Appeal Case Summaries

Trustees of the Roman Catholic Church for the Diocese of Parramatta v Stewart [2021] NSWPICPD 5

WORKERS COMPENSATION – finding of ‘injury’ pursuant to section 4(b)(ii) of the 1987 Act, requirement of ‘main contributing factor’

Snell DP

8 April 2021

Facts

The respondent worker was employed by the appellant to perform maintenance and cleaning work at various schools in the Parramatta area. His duties included gardening, ground maintenance, garbage collection, general labouring work and cleaning. He sometimes moved furniture, including up and down stairs. His duties were relatively strenuous and the respondent said he had performed that work over 20 years, which placed a large amount of strain on his back.

The respondent injured his back in an incident on 2 March 2018 whilst collecting rubbish in a playground. He was off work until early April 2018, when he resumed on light duties, which were eventually upgraded to full duties. He suffered further injury to his back on 31 May 2018 whilst using a shovel, mattock and crowbar to dig out a stump, experiencing pain down his left leg. He did not return to work thereafter and underwent surgery to his back.

The respondent claimed compensation for 16% whole person impairment. The appellant disputed injury pursuant to s 4 of the 1987 Act. The appellant denied ‘injury’ (both injury simpliciter and on the basis of the ‘disease’ provisions), ‘main contributing factor’, and whether s 9A was satisfied.

The Member found, in respect of the disputed ‘injury’ allegation, that the respondent sustained an injury to his lumbar spine arising from the nature and conditions of employment with the appellant. The matter was referred to an AMS to assess “whole person impairment in relation to the nature and conditions of employment, an injury on 2 March 2018 and a further injury on 31 May 2018”. The employer appealed.

The issues on appeal were whether the Member erred in fact and law in:

(a) failing to make a factual finding that employment was the main contributing factor to injury sustained due to the nature and conditions of employment (Ground 1);

(b) erroneously weighing and considering the medical evidence, and in accepting that the opinion of Dr Bodel properly supported injury due to the nature and conditions of employment/disease (Ground 2), and

(c) failing to find the nature of the injury sustained by the respondent due to the nature and conditions of employment as required pursuant to s 4 of the 1987 Act (Ground 3).

Held: The Certificate of Determination dated 22 September 2020 was revoked and the matter was remitted to a different member for re-determination.

Threshold matters

1. There was an issue regarding whether the monetary thresholds in s 352(3) of the 1998 Act were satisfied. Snell DP did not accept the submission that the allegation of injury due to the ‘nature and conditions’ of employment went only to the s 323 deduction, which is not compensation. The ‘nature and conditions’ allegation was part of the injury allegation in respect of which lump sum compensation was claimed. As the appellant submitted, the quantum of compensation that may ultimately be assessed as resulting from the ‘nature and conditions’ injury was unknown. Having regard to the amount claimed, the monetary threshold was satisfied. ([10]–[15])

   (Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 applied)

   Was the ‘injury’ finding based on the ‘disease’ provisions?

2. The appellant’s submissions on appeal proceeded on the basis that the Member’s finding of ‘injury’, based on the ‘nature and conditions’ of employment, was one pursuant to the ‘disease’ provisions in s 4(b)(ii) of the 1987 Act. The respondent’s submissions on appeal did the same. ([45])
3. The Member said she accepted that the respondent “can have an injury by way of section 4(a) and s 4(b) of the 1987 Act”. The possibility that the Member’s relevant finding of ‘injury’ was one pursuant to s 4(a) of the 1987 Act could be left to one side in the circumstances, in light of the parties’ submissions on appeal. This was consistent with the fact that the Member did not, in her reasons, address whether s 9A of the 1987 Act was satisfied, which would have been necessary if the finding were one of injury simpliciter. Both parties to the appeal had approached the ‘injury’ issue on the basis that it related to a finding pursuant to s 4(b)(ii) of the 1987 Act. ([46])

Was the main contributing factor test applied?

4. It is clear, from the structure and clear words of s 4(b)(ii), that the requirement that employment be the ‘main contributing factor’ is a necessary prerequisite for a finding of ‘injury’ pursuant to the subsection. ([48])
5. The Member, as the appellant submitted, did not make a specific finding that the employment was the ‘main contributing factor’ to the disputed injury within the terms of s 4(b)(ii). The respondent submitted the Member “used a shorthand, albeit concise method, of formulating her decision on a simple and [discrete] factual issue”. The respondent submitted her reasons “expose her path of reasoning”. ([52])
6. It was necessary, in the circumstances, that the Member deal with whether the statutory requirements necessary to prove ‘main contributing factor’ were satisfied. The reasons should be read as a whole. The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. This was not a case where satisfaction of the ‘main contributing factor’ requirement in s 4(b)(ii) was merely a formality. ([53])

(Beale v GIO (New South Wales) (1997) 48 NSWLR 430, and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied)

