that Dr Singh was influenced by the appellant’s solicitors, notwithstanding that Dr Singh had recorded that opinion in a letter to the appellant’s GP on 3 March 2020. (Ground 12)

(m) An error of fact in that the Arbitrator found that the appellant sought a second opinion from Dr Bodel, whereas that opinion was sought from Dr Loefler. (Ground 13)

(n) An error of mixed fact and law in that the Arbitrator preferred the opinions of the qualified doctors as to their interpretations of the radiology evidence over the opinion of specialist radiologists. (Ground 14)

(o) An error of mixed fact and law in dismissing the radiologist’s comment concerning the x-ray of 31 October 2019 of encroachment at the right C3/4 exit foramen as probably compressing the nerve root as “hardly an overwhelming comment”. (Ground 15)

(p) An error of mixed fact and law in diminishing the opinion of Dr Singh because of his failure to allegedly take “a proper history of the circumstances” of the injury when injury and causation were never an issue in the claim. (Ground 16)

Prior to determining the appeal, President Judge Phillips called an oral hearing, asking the parties to address the change in Dr Bodel’s two opinions, and Dr Singh’s failure to comment on the C5/6 and C6/7 levels which had troubled the other medical specialists. The appellant submitted that Dr Bodel’s second opinion was based on the acceptance of Dr Singh’s view that an injection temporarily alleviated symptoms at the C3/4 level and that the existence of pathology at other levels should not negate the symptomology at the C3/4 level. The respondent asserted that Dr Bodel’s analysis of the radiology forming his initial opinion should be given weight over his revised opinion which, was simply based on the therapeutic benefit of an injection.

Held: The Arbitrator’s Certificate of Determination of 22 January 2021 was revoked. President Judge Phillips redetermined the matter in accordance with s 352(6A)of the1998 Act and found that the proposed surgery was reasonably necessary.

Ground 1

1. Drs Singh and Bodel had knowledge of the relief experienced by the appellant following the C3/4 block injection. This knowledge was of diagnostic importance to both doctors but was knowledge that Dr Rimmer did not have. It was clear on the medical evidence that this pain relief was germane to the opinions reached by Drs Singh and Bodel, and therefore, incumbent upon the Arbitrator to deal with. The Arbitrator did not do this. As a result of a failure to do so, the Arbitrator could not properly construe the medical opinion which was to the effect that the proposed surgery was reasonably necessary. This failure, satisfied the conditions for intervention on appeal as set out by Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.

Ground 2

2. Whilst it was accepted that the Arbitrator incorrectly stated that Dr Singh only saw the appellant once, the President was not persuaded by the appellant’s assertion that Dr Singh’s examination of the appellant three times meant his opinion ought to be preferred to that of the medico-legal experts. The medico-legal experts had agreed to be bound by the expert witness code of conduct, and had based their opinions on examination, history, investigations and instructions. The suggestion that a treating doctor’s report should be universally preferred to a medico-legal report could not be correct as it would absolve a decision maker of their obligation to weigh the entirety of the evidence. ([95]–[99])
3. The Arbitrator did in fact acknowledge the advantage that a treating doctor’s opinion may have over a medico-legal opinion yet was not persuaded by Dr Singh’s opinion due to concerns as to the history taken by the doctor. The error as to the number of examinations conducted by Dr Singh did not affect this consideration given by the Arbitrator. Nothing material arose as a result of this error and this ground of appeal was not established. ([96]–106]).

Ground 3

4. There was no basis to the allegation that the Arbitrator proceeded to determine the matter without reference to the bone scan or pathology at the C3/4 level. The President pointed to pp 6–7 of the Arbitrator’s decision where this was specifically addressed. This ground of appeal was dismissed. ([107]–[112])

Ground 4

5. The allegation that Dr Dalton’s specialist opinion could only have limited value as it was delivered before other investigations took place was not accepted by the President. Dr Dalton’s opinion was a point in time assessment, and there was no error in the Arbitrator giving the report of Dr Dalton such weight as he thought necessary. ([115]).

Ground 5

6. Issue was taken with the Arbitrator’s reliance on Dr Rimmer’s opinion, due to the doctor’s alleged failure to address precise issues in respect of the radiological investigations. The President was satisfied that the investigations were considered by Dr Rimmer. It could not be said that Dr Rimmer was poorly instructed or lacked access to investigation material such that the doctor’s opinion could not be given in a fair climate. ([125])

   (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 applied)

7. The fact that the precise issues complained of in this ground of appeal were not in the terms addressed by Dr Rimmer did not render the doctor’s opinion as having no weight. There was no error, and this ground was not established. ([127])

Ground 6

8. This ground of appeal was established. The President held that the Arbitrator erred in reading Dr Bodel’s report to provide evidentiary support that the appellant’s presentation was “normal”. The descriptor “normal” was used as support for the Arbitrator’s ultimate opinion that the proposed surgery was not reasonably necessary and was thus made in error. ([138], [143])
9. Use of the word “normal” was deployed to substantiate the Arbitrator’s opinion that Dr Bodel, along with Drs Rimmer and Dalton, had a view that the greater pathology was elsewhere other than at the C3/4 level of the cervical spine. This did not mean that the pathology revealed by various investigations at the C3/4 level could be considered to be normal, nor was this an accurate summation of Dr Bodel’s view, with his second report agreeing with Dr Singh’s opinion that surgery is reasonably necessary. ([141]–[142])

Ground 7

10. This ground of appeal required consideration of the Arbitrator’s commentary in respect of the CT-guided injection at C3/4, which was addressed by the Arbitrator in terms that it was “hardly surprising that the appellant experienced some relief in the anaesthetic phase of the injection”. ([145])
11. The argument articulated to the Arbitrator requiring determination was that the relief experienced by the appellant following the injection at the C3/4 level was a matter of importance in considering whether the surgery was reasonably necessary. This relief was the determining feature of Dr Bodel’s change in opinion, as well as Dr Singh’s opinion. ([149])
12. Whilst the Commission is a specialist tribunal enabling it to “draw inferences from facts which an ordinary tribunal may not” (Grasa v Roads & Maritime Services [2013] NSWWCCPD 30), this expertise can only be deployed to interpret or draw inferences from existing evidence, it cannot be used to create evidence.This was not a circumstance where an inference could arise in opposition to the specialist opinion. The Arbitrator was required to deal with the opinions and the argument articulated and was therefore in error. ([150]–[152])

(Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Conargo Shire Council v Quor [2007] NSWWCCPD 245 applied)

Ground 8

13. It was clear from an examination of Dr Bodel’s second report that the doctor was persuaded by the diagnostic relevance of the pain relief the appellant experienced after the injection at the C3/4 level. This is the extra piece of information that Dr Bodel had at the time he drafted his second report that was not available to him when the initial report was settled. ([157])
14. The Arbitrator did not deal with Dr Bodel’s second report. For the Arbitrator to use Dr Bodel’s first opinion as support for his ultimate conclusions, he had to state the reasons why he was not persuaded or convinced by Dr Bodel’s change in opinion in his second report. The failure to do so was in error. ([158])

Ground 9

15. The appellant’s argument that the Arbitrator acted contrary to the preponderance of the evidence was incorrect, as the evidence showed various, developing opinions of medical experts as investigations were undertaken, including the opinion of Dr Bodel. Whilst it would have been helpful for the Arbitrator had Dr Bodel more clearly set out why his opinion changed, the error alleged in this ground was not established. ([159]–[163])

Ground 10

16. Reasons for decisions must be read as a whole. The Arbitrator’s decision sets out the results of various investigations and the opinions of the various practitioners. A fair reading would reveal that the Arbitrator considered more than the October 2019 X-Ray as alleged by the appellant and was aware that Dr Singh’s recommendation for surgery was based upon a number of scans, including, but not limited to the X-ray. The error alleged in this ground was not established. ([164]–[166])

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

Grounds 11 and 15

17. These grounds were determined by President Judge Phillips together. The President dismissed the assertion that the Arbitrator imposed a more burdensome standard with reference to pathology being “overwhelming”. The Arbitrator’s remarks regarding the X-Ray of October 2019 being “hardly overwhelming” were an observation, forming part of the investigatory matrix the Arbitrator was required to consider. The parties were entitled to hear the Arbitrator’s view in respect of these investigations. These grounds of appeal were not established. ([168]–[171])

Grounds 12 and 16

18. There was no basis to the appellant’s assertion that the Arbitrator disclosed unfounded prejudicial assumptions regarding the basis of Dr Singh’s understanding of the appellant’s condition, or that the Arbitrator’s criticism of Dr Singh’s opinion as pertaining to a matter not in dispute revealed misconceived and prejudicial assumptions inevitably affecting the Arbitrator’s assessment. ([173]–[174]).
19. Whilst Dr Singh was instructed through a comprehensive letter by the appellant’s solicitors with questions asking to assume the appellant’s history, there was no suggestion that the doctor’s opinion was influenced, or that the doctor was making prejudicial assumptions. The absence of a detailed history from Dr Singh’s initial reports is because the reports were not for that purpose, as the doctor was providing medical treatment. Notwithstanding this, the Arbitrator was entitled to test the weight he would give to Dr Singh’s opinion and the factual basis that underpinned the opinion. There is nothing prejudicial in this undertaking. ([178]–[180]).
20. In reading Dr Singh’s reports as a whole, it was a reasonable inference for the Arbitrator to make that when Dr Singh received the detailed letter of instruction, the doctor was giving an opinion in light of those instructions. There was no error in this approach. ([181]–[182])

Ground 13

21. The Arbitrator’s minor error in referring to Dr Bodel as providing a second opinion was not material. Reading the decision as a whole, the Arbitrator accurately sets out the fact that Dr Bodel was asked to provide a further opinion, which is different from a second opinion from a specialist on proposed treatment. The appellant did not advance an argument on how this minor error otherwise led to an appealable error and this ground was dismissed. ([183]–[189])

Ground 14

22. The duty of the Arbitrator is to weigh the medical evidence in its entirety. It is not a simple mechanical matter, that findings by radiologists must be accepted without qualification. There was a series of radiological examinations, and various specialists, both treating and medicolegal were supplied with some or all of these examinations. Each was eminently qualified within their specialty to comment upon the appellant’s condition arising from not only a consideration of those radiological examinations but also their own consultation with the appellant. ([193])
23. The benefit of having access to the radiological examinations and scans would be to assure a decision maker that the individual doctor’s opinion is given in a fair climate and can form a satisfactory basis for the decision maker to make findings. The radiologists were not positing an opinion and were describing their findings arising from their investigations. ([194])
24. The assertion that the radiological evidence which supported pathology at the C3/4 level of the cervical spine should have formed the necessary basis on which the Arbitrator should have considered the need for surgery was not established.

Redetermination

25. With four grounds of appeal established, the President revoked the Arbitrator’s decision and proceeded to redetermine the matter. ([201]–[205])
26. The President adopted the approach to the question of reasonably necessary treatment for the purpose of s 60 of the 1987 Act as outlined by Deputy President Roche in Diab v NMRA [2014] NSWWCCPD 72. ([206])
27. The focus was on the appropriate construction and inferences to be drawn from the medical evidence in deciding whether proposed surgery was reasonably necessary. This came down to a contest between the opinions of Drs Singh, Bodel and Rimmer, all of whom were fully instructed with the relevant material, except Dr Rimmer who lacked information as to the relief the appellant experienced after the injection at the C3/4 level. It was apparent from the opinions of Drs Singh and Bodel that the appellant’s post injection experience confirmed their opinion as to the pathology at the C3/4 level. Whilst Dr Bodel’s second report did not set out at length the reason for his change in opinion, the relief following injection was determinative in Dr Bodel’s mind ([207]–[208]).
28. The President was not persuaded by Dr Rimmer’s opinion, specifically that the appellant’s examination of the spine was normal. On no view of the evidence could it be taken that the cervical spine was normal, noting that Dr Rimmer himself concluded that the overwhelming pathology is at C6/7. ([209])
29. No issue was raised in respect to the cost of the surgery or alternative treatment. The proposed anterior decompression and fusion was determined to be reasonably necessary as a result of the injury deemed to have been received on 10 October 2019, based on the opinions of Drs Singh and Bodel. In coming to this determination, the President referred to Dr Singh’s opinion that the appellant would experience a deterioration without surgery and applied Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32, where Burke CCJ said at [48A]:

“It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.” ([210–211])

Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36

WORKERS COMPENSATION – acceptance of evidence in the absence of cross-examination – Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied – alleged factual error – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, Shellharbour City Council v Rigby [2006] NSWCA 308, Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6, Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied

Parker SC ADP

6 October 2021

Facts

The appellant was employed by the respondent as a telecommunications technician. On the night of 24 May 2018, the appellant and a co-worker were involved in locating and moving fibre optic cable, and, between the two of them, were required to lift open a heavy steel road plate.

