Appeal Case Summaries

Endeavour Energy v Tzivanopoulos [2022] NSWPICPD 41

WORKERS COMPENSATION – the test to establish injury pursuant to s 4(b)(ii) of the 1987 Act; application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated decisions

Snell DP

2 November 2022

Facts

The respondent worker was employed by the appellant as an electrical engineer. He said he worked at his desk for at least 90% of the time and that he used a computer and telephone for prolonged periods of time. He said that he developed pain in his neck and shoulders when he was very busy at work in 2013.

The respondent continued in his work, with some additional adjustments to his workstation. He said he had further flare ups in his symptoms, which increased in severity and he struggled to manage. The respondent was placed on a Performance Improvement Plan in June 2018 and took extended leave from 6 July 2018 to 10 September 2018. He stated that on his return his workload was immense, his condition deteriorated steadily and he had more and more difficulties managing. The respondent was issued with a “final warning” on 17 December 2018 and a “final review” was to occur on 15 January 2019. He stated that on 10 January 2019 he ceased work due to his injuries and did not work thereafter.

The respondent ultimately came under the care of Dr Khong, a neurosurgeon, who recommended a C6/7 anterior cervical discectomy and fusion, which the respondent wished to undergo. The appellant denied the respondent’s claim in respect of treatment costs including those associated with the proposed surgery.

The Member issued a Certificate of Determination in which he found ‘injury’ to the cervical spine pursuant to s 4(b)(ii) of the 1987 Act, deemed to have occurred on 9 January 2019. He found that the surgery at C6/7 proposed by Dr Khong was reasonably necessary within the meaning of s 60 of the 1987 Act and resulted from the found injury. The Member found that the worker had ‘no current work capacity’ from 9 January 2019 and made a weekly award on a continuing basis at varying rates from 11 April 2019. He made a ‘general order’ for the payment of expenses pursuant to s 60 of the 1987 Act. He made a specific order for the payment of the costs of and ancillary to the proposed surgery at C6/7. He noted the worker’s claim relating to a “consequential/secondary psychological injury” was discontinued. The employer appealed.

The issues on appeal were whether the Member erred by:

(a) preferring the respondent’s reports of Drs Bodel and Khong to the appellant’s report of Dr Cochrane, on the question of aggravation of the respondent’s disease (Ground 1), and

(b) failing to find that the respondent only began to state that his disease was aggravated by work at a very late stage (Ground 2).

Held: The Certificate of Determination dated 18 January 2022 was confirmed.

Ground 1

1. One point made by the appellant was that, to the extent to which Dr Cochrane misstated the test to establish ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act, this flowed from how questions were put to him by the appellant (as opposed to misunderstanding on the doctor’s part). The appellant’s submissions refer to various potential aspects of the causal inquiry regarding whether ‘injury’ is established within the meaning of s 4(b)(ii) (which was the basis on which the Member found ‘injury’). The appellant’s submissions refer to potential interaction between the test in s 4(b)(ii) and s 9A of the 1987 Act. There is no such interaction. ([39])
2. Deputy President Snell held that ss 9A and 16 of the 1987 Act were not relevant, in this matter, to the task of proving ‘injury’ within the meaning of s 4(b)(ii). The appellant’s submission, that ‘substantial contributing factor’ was not relevant to the determination of whether the respondent had sustained an ‘injury’ within the meaning of s 4(b)(ii), was correct. The appellant argued that Dr Khong and Dr Bodel incorrectly identified the test to be applied. ([41])

(StateCover Mutual Ltd v Cameron [2015] NSWCA 127 applied)

