Appeal Case Summaries

SB v XFPL [2022] NSWPICPD 7

WORKERS COMPENSATION – Section 4 of the 1987 Act‑– injury arising out of employment

Snell DP

1 March 2022

Facts

This appeal related to proceedings under ss 25 and 26 of the 1987 Act in respect of the death on 7 March 2016 of MMB (the deceased). The multiple appellants, SB, JB, RB and LA are the children and widow of the deceased. The deceased was employed by XFPL (the respondent) as a sales representative and business development manager. MKB (the deceased’s brother) was the “owner/director” of the respondent.

The respondent contracted with another company, ISPL, to supply “signage and restorations” to a service station site in country New South Wales that was owned by the respondent. There were delays in the completion of this work which led to friction between the respondent and ISPL. The deceased had dealings with CS, the “manager and owner” of ISPL, relating to these delays.

MKB stated that on Friday 4 March 2016 a project manager with ISPL hung up during a telephone call from the deceased, who was chasing up the works. That day the deceased attended ISPL’s premises which, like the respondent’s, were at Ingleburn in the Sydney Metropolitan area. On his return to the respondent’s premises the deceased told MKB that a sign, which was part of the outstanding works, would be delivered on the following Monday, 7 March 2016.

On 7 March 2016 CS telephoned the deceased and requested that he attend ISPL’s premises. After doing so, the deceased telephoned his brother MKB to say a gun had been pulled on him and a shot fired. MKB subsequently attended ISPL’s premises with the respondent’s operations manager and another brother. The deceased also returned to ISPL’s premises. CS’s partner (WW) and the partner’s father were present with CS.

Words were exchanged. WW opened fire with a firearm. The deceased was killed and his two brothers were wounded. Police attended and there was a siege situation, during which WW took his own life with the gun.

Before the Member, the issues were identified as whether the deceased’s death resulted from ‘injury’ within the meaning of s 4 of the 1987 Act, and whether employment was a substantial contributing factor to injury. The application was formally amended to add a claim for interest. It was noted that a claim for weekly compensation was also being brought in respect of the infant dependants, and that apportionment between the claimed dependants was agreed.

The Member issued a Certificate of Determination dated 14 May 2021 in which he entered an award for the respondent employer. The deceased’s children and widow (SB, JB, RB and LA) each lodged their own appeals. All four appeals were heard together, with LA’s appeal providing the “lead” submissions.

The issues on LA’s appeal (which SB and JB also relied upon) were whether the Member erred in:

(a) fact and law when he found that the injury did not occur in the course of employment (Ground 1);

(b) fact and law when he failed to properly consider whether there was a causal connection between the deceased’s visit to ISPL on 7 March 2016 and his subsequent visit to the premises of ISPL (Ground 2);

(c) law when he failed to give proper reasons for finding that the purpose of the second attendance at ISPL was in no way connected to the employment having found that the deceased’s purpose in attending was a result of the conduct of WW during the earlier work-related visit (Ground 3);

(d) law when he failed to give proper reasons why there was no chain of causation between the work-related activities on 4 March 2016 and the morning of 7 March 2016 with the fatal shooting on the afternoon of 7 March 2016 (Ground 4), and

(e) fact and law when he found that the injury causing death did not arise out of employment (Ground 5).

RB’s appeal also raised three additional grounds:

(a) the Member erred in law in determining that the deceased worker did not sustain an injury “arising out of” employment with the respondent;

(b) the Member committed an error of law when he determined there was no connection between the deceased worker’s employment and his injury, and

(c) the Member committed an error of fact when he determined there was no connection between the deceased worker’s employment and his injury.

Held: The Certificate of Determination dated 14 May 2021 was revoked. There was a finding that the deceased suffered injury on 7 March 2016, arising out of his employment with the respondent, that resulted in his death. The matter was remitted to a different Member for determination of those issues that remain, consistent with the reasons in this determination.

Consideration and the test of ‘arising out of’ employment

1. Snell DP said that, contrary to the respondent’s submissions, Grounds 2, 3 and 4 related to the issues of both whether the injury was in the course of employment and whether it arose out of employment. Ground 1 specifically related to the issue of whether the fatal injury occurred in the course of the deceased’s employment. Grounds 2, 3 and 4 and the submissions contained multiple references to causation issues, and alleged errors, which were relevant to whether the fatal injury arose out of the deceased’s employment. ([75])
2. The fourth appellant’s grounds related to the issue of whether the injury was one ‘arising out of’ the employment. The additional submissions made by the first appellant (over and above joining in the third appellant’s submissions) went to a discrete issue of whether the case was run by the respondent in a fashion outside the dispute notice. It was convenient that the Deputy President dealt initially with the issue of whether the fatal injury occurred in circumstances such that it ‘arose out of’ the employment’. ([76]–[77])
3. Snell DP referred to and discussed various authorities with respect to the test of ‘arising out of’ employment. ([78]–[81])

(Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd [2009] NSWCA 324 (Badawi); Tarry v Warringah Shire Council (1974) 48 WCR 1 (Tarry); Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; 41 SR (NSW) 119 (Nunan); Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566, and The Star Pty Ltd v Mitchison [2017] NSWCA 149 discussed)

Was there error in the finding that the causal chain was severed?

4. The Member said it was common ground that the deceased was in the course of his employment when he initially attended ISPL on 7 March 2016. In dealing with whether the fatal injury occurred in the course of employment, the Member noted a submission by the respondent employer that “when [WW] fired the shot during the deceased’s first visit to [ISPL] on 7 March 2013 [sic, 2016], the character of the dispute changed, and what followed had no factual connection or association with the employment”. The Member found that the deceased attended ISPL on the second occasion for the purpose of confronting WW about his earlier conduct or to support his brothers in the confrontation. The Member found the deceased was not engaged in the activities of his employment at the time of his fatal injury and that the deceased’s actions in returning to ISPL was outside the scope of his employment. Consequently, the Member found that there was no adequate temporal connection between the circumstances of the fatal injury and the deceased’s employment. ([84], [91]–[92])
5. The Member dealt with whether the injury arose out of the employment. He said:
   “Where it is found that the sphere or scope of the employment of a worker did not include the particular acts which he was doing at the time when he was injured, the injury cannot arise out of the employment (Wheeler v Commissioner for Railways [1970] WCR (NSW) 34).”
   