The appellant subsequently lodged a workers compensation claim, alleging he suffered injury to his lumbar spine in that incident. Liability was declined on the basis that the appellant had not given notice of the injury or made a claim for compensation within the time required by ss 254 and 261 of the 1998 Act; the alleged injury did not arise out of the appellant’s employment; the appellant’s employment was not a substantial contributing factor to any injury, and the appellant’s employment was not the main contributing factor to any injury in the nature of a disease injury.

The appellant commenced proceedings in the then Workers Compensation Commission seeking weekly payments and treatment expenses.

The Member determined that the appellant had not discharged his onus of proving that he had suffered injury as alleged. The worker appealed.

The issues on appeal were whether the Member erred in law by failing to:

(a) give weight to the evidence of the co-worker, and

(b) determine primary questions of fact.

Held: The Member’s Certificate of Determination dated 5 March 2021 was confirmed.

Consideration

1. The right to pursue an appeal from a decision of a Member is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Member, where such error is of fact, law or discretion. The Member was required to determine whether the appellant suffered injury as alleged, which is a factual determination. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. ([128]–[129])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

2. The principles applied in the former Workers Compensation Commission with respect to s 352 and the decisions of Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 ; 10 DDCR 156; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 and Northern NSW Local Health Network v Heggie [2013] NSWCA 255 ; 12 DDCR 95 are equally applicable to appeals from decisions of members appointed to the Workers Compensation Division of the Personal Injury Commission. ([130]–[132])

Ground 1

3. The appellant asserted error on the part of the Member by failing to afford weight to the evidence of the co-worker. The appellant asserted that this error was an error of law. The appellant pointed to the fact that the co-worker was not cross-examined and there was no application made to do so. ([133])
4. Deputy President Wood held the Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence. The Member concluded that she was “better assisted” by the contemporaneous medical evidence than the evidence of the co-worker. Thus, the Member weighed the evidence of the co-worker’s recollections and the evidence from the entries in the clinical notes of three different treatment providers made within weeks of the incident on 24 May 2018. She also took into account that the appellant himself did not record that the symptoms were caused by that event in the sickness and accident form completed on 10 September 2018, adding that Dr Hay had recorded in that document that there was “no cause established”. ([134]–[135])

(Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied)

5. The Deputy President held that while the co-worker’s evidence was supportive of the appellant having lifted the heavy steel plate, it did not go so far as to constitute evidence, of itself, that the appellant’s symptoms arose from that event. The Member did not reject the evidence of the co-worker, she found it of little assistance. Such a conclusion was open to her when the evidence is analysed in the context of the more contemporaneously recorded evidence that was silent about the symptoms being referrable to the incident lifting the steel plate and attributed the onset of back pain to subsequent and different causes. ([136])
6. Wood DP concluded that it was open to the Member to prefer the evidence contained in the various clinical notes recorded within weeks of the event on 24 May 2018. The Member did not overlook material facts, or arrive at a view that was contrary to a preponderance of other evidence. The Member committed no error of fact or law in determining that the co-worker’s evidence was of little assistance to her, when considered in the context of the substantial body of evidence about the onset and cause of the appellant’s lumbar symptoms. This ground of appeal was not made out. ([137])

Ground 2

7. The appellant alleged error in that the Member failed to determine “primary questions of fact” before determining the appellant’s alternate allegation of injury in the form of an aggravation of his pre-existing lumbar spine pathology. The appellant described the Member’s reasoning as “convoluted” and “confusing.” ([138])
8. The Deputy President held that it was abundantly clear from the Member’s reasoning process as to why she concluded that the appellant had not satisfied her that he was injured as pleaded in respect of his “alternate” allegation of aggravation of his lumbar disease. The appellant did not explain why he found the Member’s reasoning convoluted and confusing and the Member’s reasoning provided a clear pathway upon which she reached her conclusion. ([140])
9. The appellant asserted that it “appears” that the Member determined that the appellant’s symptoms were caused by the long drive to the South Coast. The Deputy President found that the Member made no such determination. Her observation was that if the aggravation was a result of long driving, it was likely to have been because of the journey to the South Coast. Such an observation was not contrary to the evidence. In any event, the lack of sufficient evidence to establish that the cause of his symptoms was the purported driving conditions, including the telling lack of medical evidence to support the appellant’s assertion, was sufficient to dispose of the appellant’s claim of injury resulting from the nature and conditions of his employment. ([141])
10. The appellant did not point to any other “primary facts” that the Member was required to determine before reaching her ultimate conclusion. It followed that no error of fact or law was demonstrated, and this ground of appeal failed. ([142])

Yarrawonga & Border Golf Club Ltd v Williamson [2021] NSWPICPD 37U

WORKERS COMPENSATION – weekly compensation – work capacity – adequacy of reasons – whether Arbitrator failed to provide adequate reasons – Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied – consideration of entirety of the Arbitrator’s reasons – held that the Arbitrator provided adequate reasons

Parker SC ADP

9 November 2021

Facts

The respondent worker was employed by the appellant employer between 10 May 2019 and 20 February 2020. She alleged that she suffered psychological injury during the course of employment. She alleged that her injury was caused by the employment conditions to which she was subjected, including lack of support, excessive workloads, unrealistic expectations, bullying and harassment.