3. The Deputy President noted that Dr Khong, Dr Bodel and Dr Cochrane all accepted that the condition of cervical spondylosis from which the respondent suffered was a ‘disease’. None of them considered the underlying degenerative condition to have been caused by the respondent’s work duties. Dr Khong, the treating neurosurgeon, expressed in clear terms his opinion that the respondent’s degenerative disease had been aggravated and/or exacerbated by his work duties over many years. Dr Bodel’s opinion was consistent with this. The appellant submitted the probative weight of Dr Bodel’s opinion was reduced by the doctor’s use of the phrase “main substantial contributing factor” in place of the phrase “main contributing factor” which appears in s 4(b)(ii). Whilst the use of this term did not reflect s 4(b)(ii) in its current form, it was difficult to see that it significantly detracted from Dr Bodel’s opinion. Logically, the ‘main substantial contributing factor’ would also be the ‘main contributing factor’. ([59])
4. The respondent’s case was that he suffered an injury to his cervical spine and upper extremities pursuant to s 4(b)(ii) of the 1987 Act, constituting the aggravation, acceleration, exacerbation and deterioration of a ‘disease’, as a result of his employment from 28 May 2011 with a deemed injury date of 9 January 2019. The Member said that it “seemed unclear” whether Dr Cochrane “fully understood the nature of [the respondent’s] case”. The Member referred to a specific passage in Dr Cochrane’s report dated 17 May 2019. The doctor accepted the condition of cervical spondylosis was a ‘disease’ and accepted that sitting at a computer console in the workplace could have aggravated that condition. The doctor accepted there were flare-ups, a worsening of symptoms, during the respondent’s employment. The doctor said that he did not believe the respondent had sustained an ‘injury’. It was made clear, by Dr Cochrane’s supplementary report, that the doctor approached the issue of ‘injury’ by reference to whether employment was a contributing factor to the underlying cervical spine pathology. This was not the appropriate test. ([61]–[63])

(Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch) discussed)

5. The nature of the respondent’s case on ‘injury’ was readily apparent not only from how the matter was pleaded, but from the respondent’s history and the medical case the respondent sought to make on the basis of Dr Khong and Dr Bodel. The passages from Dr Cochrane’s evidence were consistent with a failure on Dr Cochrane’s part to appropriately engage with the allegation that was made, based on s 4(b)(ii). The Member’s view that there were difficulties in Dr Cochrane’s approach to the ‘disease’ provisions, was appropriate and available on the evidence. The doctor’s approach could not be adequately explained by how certain questions were asked of him by the appellant’s solicitors. Viewed as a whole, the questions asked of Dr Cochrane by the appellant’s solicitors were carefully framed and apparently designed to elicit comment on the relevant causation issues. ([64])
6. Reading Dr Cochrane’s reports as a whole, the Member’s assessment of the difficulties with Dr Cochrane’s opinion evidence was available and did not involve error. It represented a valid basis for the Member’s preference for the views of Dr Khong and Dr Bodel rather than those of Dr Cochrane, dealing with the occurrence of ‘injury’ pursuant to s 4(b)(ii). Dr Khong’s opinion evidence persuasively supported the case brought by the respondent. It was consistent with the application of Semlitch, which Dr Cochrane’s analysis was not. That opinion was supported by Dr Bodel. Dr Bodel’s opinion retained probative force notwithstanding the doctor’s misstatement in his reference to the ‘main substantial contributing factor’. Ground 1, at best, was an argument that “a different outcome is preferable”, which cannot succeed on an appeal pursuant to s 352(5) of the 1998 Act. Ground 1 failed. ([66]–[67])

Ground 2

7. Deputy President Snell held that this ground failed to identify an error on the part of the Member that required correction pursuant to s 352(5) of the 1998 Act. It simply made an argument going to the weight given to the chiropractic entries relied on by the Member. The respondent correctly submitted that the Member relied on these to corroborate the respondent’s evidence of symptoms and complaints. It could not be validly argued that the Member erred in accepting that evidence as corroborative, and the appellant made no such submission. This ground was essentially misconceived. At its best, it was simply a submission that an alternative result should be preferred, which does not constitute appealable error consistent with 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. ([73])
8. Additionally, the Member specifically accepted the respondent’s evidence on the basis that he was a “witness of truth”. This credit finding was not challenged on the appeal. This was sufficient to support the Member’s acceptance of the respondent’s complaints of neck and associated symptoms whilst employed by the appellant. The corroboration of such complaints in the chiropractic records simply supported that acceptance. Whether the respondent, a lay person, commented on the cause of his symptoms, was of little relevance. His views on medical causation would carry little if any weight in any event. Ground 2 failed. ([74]–[75])

Jowett v S & R Jowett Pty Ltd [2022] NSWPICPD 42

WORKERS COMPENSATION – proof of consequential conditions – credit findings – alleged factual error

Snell DP

11 November 2022

Facts

The appellant worker was a landscaper. He had a prior history of work-related low back pain dating back to the mid-1980s, for which he had a lumbar fusion in 1993 and in respect of which he received workers compensation. In about 2014 the appellant set up a business, conducted by the respondent/employer, in which he performed “hands on” work.