7. Deputy President Snell held that overall, the medical evidence did not satisfactorily address whether employment was the ‘main contributing factor’ to the alleged ‘nature and conditions’ injury. The Member was alert to the difficulty. It is possible for the test to be satisfied on the evidence overall, even if the medical evidence does not specifically deal with the issue. In the circumstances it was necessary that the Member deal with whether ‘main contributing factor’ was established and expose her reasoning in that regard. This was not done. The Deputy President accepted that the error in Ground 1 was established. ([47], [55])
8. Snell DP held it was appropriate that the matter be remitted for re-determination. ([59]–[61])

Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6

WORKERS COMPENSATION – section 261(4) of the 1998 Act, failure to make a claim “occasioned by ignorance, mistake, absence from the State or other reasonable cause”, alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

Snell DP

23 April 2021

Facts

The appellant worker was employed by the respondent, as a claims support officer. Her duties were mainly administrative and customer service. She took telephone calls, prepared and opened new insurance claims and entered information into a database. The appellant said she was given an additional responsibility of training a new recruit, Prianka.

The appellant said she had to work harder to accommodate Prianka’s mistakes. The appellant fell behind with her own work. The appellant sought treatment for anxiety. She suffered from panic attacks when commuting to work by train. She collapsed at home on the night of Sunday, 6 September 2009 and did not work thereafter. She received sick leave, annual leave and unpaid leave. She made a claim for income protection benefits which was accepted, and she was paid income support by that insurer.

The appellant lodged a workers compensation claim form dated 22 October 2014. The respondent declined liability, it disputed the occurrence of injury and substantial contributing factor, raised a defence pursuant to s 11A(1) of the 1987 Act, raised an issue pursuant to s 261 of the 1998 Act and disputed a claim made by the appellant for lump sum compensation pursuant to s 66 of the 1987 Act.

The Member found that the appellant’s failure to make a claim was not occasioned by ignorance. There was an award for the respondent. The worker appealed.

The issues on appeal were whether:

(a) the Member erred in fact in finding that the appellant’s failure was not occasioned by ignorance (Ground 1);

(b) the Member erred in law in considering that the appellant’s receipt of income protection payments displaced the proposition that she was ignorant in material respects about her right to claim compensation payments (Ground 2), and

(c) in the light of his assessment that income protection payments were relevant to the application of s 261(4) of the 1998 Act, the Member erred in point of law in failing to consider whether the failure to claim was occasioned by “other reasonable excuse” (Ground 3).

Held: The decision in the Amended Certificate of Determination dated 27 October 2020 was confirmed.

Ground 1

1. The appellant sought to bring herself within the scope of s 261(4) of the 1998 Act. The respondent correctly submitted that the appellant, as the party seeking to establish the application of s 261(4), carried the onus in this regard. The appellant did not submit to the contrary. ([37])
2. The appellant’s submissions described the Member’s rejection of the appellant’s evidence of ignorance as a finding that the appellant had “lied about her state of knowledge”, which was “not warranted on the evidence … more so in the absence of cross-examination”. Snell DP held that the Member (contrary to the appellant’s submissions) nowhere found that the appellant was lying or was being deliberately untruthful. The credibility finding he made was one of unreliability, for which he gave an explanation other than deliberate untruthfulness. There is a distinction to be drawn between a finding of deliberate untruthfulness and one based on unreliability. ([39], [43])

(Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest) [2011] NSWCA 63 applied)

3. The appellant’s challenge to the availability of the credibility finding raised the fact that she was not cross-examined. The respondent submitted that in the circumstances of the current matter, cross-examination was not required. Section 261 was raised in the s 287A dispute notice dated 21 December 2018 and all of the evidence to be relied on by the parties had been served. The Deputy President observed that the respondent’s submissions on this issue were consistent with the decisions in New South Wales Police Force v Winter [2011] NSWCA 330 and JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17. The appellant did not, following lodgment of the respondent’s submissions on this appeal, seek to put on any submissions in reply, identifying specific procedural unfairness in the circumstances. The appellant’s challenge in Ground 1, to this aspect of the Member’s reasoning, did not succeed. ([44]–[46])
4. Ground 1 asserted error in finding that the appellant’s failure was not occasioned by ignorance. Whilst this was perhaps understandable, given the way in which the findings were expressed at [161] of the reasons, it misstated the onus. The issue was not whether the respondent established that the appellant’s failure was not occasioned by ignorance. It was whether the appellant established that her failure to make a claim within six months was occasioned by ignorance, so as to bring herself within s 261(4) of the 1998 Act. Whilst the Member inverted where the onus lay, this would not have affected the result. He approached the matter on the basis that the respondent had discharged an onus that it did not bear. It followed that the appellant had not discharged her onus to prove the contrary proposition. ([58])
5. The Member referred to multiple other matters that caused him to have reservations regarding the appellant’s evidence regarding her ignorance of her rights. She was aware of the workers compensation scheme, having previously herself had a claim for a back injury. She had worked for over one year with the respondent, an insurance company, as a claims officer. Prior to her employment with the respondent the appellant worked in a responsible position as a manager with David Jones. The Member concluded it was likely the appellant “would have been aware of the existence of workers compensation for psychological injuries”. ([63])
6. The respondent, of course, did not carry an onus to prove that the appellant was aware of her rights. It was up to the appellant to prove that she was ignorant of those rights at the relevant time. The approach adopted by the Member was available on the evidence. The appellant had not established appealable error. Ground 1 failed. ([27]–[31], [64]–[66])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227; Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, and Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 applied)