The respondent claimed weekly compensation from 20 February 2020 to date and continuing and medical expenses under s 60 of the 1987 Act. She relied on s 4(a) and (b) of the 1987 Act, asserting that she had sustained injury or, in the alternative, that she had sustained a disease injury. In the latter case, the deemed date for the injury was 20 February 2020.

It was agreed between the parties that the respondent’s PIAWE was $1,183.70. The appellant disputed that the respondent had received an injury, that the employment was either a substantial or the main contributing factor to any injury or disease and that the respondent had any lack of current work capacity or any entitlement to s 60 expenses under the 1987 Act. The Arbitrator found in favour of the worker and made an award pursuant to ss 36 and 37 of the 1987 Act from 20 February 2020 to date and continuing, plus an award for medical and like expenses under s 60 of the 1987 Act.

The employer appealed, challenging the sufficiency of the Arbitrator’s reasons with respect to s 32A of the 1987 Act.

The issue on appeal was whether the Arbitrator erred by failing to provide adequate reasons with respect to the conclusion reached regarding s 32A of the 1987 Act.

Held: The Arbitrator’s Certificate of Determination dated 17 February 2021 was confirmed.

Consideration

1. Parker SC ADP held that the Arbitrator, though he had addressed the relevant text, had not distinguished between the definitions contained in s 32A “suitable employment” (a) and (b) which he plainly had regard to and the definitions of current and non-current work capacity contained in Sch 3 to the 1987 Act. No complaint was made by the appellant with respect to this issue and, in any event, as a matter of substance, the Acting Deputy President was satisfied the Arbitrator fully grasped the requirement of the definition in s 32A of “suitable employment” and current work capacity in Sch 3. ([76])
2. It is the statute and the Rules that provide the authoritative requirements for an adequate statement of reasons to accompany the Certificate of Determination. ([79]–[89])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Sydney Catholic Schools v Bridgefoot[2021] NSWPICPD 17, and Wang v The State of New South Wales [2019] NSWCA 263 discussed and applied)

3. Parker SC ADP held that the Arbitrator was not required to deal with the matters in (a)(iii), (iv) or (v) of the definition of “suitable employment” within s 32A. No complaint was made in this regard. The focus of attention was necessarily on (a)(i) and (ii) and the matters in (b)(i) to (iv). The Acting Deputy President was of the view that the statement of reasons was well constructed and proceeded logically, addressing the evidence, the parties’ submissions and expressing the Arbitrator’s findings. ([90]–[91])
4. The focus of the appeal was on two particular paragraphs of the reasons. The appellant’s submissions did not address or recognise the extent to which the conclusions of the Arbitrator in particular paragraphs were supported by the analysis contained in other parts of the overall statement of reasons. The reasons should be considered as a whole and when this was done the expression of reasons was much more fulsome and comprehensive. ([92])
5. Parker SC ADP concluded that all of the medical evidence accepted by the Arbitrator was to the effect that the respondent had a present inability arising from the injury such that she was not able to return to work in either her pre-injury employment or in suitable employment. ([102])
6. The reasons at [101] recognised the submission made by the appellant’s counsel that the respondent had an extensive work history and education. The Arbitrator had previously observed that the respondent had an impressive work history. The Arbitrator reached the conclusion that notwithstanding the wide experience, the medical evidence, together with acceptance of the respondent’s lay evidence, overwhelmed in terms of the current work capacity/no current work capacity debate factors such as the respondent’s age, education, skills and work experience. The only matters relevant to a determination of “suitable employment” with which the Arbitrator was concerned were those relevant to a determination of the issues presented by (a)(i) and (ii) and (b)(i) to (iv) of the definition of suitable employment. ([103]–[104])
7. Paragraph [101] in combination with the other paragraphs of the reasons generally, in particularly with respect to the medical evidence, provided an adequate explanation for the finding that notwithstanding the respondent’s age, education, skills and work experience, the medical information on the probabilities made it likely that the respondent had no current work capacity. In the Acting Deputy President’s view, more fulsome reasons were not required. ([105])
8. The reasons were adequate to explicate the reasoning process so as to provide the appellant employer with an understanding of why it did not succeed and sufficient to provide for appellate review. The statement of reasons satisfied s 294(2) of the 1998 Act and rule 15.6 of the 2011 Rules. The single ground of appeal was not made out, and accordingly, the appeal failed.

Tanwar v Aslam (No 2) [2021] NSWPICPD 38

WORKERS COMPENSATION – res judicata – Blair v Curran [1939] HCA 23; 62 CLR 464; Lambidis v Commissioner of Police (1995) 37 NSWLR 320 applied

Wood DP

9 November 2021

Facts

This appeal relates to the decision of Tanwar v Aslam [2021] NSWPICPD 30 (Tanwar No 1) summarised here.

This matter was an appeal from an amended Certificate of Determination issued by a Member of the Commission on 3 September 2021. The amended Certificate of Determination corrected what were agreed to be obvious errors in the original Certificate of Determination dated 11 January 2021 and repeated in an amended Certificate of Determination dated 21 January 2021. The second respondent, the Nominal Insurer, brought the application to correct the obvious errors. None of the parties opposed the application.

The first appellant, Mr Tanwar, and the second appellant, Tanwar Enterprises Pty Ltd, appealed against the Member’s original Certificate of Determination, as amended on 21 January 2021. Wood DP in Tanwar No 1 refused the appellants’ application to adduce further evidence on the appeal, dismissed the second appellant’s appeal and confirmed the amended Certificate of Determination.

In the present appeal, Wood DP noted it was not necessary for her to repeat the background information or summary of the evidence, and this decision was to be read together with Tanwar No 1.

The issues on appeal were the same as those raised in Tanwar No 1. That is, the issues were whether the Member 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, from the present case on its facts (Ground 6);

(g) in rejecting the evidence of 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 appeal brought by the first and second appellants was dismissed pursuant to s 54(b) of the 2020 Act.