   The Member relied on Wheeler in concluding that the fatal injury did not arise out of the employment. ([93]–[94])

6. Wheeler was a case involving whether a “fireman acting engine-driver” in the employ of the NSW Railways was acting in the course of his employment, when he was acting as a guide to a guard (also an employee) who was reversing engines on a railway line. The Commissioner who decided the matter at first instance concluded the worker was not acting in the course of his employment when he was guiding a guard, who was backing a van and two engines on a line. Jacobs JA (Holmes and Mason JJA agreeing) said the Commissioner had neglected to mention whether the activity involved actions arising out of the employment. His Honour said this was not a specific ground of appeal, nor referred to in detail in the submissions, “it was mentioned and it is desirable to deal with it”. His Honour said “what was not part of the employment to hazard to suffer, or to do cannot well be the cause of an accident arising out of the employment”. His Honour described the question as “one of fact for the Commission”. ([95])
7. Deputy President Snell could not see that the decision of Wheeler went further than saying that the employment activities, that represent the ‘genesis’ of the causal chain, need to fall within the “sphere or scope of the employment”. The approach taken in the reasons in the current matter, to the application of Wheeler, would tend to restrict the ‘arising out of’ test to circumstances where each step in the causal chain also occurred ‘in the course of employment’. Such an approach was too restrictive and was inconsistent with the authorities referred to above (see para. [3] above). The decision in Wheeler should be considered in concert with those authorities. ([96])
8. The “reasons stated above” in [114] and [115] of the reasons were, in context, a reference to the reasons given for concluding that the injury did not occur in the course of employment. On the Member’s findings, the chain of causation was broken when the deceased attended at ISPL on the afternoon of 7 March 2016, when he was found to be not in the course of his employment. This was inconsistent with the decision in Tarry. Tarry makes it clear that an injury can arise out of employment, notwithstanding that the worker was not in the course of employment when the injury was sustained. This is not restricted to ‘assault cases’ but is an application of settled principles. ([78]–[79], [84], [97])

(Nunan and Badawi applied)

9. An injury can arise out of employment notwithstanding that a worker has removed him or herself from the course of employment. Snell DP accepted the third appellant’s submission that it is not necessary that each link in the causal chain be in the course of employment. It was appropriate to also have regard to what the deceased did on the second attendance at ISPL on 7 March 2016. He entered ISPL’s premises, which he had already attended twice before in connection with the matter of following up the works, including the sign. The Member properly accepted that the two previous attendances were work-related. The deceased did so, on the final occasion, in the company of his immediate superior at work (who was also his brother) together with another employee of the respondent, during regular working hours. ([100]–[101])
10. In the current matter, the question of whether there was injury arising out of employment involved a consideration of whether, adopting a commonsense approach, there was a causative element to the relationship between the deceased’s employment and the fatal injury. Did the employment cause or to some material extent contribute to the fatal injury? As the third appellant correctly submitted, an injury may have more than one cause. In asking the question which he did, in the reasons at [112] (see para [5] above) the Member asked the wrong question. This constituted error. The attempt to distinguish the decisions in Tarry and Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6 (and Davis v Mobil Oil Australia Limited [1988] 4 NSWCCR 8) for the reasons given also constituted error. The identified errors affected the result. The appeal in respect of the finding relating to ‘injury’ was upheld. The ‘injury’ issue could, in the circumstances, be dealt with by reference to the allegation of injury ‘arising out of’ employment. It was not necessary that the Deputy President further deal with the allegation that there was error in the Member’s finding regarding injury ‘in the course of’ employment. ([93], [102])

Disposition of the appeal

11. The identified errors affected the result. They constituted appealable error. It was necessary that the decision of the Member be revoked. The decision of the Member dealt only with the contested ‘injury’ issue. It did not deal with whether s 9A of the 1987 Act was satisfied, nor with the issues of interest, apportionment, and any weekly entitlement in respect of the children of the deceased. It was appropriate for the Deputy President to re-determine the issue of whether the deceased’s death resulted from injury arising out of the employment. It was appropriate that the other outstanding issues be remitted for determination by a Member. ([104])

Re-determination of the ‘injury’ issue

12. The third appellant submitted that the factual sequence supports the conclusion that there is a “clear line of causation”. The fourth appellant submitted that there was no break in the causal chain. These submissions are correct. Deputy President Snell accepted that, even if there were other reasons (such as dissatisfaction with the behaviour of WW) that motivated the deceased’s attendance at ISPL, these did not break the clear causal chain that exists from the attendance on 4 March 2016 to the injury suffered by the deceased on 7 March 2016, which resulted in his death. The sequence of events was properly viewed as a continuum. On a commonsense consideration of the causal chain, each of the events materially contributed to the next. ([110])

Conclusion

13. There was a finding that the deceased suffered injury on 7 March 2016, arising out of his employment with the respondent, that resulted in his death. It was necessary that the Certificate of Determination dated 14 May 2021 be revoked. The matter was remitted to a different Member for determination of those issues that remain, consistent with these reasons. ([111])

McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8

WORKERS COMPENSATION – Section 9A of the 1987 Act – Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 considered and applied

Wood DP

4 March 2022

Facts

This appeal concerned a claim for compensation made by the dependants of Nicholas McGrath pursuant to ss 25 and 26 of the 1987 Act. Mr McGrath died in the early hours of the morning on 21 September 2019 while on a trip with a group of co-workers to the Grand Prix car races in Singapore, the costs of which had been paid for by the respondent employer (PM Electric).