Ground 2

7. The passage at [159] of the reasons did not contain positive findings of fact. The appellant correctly referred to it as “speculation”. The passage stated the proposition that, even if the appellant did not turn her mind to her rights to receive workers compensation, this did not necessarily prove that she was ignorant of those rights. The respondent correctly submitted that the passage was “not determinative”. There was a positive finding at [160] of the reasons that the appellant was aware of the existence of workers compensation for psychological injuries. This was consistent with the conclusion that she was not ignorant of such rights, which was the question that required answer. The Member expressed multiple reasons at [156] to [160] which supported that conclusion. The passage at [159] of the reasons did not involve appealable error. It would not change the result. Ground 2 failed. ([69]–[71])

   (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828; Walshe v Prest [2005] NSWCA 333 applied)

   Ground 3

8. The appellant submitted the Member should have advised the parties of the approach he proposed taking. This would have given the appellant an opportunity to make other submissions in the alternative. The appellant’s submission on this ground did not fairly or accurately state the Member’s discussion at [159] of the reasons. The Deputy President concluded earlier in his decision that the passage at [159] did not give rise to appealable error. A judge is not under an obligation to provide a running commentary of his or her thinking. It is not error to fail to deal with an argument that is not put. The appellant’s argument in Ground 3 was inconsistent with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 231 ALR 592; 81 ALJR 515, and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111. Ground 3 failed. ([74]–[76])

Sarheed v C1 Formwork Group Pty Limited [2021] NSWPICPD 7

WORKERS COMPENSATION – section 352(6) of the 1998 Act – fresh evidence – CHEP Australia Limited v Strickland [2013] NSWCA 351; Jones v Dunkel [1959] HCA 8; 101 CLR 298 considered

Phillips P

27 April 2021

Facts

The appellant worker learnt of a job opportunity through his friend Salam with the respondent who also employed Salam. The appellant travelled to the ACT where Salam was staying in accommodation paid for by the respondent, and ultimately was hired to work for the respondent by Mr Ibrahim, the respondent’s principal. There was no written employment contract. The appellant asserted there was an oral contract of employment.

The appellant suffered injury in the course of his employment with the respondent. There was no dispute that the respondent was liable to pay compensation to the appellant, nor any dispute regarding the appellant’s incapacity. The dispute related to the calculation of the appellant’s Pre-Injury Average Weekly Earnings (PIAWE).

The appellant was in receipt of compensation based on a PIAWE figure of $1,009.31 as adjusted. The appellant maintained that the correct PIAWE figure was in the sum of $2,475 per week. This was the contest before the Arbitrator which involved an assessment of credit principally of two witnesses: the appellant and Mr Ibrahim. The Arbitrator found that the appellant had failed to make out his case and consequently made no order on the application. The appellant appealed.

The issues on appeal were whether the Arbitrator erred in:

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

(b) fact and/or discretion by not accepting the appellant’s evidence on the basis of credit (Ground B);

(c) law by drawing an inference against the appellant for failing to adduce evidence of Salam (Ground C), and

(d) law in failing to provide adequate reasons for her findings (Ground D).

Held: The Arbitrator’s Certificate of Determination dated 15 September 2020 was confirmed.

Ground A

1. Essentially, this dispute was about the terms upon which the appellant was engaged to work for the respondent. In dispute were the appellant’s hours of work, his rate of pay, his job description and duties. It was accepted by the parties that there was no written contract of employment that defined the terms of engagement. The appellant asserted that an oral contract existed. In view of this assertion, the task for the Arbitrator was to assess the respective credit of the appellant and the respondent’s principal, Mr Ibrahim, in order to discern the terms of that contract. Documents such as the payslip were also considered along with this evidence. Clearly it was the Arbitrator’s duty in order to resolve this dispute to identify the terms of employment, such as they were, and make a finding regarding the PIAWE accordingly. ([146]–[147])
2. The appellant alleged, in accordance with Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 77 ALJR 1088, that the Arbitrator had failed to engage with clearly articulated arguments made with respect to two aspects of the appellant’s employment, namely hourly rate and job title. ([148]–[149])

(DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 discussed)