Consideration

1. The appellants provided particulars of each ground of appeal, which were identical to the particulars provided in Tanwar No 1, with the exception of the particulars relating to Grounds One and Two. While the particulars in respect of those grounds were expressed in different terms, the substance of the appellants’ complaints was the same. As the Deputy President found in Tanwar No 1, there was nothing that pointed to error on the part of the Arbitrator in not accepting that unsigned evidence referred to as the statement of Mr Saghapi, when the first purported statement spoke of arrangements between Mr Saghapi and Mr Ghazi prior to the sale of taxi T-1078 to Mr Tanwar and the second did not make any reference at all to the arrangements after the taxi was sold to Mr Tanwar. ([23])
2. Similarly, in respect of Ground Two, Wood DP considered the appellant’s allegation of error on the part of the Member and explained why there was no error in the Member’s approach, or in her conclusions about the evidence of the various witnesses relied upon by the appellants. ([24])
3. The appellants’ submissions in respect of each ground of appeal were also identical to those made in Tanwar No 1. In Tanwar No 1, the appeal brought by the second appellant was dismissed, and the Deputy President determined that the appeal brought by the first appellant had not identified error on the part of the Member and was without merit. The Member’s Certificate of Determination, as amended, was confirmed. Wood DP held that the only issues agitated in this appeal were the same issues raised and dealt with in Tanwar No 1 and the parties nominated in this appeal were the same respondents to the appeal in Tanwar No 1. ([25]–[27])
4. In order for the doctrine of res judicata to apply, authorities have accepted that the following elements must be present:

(a)     the decision was judicial in the relevant sense;

(b)     it was in fact pronounced;

(c)     the tribunal had jurisdiction over the parties and the subject matter;

(d)     the decision was final, and determined on the merits;

(e)     it determined the same question as that raised in the later litigation, and

(f)      the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem. ([28]–[30])

(Blair v Curran [1939] HCA 23; 62 CLR 464, and Lambidis v Commissioner of Police (1995) 37 NSWLR 320 applied)

5. Wood DP did not accept the appellant’s submissions on the above elements. The reference to the time period for lodgment of an appeal from the Certificate of Determination did not change the character of that determination and nor did the procedure of referring Mr Aslam to an Approved Medical Specialist for assessment. Those matters did not change the fact that the appeal in this matter was on the same grounds and in respect of the same conclusions reached by the Member in the decision the subject of the appeal in Tanwar No 1. ([40])
6. Deputy President Wood held that the only material difference between the Member’s Certificate of Determination issued on 11 January 2021, as amended on 22 January 2021, and the amended Certificate of Determination dated 3 September 2021 was the amendment made to paragraph [469] and the insertion of the new paragraph [474]. Both of those amendments were in favour of the appellants and the appellants do not raise any allegation of error on the part of the Member in respect of either amendment. ([46])
7. The Deputy President said that her decision in Tanwar No 1 was final and binding on the parties, subject, of course, to the dissatisfied party bringing an appeal from that decision to the Court of Appeal in accordance with s 353 of the 1998 Act. The parties in this case were the same parties involved in Tanwar No 1. The decision was within jurisdiction, determined on the merits and issued. The same allegations of error were raised in this appeal in the respect of the same conclusions reached by the Member, on the same basis and against the same parties. It followed that the doctrine of res judicata applied and the appellants’ appeal could not proceed. ([47]–[48])
8. Section 54(b) of the 2020 Act provides that the Commission may at any stage dismiss proceedings before it if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. The appeal brought by the appellant could not proceed because the grounds of appeal and submissions had already been considered and determined in Tanwar No 1 and were thus misconceived. The appeal brought by the first appellant and second appellant was therefore dismissed. ([49]–[50])

Group Marketing (AUST) Pty Ltd t/as Barberhouse Cafe v Workers Compensation Nominal Insurer[2021] NSWPICPD 39

WORKERS COMPENSATION – dismissal of proceedings – s 54of the 2020 Act – r 77(a) of the 2021 Rules – procedural requirements for an appeal pursuant to s 352 of the 1998 Act – deficient appeal application – non-compliance with delegate of the President’s direction – appellant not taking steps to prosecute its case – whether appeal should be dismissed

President Judge Phillips

10 November 2021

Facts

Mr Al Nabulsi, the second respondent, sustained an injury on 12 December 2019 during the course of his employment with Group Marketing (AUST) Pty Ltd, the appellant. The appellant did not hold a workers compensation policy of insurance at the time of injury. Mr Al Nabulsi received payments of compensation for his injury, and the Workers Compensation Nominal Insurer, the first respondent, issued a notice to the appellant pursuant to s 145(1) of the 1987 Act seeking recovery of its payments to Mr Al Nabulsi.

The appellant lodged a miscellaneous application in the Commission pursuant to s 145(3) of the 1987 Act, seeking a determination as to its liability for the payments made to Mr Al Nabulsi. The appellant did not have legal representation and was represented by Mr Francis who identified as the director/operations of the appellant. The appellant sought to file further evidence, which did not eventuate, and the matter proceeded to a hearing before Member McDonald after the appellant unsuccessfully sought to have the matter adjourned.

The Member dismissed the miscellaneous application and issued a Certificate of Determination dated 21 July 2021. The appellant appealed the Member’s decision on 16 August 2021.

Procedural history of appeal proceedings

The appellant’s appeal application was incomplete and non-compliant. In lodging the application, Mr Francis, on behalf of the appellant, sought additional time to submit further evidence due to the impact of the COVID-19 pandemic. The Commission accepted this and directed lodgement of an amended appeal by 15 October 2021. The appellant did not comply, despite subsequent reminders.

Another direction was issued on 27 October 2021 requesting the appellant’s compliance by 3 November 2021, together with submissions showing cause as to why the appeal should not be dismissed in accordance with s 54 of the 2020 Act and/or r 77(a) of the 2021 Rules. Despite Mr Francis confirming receipt of this direction, the appellant did not lodge any further correspondence nor an amended appeal.

Held: The appeal was dismissed pursuant to s 54 of the 2020 Act and r 77(a) of the 2021 Rules.