PM Electric denied liability on the basis that the injury causing death did not occur in the course of, or arising out of, Mr McGrath’s employment in accordance with s 4 of the 1987 Act and Mr McGrath’s employment was not a substantial contributing factor to that injury, as required by s 9A of the 1987 Act. There was no dispute that Mr McGrath’s wife, daughter and son, were dependent upon the deceased at the relevant time. Ms McGrath commenced proceedings in the Commission and Mr McGrath’s daughter and son were joined as respondents.

The Member determined that Mr McGrath was in the course of his employment when the injury causing death occurred, but that his employment was not a substantial contributing factor to the injury. Ms McGrath appealed the decision and the two dependent children also each lodged separate appeals. The three appeals were heard together.

Deputy President Wood confined the issues on appeal to the following grounds, being whether the Member erred in:

(a) law by misdirecting herself in determining the question of fact to be answered as to whether the team building activity engaged in, including the consumption of alcohol, was required or expected (in the sense of compulsory) rather than whether the practical reality of the circumstances was that Mr McGrath found himself reasonably required or expected to participate, so that the cause of the injury arose out of or in the course of employment (Ground 1 of Ms McGrath’s appeal);

(b) law in the finding of fact that the incidental team building in Singapore, including the consumption of alcohol, was not activity arising out of or in the course of employment which contributed to the deceased’s injury (Ground 2 of Ms McGrath’s appeal);

(c) law in finding that Mr McGrath’s employment was not a substantial contributing factor to his injury (Ground 4 of Ms McGrath’s appeal);

(d) mixed fact and law in discounting evidence in relation to the issue of the “employment concerned” in s 9A of the 1987 Act (Ground 1 of Mr McGrath’s daughter’s appeal);

(e) misdirecting herself and failing to properly engage with the employment activity concerned, in particular the evidence of the employer and the co-workers, before considering s 9A of the 1987 Act (Ground 2 of Mr McGrath’s daughter’s appeal);

(f) mixed fact and law in failing to give proper and adequate regard to, and ignoring evidence in relation to, the issue of the “employment concerned” as required by s 9A. That is, that Mr McGrath in fact was not fettered by his employer in terms of the activities in Singapore including that of the consumption of alcohol and attending the Substation and Timbre venues by himself (Ground 1 of Mr McGrath’s son’s appeal), and

(g) misdirecting herself by not fully and adequately engaging with the nature of the employment concerned before considering the causative and disentitling provisions of s 9A of the 1987 Act (Ground 3 of Mr McGrath’s son’s appeal).

Held: The Member’s Certificate of Determination dated 8 June 2021 was revoked and the matter was remitted for re-determination by another Member.

Consideration

1. The Member found in the appellants’ favour in respect of the issue of whether Mr McGrath’s injury occurred in the course of his employment in accordance with s 4 of the 1987 Act. She was not satisfied that the injury was suffered during an interval or interlude between two periods of employment. She determined that Mr McGrath “was in the course of his employment during the whole of the trip to Singapore.” She then proceeded to determine the issue of whether Mr McGrath’s employment was a substantial contributing factor to the injury, that is, the haemorrhage causing his death. Such a finding involves an evaluation of the nature of the causal connection and usually constitutes a finding of fact. A conclusion on causation is “a fact-laden conclusion which the courts have been told must be based on common sense.” In order to make such a determination, the Member was required to give consideration to all of the evidence before her and the inferences that could be drawn from those facts. Such findings of fact will not normally be disturbed if they have rational support in the evidence. Thus, in order for the appellants to succeed on this appeal, they had to establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. Or, as Basten JA observed in Najdovski v Crnojlovic [2008] NSWCA 175 (Najdovski) the basis for the final conclusion remained impenetrable. ([111]–[115])

   (Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[2009] NSWCA 324 (Badawi); Fox v Percy [2003] HCA 22; 214 CLR 118 ; Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156, and Najdovski applied)

2. There was no challenge to the Member’s determination that Mr McGrath was in the course of his employment for the entire period that he was in Singapore. It had to follow that, in the absence of an interlude or an interval in that employment, the injury occurred in the course of Mr McGrath’s employment. There was no dispute that the injury suffered by Mr McGrath was a wound to the artery in his right wrist that was caused by Mr McGrath breaking through the window in the Substation building, resulting in haemorrhaging that caused his death. While the fact of the injury occurring in the course of employment is not of itself determinative, it is relevant. ([116])

   (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 applied)

3. In order to satisfy s 9A of the 1987 Act, a person claiming compensation must establish that there was a causal connection which is “real and of substance” between the “injury” and the “employment concerned”. The reference in s 9A(1) to “the employment concerned” being a substantial contributing factor to the injury is not a reference to the fact of being employed, but to what the worker in fact does in the employment. Thus, in the circumstances of this case, the fact that Mr McGrath was a construction manager employed by PM Electric was not pertinent to the identification of the “employment concerned” in the context of s 9A. ([118])

   (Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260, and Mercer v ANZ Banking Group [2000] NSWCA 138 (Mercer) applied)

4. Each of the appellants challenged the Member’s conclusions reached in respect of the “employment concerned.” Ms McGrath relied on Roncevich v Repatriation Commission [2005] HCA 40 as authority to say that the practical reality of the circumstances surrounding the injury included consideration of the social, cultural and environmental norms involved in such an event. She said that those factors indicated that Mr McGrath was required or expected to participate in the activities, including the consumption of alcohol. Mr McGrath’s daughter submitted that the Member misstated the evidence when she determined that each person in the group was only permitted to do group activities, so that an injury occurring outside of the group was not compensable. Mr McGrath’s daughter further submitted that, in coming to the conclusion that the motivation for the trip was team building based around the Grand Prix, the Member ignored or failed to adequately engage with the evidence provided by Mr Murray (the principal of PM Electric) and the other members of the group. ([119]–[120])