Hourly rate

3. Given that what was alleged was the existence of an oral contract, it was proper and appropriate for the Arbitrator to proceed to deal with the credit issue that existed between the appellant and Mr Ibrahim. In many respects, this credit contest was the crux of the dispute. Ultimately, in her credit findings, the Arbitrator preferred the evidence of Mr Ibrahim. Having made this finding, the Arbitrator then considered the terms of the contract and the PIAWE. In this regard, PIAWE was inextricably linked to two aspects of the engagement, namely the hours worked per week and the hourly rate. It was apparent that where the Arbitrator was considering PIAWE, an aspect of that consideration had to be the hourly rate because it would not be possible for any decision maker to reach a view on the quantum of PIAWE without dealing with this issue. On a fair reading of the Arbitrator’s reasons, she had dealt with the appellant’s assertions regarding the hourly rate. ([150]–[154])
4. The President was satisfied that the Arbitrator dealt with the issue of hourly rate and this was apparent from a consideration of her reasons as a whole. The first leg of Ground A failed. ([155])

Job title

5. The appellant argued that “at no point in her Reasons is it apparent that the Arbitrator engaged or responded to the submissions made as to the matters which the respondent’s payslip reflected.” Namely, that on the payslip dated 29 January 2020 the appellant’s job title was described as that of a carpenter. The appellant asserted, as if it was a proven fact, that a carpenter was a formwork carpenter. ([156]–[161])
6. It was necessary for the Arbitrator to consider the whole question of job title because, obviously, if the appellant was retained in a more skilled classification, it was more likely than not that the wages to be paid for that position would be higher than those paid to a labourer. ([162])
7. The President observed that at no stage in the appellant’s statements did he assert he was a carpenter of any description, formwork carpenter or otherwise. The Arbitrator was not persuaded by the appellant’s evidence regarding the conversations had with Mr Ibrahim, nor his evidence about the tasks actually undertaken by a formworker. The President was not persuaded how this finding was said to be in error in the Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 sense. ([163])
8. In the circumstances, and particularly having regard to the manner in which this assertion was put to the Arbitrator, it could not be said that the description of the appellant being a carpenter in the payslip undermined Mr Ibrahim’s evidence as to the job title the appellant was engaged under. This assertion was based upon the unsubstantiated assertion regarding the relationship of the roles of a carpenter and a formworker. In any event, the formation of the oral contract of employment took place at a point before the issuing of the payslip and it was clear that the Arbitrator had considered the evidence of both the appellant and Mr Ibrahim in reaching the decision that she did regarding the job title. Clearly, the Arbitrator was not convinced of the bare assertion of the relationship between a carpenter’s role and that of a formworker. In those circumstances, if one considered the Arbitrator’s decision as a whole, it was clear that she had considered the relevant evidence regarding the appellant’s job title and found accordingly. This aspect of Ground A was not made out. Ground A failed. ([167]–[168])

Ground B

9. Ground B attempted to overturn the credit findings that the Arbitrator made which were adverse to the appellant. The Arbitrator’s preference for Mr Ibrahim’s evidence where it conflicted with the evidence of the appellant was prefaced upon a consideration of the Arbitrator’s weighing of the evidence of the two men. ([169]–[172])

   (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; 112 ALR 641 (Devries) applied)

10. The appellant asserted that absent a sound evidentiary basis, these “findings” ought not to have been made and, this was asserted to be either an error of fact and/or an error of discretion. The President did not accept this submission. At no point in her decision did the Arbitrator determine that the appellant had committed Centrelink fraud. No fair reading of the decision substantiated that assertion. ([174]–[176])
11. In his Honour’s view, the manner in which the appellant had chosen to construe the Arbitrator’s findings was not available. No finding that the appellant was intending to commit Centrelink fraud was made. Rather, the Arbitrator was construing the appellant’s bank statement noting the Centrelink receipts and the fact that this was not explained by the appellant. At its highest, the Arbitrator stated that a request to be paid in cash could indicate that the appellant did not intend to disclose his earnings to Centrelink. In this section of the decision, the Arbitrator was opining about the content of the appellant’s bank statement and his failure to offer any explanation of its contents. This was all done for the purpose of weighing the appellant’s credit as opposed to that of Mr Ibrahim. ([177])
12. In terms of an error of discretion, for this allegation to be made good, the Arbitrator must have involved herself in a House v The King [1936] HCA 40; 55 CLR 499 (House v The King) type error. His Honour did not see the basis for a House v The King type error in the Arbitrator’s reasoning. This was a case about the appropriate level of the appellant’s earnings which would then produce the PIAWE figure for his weekly compensation payments. This determination rested upon a review of the competing credit of the appellant vis-à-vis Mr Ibrahim. A review of the appellant’s bank statements was a proper and appropriate activity to be undertaken by the Arbitrator and given the contest between the parties, which was well known to the appellant, it was open to him to attempt to explain these matters. He did not and in the circumstances this, along with other reasons, caused the Arbitrator to have concerns about the appellant’s credit, hence her preference for Mr Ibrahim’s evidence. This was an approach which was available to the Arbitrator on the evidence and no error in approach has been disclosed. This appeal ground therefore failed. ([179])