Consideration

1. Section 54 of the 2020 Act and r 77(a) of the 2021 Rules make clear provision enabling the Commission to dismiss proceedings in circumstances where an applicant has abandoned the proceedings; the proceedings are lacking in substance, or have been failed to be prosecuted with due dispatch. This includes appeals lodged pursuant to s 352 of the 1998 Act. ([36])
2. The appellant failed to lodge a compliant appeal application over the course of two months and did not avail itself of the opportunity to explain the reasons for this failure. ([38]–[40])
3. In the absence of an explanation for its non-compliance, the appellant had abandoned the appeal proceedings under s 54(a) of the 2020 Act. Dismissal pursuant to s 54(b) of the 2020 Act was also established, in that the appeal lacked in substance due to significant defects as the grounds of appeal were not enunciated, nor did it contain submissions addressing the errors of fact, law or discretion on the Member’s part as required by s 352 of the 1998 Act, the 2021 Rules and the Commission’s Procedural Direction WC3 – Presidential appeals and questions of law. The appellant’s failure to advance its appeal on these grounds further constituted a failure to prosecute the proceedings with due dispatch as required by r 77 of the 2021 Rules, providing further basis to dismiss the appeal. ([42]­–[47])

Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40

WORKERS COMPENSATION – Section 352(6) of the 1998 Act – fresh or additional evidence; findings of ‘injury’ pursuant to subclauses (i) and (ii) of section 4(b) of the 1987 Act; alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated authorities

Snell DP

15 November 2021

Facts

The appellant worked with the respondent from October 2008 as a room attendant. He attended varying hotels depending on a roster, where he was required to clean and make up hotel rooms. He collected rubbish, made up beds, replenished tea and coffee provisions and cleaned bathrooms. He said there was pressure to work quickly. There was a break in his employment from March to August 2009 when he returned temporarily to Bangladesh. He resumed his employment with the respondent from 24 August 2009.

The appellant experienced stiffness in the right ring and index fingers in May 2010, for which he saw a general practitioner. On 7 October 2010, pain radiated from his fingertips to his right hand, together with pins and needles from the right side of his neck down to his fingers. He saw his general practitioner. On 11 October 2010, he reported his difficulties to his supervisor, his general practitioner told him to find a more suitable job, and he resigned. The appellant had been a qualified medical practitioner in Bangladesh and he wished to work as a general practitioner in Australia. He spent about one and a half years studying for the Australian Medical Council clinical examination and also applied to hospitals for positions without success. He sat the relevant examination in March 2011 without success.

In April 2012, following x-rays of the right hand which were reported as normal, the appellant was referred for a CT scan of his neck, which showed multiple cervical disc protrusions with cord compression. The appellant gave a WorkCover certificate to his previous supervisor at the respondent. The appellant also developed gastric symptoms following the ingestion of anti-inflammatory medication. An assessment by an injury management consultant in a report dated 13 September 2012 included reference to lower back symptoms. In a documented complaint of low back pain to his general practitioner, Dr Abdalla, on 17 September 2012, it was reported the back pain “started at work years ago”.

The current proceedings were commenced on 2 November 2020. The claim brought was for weekly compensation from 7 October 2010, medical expenses and lump sum compensation in respect of the cervical spine, lumbar spine, surgical scarring and the digestive system.

The Arbitrator made a finding of injury to the cervical spine as a result of the ‘nature and conditions’ of employment, pursuant to s 4(b)(ii) of the 1987 Act. The deemed date of injury was 7 October 2010. There was a finding that the appellant had failed to discharge his onus of proving injury to the lumbar spine as a result of the ‘nature and conditions’ of employment. There was a finding of a consequential condition of the gastrointestinal system as a result of the cervical spine injury. The worker appealed.

The issues on appeal were raised under the following grounds:

(a) the finding of ‘injury’ to the cervical spine in the appellant’s favour, as a result of the nature and conditions of his employment, should have been pursuant to s 4(b)(i) of the 1987 Act as opposed to s 4(b)(ii) (Ground 1), and

(b) the finding that the appellant had not discharged his onus of establishing ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment was erroneous. The appellant submitted the finding should have been one of ‘injury’ to the lumbar spine as a result of the nature and conditions of his employment pursuant to s 4(b)(i) of the 1987 Act (Ground 2).

Held: The Arbitrator’s Certificate of Determination dated 24 February 2021 was confirmed.

Ground 1

1. Issues of ‘main contributing factor’ did not apply as the found date of injury (7 October 2010) was prior to commencement of the 2012 Amendment Act. At the relevant time it was necessary that s 9A of the 1987 Act (‘substantial contributing factor’) be satisfied. ([89])
2. Subject to issues of ‘main contributing factor’ (which did not apply) subs (i) of s 4(b) applied to a “disease that is contracted by a worker in the course of employment”, subs (ii) applied to the “aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease” (emphasis added). Dr Guirgis, in the opinion on causation on which the appellant relies in this ground, inappropriately conflated the tests in subss (i) and (ii) of s 4(b). The doctor’s opinion was that the appellant had “contracted the aggravation, acceleration, exacerbation or deterioration in the course of employment of the underlying asymptomatic biological age related changes in his lumbar spine and cervical spine to which his employment was the main contributing factor within the meaning of section 4(b)” (emphasis added). The appellant submitted that because the passage uses the word “contracted” it required a finding pursuant to s 4(b)(i) of the 1987 Act. Snell DP did not accept that submission. The way in which Dr Guirgis expressed his opinion on causation, in respect of the cervical spine, was sufficient to support a finding that there was degenerative change which was aggravated. The Arbitrator treated it as supporting her findings on injury to the cervical spine to that effect. Dr Guirgis’s opinion did not suggest that the doctor turned his mind in any focussed way to the distinction between an injury finding pursuant to subsections (i) and (ii). The way in which the provisions were conflated suggested the opposite. ([90])
3. The Deputy President held that the Arbitrator’s finding of injury was based on the evidence as a whole, not only on the opinion of Dr Guirgis. There was ample evidence to support the finding, which was open to the Arbitrator. The appellant also made a submission that “anything biological or constitutional or minor cannot be considered as disease”. There is no reason, authority or justification for this assertion, which was wrong. In Federal Broom Co. Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 it was said “In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness …”. Ground 1 failed. ([94]–[95])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156 ; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied)

