Appeal Case Summaries

Hernandez v State Rail Authority of NSW [2022] NSWPICPD 5

WORKERS COMPENSATION – whether the Member reversed the onus of proof – Watts v Rake [1960] HCA 58; Purkess v Crittenden [1965] HCA 34; Brown v Lewis [2006] NSWCA 87 discussed and applied – whether the conditions resulted from the accepted injury – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 discussed – whether error in considering that the symptoms were merely a manifestation of a pre-existing condition – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8; Trustees of the Roman Catholic Church for the Diocese of Paramatta v Brennan [2016] NSWWCCPD 23 discussed – circumstances in which the history recorded in a medical report will be considered evidence of the facts – Guthrie v Spence [2009] NSWCA 369 applied – requirement for the facts upon which an opinion is based to be a proper foundation for the opinion – Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 applied

Wood DP

17 February 2022

Facts

The appellant worker suffered several low back injuries in the course of his employment with the first respondent, the State Rail Authority in 1973, 1976 and on 8 December 1987. The first two injuries appeared to be relatively minor. However, the injury in 1987, together with a further low back injury in the course of the appellant’s employment with the second respondent, Adstock Pty Ltd (formerly known as GL Cooper Sales Pty Ltd) significantly impacted the appellant’s capacity for work and required ongoing treatment.

The appellant commenced these proceedings which concerned a further claim for treatment expenses incurred by the appellant in respect of treatment for conditions in both shoulders, hypertension, and renal and cardiac conditions. The appellant contended that those conditions all resulted from the low back injuries and thus, the treatment for the conditions was compensable. The respondents disputed that the conditions were consequential upon the accepted back injuries.

The Member issued a Certificate of Determination dated 2 June 2021. The Member accepted that the appellant’s condition of hypertension, which the Member determined was pre-existing, was aggravated by the low back injury, causing elevated symptoms in 2001 and 2005. The Member did not accept that the appellant suffered from consequential conditions in the shoulders or renal or cardiac conditions as a result of the low back injuries. He further determined that he was not satisfied that the appellant’s need for treatment of those conditions resulted from the back injury. The appellant appealed those decisions.

The issues on appeal were whether the Member erred in:

(a) law by reversing the onus of proof when he indicated that it was impossible to determine whether the appellant’s renal and cardiac conditions were caused by the hypertension or the effects of the hypertension as aggravated by the appellant’s back injuries (Ground 1);

(b) law when he determined that the Commission was unable to conclude the appellant’s renal or cardiac conditions were caused by the effects of the hypertension as aggravated by his back injuries or that the treatment of these conditions resulted from the accepted back injuries (Ground 2);

(c) fact when he concluded the Commission was unable to conclude that the appellant’s renal or cardiac conditions were consequential on his back injuries or that the need for medical treatment of these conditions resulted from the accepted back injuries (Ground 3);

(d) law by determining the appellant failed to discharge the onus of proving that his back injuries materially contributed to his shoulder condition (Ground 4);

(e) fact by determining the appellant failed to discharge the onus of proving that his back injuries materially contributed to his shoulder condition (Ground 5);

(f) law and/or fact by finding the assumptions underlying Dr Lee’s (orthopaedic surgeon qualified by the appellant) opinion were significantly different to the facts proven (Ground 6), and

(g) law and/or fact when he determined that the treatment of the appellant’s renal, cardiac, and shoulder conditions were not as a result of the accepted injuries (Ground 7).

Held: The Certificate of Determination was revoked in part and remitted for re-determination by another Member of the remaining issues.

Consideration

1. The appellant had not challenged the Member’s conclusion that the appellant’s hypertension was pre-existing, and that as a result of the accepted back injuries, the appellant aggravated the pre-existing hypertension, which became labile in 2001 and 2005. ([156])
2. The Member first dealt with the grounds of appeal limited to the assertion of error in respect of the Member’s determination in respect of the appellant’s bilateral shoulder conditions (Grounds 4, 5 and 6), before moving to the remaining grounds. ([159])