Ground C

13. At [61] of the reasons, the Arbitrator drew a Jones v Dunkel inference against the appellant. The appellant took issue with this inference. The appellant submitted that the basis of the inference was that the appellant and Salam were friends, which was consistent with the submissions made by the respondent. The appellant contended that:

    (a) that the Arbitrator failed to have regard to the fact that Salam was employed by the respondent;

    (b) there was no evidence that suggested that Salam was present when the appellant and Mr Ibrahim spoke either in person or on the telephone;

    (c) there was no evidence that the appellant and Salam ever discussed the terms of the appellant’s employment or remuneration with the respondent, and

    (d) there was no suggestion what Salam’s evidence would actually have been, and whether Salam’s evidence would have been adverse to either party. ([180]–[182])

14. With regard to the evidence of Salam and the appellant’s assertion that he was not a witness the appellant would have been expected to call, the President did not agree with this submission. His Honour accepted that Salam was also an employee of the respondent. There was however no evidence as to his position in the respondent’s organisation and in particular whether he had any managerial or supervisory role. The manner in which Salam’s evidence was introduced by the appellant did, in the President’s opinion, inexorably lead to the conclusion that given the contents of the appellant’s statement, it would only be natural for the appellant to have led evidence from Salam. ([197]–[198])
15. In the circumstances, the inference drawn by the Arbitrator was proper and appropriate. As is often the case when a Jones v Dunkel inference is sought or opposed, submissions were made in very much a short hand manner. Not every aspect of the rule was necessarily addressed by the parties. The President found no error in approach with how the Arbitrator arrived at the Jones v Dunkel inference she ultimately drew. The consideration of the evidence that was before the Arbitrator showed that the salient aspects of the rule were satisfied and that the inference that was ultimately drawn was available to the Arbitrator on the evidence, in particular having regard to the manner in which this issue was argued before her. Ground C failed. ([199]–[200])

(Jones v Dunkel [1959] HCA 8; 101 CLR 298 applied)

Ground D

16. The appellant alleged that the Arbitrator failed to provide adequate reasons for her decision. The President held that there were a number of problems with the appellant’s submissions under this appeal ground. Firstly, as the Arbitrator correctly directed herself at [55], the appellant carried the onus of proving that his version of the terms of the oral contract of employment was the correct version. The Arbitrator found that she preferred the evidence of Mr Ibrahim where it differed from that of the appellant. Clearly, there was great dispute between the appellant and Mr Ibrahim regarding the terms of his engagement, and consistent with the factual finding regarding credit made at [62], the impugned statement at [65] could be seen to have been consistent with the earlier credit finding. This was how the Arbitrator arrived at her stated view that the terms of the offer asserted by the appellant in these proceedings was improbable. ([201]–[211])

    (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 applied)

17. Secondly under Ground D, the appellant alleged that the Arbitrator did not provide sufficient reasons for her findings that the appellant had in fact been offered employment on the terms of an undisclosed industrial award. The President did not accept this submission. The Arbitrator, at [63]–[64] of the Reasons, considered the very high level of PIAWE being asserted by the appellant through the Commission’s experience of having knowledge in the value of work in the labour market. She ultimately reached the view that it was improbable that the parties reached an agreement as asserted by the appellant. In the President’s view, the reasons read as a whole satisfied the Arbitrator’s obligations pursuant to the Act and the Rules and the authorities, to provide reasons. No error was identified in the Arbitrator’s approach. Ground D failed. ([212]–[218])

(Paul Segaert Pty Ltd t/as Lidco v Narayan [2006] NSWWCCPD 296 applied)

Negi v Nass Consulting Pty Ltd [2021] NSWPICPD 8

WORKERS COMPENSATION – Application for an extension of time – s 352(4) of the 1998 Act, r 16.2(5) of the 2011 Rules – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied

Wood DP

27 April 2021

Facts

The appellant was the sole director of the respondent and Senior IT Business Analyst. Through the respondent, she contracted with the Commonwealth Bank of Australia (CBA) as an IT consultant. On 30 January 2015, she attended a conference at CBA’s premises and slipped on wet tiles in a bathroom, suffering injury. She sought medical treatment and worked full-time from home. She ultimately completed the contract with CBA and did not return to work.

Ultimately, she claimed weekly payments, and compensation pursuant to ss 60 and 66 of the 1987 Act. The appellant alleged injury to both shoulders, her right elbow, right arm, neck, back and right leg, as well as psychological injury, which was said to have developed as a consequence of the physical injuries.