Ground 2

The complaint of foot pain in 2010

4. Deputy President Snell held that the Arbitrator was clearly alive to the point the appellant sought to make, that right foot pain chronicled in January 2010 could arguably have been a symptom of lumbar pathology which was not diagnosed until the CT scan performed about two and a half years later. The appellant on appeal restated the same argument that was made and rejected at the arbitration hearing. Whether the appellant’s right foot symptoms on 8 January 2010 (which were reported on one occasion) resulted from a lumbar abnormality that was not diagnosed until a CT scan about two and a half years later, was essentially a medical question. It could not be appropriately answered on the basis of common knowledge and experience. The appellant did not place medical evidence before the Arbitrator dealing with that causal question. It could not have been appropriately established by reference to a Wikipedia entry on which the appellant sought to rely on appeal. The Arbitrator gave reasons for the view she formed, which was both open and appropriate on the evidence. “Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.” The appellant had not demonstrated error, consistent with the principles that govern appeals pursuant to s 352(5) of the 1998 Act, in how the Arbitrator dealt with this evidence. ([109])

   (Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

The complaint of respiratory symptoms in 2009

5. The appellant referred to a complaint of respiratory symptoms around November 2009. He submitted on the appeal that at that time he felt “unusual in the whole of [his] body”. Reference was made to an email sent by the appellant to his office manager dated 22 November 2009. It stated that the appellant had worked four days in the Ibis Darling Harbour in the previous week and got a sore throat, running nose and was sneezing while working. He said “Something can be there in their environment which is allergen for me”. He said that he developed the same problem while working on a smoking level in the Novotel Darling Harbour. He submitted that, after developing symptoms in his right foot and upper limbs, he understood the “unusual feelings were numbness” and submitted this indicated radiculopathy in the cervical and lumbar spine at that time. ([110]–[111])
6. Snell DP held that the Arbitrator dealt with this evidence in the reasons. He held the approach she took was both open to her and appropriate. The appellant had not demonstrated any error of fact, law or discretion in how the Arbitrator dealt with this evidence. ([112])

The reference to back pain that started at work years ago

7. There was reference in the reasons at [246] to Dr Abdalla receiving a history of back pain that started ‘at work years ago’. The Arbitrator said “[i]t is not, however, clear what work this was in reference to”. The appellant’s statement dated 31 July 2012 referred to the appellant working in Australia as a room attendant with Empire Hospitality from May 2006 to May 2008, before he worked with the respondent. The appellant submitted on appeal that the reference could only have been to symptoms with the respondent as he did not have back symptoms before working with the respondent. The appellant’s submission on appeal, dealing with this issue, was inconsistent with other evidence that was before the Arbitrator. Snell DP held the Arbitrator’s reference to uncertainty on the evidence, regarding the employer’s identity when the appellant had back pain “at work years ago”, was consistent with the evidence before her. She did not err in this regard. ([113]–[114])

Complaints of back pain to Dr Abdalla

8. The appellant’s submissions on appeal, dealing with this issue, asserted that he complained to Dr Abdalla of back symptoms “on several occasions before” 17 September 2012. There was no further evidence referred to in support of this. The circumstances, the substance of such complaints, or when they were made were not identified. The appellant proffered a possible reason, “[t]his might be due to that my upper limb symptoms were so severe which led him to concentrate on upper limb ignoring my back problem”. This remark was “speculation” which is inconsistent with the requirements of r 73 of the 2021 Rules and did not assist the appellant. The appellant’s submissions on this issue did not identify error. The appellant simply made an assertion in the course of his submissions which was without specificity and without appropriate evidentiary foundation. The appellant did not identify appealable error. ([115]–[118])

The evidence of ‘nature and conditions of employment’

9. The appellant submitted the Arbitrator determined that the cervical spine injury was due to the nature and conditions of his employment. The appellant posed the rhetorical question: if the cervical injury was caused by the nature and conditions of employment, then why are the nature and conditions of that employment not responsible for the lumbar injury? The Deputy President observed that this rhetorical question did not seek to identify relevant error, it merely sought to argue with the result. The appellant did not allege any specific error in the Arbitrator’s analysis of the evidence relating to the duties and her findings in that regard. The appeal is restricted to the identification of error of fact, law or discretion. The appellant had not, in his submissions on the ‘nature and conditions of employment’, identified error of fact, law or discretion. ([119]–[123])

The medico-legal evidence

10. The appellant set out passages from Dr Guirgis’s report dated 29 October 2020; Dr Dias’ report dated 30 November 2020, and Dr O’Neill’s report dated 28 September 2018. The appellant submitted “So the determination will be - ‘The worker sustained injury to his [lumbar] spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(i) of the [1987 Act]”. Snell DP observed that Dr O’Neill’s report was not in evidence. An application to rely on it as additional evidence on appeal was unsuccessful. The appellant’s submissions under this heading did not extend beyond the statement above, describing the finding that he requested be made. There was no submission on the presence of appealable error. ([124]–[125])

‘Other important points mentioned in the determination’

11. The appellant referred to the Arbitrator’s reference to Dr Pope’s view that “the lumbar condition was likely degenerative”. The appellant submitted that Dr Pope’s opinion regarding the degenerative nature of the lumbar spine was “quite the opposite” of the contents of Dr Pope’s opinion in the report of July 2018. The Deputy President held that the appellant referred to no medical opinion to support that the changes identified by Dr Pope were not consistent with a degenerative condition of the lumbar spine. He concluded the view the Arbitrator took was properly available to her on the evidence, in particular the medical evidence, overall. The appellant had not demonstrated error of fact, law or discretion within the meaning of s 352(5) of the 1998 Act. Ground 2 also failed. ([126]–[130])

Sirijovski v BlueScope Steel (AIS) Pty Ltd [2021] NSWPICPD 41

WORKERS COMPENSATION – Section 40 of the 1987 Act in its form prior to commencement of the 2012 Amendment Act; the discretion in s 40(1)

Snell DP

17 November 2021

Facts

The appellant worker was employed by the respondent since 1977. His work was heavy and repetitive. The appellant suffered pleaded employment injuries to his lumbar spine and cervical spine on 16 August 1999, 16 April 2002, 24 January 2005, 3 December 2008, 30 April 2010 and 14 August 2010. His employment was terminated in May 2013.