Ground 4

3. The appellant asserted that, in order to determine the causal connection, the Member only needed to be satisfied that the back injuries materially contributed to the shoulder conditions, consistent with Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and Trustees of the Roman Catholic Church for the Diocese of Paramatta v Brennan [2016] NSWWCCPD 23. It was clear from the Member’s reasons that he approached the issue on that basis, without the benefit of probative medical evidence to assist him. While the appellant was required to establish a contribution, the contribution needed to be material and, in the light of the significant pre-existing pathology, the contribution from which was not addressed by any medical opinion, the Member was unable to conclude in favour of the appellant. There was no error in the Member’s conclusion and this ground of appeal failed. ([166])

Ground 5

4. Ground 5 asserted that, in arriving at his conclusion complained of in Ground 4, the Member erred in fact. Other than to repeat his submissions made to the Member and again in this appeal in relation to Ground 4, the appellant did not point to any probative evidence of a causal connection which he says demonstrates that the Member was wrong in his determination. For the reasons given in respect of Ground 4, Wood DP concluded that the Member’s determination was open to him on the evidence before the Commission and disclosed no error. This ground of appeal was not made out and therefore failed. ([167])

Ground 6

5. Ground 6 asserted that the Member erred in law by finding that the facts assumed by Dr Lee were significantly different to the proven facts. Wood DP held the history upon which he based his opinion as to what prompted the symptoms was inconsistent with the appellant’s own evidence and the evidence recorded in the notes from the Centre for STRONG Medicine. ([168]–[169])
6. The appellant submitted that the Member asked himself the wrong question when considering whether the condition was caused by performing those exercises or whether it became symptomatic because of the pre-existing condition. The question of whether the condition results from the injury is a question of fact, to be determined on the basis of the evidence, including, where applicable, expert evidence. A relevant question was whether the facts went “beyond mere predisposing circumstances.” The Member had no medical evidence to assist him in the face of evidence of “predisposing circumstances,” namely of significant pre-existing pathology and where the connection between the pain and the event was merely temporal. In those circumstances, the Member could not satisfy himself of the asserted causal connection. The Member did not ask himself the wrong question and determined the matter on the basis of the evidence before him. The appellant had not demonstrated error on the part of the Member and this ground of appeal failed.

(Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

Ground 1

7. Ground 1 asserted error in that the Member reversed the onus of proof in his consideration of the evidence relating to the asserted connection between the appellant’s hypertension and his renal and cardiac conditions. The appellant asserted that the Member was required to determine whether the accepted injuries materially contributed to the renal and cardiac conditions. The Deputy President found that the Member was clearly aware that that was what he was required to do. ([173]–[175])
8. Wood DP was of the view that the appellant had not pointed to any evidence that displaced the Member’s reasoning. The appellant failed to adduce sufficient evidence to satisfy the Member of the case he presented, which was, in the context of this ground of appeal, that the aggravated hypertension materially contributed to the renal and cardiac conditions. In circumstances where the appellant failed to make out his prima facie case, which was a pre-requisite to the burden shifting to the respondent to disprove that case in the terms discussed in Watts v Rake [1960] HCA 58 and Purkess v Crittenden [1965] HCA 34, the respondent was not required to adduce evidence that proved that there was no causal connection. The Member did not reverse the onus of proof and Ground 1 failed. ([182]–[183])

Ground 2

9. The appellant asserted that the Member erred in law by finding that he was unable to conclude that the renal and cardiac conditions were caused by the aggravation of the appellant’s hypertension. The appellant said that the Member needed only to be satisfied that the accepted injuries materially contributed to the renal and cardiac conditions, in accordance with Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. ([184])
10. The appellant submitted that the Member did not say in his reasons that the appellant had not adduced sufficient evidence that the test of material contribution had been met. Wood DP referred to her earlier discussion and noted the Member’s awareness that he needed to be satisfied that the hypertension materially contributed to the conditions. She also noted her discussion of the complaint that the Member applied the wrong standard of proof. For the same reasons, neither of those allegations of error were made out. Ground 2 was not made out. ([185]–[188])