5. Mr McGrath’s son submitted that the Member found that Mr McGrath was in the course of his employment during the whole time that he was in Singapore and that the injury was not suffered in any interlude or interval in that employment. He said that the Member then erroneously found that the nature of the employment did not include the consumption of alcohol or the breaking of a window, effectively finding that an injury occurring outside of a group activity was not compensable. ([121])
6. In response, PM Electric submitted that the Member took into account the evidence, applied the relevant authorities, and arrived at a finding that was open to her, namely that the purpose of the trip was to attend the Grand Prix. Thus, it was said there was no error. PM Electric referred to the Member’s conclusion that, while it might have been expected that alcohol would be consumed, she was not satisfied that the employment required or expected Mr McGrath to consume large quantities of alcohol. ([122])
7. Wood DP held that the difficulty with PM Electric’s submissions and the Member’s conclusion was that there was a large body of uncontradicted evidence leading to the fact that the purpose of the trip went beyond attending the Grand Prix as a group. Mr Murray advised in the email dated 23 October 2019 that the purpose of the trip was to reward the group for their hard work, give the group the opportunity to experience Singapore, and to attend the Grand Prix. Mr Allen (a service foreman employed by PM Electric) considered that the trip was to reward the employees and perhaps was a team building exercise. Mr Fitzgerald (a service foreman employed by PM Electric) stated that the trip was a reward for hard work and for the purpose of team bonding, as did Mr Pogue (a senior estimator employed by PM Electric) and Mr Deuchar (an estimator employed by PM Electric). Ms McGrath remarked that PM Electric would often provide rewards for good performance. ([123]–[124])
8. The Deputy President held that while the Member referred to that evidence, she did not explain why she preferred the view that the purpose of the trip was a team building event involving attendance at the Grand Prix as a group, other than to say it was the only activity within the scope of the trip that the group had an obligation to attend. The evidence from Mr Murray and confirmed by Mr Allen and Mr Fitzgerald was that the men were entitled to do as they pleased, and Mr Murray indicated that they were to “enjoy Singapore.” When read together, the evidence provided by all of the men confirmed that members of the group came and went during the evening at the Grand Prix, left at different stages of the evening and separated into smaller groups during the evening and again for breakfast. Such conduct was performed with the express approval of Mr Murray. Further, the activities throughout the day and in the evening invariably involved the consumption of alcohol, including by Mr Murray, to the extent that at some venues, the men would shout the rest of the group by buying rounds of beers. ([125])
9. The Member appeared to discount those activities because they were not undertaken in accordance with a set plan but gave no reason why those activities did not fall within the ambit of the purpose of the trip, in circumstances where she had already determined that Mr McGrath was in the course of his employment for the entire trip. The Member proceeded to observe that: “For the substantial part of the evening, Mr McGrath was away from the other members of the group and not participating in the activity which was the purpose of the trip.” The Deputy President held that this observation was reflective of the very error identified in Badawi. She was of the view that the Member failed to adequately deal with the substantial body of evidence that, when properly considered, might have indicated that the employment concerned went beyond any expectation to attend the Grand Prix. ([126]–[129])
10. In accordance with the observations of Basten JA in Badawi, and in the context of having determined that Mr McGrath was in the course of his employment for the entire trip, the Member asked herself the wrong question when she determined that employment was not a substantial contributing factor because Mr McGrath was performing what she considered to be a non-work activity when he was injured. Further, by identifying the attendance at the Grand Prix as a group as the “essential incident” (as referred to by Basten JA) of the trip, she failed to take into account the factors which may have been incidental to the essence of the “employment concerned.” ([130])
11. It followed that the Member erred in respect of her consideration of the “employment concerned,” by disregarding material evidence and asking herself the wrong question when considering whether s 9A(1) of the 1987 Act was satisfied. Those errors had infected the Member’s reasoning in respect of whether the employment concerned was a substantial contributing factor to Mr McGrath’s injury, as required by s 9A(1) of the 1987 Act. The grounds of appeal relied upon by Ms McGrath (Grounds One, Two and Four), Mr McGrath’s daughter (Grounds One and Two) and Mr McGrath’s son (Grounds One and Three) succeeded in establishing error on the part of the Member in respect of her determination in relation to the “employment concerned” for the purpose of s 9A(1) of the 1987 Act. ([131])

Conclusion

12. The Member’s reasons for her finding that Mr McGrath was in the course of his employment while on the trip to Singapore, or what constituted his “employment” in those circumstances, were not explicit. The difficulty with a determination as to whether s 9A is satisfied is that it involves a consideration of the “employment concerned.” In Badawi, Allsop P, Beazley JA and McColl JA reviewed the earlier Court of Appeal decision in Mercer in respect of s 9A and accepted a number of propositions that could be distilled from that decision. Relevantly, their Honours accepted that the phrase “employment concerned” in s 9A(1) has the same meaning as “employment” in the phrase “arising out of or in the course of employment.” That is, what constituted Mr McGrath’s employment for both s 4 and s 9A of the 1987 Act required identification, which fell outside the ambit in this case of the correction of error referred to in s 352(5) of the 1998 Act. It was therefore necessary and appropriate to revoke the entirety of the Member’s Certificate of Determination and remit the matter to another non-presidential member for re-determination. ([139]–[140])

Usher v Coffs Harbour City Council [2022] NSWPICPD 9

WORKERS COMPENSATION – principles applicable to disturbing a primary decision maker’s factual determination – Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, Najdovski v Crnojlovic [2008] NSWCA 175 considered and applied – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 – whether injury materially contributed to the need for surgery – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied

Wood DP

10 March 2022

Facts

The appellant worker was employed by the respondent as an operations supervisor. The respondent had the practice of offering all of its staff influenza vaccinations annually. Normally, the vaccinations would take place on the respondent’s premises, however, because of the COVID restrictions in 2020, the vaccinations were administered by Coffs Harbour Medical Centre at a pop-up drive through location.