In a Certificate of Determination dated 2 February 2018, the Arbitrator found that the appellant injured her neck and right shoulder, and that, as a consequence of those injuries, the appellant’s pre-injury psychological condition was aggravated. He did not accept that the appellant injured her back in the incident. On the basis of the opinion of Dr Raymond Wallace, orthopaedic surgeon, and surveillance material adduced into evidence by the respondent, the Arbitrator was not satisfied that the effects of the injuries continued beyond 24 May 2017. He made an award of weekly payments in favour of the appellant from 2 October 2015 to 27 May 2017, as well as treatment expenses to that date. The Arbitrator also remitted the appellant’s claim for whole person impairment of the right upper extremity and neck for referral to a medical assessor for assessment. The Medical Assessor assessed permanent impairment to be 13%, which was inconsistent with the Arbitrator’s finding that the appellant had recovered from the effects of the injury.

The appellant lodged a reconsideration application, asking the Arbitrator to reconsider his decision. The Arbitrator issued a decision in respect of that application on 8 September 2020. The appellant lodged an appeal to a Presidential member against that decision on 5 October 2020, which was determined separately in Negi v Nass Consulting Pty Ltd (No 2) [2021] NSWPICPD 9 (Negi No 2). After the lodgment of the appeal against the reconsideration decision, the appellant lodged an appeal against the Arbitrator’s determination dated 2 February 2018, which is the present appeal. Both appeal decisions should be read together.

The issues on appeal were whether the Arbitrator erred by:

(a) rejecting her allegation that she injured her back and left shoulder in the fall;

(b) finding that she was no longer incapacitated for work;

(c) failing to correctly calculate her loss of income;

(d) failing to take into account her psychological injury/condition when assessing her capacity to earn;

(e) accepting the surveillance evidence;

(f) accepting the opinion of Dr Wallace;

(g) lacking fairness and independence in his decision-making process, and

(h) incorrectly assessing her lump sum entitlements.

Held: The appellant’s application to adduce further evidence on the appeal was refused. The application to extend time pursuant to r 16.2(5) of the 2011 Rules was refused.

Leave to appeal

1. The appeal was lodged substantially out of time. In order to assess whether there would be substantial injustice, Wood DP was required to look at the merits of the appeal. ([33]–[56])

   (Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 applied)

   Ground 1: error in rejecting the appellant’s allegation that she injured her back and left shoulder in the fall

2. The appellant asserted that the evidence established that she injured her back and left shoulder in the fall on 30 January 2015. The appellant relied largely on the medical opinions that were reliant upon histories she provided to them. She further relied on her report of back pain in the clinical note in March 2015 and the radiological investigation of her lumbar spine in June 2015. ([184])
3. Wood DP held the Arbitrator gave logical and cogent reasons as to why he preferred the evidence before him to that of the appellant. Even if, after a consideration of the evidence, the Deputy President would have reached a different conclusion to that of the Arbitrator (which she would not), that is insufficient to overturn the decision. The Arbitrator’s conclusions were open to him and consistent with the evidence accepted by him and were not “glaringly improbable”. There was no basis upon which to overturn his finding. It followed that this ground had no merit. ([185]–[188])

Ground 2: error in finding that the appellant was no longer incapacitated for work

4. The appellant referred to having multiple injuries which impacted her work capacity. Wood DP noted that the Arbitrator found against the appellant in respect of the alleged injuries other than to the neck and right shoulder and a secondary psychological condition. ([189])
5. The Arbitrator’s finding was a finding of fact. Questions of the acceptance of evidence and the weight it is to be given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved. Wood DP held the Arbitrator did not overlook material facts or give undue or too little weight to the evidence before him. His reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. The appellant’s allegation of error had no merit. ([190]–[193])

(Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby) and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

Ground 3: error by failing to correctly calculate her loss of income

6. The appellant asserted that her entitlements to weekly compensation had been miscalculated and her arrears of compensation totalled $742,171.82. ([194])
7. The appellant’s entitlements to weekly compensation were to be assessed in accordance with the requirements of ss 36–39 of the 1987 Act and according to the formulae set out in those sections. The calculation is made in accordance with the definition of pre-injury average weekly earnings. The evidence of pay slips presented by the appellant in the proceedings indicated that the appellant was paid by the respondent (a company in which she was the sole director) $5,590 per calendar month ($1,290 per week) for the work she performed at CBA. This was the figure submitted by the appellant and which the Arbitrator accepted, based on the appellant’s evidence. The assertion by the appellant that she earned $666 per day was not borne out in the evidence. The documents attached to the ARD indicated that the figure of $666 per day relied upon by the appellant on the appeal was the amount paid by CBA to the respondent company in accordance with the contract between CBA and the respondent. That figure was not the weekly income paid to the appellant by the respondent. It followed that there was no merit to this ground. ([195]–[196])

Ground 4: error by failing to take into account her psychological injury/condition when assessing her capacity to earn