Ground 3

11. The appellant asserted error of fact on the part of the Member in respect of his conclusion that he was unable to conclude that the appellant’s renal and cardiac conditions were consequential upon his back injuries. A review of the transcripts and the evidence referred to by the appellant both in the arbitration and on appeal disclosed that the appellant’s complaint of error was referrable to the appellant’s ingestion of medication to treat his back injuries, which he asserted was a causative factor in the development of his renal condition and cardiac issues. The appellant submitted that the Member did not indicate why the evidence referred to did not enable him to find that there was a material contribution between the accepted injuries, the hypertension and the “disputed conditions.” ([189]–[191])
12. It was apparent that, while the Member placed some focus on the appellant’s hypertension and gave cogent reasons for his conclusions in respect of that condition, he did not give full consideration to the case put to him by the appellant in respect of the cardiac and renal conditions. The Member appeared to accept that there can be a connection between hypertension and a renal condition but concluded that there was insufficient evidence to establish that, in this case, the aggravated hypertension materially contributed to the renal condition. That conclusion was open to him. However, he did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition. ([192])
13. The appellant’s submission in this regard was clearly argued, was made on the basis of documentary evidence in the proceedings and was a significant part of the appellant’s case. A failure to deal with a significant submission in the appellant’s case constitutes an error of law and may constitute a denial of natural justice. It followed that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension. Ground 3 of the appeal succeeded. ([193]–[194])

(Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 applied)

Ground 7

14. The appellant submitted that, as a consequence of the errors demonstrated under Ground 3, the Member’s determinations that the renal, cardiac and shoulder conditions were not causally related to the back injuries and the appellant’s hypertension were erroneous. This purported ground of appeal was simply a repetition of the earlier grounds of appeal with no new submissions. Given Wood DP’s earlier findings it was not necessary to deal with this ground. ([195])

Conclusion

15. The Member’s finding that appellant suffered an aggravation of his pre-existing hypertension was not challenged in the appeal. Additionally, the appellant was unsuccessful in his challenge to the Member’s determinations that the appellant’s bilateral shoulder conditions did not result from the back injuries and that the renal and cardiac conditions did not result from the hypertension. Thus, those determinations were confirmed. The appeal succeeded in respect of the Member’s findings that the appellant’s renal and cardiac conditions did not result from the accepted back injuries. Those issues remained for determination. In the circumstances of this case, it was the Deputy President’s view that it was appropriate, given the nature of the remaining issues, that the matter was remitted to a different Member for determination of those remaining issues, being whether the appellant’s renal condition, and cardiac condition result from the appellant’s injuries to his back. ([196]–[198])

Hou v Zhen Qi Hou Pty Ltd [2022] NSWPICPD 6

WORKERS COMPENSATION – section 261(4) of the 1998 Act – failure to make a claim occasioned by ignorance, mistake, or other reasonable cause – Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 and Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6 considered – adequacy of Member’s reasons – Roncevich v Repatriation Commission [2005] HCA 40 applied

Phillips P

21 February 2022

Facts

The appellant, Mr Hou, was a working director of the respondent, a building company, when he suffered an injury at work on 15 April 2014. On the day he was injured, the appellant was constructing the timber frames of a two-story home. Whilst on the first floor, he lost his balance and fell some 3 metres through a void where a staircase was being installed, suffering a facture injury to his right foot. The appellant underwent surgery on 28 April 2014 and remained off work until returning to light duties in January 2015.

By virtue of the appellant’s date of injury of 15 April 2014, the six-month time limit to make a claim for compensation expired on 15 October 2014, as required by s 261 of the 1998 Act. The appellant did not make a claim for workers compensation until the claim was submitted on 20 July 2015, some 15 months after the date of injury.

The insurer declined the claim on several occasions under s 74 (as it then was) of the 1998 Act, and s 78 of the 1998 Act. In the Commission, the appellant sought payment for both past and future medical expenses with respect to his injury. There were two issues before the Member: firstly, a consideration by the Member of s 261 of the 1998 Act, and secondly, an issue pertaining to s 59A of the 1987 Act. The Member proceeded to deal with the issue under s 261 of the 1998 Act first, on the basis that if the appellant was unsuccessful on that issue, no issue under s 59A of the 1987 Act would then require attention.

The Member entered an award for the respondent, finding that she did not accept that the appellant’s failure to make a claim was occasioned by ignorance, mistake or other reasonable cause such that in accordance with s 261 of the 1998 Act. The appellant appealed.