The appellant arranged for an appointment to receive the vaccination at 2.30pm on 9 April 2020, which was 30 minutes prior to her usual daily finishing time. She received the vaccination in her right shoulder, then went directly home, which was in accordance with the respondent’s instructions. At the time the nurse was administering the vaccine, the appellant queried the area in which the nurse intended to insert the needle. Within an hour of receiving the vaccination, the appellant suffered the onset of severe right shoulder pain. The following day was Good Friday. On Saturday 11 April 2020, the appellant consulted her general practitioner, Dr Cathryn Platt. She continued to experience pain over the long weekend and consulted a different general practitioner, Dr Colin Leal, on 14 April 2020. She attended work the following day and reported her complaints. The respondent sent her back to the Coffs Harbour Medical Centre, who arranged x-rays and an ultrasound investigation. The appellant then underwent an ultrasound guided steroid injection on 28 April 2020 and an MRI scan on 14 May 2020.

The appellant continued to experience severe pain in the right shoulder and was referred to Dr Alex Jovanovic, orthopaedic surgeon, who performed a right rotator cuff repair on 16 June 2020. She returned to work on or about 27 July 2020.

The appellant made a compensation claim for weekly payments and treatment expenses, including the costs of and incidental to the surgery to the right shoulder. Liability was denied on the basis that:

(a)     the appellant had not suffered a personal injury arising out of or in the course of her employment within the meaning of s 4(a) of the 1987 Act;

(b)     the appellant’s employment was not the main contributing factor to an aggravation, acceleration, exacerbation or deterioration of any pre-existing disease in her right shoulder, as required by s 4(b)(ii) of the 1987 Act;

(c)     the appellant’s employment was not a substantial contributing factor to her right shoulder condition (s 9A of the 1987 Act), and

(d)     any incapacity suffered by the appellant and any need for treatment of the right shoulder did not result from a work related injury.

The Member issued a Certificate of Determination in which she found in favour of the appellant, except for finding that the need for surgery to the right shoulder did not result from the injury. As a consequence of that finding, the Member found that there was, therefore, no entitlement to weekly payments from 16 June 2020 to 27 July 2020 and the costs of and incidental to the surgery were not compensable. The appellant appealed those adverse findings.

The sole ground of appeal was whether the Member erred in “fact and law in that the evidence established a commonsense causal connection between the injury received by the applicant on 9 April 2020 and the need for surgery on 16 June 2020, [that is] that the subject injury materially contributed to the need for such surgery”.

Held: The Member’s Certificate of Determination dated 21 June 2021 was confirmed.

Consideration

1. The decision that the Member was required to make was a decision as to causation. That is, a factual decision requiring consideration of the available evidence and the inferences that could be drawn from those facts. In order for the appellant to succeed in this appeal, she had to show that the Member overlooked material facts, or gave undue or too little weight to the evidence, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that it established that the Member’s decision was wrong. ([63]–[67])

   (Najdovski v Crnojlovic [2008] NSWCA 175; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Whiteley Muir); 10 DDCR 156, and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Branir) applied)

2. The appellant’s submissions focussed on the assertion that because the onset of symptoms followed the injury and persisted up to the surgical intervention, the necessary causal connection was established. The appellant also relied upon the evidence of Dr Doig (general orthopaedics and trauma surgeon qualified by the appellant) in respect of causation. ([68])
3. Wood DP held that the contemporaneity of complaints is not always determinative of whether a worker suffered injury. The contemporaneity of complaints is a matter to be taken into account, however it is not always sufficient of itself to prove the causal connection. The causal connection requires a factual determination arrived at on the basis of the evidence, including the evidence of the medical experts. ([69]–[70])

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

4. Applying the principles laid down by Barwick CJ in Whiteley Muir, the opinions of Dr Jovanovic (treating orthopaedic surgeon) and Dr Clayton (orthopaedic surgeon qualified by the respondent), together with the evidence contained in the other documentation, was not so outweighed by other probabilities, or so contrary to the facts that the Member’s acceptance of those opinions and her conclusions reached in respect of the available evidence could be said to be wrong. The appellant did not point to any erroneous reasoning in relation to the manner in which the Member assessed that evidence and her acceptance or rejection of the expert opinions. At its highest, the appellant’s contention was that, on the basis of the onset of symptoms within an hour of injury, the Member ought to have come to a different view. That, of course, was not sufficient to establish error on the part of the Member in a factual determination in relation to causation. It is not sufficient to disturb the Member’s finding merely because an appeal court may have a preference of view for some fact or facts contrary to that reached by the trial judge. Or, as the respondent submitted, “minds might differ.” ([71]–[72])
5. The Member was satisfied that the appellant suffered an injury to her right shoulder on 9 April 2020. She did not accept that it consisted in a rotator cuff injury, or an aggravation of the pathology in the rotator cuff. She made her determination on the basis of the opinion of Dr Jovanovic, which was supported by the opinion of Dr Clayton. Dr Jovanovic took the view that there was no causal connection between the “classic” rotator cuff symptoms and the injury, which he considered to be a mere coincidence. He formed that view by taking into account the mechanism of injury, as did Dr Clayton. There was no error on the part of the Member in respect of that finding. A determination that the treatment was reasonably necessary as a result of the injury, or that the injury materially contributed to the need for treatment requires supportive medical evidence. The Member rejected the opinion of Dr Doig for the reasons set out in her determination. There was no other medical evidence that supported the appellant’s case. ([75])
6. The appellant asserted that because she had been experiencing symptoms since the injury, it could not be said that the injury played no role in the need for surgery. In the face of the accepted medical evidence, that proposition could not be accepted. Dr Jovanovic was of the firm view that the injury played no role in the presentation of “classic” symptoms of a rotator cuff tear. The onus was on the appellant to establish that the injury materially contributed to the need for surgery, which she failed to achieve. ([76])
7. The appellant also contended that the Member fell into error by focussing on the pathology that was to be addressed by the surgery. In the context of the surgery being necessary to address the rotator cuff pathology and that Dr Jovanovic described the appellant’s symptoms as “classic” symptoms of a rotator cuff tear, it was not at all surprising that the Member focussed her attention on whether those symptoms sought to be addressed by the surgery were referrable to the injury. ([77])
8. It followed that the appellant had failed to establish error on the part of the Member and the Certificate of Determination was confirmed. ([78])