The appellant’s low back remained asymptomatic, deteriorated in 2017, and he underwent further lumbar surgery in February 2017.

The appellant suffered a work injury on 13 June 2017. He attended a facility to wash a bobcat. The machine unexpectedly dropped while being washed and the worker lost his footing and fell, suffering a serious injury to his left foot and ankle for which he ultimately came to a fusion of the left subtalar joint on 14 February 2019. On 28 May 2020, the appellant underwent a left calcaneal osteotomy with removal of the screws and a revision fusion. He has required the use of crutches.

The appellant stated that on 15 February 2019 he was due to be discharged from hospital following the surgery to fuse his left ankle. He stated that he showered and was readying himself to go home. He was using a crutch when it caught in his bag causing him to stumble, hitting his left shoulder against a wall and falling to the ground. The worker stated that he started exercising when he got off crutches. He said his shoulder “became much more problematic”. He stated that eventually he came under the care of Dr Bateman, treating orthopaedic surgeon, who recommended surgery to the left shoulder. The workers compensation insurer declined liability for this surgery.

Dr Dias, occupational physician qualified by the appellant, assessed 28 per cent whole person impairment in his initial report dated 25 March 2020. The appellant made a claim for lump sum compensation on this basis.

Dr Miniter, an orthopaedic surgeon qualified by the respondent, provided a report dated 12 May 2020. The insurer issued a dispute notice dated 4 June 2020. It stated that the circumstances of injury were not in issue and it was “evident you suffered a fracture in the left ankle”. In respect of claimed injuries to other body party (including the left shoulder) the insurer denied injury, relying on Dr Miniter’s opinion in concert with various treating records. It denied that permanent impairment had reached maximum medical improvement.

Dr Bateman reported on 27 July 2020 that in the incident on 13 June 2017, the worker “landed heavily on the left side injuring the shoulder”. He also recorded that while reliant on crutches the worker had “a couple of slips landing on the shoulder”. The doctor recommended left shoulder arthroscopic surgery, including rotator cuff repair, and biceps tendon tenodesis.

On 28 February 2022, the Member issued a Certificate of Determination. The worker brought various injury allegations regarding left shoulder injury. The Member rejected the worker’s case that he injured his left shoulder in the bobcat incident on 13 June 2017. The Member rejected the worker’s case that there was a consequential condition of the left shoulder as a result of a fall at North Shore Private Hospital in February 2019. The Member accepted the worker’s claim that there was a consequential condition affecting his left shoulder as a result of the use of crutches following the injury on 13 June 2017. The Member found the worker had failed to discharge the onus of establishing that the surgical procedure recommended by Dr Bateman was reasonably necessary as a result of the injury on 13 June 2017. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) not finding consequential condition in the left shoulder as a result of the fall at North Shore Private Hospital in February 2019 (Ground 1), and

(b) finding that the appellant did not discharge the onus of proof of for [sic] surgery in the form of left shoulder arthroscopic rotator cuff repair and biceps tenodesis procedure recommended by Dr Bateman (Ground 2).

Held: The Member’s decision dated 28 February 2022 was confirmed.

Ground 1

1. The Member’s finding at [107] of the reasons, that the appellant had not discharged his onus of establishing injury to the left shoulder in the incident on 13 June 2017, was not challenged on the appeal. The challenge to the Member’s decision was made against the finding that there was not a consequential condition of the left shoulder “arising out of” the fall at North Shore Private Hospital in February 2019. The use of the phrase “arising out of” had the (no doubt unintentional) potential to mislead. The issue before the Member was not whether the appellant suffered injury to the left shoulder ‘arising out of’ his employment, but rather whether the left shoulder was affected by a ‘consequential condition’ that resulted from the conceded injury that occurred on 13 June 2017. ([37])
2. The issue was whether, as a matter of fact, the appellant established that the condition of his left shoulder resulted from the accepted injury on 13 June 2017. On appeal the issue was whether the Member erred in finding that the appellant had failed to discharge that onus. ([27]–[30], [38]–[39])

(Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156 (Raulston); Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir); Workers Compensation Nominal Insurer v Hill[2020] NSWCA 54 (Hill); Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie); State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1 (Bishop), and Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 applied)

3. Deputy President Snell observed that there is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied in the giving of that evidence. The rejection of evidence does not amount to a conclusion that a witness knowingly gave false evidence. Similarly, a person’s credit can be challenged, for example on the basis of unreliability, without it being asserted or found that he or she was being deliberately untruthful. Issues of ‘credibility’ extend to matters beyond deliberate untruthfulness. ([40]–[42])

(Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256; Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444; Onassis v Vergottis (1968) 2 Lloyds Report 403, and Fox v Percy [2003] HCA 22; 214 CLR 118 discussed and applied)

4. The appellant’s submission, that the test for whether a consequential condition was established did not require proof of contemporaneous complaint, was superficially true. The causation issue before the Member was one of fact, to be decided on the evidence overall. What is relevant to the proof of a secondary condition will clearly vary, depending on the circumstances of the particular case. ([43])
5. The causation issue was one of fact to be decided on the evidence overall. The Member concluded that there were inconsistencies in the appellant’s description of the circumstances surrounding the fall at North Shore Private Hospital. She did not conclude that the appellant’s evidence was intentionally untruthful. The Member identified a number of “inconsistencies” relating to the allegation of a consequential condition that resulted from a fall at the hospital. She specifically relied on the “inconsistencies” in descriptions of the fall, the delayed recording of symptoms and a prior history of left shoulder pathology. Reading the Member’s reasons as a whole, it could not be accurately said, as the appellant submitted, that there was no challenge to his credit and his evidence should therefore be accepted. The Member’s references to inconsistencies reflected findings of unreliability when the appellant’s evidence was measured against contemporary materials and objectively established facts. Although the Member did not find that the appellant had been deliberately untruthful, there were significant reservations about the appellant’s reliability. ([45]–[46])
6. The appellant submitted there are many injuries or conditions that are not immediately apparent or the topic of immediate complaint. It is not unusual for a secondary condition to become apparent well after the employment injury from which it results. Conditions that result from overuse to a limb, due to guarding a limb or part that was previously injured in a work injury, are common examples. The circumstances in Bishop involved a contrary situation, where there was a leg injury due to a collapse that resulted from a previous work-related back injury. The Member quoted at some length from the well-known decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 , saying that causation “is a question of fact to be determined on the basis of the evidence, including, where applicable, expert evidence.” ([47])
7. Deputy President Snell held that the extent to which a delay or inconsistency in reporting complaints is significant will depend on the facts of a case overall, the nature of the medical condition at issue and the medical evidence. The allegation regarding a fall at the hospital involved the occurrence of a specific incident and (on one version of it) the left shoulder being dislocated. These are matters that would ordinarily be immediately apparent, unlike, for example, a condition of gradual onset. In the circumstances, evidence of contemporaneous complaint would be of potential relevance to whether an incident occurred and its nature. The Member dealt with the ultimately unsuccessful argument that the left shoulder was injured in the incident on 13 June 2017. In that context she said the “absence of contemporaneous evidence is significant in the present case, particularly given that there are prior references to left shoulder symptoms in the clinical records” (emphasis added). This comment was consistent with an awareness that the relevance of contemporaneous complaint depended on the circumstances of the case. The Deputy President did not accept the submission that, in considering whether there were reported, contemporaneous shoulder symptoms at the time of the fall/s, the Member applied an incorrect test. ([48])
8. The balance of the matters raised in Ground 1 largely sought to reagitate submissions that were dealt with by the Member at first instance. The appellant failed to establish ‘error’ withing the meaning of Raulston, Whiteley Muir, Hill and Heggie. Ground 1 failed. ([27]–[30], [49]–[53])