The issues on appeal were whether the Member erred in:

(a) law when she failed to correctly pose the statutory question she needed to answer (Ground 1);

(b) law when she failed to consider the alternative question of whether the failure to make a claim within the six-month period was occasioned by other reasonable cause (Ground 2);

(c) law when she failed to give any reasons as to why there was no other reasonable cause that occasioned the failure (Ground 3);

(d) fact finding when she concluded the letter from Slater and Gordon (previous solicitors for the appellant) dated 21 July 2015 “did not make a reference to pursuing a workers compensation claim” (Ground 4), and

(e) the exercise of a discretion in taking into account irrelevant matters being:

1. either the three-year limitation period for commencing a public liability claim or the three-year period referred to in s 261(4) of the 1998 Act;
2. the GP’s note of the consultation on 11 September 2015;
3. the motivation to claim weekly benefits caused by financial hardship, or
4. the reference to a tribunal hearing (Ground 5).

Held: The Certificate of Determination dated 28 May 2021 was confirmed.

Discussion

1. Section 261 of the 1998 Act requires that a claim for compensation must be made within six months after the date the injury or accident happened. This limitation or bar is lifted if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause” and a claim was made within three years after the date that the injury or accident happened. In this case there was no doubt that the appellant’s claim was made outside the specified six-month period but within the period of three years from the date the injury or accident happened. The appellant at all times bears the burden of proving that the failure to make the claim within the six-month period was occasioned by “ignorance, mistake, ... or other reasonable cause”. (The absence from the State exception was not relevant for the purposes of this case.) ([48]–[49])

Ground 1

2. Ground 1 alleged that the Member made an error of law in that she had misdirected herself as to the relevant statutory question to consider. The appellant took issue with a single sentence at [63] of the reasons, where the Member said: “In short, it must be ignorance as it relates to any right to make a claim and seek compensation”. The appellant argued this was not the correct test nor was it the argument that was put before the Member. ([58]–[59])
3. The President observed that reasons must be read as a whole. His Honour was of the view that the characterisation by the appellant in this appeal ground did not represent a fair reading of the Member’s decision. ([61]–[64])

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

4. Considered correctly, the single sentence in [63] of the reasons did not purport to be the test that the Member was dealing with in full, rather it was clear from the sentence that the Member was describing her task in shorthand and when one married what appeared in [63] with [64] of the reasons, it could clearly be understood that the Member was grappling with one concept, and that was the meaning of the word “ignorance” for the purposes of s 261 of the 1998 Act. It was clear from a consideration of the decision that the Member, having correctly set out the appellant’s case, particularly at reasons [17] and [18], then proceeded to deal with those arguments. No issue had been taken by the appellant that the description of the appellant’s arguments at reasons [17] and [18] was anything other than an accurate reflection of the case being conducted. Having posed the correct questions for consideration, the fact that a short form or summary of one aspect of that task was set out at reasons [63] was not a fair reading of the Member’s decision, nor was it revealing of any error on the Member’s part. Ground 1 failed. ([65]–[67])

Ground 2

5. Ground 2 asserted that the Member erred in law by failing to consider whether the failure to make the claim within the statutory period was occasioned by “other reasonable cause”. The appellant asserted that this question was not dealt with at all and as such was a failure to exercise the jurisdiction with which the Member was charged. The “other reasonable cause” argument advanced by the appellant related to the appellant’s retainer of solicitors and his subsequent reliance upon their advice. ([68]–[69])
6. As the President observed in the consideration of Ground 1, no issue had been taken by the appellant with how reliance upon the “other reasonable cause” exception was set out by the Member at [18] of the reasons where the Member stated “‘other reasonable cause’ it was submitted, was as a result of advice he received from his former solicitors to which I will refer more fully below, and which ties in with his claim that he was unaware of his rights”. ([70])
7. In terms of the decision, at [14] of the reasons, the Member set out at length the appellant’s statement of 27 January 2021, which included what the appellant said about his dealings with his then solicitors. The decision then proceeded to discuss various aspects of the evidence of what transpired between the appellant and his then solicitors. The President referred to paragraphs thereafter throughout the decision, where the Member was clearly grappling with the appellant’s contention pertaining to the “other reasonable cause” exception. ([71])
8. The only reason the Member in these paragraphs was considering what transpired with the appellant’s solicitors, was to answer the question that appeared at [18] of the reasons. It was clear that by the time the Member made her formal findings at [72] of the reasons, this exception had been considered and dealt with in accordance with the Member’s duty to consider that question. The error as alleged had not occurred. The Member dealt with the appellant’s argument with respect to this exception and dealt with it in terms. This ground failed. ([72]–[74])