Yang v Industrie Clothing Pty Limited [2022] NSWPICPD 10

WORKERS COMPENSATION – weight of the evidence – evidence of clinical notes – Mason v Demasi [2009] NSWCA 227 considered and applied

Parker SC ADP

16 March 2022

Facts

On 29 March 2017 the appellant, Mr Yang, fell on stairs leading to an Industrie Clothing shop at Rosebery. At the time, the appellant was using a hand trolley ladened with four boxes. He slipped and lost control of the trolley resulting in injury. The appellant claimed lump sum compensation to the right upper extremity and the cervical spine. Claims were also made in respect of injury to the thoracic spine or upper back, but these were deleted from the application at the time of arbitration following agreement by the parties. The respondent accepted that the appellant suffered an injury to the right shoulder, but disputed injury to the cervical spine.

On 7 June 2021, the Member delivered oral reasons and in a Certificate of Determination the Member found that the appellant had not established on the balance of probabilities that he sustained injury to the cervical spine on 29 March 2017. The Member further found that as the remaining claim for permanent impairment did not exceed 10% whole person impairment, the application was dismissed. The worker appealed.

The issues on appeal were raised in the following grounds:

(a) the Member misapplied authority on the correct approach to clinical notes and misdirected himself to the evidence accordingly (error of law) (Ground 1);

(b) failure to place appropriate weight as to the appellant’s circumstances (error of fact) (Ground 2), and

(c) failure to decide the case at hand (error of law) (Ground 3).

Held: The Member’s Certificate of Determination dated 7 June 2021 was confirmed.

Ground 1 – The Member misapplied authority on the correct approach to clinical notes and misdirected himself to the evidence accordingly (error of law)

1. The appellant submitted that although the Member cited the leading authorities and what is required by a tribunal in a personal injury case in approaching clinical notes, he misapplied those cases “by misdirecting himself as to the facts of the particular case at hand”. The appellant conceded that in many cases the correct approach is to determine a case based on clinical notes. However, that approach is one to be exercised with caution. The appellant submitted that was because clinical practitioners do not have a forensic purpose in mind when doing their job which is to provide medical treatment – not to assist lawyers in proving or disproving a case. ([36]–[38])
2. In Mason v Demasi [2009] NSWCA 227 (Mason) Basten JA made the point that discounting the appellant’s oral testimony on the basis of accounts given to various health professionals “which appeared inconsistent either with each other, or with her oral testimony or both” needed to be approached with caution for a number of reasons, namely:

(a)     the health professionals who took the history had not been cross-examined;

(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c)     the record did not identify any questions which may have elucidated replies;

(d)     the record is likely to be a summary prepared by a health professional, rather than a verbatim recording, and

(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning will each affect the content of the history. ([55])

3. In both Mason and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 importance was attached to the fact that the medical professionals were not cross-examined. In that context it was important that the evidence against which the medical history was said to show inconsistency derived from the oral evidence of the plaintiff. ([56])
4. The Member found and it was not challenged that apart from Dr Bodel (orthopaedic surgeon qualified by the appellant), there was no record of a complaint of neck injury in any of the material provided by or from the health professionals. Furthermore, the Member regarded Dr Bodel’s reports as being inconclusive and somewhat ambiguous. ([57])
5. The treating general practitioner was not told by the appellant on the appellant’s own case of injury to the neck. In his statement dated 11 May 2021 the appellant said: “Because the pain in my neck was not as painful as my right arm and right shoulder, I did not mention it to Dr Prasad Abeydeera”. The Member made that point when he said: “Similarly, the notes of the medical practice where the [appellant] was treated are remarkable for the complete absence of the complaint of neck pain or a record of neck examination.” ([61]–[62])
6. Acting Deputy President Parker SC held that it was not merely the absence of a record as was contended for by the appellant in his submissions. The appellant’s evidence was that he did not tell Dr Abeydeera of the injury. This was not a case where the complaint was that the medical professional failed to record what s/he has been told in the consultation. In this case the appellant conceded he did not tell Dr Abeydeera of injury to the neck. He did not elucidate the position so far as the other medical professionals were concerned but it was not disputed that apart from Dr Bodel, they had no record of injury to the neck. The explanation of why the appellant failed to tell Dr Abeydeera was not really to the point. The absence of a complaint of injury to the neck in the notes and reports meant that the notes and reports did not provide support for an affirmative finding of injury. ([63]–[64])
7. It was apparent that the Member was correctly directed to the explication of the relevant principle and that he had the cases in which the principle was applied in mind when he made his determination. The evidence demonstrated on the probabilities that no complaint with respect to the neck was made until Dr Bodel’s first examination on 16 August 2018. The evidence of the respondent, in particular Dr Kleinman (orthopaedic surgeon qualified by the respondent), was that there was no injury to the neck. The clinical notes and the reports therefore supported an inference that favoured Dr Kleinman’s opinion. ([66]–[67])
8. The Acting Deputy President held that the Member explicitly had regard to the caution necessary when drawing inferences from the clinical notes. He did not misdirect himself as to the necessity for caution to be observed when considering the clinical notes. It was open to the Member to prefer the view of Dr Kleinman and to reject the appellant’s belated assertion of injury to the neck. The appellant had not shown error of fact, law or discretion. This ground of appeal was dismissed. ([68])