Ground 2

9. It was common ground that it was appropriate to consider the causal relationship, between the found left shoulder injury and the proposed surgery, by reference to Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). The only positive finding in the appellant’s favour, regarding the left shoulder, was that the use of crutches “rendered the [appellant’s] experience of those symptoms more intense”. Did that consequential condition materially contribute to the need for the proposed surgery to the left shoulder? ([60])
10. Deputy President Snell said that none of the medical evidence addressed the question of whether the injury on 13 June 2017 represented a material contributing factor to the need for left shoulder surgery, on the basis of only the limited finding of a consequential condition, based on the use of crutches. The Member effectively found that the appellant had not discharged his onus on this point. The fact that the requirement for the surgery arose after the found consequential condition did not prove that the consequential condition materially contributed to that requirement. The causation issue was one on which the appellant carried the onus. As the respondent submitted, “it is entirely plausible in fact that the [a]ppellant’s shoulder problems, revealed in 2013 and increased in the fall in 2016, had simply deteriorated over time”. The approach taken by the Member was properly open to her on the evidence. The appellant has not succeeded in establishing error within the meaning of s 352(5) of the 1998 Act. This ground largely sought to reargue points that failed at first instance. Ground 2 failed. ([64]–[65]

Aldi Stores (A Limited Partnership) v Risteski [2022] NSWPICPD 43

WORKERS COMPENSATION – Leave to appeal an interlocutory decision of the Commission pursuant to s 352(3A) of the 1998 Act – leave to adduce additional evidence on appeal – CHEP Australia Limited v Strickland [2013] NSWCA 351 applied – principles applicable to determining an appeal from a discretionary decision – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied

Wood DP

14 November 2022

Facts

The respondent was employed by the appellant as a transport operator from approximately July 2019 until August 2020. On 3 September 2020, the respondent lodged a claim for workers compensation, alleging that as a result of the manner in which he was treated in his employment with the appellant, he suffered a psychological injury in the form of an adjustment disorder, and aggravated a pre-existing substance abuse disorder and Post Traumatic Stress Disorder. The respondent’s pre-existing conditions were attributed to his exposure to trauma as a victim of two armed robberies in the course of his former employment with Target Australia Pty Ltd (Target) in 2003.

Liability was declined on the basis that the respondent had recovered from the injury with the appellant and that any ongoing incapacity was not attributable to the respondent’s injury with the appellant.

The respondent commenced proceedings against the appellant in the Commission, seeking weekly payments of compensation and treatment expenses. The Member conducted a telephone conference on 1 April 2022, at which the appellant sought leave to join Target to the proceedings pursuant to r 62 of the 2021 Rules. The Member refused the application and listed the matter for conciliation/arbitration on 20 May 2022. The telephone conference was not recorded, so there was no transcript of the submissions made or of the Member’s reasons for determination. The appellant lodged this appeal in respect of the Member’s refusal to allow the joinder.

The issue on appeal was whether the Member erred in failing to grant leave to join Target.

Held: Leave to appeal an interlocutory order was granted. The Member’s decision to refuse the application to join Target Australia Pty Ltd was revoked, and the matter was remitted to another Member to make the appropriate order joining Target to the proceedings and proceed to determine the matter.

1. Given the parties had clear and detailed recollections of what transpired in the telephone conference and there did not appear to be any disparity in those recollections, Deputy President Wood was of the view that this application to appeal could proceed in the absence of a transcript of the telephone conference. ([13])

   The application for leave to appeal

2. The appellant sought leave to appeal the interlocutory decision. Section 352(3A) of the 1998 Act provides that there is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. It is therefore necessary to consider the nature of the dispute and the orders sought on appeal. It is appropriate to take into account the merits (if any) of the grounds of appeal. ([14])

   (Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 applied)

3. The recollections of both parties indicated that the Member did not engage with the appellant’s submissions that there was an arguable basis upon which Target should be joined to the proceedings. It was the Deputy President’s view that it was appropriate and necessary for the effective determination of the dispute to consider the appeal from the Member’s decision in respect of the application for joinder before the matter proceeds to arbitration. Wood DP therefore granted leave to the appellant to appeal the decision of the Member refusing the application to join Target to the proceedings. ([26])

Consideration of whether the Member erred in refusing the application for Target to be joined to the proceedings