Ground 3

9. Ground 2 alleged that the Member failed to give any reasons as to why the “other reasonable cause” exception was not made out. The appellant alleged an error of law in terms of a failure to give any reasons for the conclusion that the exception was not made out. ([75])
10. The President held that it is not a fair reading of the Member’s decision to allege that there was a failure to give any reasons as to why the “other reasonable cause” exception has not been made out. Reading the decision as a whole, it was clear that the Member was not persuaded that the “other reasonable excuse” submission had been made good by the appellant. This appeal ground in its terms alleged that the Member failed to give any reasons as to why this exception was not made out. This had not been established. This appeal ground as an alternative took issue with the adequacy of the Member’s reasoning. The President held that this had not been established. The Member addressed the issue in contest and reached a decision that was available. No error was established and this ground failed. ([77]–[87])

(Roncevich v Repatriation Commission [2005] HCA 40 applied)

Ground 4

11. This ground alleged factual error at [33] of the reasons where the Member found “That letter was in English only, and did not make any reference to pursuing a workers compensation claim.” The letter concerned was written by the appellant’s then solicitors regarding his legal matter. The President observed that clearly upon a review of the letter concerned, the statement at [33] of the reasons was not correct. The appellant alleged that this “erroneous finding” may have formed part of the Member’s reasoning process and if it did the decision would thereby be affected by error. ([88]–[90])
12. The appellant quite fairly could not assert that the error which appeared at [33] of the reasons affected the Member’s reasoning process. At its highest, the appellant quite fairly asserted that it may have infected the reasoning process. Notwithstanding this mistake, there was other material available which led to the inference about the appellant having knowledge prior to receiving the 21 July 2015 advice. Absent this material that President Phillips had identified, the submission made by the appellant might have had some substance. However in light of that material, it could not be said that the factual error made by the Member formed part of the reasoning process and as a result this appeal ground had not been established and it failed. ([95]–[96])

Ground 5

13. Ground 5 alleged that the Member made an error in the exercise of her discretion by taking into account four matters which were said to be irrelevant. They were:

    (a) either the three-year limitation period for commencing a public liability claim or the three-year period referred to in s 261(4) of the 1998 Act;

    (b) the GP’s note of the consultation on 11 September 2015;

    (c) the motivation to claim weekly benefits caused by financial hardship, and

    (d) the reference to a tribunal hearing. ([97])

14. The appellant relied on House v The King [1936] HCA 40; 55 CLR 499 (House). The President held that in terms of a House type consideration, it must be remembered that the mere recitation of aspects of the evidence is insufficient. In this case, the Member was exercising a discretion in terms of the considerations as to whether or not the appellant had made out the exceptions contained in s 261 of the 1998 Act. The key question for consideration in this appeal point was whether any of the four matters complained of caused that discretion to miscarry. ([99]–[100])
15. After considering each of the four matters in turn, the President concluded that none of the four sub-grounds were established and Ground 5 was dismissed. ([101]–[135])

Decision

16. It was not disputed before the Member that the appellant had failed to make a claim for compensation within the six-month period prescribed by s 261 of the 1998 Act. As a consequence, the appellant bore the burden of proof to relieve himself of the bar or limitation found in s 261. This required the appellant to prove that his failure was occasioned by ignorance, mistake or other reasonable cause. The appellant failed to discharge this burden before the Member, who undertook a consideration of all of the evidence and was not satisfied that the appellant was entitled to the relief sought. In this process, the Member had extracted at length the appellant’s statement in which the explanation relied upon was set out. The Member then tested the explanation proffered by the appellant by comparing it to other evidence. No error in either fact finding, application of the law or discretion was made out and as a result the Member’s decision was confirmed. ([136])