Ground 2 – Failure to place appropriate weight as to the appellant’s circumstances (error of fact)

9. The appellant submitted that the Member erred in failing to have sufficient regard to the statements of the appellant dated 9 March 2021 and 11 May 2021. Those statements were said to show that the focus on the accepted right shoulder injury “early on in the course of treatment” explained the absence of complaint of injury to the neck. The appellant said there was no positive evidence in the clinical notes to exclude an injury to the neck. It was submitted that the appellant discharged the onus of proof by giving an account which was not contradicted by other material. ([69]–[71])
10. The passage at the hearing agreed to by the Member, that the “appellant’s memory or ability to record events” appeared to have improved over time, was indeterminate and hardly advanced in its terms the proposition sought to be established before the Member, namely that of injury to the neck. In the context of statements made to support his claim before the Commission, the appellant gave statement evidence seeking to explain why he had not complained to the treating doctors about the injury to his neck. The Member was not required to accept that explanation. There was other evidence, for example Dr Kleinman, that the appellant had not sustained injury to the neck. Parker SC ADP held it was open to the Member to conclude notwithstanding the appellant’s statement that the reason there was no record of complaint was that he did not sustain injury to the neck on 29 March 2017. ([76]–[77])
11. The Acting Deputy President held it was for the appellant to establish by means of satisfactory evidence that he had sustained injury to the neck. Part of the reasoning of the Member for not accepting that the appellant had sustained an injury to the neck was the absence of a recording of complaint in any of the medical evidence except for that of Dr Bodel. The appellant gave evidence in his statements of why he did not in fact complain to Dr Abeydeera of the injury to the neck. That explanation was recognised by the Member who did not regard it as sufficient to overwhelm the inference against the allegation of injury to the neck. It was open to the Member to draw the inference he did concerning the occurrence of the alleged injury to the neck. ([78]–[80])
12. The fact that another trier of fact may have been persuaded by the statement and prepared to draw an inference in favour of the appellant is insufficient. There was a choice between conclusions equally open and balanced as to whether or not the inference of injury to the neck should or should not be drawn. The conclusion of error is not arrived at merely because of the preference of a view of the appeal court for some fact or facts contrary to that reached by the trial judge. (This was not to suggest that Parker SC ADP would have drawn a different inference.) In his view, the inference drawn by the Member was not only available but was correct. Ground 2 of the appeal was not made out and was dismissed.

(Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[2001] FCA 1833 applied)

Ground 3 – Failure to decide the case at hand (error of law)

13. The appellant submitted in support of this ground that the Member erred in law in failing to exercise the jurisdiction provided by s 105 of the 1998 Act for the reasons developed as to Ground 2. In the Acting Deputy President’s view, the Member engaged with the evidence, the appellant’s submissions and exercised the jurisdiction provided by s 105, in making a determination adverse to the appellant that there was not injury to the neck. Acting Deputy President Parker SC held that the Member exercised the jurisdiction of the Commission to make the determination and no error was demonstrated. ([83]–[86])

Patterson v Secretary, Department of Planning, Industry and Environment [2022] NSWPICPD 11

WORKERS COMPENSATION – Sections 15 and 16 of the 1987 Act – deemed date of injury – Alto Ford Pty Ltd v Antaw [1999] NSWCA 234, Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277 discussed

Wood DP

25 March 2022

Facts

The appellant worker was employed as a cartographer, working in various NSW Government entities over many years until 1988, when she took time away from paid employment to start a family and take care of her young children. In 1993, the appellant returned to the workforce as a cartographer with the Central Mapping Authority, initially on a part-time basis. In 1999 she became a permanent full-time employee of the Central Mapping Authority. During her employment, the organisation in which the appellant worked underwent several name changes and was attached to various New South Wales Government departments.

On or about 1 April 2009, the appellant lodged a claim for weekly payments and treatment expenses in respect of symptoms arising in her right shoulder and neck which she attributed to repetitive work in the nature of manually plotting and updating mapping software from old maps and plans. The claim for compensation was accepted, and the appellant was paid weekly compensation for a short period, after which she returned to her normal duties. She continued to receive treatment for symptomatic relief.

On 6 August 2018, the appellant lodged a further claim for weekly payments following a significant worsening of her symptoms. The claim was accepted, but weekly compensation was paid at the rate applicable to the earlier deemed date of injury, 1 April 2009. On 20 August 2020, the appellant made a lump sum claim pursuant to s 66 of the 1987 Act in respect of 29% whole person impairment. The respondents’ insurer accepted the assessment of 29% whole person impairment but calculated the compensation entitlement on the basis of a deemed date of injury of 1 April 2009.

The appellant commenced proceedings in the Commission against the Secretary, Department of Planning, Industry and Environment (her employer at the time of the 2009 injury). She claimed an increase in the weekly payments and in the lump sum entitlement on the basis that those entitlements should have been calculated in accordance with a deemed date of injury of 6 August 2018. At the hearing the first respondent’s counsel advised that, as at 6 August 2018, the appellant’s employer was the Secretary, Department of Customer Service.

The Member directed the parties to file written submissions in relation to the identity of the appellant’s employer and in relation to the substantive issues in the matter. She issued a Certificate of Determination in which she amended the pleadings to add the Secretary, Department of Customer Service as a second respondent and determined that the correct date of injury for both the weekly payments and the lump sum claim was 1 April 2009. The appellant appealed that decision.