4. The argument put forward by the respondent, which was accepted by the Member, was that he could plead his case as he wished. This proposition was plainly correct, however, it did not address the substantive issue raised by the appellant that a third party may be liable for payment of compensation to the respondent. The recollections of both parties indicated that the Member did not engage with the appellant’s submission that there was an arguable basis upon which Target should be joined to these proceedings. ([48])
5. The Deputy President held that it was apparent that the issue in dispute which the Member was ultimately required to determine at or following the arbitration was whether the respondent had recovered from the accepted exacerbation or aggravation of his pre-existing disorders. The appellant’s case was identified in the pleadings and in the submissions to the Member at the telephone conference. That is, that the respondent’s ongoing incapacity and need for treatment resulted from the pre-existing conditions which were attributable to injuries with a former employer who may be liable to pay compensation to the respondent. ([49])
6. It was therefore apparent that the Member failed to take into account a matter relevant to the issue of whether Target should be joined to the proceedings and thus fell into the type of error identified in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. The Member’s determination was therefore revoked. ([50])

Consideration of the joinder application

7. Section 352(5) of the 1998 Act provides that an appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. Having identified error on the part of the Member, it was open for the Deputy President to correct that error. ([51])
8. It was not appropriate to consider the probative value of the medical evidence pointed to by both parties. Wood DP noted that the evidence showed that there was medical opinion both for and against the position taken by the parties as to whether the respondent’s ongoing symptoms and incapacity are:

(a) referrable to the aggravation occurring in the employ of the appellant, or

(b) attributable to events that occurred prior to that employment, particularly the traumatic events in the employ of Target. ([61])

9. If, after a consideration of that evidence, the second proposition is accepted, it would be procedurally unfair to Target to have not had the opportunity to be heard on the issue. Section 42 of the 2020 Act requires that the Commission facilitate the just, quick and cost effective resolution of the real issues in the proceedings. It was difficult to embrace what findings a member might make in respect of where the liability falls in the absence of having heard from a potentially liable entity. While joining Target to the proceedings was likely to delay the matter for a period, the delay was outweighed by the notion of ensuring procedural fairness. It was also arguably more cost effective than the appellant bringing separate proceedings to have the potential apportionment of liability determined. ([62])
10. Deputy President Wood concluded that it was in the interests of justice that Target be joined to the proceedings. Whether it is joined as a further respondent or as a third party is a matter for submissions and for the primary decision maker. The matter was therefore remitted to another Member to make the appropriate orders joining Target to the proceedings in accordance with r 62 of the 2021 Rules and any other orders or directions that the Member considers necessary so that the matter can proceed to finalisation before that Member. ([63])

Snapes Australia Pty Ltd v Tuliakiono [2022] NSWPICPD 44

WORKERS COMPENSATION – leave to appeal an interlocutory decision – s 352(3A) of the 1998 Act – remittal of matter to the President for referral to a Medical Assessor to assess whole person impairment in circumstances where it is in contention as to whether the threshold for whole person impairment is met – assessment by assessor and relevant accreditation under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment

Parker SC ADP

15 November 2022

Facts

The respondent worker stated he injured his left shoulder, left knee and back on 26 October 2015 whilst using a pallet jack to move a broken pallet full of goods weighing 580kg. He claimed lump sum compensation for 20% whole person impairment, based on a report by Dr Bodel who calculated permanent impairment by reference to the left upper extremity, left lower extremity and lumbar spine.

In prior proceedings in the then Workers Compensation Commission, the parties had entered into consent orders. In those consent orders was an award in favour of the employer with respect to the alleged injuries to the lumbar spine and left knee, and the claim under s 66 of the 1987 Act in respect of the left upper extremity was discontinued.

The present proceedings before the Member concerned the appellant’s argument that the previous consent orders estopped the worker from claiming under s 66 of the 1987 Act for the alleged impairment of the left lower extremity and the lumbar spine. The Member determined the estoppel issue in favour of the appellant. The Member remitted the matter to the President for referral to a Medical Assessor for assessment of whole person impairment of the left shoulder.

The employer appealed. The appeal concerned whether the Member was correct to remit the matter to the President for referral to a Medical Assessor for assessment of whole person impairment in relation to an injury to the left shoulder where the highest assessment prepared in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment Fourth Edition – reissued 1 March 2021 was not greater than the 10% threshold provided in s 66(1) of the 1987 Act.

Held: Leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act was refused.