8. The appellant relied on the evidence of Dr Wotton as to the effect of her psychological condition on her capacity to work. In his decision, the Arbitrator determined that the appellant had no capacity for work up until 24 May 2017. The Arbitrator’s conclusion that the appellant had no capacity for work up to 24 May 2017 entitled the appellant to the maximum amount available in accordance with the legislation. Implicit in that finding was that the Arbitrator included the appellant’s psychological condition in his assessment. The Arbitrator concluded that, thereafter, the appellant’s physical injuries had resolved and thus the appellant’s psychological condition could no longer be attributable to her physical injuries. The Arbitrator noted that there were other causes for her psychological condition, which were not consequential upon the physical injuries. There was no error in that approach. ([197])
9. Of course, the Arbitrator reconsidered his finding that the appellant had recovered from the effects of the injury in his decision dated 8 September 2020. How the Arbitrator dealt with the psychological component of the appellant’s claim from 24 May 2017 in the reconsideration application was dealt with in that appeal. It followed that in respect of the decision appealed against in this appeal, there was no merit to this ground. ([198]–[199])

Ground 5: error in accepting the surveillance evidence

10. The appellant pointed to the Arbitrator’s observation that she “drove her own vehicle on return home”. The appellant asserted that this conclusion was wrong, and she was driven home in the taxi provided. The appellant had clearly misunderstood the Arbitrator’s wording. The observation made by the Arbitrator was not that the appellant drove herself home from the medical appointment, but that on returning home from that journey, she then proceeded to drive her own car. That observation was consistent with the video surveillance evidence. ([200])
11. The appellant also alleged that she had not been provided with the evidence and had not had the opportunity to address it. The Deputy President held the appellant had ample opportunity to address the surveillance material. She also observed that the Arbitrator not only relied on his own observations of the DVD evidence, but took into account Dr Wallace’s orthopaedic opinion that the appellant’s observed activities were completely at odds with her presentation during his examination of the appellant. He also took into account Dr Wotton’s observation that the appellant may not have been suffering the degree of pain she alleged during the consultation with him. ([202]–[204])
12. The appellant’s submissions in respect of this ground were largely based on assertions that were not founded in the evidence and she had not provided any cogent argument as to why the Arbitrator erred in accepting the surveillance evidence. ([205])

Ground 6: error by accepting the opinion of Dr Wallace

13. The appellant was critical of the opinion of Dr Wallace. She attached a bundle of unidentified comments about the conduct of Dr Wallace to the appeal in Negi No 2, which were not attached to this appeal. Wood DP held that even if they were sought to be tendered in this appeal, they would not be admitted. ([206]–[207])
14. The Deputy President held there was no other evidence to support the appellant’s assertion about Dr Wallace’s conduct. The appellant’s criticisms were therefore assertions which were not supported by any probative evidence. In any event, the Arbitrator treated the opinion of Dr Wallace with caution and gave appropriate consideration as to whether Dr Wallace’s opinion could be accepted. The Arbitrator gave properly based reasons for accepting his opinion, which included the inconsistencies in the appellant’s presentation at examination, some of which were also noted by A/Prof Molloy, Dr Bhisham Singh and Dr Harrison. ([208]–[209])
15. The Arbitrator’s finding in relation to the probative value of Dr Wallace’s evidence was a finding of fact. It is well settled that the acceptance or rejection of evidence 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. The Arbitrator’s finding was rational, based on a proper evaluation of the evidence and open to him for the reasons enunciated by him. The appellant had pointed to no proper reason to disturb that finding and there was no merit to this ground of appeal. ([210])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Rigby, and Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 applied)

Ground 7: error by failing to provide procedural fairness and independence in the Arbitrator’s decision-making process

16. After reviewing the transcript, and both decisions, Wood DP found that the appellant’s criticism of the Arbitrator’s attitude was not borne out in any of that material. The Arbitrator approached the appellant’s case in a balanced and reasoned manner and gave the appellant every opportunity to present her case. There was no basis for the appellant’s complaints and this ground had no merit. ([211]–[212])

    Ground 8: error in incorrectly assessing the appellant’s lump sum entitlements

17. The appellant asserted error on the basis that her whole person impairment should have included an assessment of her “multiple spinal injuries” and in particular her lumbar spine. The Arbitrator found in favour of the appellant in respect of her cervical spine and right shoulder but found against her in respect of the allegation of injury to the back and left shoulder. It followed that any claim for injury to the right leg, which was alleged to be radicular type pain emanating from the back, also fell away. ([213])
18. The Arbitrator’s finding in relation to the alleged injury to the back and left shoulder was not disturbed on appeal, so that there was no error in the referral of the cervical spine and right shoulder to the medical assessor without requesting an assessment of the lumbar spine. In circumstances where the medical assessor was tasked with assessing only those two body parts, there was no error in failing to assess the lumbar spine. In any event, a challenge to the correctness of an assessment by a medical assessor is not a matter for appeal from a decision of an arbitrator to a Presidential member. The allegation of any error on the part of the Arbitrator was not made out and this ground of appeal lacked merit. ([214])

Conclusion

19. As there was no merit to any of the grounds, there was no substantial injustice in refusing the application to extend the time to appeal. Leave to bring this appeal was refused. ([215]–[218])

Negi v Nass Consulting Pty Ltd (No 2) [2021] NSWPICPD 9

WORKERS COMPENSATION – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice – CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

Wood DP

27 April 2021

Facts

The facts in this case are the same as described above in Negi v Nass Consulting Pty Ltd [2021] NSWPICPD 8.