The appellant stated that prior to his back injury in April 2002 he worked three or four overtime shifts per week, each of eight hours, known as ‘doublers’. He did not continue these, on medical advice. In about September 2014, the appellant commenced part-time work stacking shelves at Coles, working an average of 20 hours per week. The appellant’s solicitors made a claim for the loss of overtime in a letter dated 18 November 2020, which the respondent’s solicitors disputed in email correspondence dated 11 December 2020. The proceedings subject to this appeal were lodged in the then Workers Compensation Commission. They sought weekly compensation pursuant to the former s 40 of the 1987 Act, from 16 April 2002 to 31 December 2012.

The Member said that, because of the effects of the Global Financial Crisis, “a substantial deduction is warranted from the difference in gross weekly earnings claimed in the Wages Schedule [for] the period 1 January 2008 to 31 December 2012”. He said:

“The [appellant] cannot be compensated for money that he was not likely to earn. In my view, the amount awarded to the [appellant] for the period 1 January 2008 to 31 December 2012 ought to be reduced to $25 per week, which equates to roughly six doubler shifts per year. In reducing the figure to this amount, I have also taken into account that the [appellant] earned more than the identified comparative employee and that there is no comparable wage date. Also, it may well have been that during this period the [appellant] would have lost his job in the restructure of the respondent’s business (see for example, Harding v Transfield Pty Ltd (2003) 25 NSWCCR 86; Goktas v Goodyear Australia Pty Ltd [2007] NSWWCCPD 1 at [63]–[64]).”

The Member rejected the respondent’s submission that the discretion in s 40 should additionally be exercised because the appellant was terminated in May 2013. This was outside the closed period claimed, which expired on 31 December 2012.

The worker appealed.

The issue on appeal was whether the Member erred in in the application and exercise of his discretion pursuant to s 40 of the 1987 Act.

Held: The Certificate of Determination dated 19 March 2021 was amended. Paragraph 2(h) was revoked, and in substitution the following was inserted: “(h) for the period 1 January 2008 to 31 December 2012, at a rate of $295.98 per week.”

Consideration

1. In this matter, the Member made a finding that the difference between the appellant’s earnings and those of the comparable employee resulted from the appellant’s inability to participate in overtime and/or doublers during the relevant period. The Member rejected an explanation offered by the respondent, that the appellant’s “alleged poor work ethic” was a factor in reducing his earnings, noting the appellant performed available overtime prior to the 2002 injury. Difficulties with the adequacy of the material produced, to permit quantification of the alleged loss, were referred to. The appellant’s wages schedule suggested an alternative method of calculation, the averaging of the earnings of both the appellant and a comparable earner for the years 2002/2003 to 2009/2010 (excluding 2008/2009 which was unavailable). The Member accepted the appropriateness of this during periods when figures were not otherwise available. ([45])
2. The annual earnings of the comparable employee were $99,790 during 2007/2008. The evidence of probable earnings after 2007/2008 was incomplete. The wages schedule stated that no figure for the comparable earner was provided by the respondent for the year 2008/2009. The earnings of the comparable employee for 2009/2010 were $76,611. The figures of the comparable employee were described as not “representative” for the years 2010/2011 and 2011/2012 (he was said to have been terminated on 29 October 2011). The appellant requested earnings information relevant to the earnings of three named comparable employees including overtime earnings dated 29 May 2018. The respondent replied on 6 June 2018. That correspondence enclosed group certificates and pay dockets for the appellant and one comparable. It did not deal with the other comparable earners suggested by the appellant’s solicitors. The email stated that no payment summaries were available for 2001, 2002 and 2009. The email stated that the comparable employee’s employment was terminated on 29 October 2011. ([46])
3. In Farrell v Metromix [2001] NSWCA 166 (Farrell) Stein JA stated there “may not be a doubling-up of consideration of factors under s 40(2)(a) and the s 40(1) discretion”. Snell DP held the logic of this was clear. The exercise of the function under s 40(1), described by his Honour, is “the ascertainment of the financial loss sustained by the worker by reason of the incapacity”. The exercise of the discretion may reduce the relevant compensation to take account of “money which was not likely to be earned”. If the upper limb of the equation is reduced (as here) by circumstances which are fully reflected by the reduction in compensation payable pursuant to the s 40 equation, reduction on the basis of the discretion should not be made. This would result in the “doubling-up” referred to in Farrell. In the current circumstances, it had the effect that the entitlement under s 40 was reduced by the reduction in probable earnings due to the global financial crisis and then was reduced again by application of the discretion. The situation in Farrell was different. In that case application of the discretion was found to be appropriate because the full reduction in the worker’s earnings was not referable to his injury, but also to “animosity or attitudinal change which has nothing to do with a workers’ injury or his physical ability to carry out the job”. ([48])

(Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 applied)

4. Snell DP concluded that the single pleaded ground of appeal succeeded. It was appropriate for him to re-determine the matter pursuant to s 352(6A) of the 1998 Act. ([50]–[51])
5. The effects of the GFC in 2008 were not obviously reflected in the comparable earnings figure for 2007/2008, which is $99,790, the highest such figure. The s 40 discretion was, however, applied to the arithmetical loss in respect of periods from 1 January 2008 onwards. The year 2008/2009 had “Not provided” by way of details of comparable earnings. The year 2009/2010 had comparable earnings of $76,611. The year 2010/2011 stated it was “not a representative year for the comparable employee”, who in that year earned $57,076, a figure which for unexplained reasons was less than the appellant (who earned $70,387). The comparable earnings figure for 2011/2012 was $46,713, a figure apparently reduced by the termination of the comparable employee on 29 October 2011. Snell DP revoked paragraph 2(h) of the Certificate of Determination and in substitution inserted: “(h) for the period 1 January 2008 to 31 December 2012, at a rate of $295.98 per week.” ([52]–[54])