Interlocutory decision

1. Acting Deputy President Parker SC held the appeal was against an interlocutory decision because the respondent’s right to an award under s 66 was not determined but depended on the findings of the Medical Assessor and the steps to be taken thereafter. Had the Member declined to refer the worker to a Medical Assessor for assessment of the WPI, the decision would have been “final” in the relevant sense because that determination would have precluded the respondent from receiving an award for compensation pursuant to s 66. In the Acting Deputy President’s view, the Member’s decision was interlocutory and not a final determination of the parties’ rights with the consequence that the appellant required leave pursuant to s 352(3A). ([37]–[42])

   (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 and Licul v Corney [1976] HCA 6; 180 CLR 213 applied)

2. The Acting Deputy President declined to grant leave under s 352(3A) of the 1998 Act. ([44])
3. After having read the appellant’s submissions at first instance, Acting Deputy President Parker SC observed that the appellant did not make any submissions with respect to the left upper extremity. He noted that the pleaded injury included an injury to the left upper extremity. The submissions confined themselves to the left knee and the lumbar spine. That was inevitable given that the earlier consent order in respect of the left upper extremity was that there should be a discontinuance of the claim with respect to that part of the body. ([47]–[49])
4. The Acting Deputy President observed it was not until the application for reconsideration that the argument advanced by the appellant on the appeal was squarely raised. The submission having been made in the reconsideration application was at that time before the Member and was relied upon in the appeal submissions. Had the Acting Deputy President reached a different conclusion with respect to the grant of leave, he would have directed the parties to provide additional submissions as to whether the appellant should have been permitted to raise the argument on appeal in circumstances where it was not raised initially. It was unnecessary to determine this in view of the conclusion Parker SC ADP reached with respect to the granting of leave. ([51]–[52])
5. The Acting Deputy President was of the view that a grant of leave was neither necessary nor desirable for the proper and effective determination of the dispute, being the dispute as to the worker’s entitlement to whole person impairment compensation. Furthermore, it was in his view, much more likely that the assessment of WPI by a Medical Assessor will resolve the parties’ dispute. If the Medical Assessor assesses WPI as not greater than 10%, the worker will have failed. If the assessment is greater than 10%, the appellant is not precluded by this determination from appealing the referral and advancing the submissions made in support of the appeal. ([53]–[56])

Secretary, Department of Education v Egan [2022] NSWPICPD 45

WORKERS COMPENSATION – section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision – section 65A of the 1987 Act – secondary psychological injury

Parker SC ADP

23 November 2022

Facts

The respondent worker was employed at a primary school as a support officer in a unit for children with special needs. On 20 October 2015, she was injured when a student ran into her. She fell backwards, landing heavily and awkwardly on gym equipment. It was common ground that the respondent sustained physical injuries and, in addition, a primary psychological injury as defined in s 65A(5) of the 1987 Act. The appellant did not dispute that the respondent sustained a primary psychological injury.

The appellant claimed lump sum compensation in relation to both her physical and primary psychological injuries. The appellant declined liability and asserted that the respondent had also sustained a secondary psychological injury as defined in s 65A(5) of the 1987 Act.

The parties agreed that the matter be remitted to the President for referral to a Medical Assessor. The appellant wanted the Member to make the referral in the following terms:

“The matter is remitted to the President for referral to a Medical Assessor for assessment [of] the degree of [whole person impairment] (if any) resulting from the primary psychological injury suffered on 20 October 2015 bearing in mind that the Applicant [the respondent on appeal] continues to suffer the effects of a secondary psychological (pain) condition.” (emphasis added)

The respondent did not agree to a referral in those terms. The Member made a direction remitting the matter for referral to a Medical Assessor without inclusion of the underlined words and without having first determined whether the respondent had a secondary psychological injury.

The appellant sought leave to appeal.

The issue on appeal was whether leave to appeal an interlocutory decision should be granted.

The grounds of appeal relied upon were whether the Member erred in:

(a) law in failing to deal with a liability dispute prior to referring a question of whole person impairment to a Medical Assessor (Ground 1);

(b) law in failing to observe that s 65A(1) of the 1987 Act is a disentitling provision (Ground 2), and

(c) fact in identifying as the ground of the dispute the issue of the s 65A(3) threshold (Ground 3).