The appellant lodged a reconsideration application, asking the Arbitrator to reconsider his decision dated 2 February 2018. The Arbitrator issued a decision in respect of that reconsideration application on 8 September 2020. The Arbitrator declined to amend the closed period award for weekly payments, but awarded the appellant ongoing treatment expenses pursuant to s 60 of the 1987 Act, associated with medical treatment for the right shoulder and cervical spine. The appellant appealed the reconsideration decision.

After this appeal was lodged, the appellant also sought to appeal against the Arbitrator’s original determination dated 2 February 2018. That appeal was determined separately in Negi v Nass Consulting Pty Ltd [2021] NSWPICPD 8. Both appeal decisions should be read together.

The issues on appeal were whether the Arbitrator erred:

(a) in finding that the appellant was no longer incapacitated for work (Ground 1);

(b) by failing to take into account the appellant’s psychological injury/condition when assessing her capacity to earn (Ground 2);

(c) in failing to provide the opportunity to her and her legal team to make submissions about her capacity for work (Ground 3), and

(d) by failing to apply fairness and independence in the decision-making process (Ground 4).

Held: The appellant’s application to adduce further evidence on the appeal was refused. The Arbitrator’s Certificate of Determination dated 8 September 2020, amended on 29 September 2020, was confirmed.

Ground 1

1. The appellant pointed to the various medical opinions that supported her claim that the multiple injuries she suffered had caused her to have no capacity for work, and was critical of the Arbitrator’s comparison between her pre-injury employment and that of physical labour. As the respondent submitted, the Arbitrator was simply comparing the likelihood that the impairments suffered by the appellant were less likely to impact the appellant’s capacity to work than they would if the appellant was performing more physically arduous tasks. The Arbitrator’s observation was a matter of common sense. ([107])
2. The Arbitrator found against the appellant in respect of her capacity to work on the basis of her abilities and activities recorded in the DVD surveillance material, which rendered her assertions about her neck and shoulder restrictions unreliable. The Arbitrator took into account the fact that the medical assessor, in the context of concluding that the appellant suffered permanent impairment, had not referred to the surveillance evidence or the Arbitrator’s own findings in respect of the appellant’s unreliability. The Arbitrator pointed to the extensive medical evidence relied upon by the appellant that recorded the appellant’s widespread complaints, which was not consistent with the surveillance evidence or with the early complaints the appellant made to her doctors following the injury. He remarked that the appellant’s account of her incapacity for work was also reliant upon her account of the severity of the symptoms. ([109])
3. Wood DP held that the Arbitrator did not overlook material facts or give undue or too little weight to the evidence before him. His reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. It is not sufficient that another decision-maker might come to a different view. The appellant had failed to show error on the part of the Arbitrator on this ground of appeal. The ground failed. ([111]–[112])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

Ground 2

4. Deputy President Wood held the Arbitrator clearly took into account the appellant’s psychological condition when assessing the appellant’s capacity for work. Noting that the effect of the injuries on the appellant’s psychological condition depended upon the appellant’s lack of credibility, about which he had already made adverse findings, he was not satisfied that the appellant was entitled to weekly payments of compensation. ([114])
5. The appellant had provided no persuasive submission that showed that the Arbitrator failed to take into account her psychological condition when assessing her capacity. This ground of appeal failed. ([115])

Ground 3

6. The appellant asserted that she was not given the opportunity to address the question as to why she was not able to work or to clarify her incapacity for work in the context of her “multiple injuries.” ([116])
7. The Deputy President held that the appellant had every opportunity to present her case and in fact did so. The appellant’s remaining submissions as to the Arbitrator’s degree of understanding in relation to “complex spinal injuries,” her lack of ability to afford legal representation, and her inexperience with workers compensation claims were either not founded in evidence or irrelevant to the question of whether the Arbitrator erred by failing to give her the opportunity to make submissions. This ground also failed. ([119]–[120])

Ground 4

8. After reviewing the transcripts and the decisions, Wood DP held that the appellant’s criticism of the Arbitrator’s attitude was not borne out in any of that material. The appellant’s criticisms, made only in the appeal application and not raised at any earlier stage, were not supported by evidence from any of the appellant’s experienced legal representatives or by the measured tenor of the Arbitrator’s decisions. To the contrary, the Arbitrator approached the appellant’s case in a balanced and reasoned manner and gave the appellant every opportunity to present her case. As the respondent submitted, the Arbitrator gave consideration to the appellant’s application for reconsideration and the appellant was partly successful. This ground failed. ([121]–[122])