Held: Leave to appeal the interlocutory decisions of 16 February 2022 and 17 February 2022 pursuant to s 352(3A) of the 1998 Act was refused.

Consideration of the Application for leave to appeal

1. Parker SC ADP declined to grant leave pursuant to s 352(3A) of the 1998 Act. ([36])
2. The direction, in the Acting Deputy President’s view, in its terms limited the enquiry by the Medical Assessor to the assessment of permanent impairment “resulting from [the] primary psychological injury on 20 October 2015 as agreed”. It was only if the words proposed in the draft direction proffered by the appellant (“bearing in mind that the Applicant [the respondent on appeal] continues to suffer the effects of a secondary psychological (pain) condition”) were accepted that the so-called secondary psychological injury issue arose. The authorised Medical Assessor doubtless will be able to delineate the primary psychological injury as part of their medical expertise. ([37])
3. Acting Deputy President Parker SC held that to the extent the Medical Assessment Certificate purported to determine whether the injury was a primary or secondary psychological injury, the conclusion would not be conclusive but merely evidence in any future proceedings: s 326(2) of the 1998 Act. ([39])
4. The Acting Deputy President found that the respondent was correct that a Medical Assessor had not made any assessment. The Member merely determined that the matter should be remitted to the President for referral to a Medical Assessor. That was not a final determination of the parties’ rights. The present direction(s) were procedural and did not foreclose either party’s future rights. ([40])
5. The Member was correct when she observed that there was no dispute that the respondent suffered a primary psychological injury. This was conceded by the appellant. In State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, Campbell J noted at [22] the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of the medical dispute as defined by s 319 of the 1998 Act. For this reason, that question could not be determined by a Medical Assessor. Here the question to be presented to the Medical Assessor is the assessment of the whole person impairment “resulting from primary psychological injury on 20 October 2015”. No liability issue was delineated by the direction. It was patent here that the parties had determined the relevant liability dispute by their agreement that there was a primary psychological injury. ([41]–[42])
6. The Acting Deputy President held there is no authority in the 1987 Act or otherwise for a Medical Assessor to assess secondary psychological injury. Section 65A(2) says that no regard should be had to impairment or symptoms resulting from a secondary psychological injury. There was no reason to assume that the Medical Assessor would fail to observe the statutory direction contained in s 65A(2) and there was certainly no warrant to prejudge that matter by adding the superfluous words proposed by the appellant to the Member. ([43])
7. Parker SC ADP held the appellant’s submission that the Medical Assessor is obliged to proceed on the basis that no dispute existed as to the primary psychological injury was correct. There was in fact no dispute about the primary psychological injury. There was no dispute furthermore that it would be outside the assessor’s function to assess secondary psychological injury. What s 65A(2) requires is that any secondary psychological injury or associated symptoms be disregarded. ([44])
8. The Acting Deputy President held that the proposition advanced in support of Ground 3 that there was a dispute between the parties as to the existence or otherwise of a secondary psychological injury may or may not be correct, but this was not was referred for assessment pursuant to the direction. “The provisions of s 65A disentitling an assessment for secondary psychological injury do not give rise to a further liability dispute.” As the respondent submitted, the remaining dispute was a medical dispute, namely the assessment of the degree of permanent impairment. A direction for a referral of the matter to ultimately be assessed by a Medical Assessor is a procedural direction which does not determine finally either party’s rights. ([46]–[47])
9. The grant of leave under s 352(3A) requires that the Acting Deputy President be satisfied that the granting of leave is “necessary or desirable for the proper and effective determination of the dispute”. If one assumes that the Medical Assessor assesses the whole person impairment resulting from the primary psychological injury sustained on 20 October 2015, then the medical dispute as to the whole person impairment will have been resolved. ([48])
10. Accordingly a grant of leave was not “necessary” for the proper and effective determination of the parties’ rights. Furthermore, it was not “desirable” because to do so would complicate the proceedings by an additional hearing before the Commission prefatory to a determination by a Medical Assessor of the whole person impairment resulting from the admitted primary psychological injury. Having noted that this decision was confined to the application of leave and not a determination of the substantive grounds of the appeal, the Acting Deputy President declined to grant leave to appeal an interlocutory decision. ([49]–[51])