The issues on appeal were whether the Member erred:

(a) in failing to find that the appellant suffered an aggravation of an injury which was of such a nature as to be contracted by a gradual process and, by reason of s 16 of the 1987 Act, was deemed to have occurred at the time of incapacity commencing 6 August 2018 (Ground 1);

(b) alternatively, in failing to find that the appellant suffered an injury which was of such a nature as to be contracted by a gradual process and, by reason of s 15 of the 1987 Act, was deemed to have occurred at the time of incapacity commencing 6 August 2018 (Ground 2);

(c) in finding the opinions of treating specialists Dr Pope, Dr Nahza (pain management specialist) and Dr Khan (occupational physician) “particularly persuasive” in their opinions that the appellant had or had not suffered an aggravation of an injury which was of such a nature as to be contracted by a gradual process, when the doctors did not provide such opinions (Ground 3);

(d) in affording Dr Dias’s (occupational physician qualified by the appellant) opinion no weight when he was asked a “leading question” (Ground 4);

(e) in characterising and finding that the opinion of Dr Dias was “misleading and inconsistent” (Ground 5);

(f) in finding that the only support for a finding of disease type injury with a deemed date in 2018 was the opinion of Dr Dias (Ground 6);

(g) in failing to find that the deemed date of injury for lump sum and weekly claims are differently determined by reference to the type of compensation claimed (Ground 7), and

(h) by inconsistently finding that the appellant worked for the first and second respondents and the first respondent changed its name to the second respondent (Ground 8).

Held: The Certificate of Determination dated 25 June 2021 was revoked and the matter was remitted to another member for re-determination.

For the reasons set out in the Deputy President’s decision, it was not necessary for the Deputy President to consider Grounds 3, 4, 5 and 6 of the appeal. The Deputy President dealt with Grounds 1, 2, 7 and 8 in making her determination. ([64])

Grounds 1 and 2

1. Grounds 1 and 2 asserted error on the part of the Member in that she failed to find that the appellant suffered an injury within the meaning of s 4(b)(i) or s 4(b)(ii) of the 1987 Act and, by application of ss 15 or 16 of that Act, the injury was deemed to have occurred on 6 August 2018, which was the date of the relevant incapacity. In her submissions to the Member, the appellant submitted that once the question of what had caused the appellant’s incapacity was resolved, then s 15 and s 16 of the 1987 Act applied to a determination of the deemed date of injury. The appellant referred to various authorities that dealt with how to ascertain the deemed date of injury and quoted from Sheller JA’s observations in Alto Ford Pty Ltd v Antaw [1999] NSWCA 234 (Antaw). Curiously, the appellant did not press the Member to determine that the deemed date of injury in respect of the claim for permanent impairment should have been the date of that claim, which was 10 August 2020. The appellant relied upon the same date of injury for both claims, namely 6 August 2018. ([65], [71])
2. Apart from a brief reference to ss 15 and 16 under the heading “applicable principles,” the respondents made no submission as to how those sections were to be applied. Their submissions centred around issues of the acceptance or rejection of evidence and the weight to be afforded to the evidence. ([66])
3. The Member identified the issue for determination as: was the correct date of injury for the purposes of the claim, or as the appellant put it, ‘Does the incapacity arise out of the 2009 injury or subsequent injury or injuries?’ The Member said that resolution of that dispute required consideration of the law as it applied to the facts of this case. ([67])
4. Wood DP observed that the Member also identified and reproduced the “Legislative Framework” relevant to the issue. The Member acknowledged the appellant’s submissions, which included those in relation to the application of ss 15 and 16 and the observations made by Sheller JA in Antaw. The Member proceeded to assess the factual and medical evidence. She concluded that she was not satisfied that the appellant had suffered a disease injury as a result of the nature of the work between April 2009 and August 2018. She added that it was her view that the evidence supported the conclusion that the appellant suffered a work related injury on and prior to 1 April 2009, “which was further exacerbated … up to August 2018.” The apparent inconsistency between those two conclusions was not explained but the latter conclusion would indicate that s 4(b)(ii) of the 1987 Act applied and the appellant had suffered further injury up to August 2018. In any event, having determined the question of injury pursuant to s 4, the Member failed to take the necessary further step of ascertaining the deemed date of injury for the purposes of a claim for incapacity and permanent impairment entitlements in accordance with s 15 and/or s 16 and applying the relevant authorities dealing with those sections. The medical evidence disclosed that the appellant’s condition was that of a disease and the parties proceeded on the basis that ss 15 and 16 of the 1987 Act applied. The Member thus fell into error. ([68])

Ground 7

5. The appellant asserted that the Member failed to deal with the differing methods of determining the deemed date of injury where the claims were for weekly payments on the one hand and permanent impairment entitlements on the other. The appellant submitted that the deemed date in respect of a weekly payments claim is fixed by reference to the incapacity, whereas in a claim made for permanent impairment pursuant to s 66 of the 1987 Act, the deemed date was the date of the claim for the lump sum. ([69])
6. The Court of Appeal considered the decision of Antaw in Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277 (Stone) and said that Antaw was authority for the proposition that s 16 of the 1987 Act may fix different dates for incapacity and permanent impairment injuries. Those cases have been consistently applied in the former Workers Compensation Commission and are equally applicable to the matters within the Workers Compensation Division of the Personal Injury Commission. ([72])
7. In this appeal, the appellant proposed, for the first time, that the deemed date of injury for the permanent impairment claim should have been 10 August 2020, that is, the date the claim for s 66 entitlements was made. That was not a date proposed in the proceedings before the Member. Nonetheless, the Member simply identified the issue before her as requiring a consideration of whether the appellant’s incapacity arose as a result of the injury on 1 April 2009 or “subsequent injury or injuries.” In doing so, the Member failed to acknowledge and apply the different methods of ascertaining the deemed date in respect of the claims for weekly payments and the permanent impairment claim prescribed in ss 15 and 16 of the 1987 Act and considered in Antaw and Stone. She was required to determine the deemed date of injury in respect of the permanent impairment claim, which she did not do in the manner required by ss 15 and/or 16 and the authorities discussed. The Member thus fell into error. ([73])

Ground 8

8. It was also necessary for Wood DP to consider Ground 8, in which the appellant asserted error on the part of the Member by inconsistently finding that the appellant worked for both respondents and then finding that the first respondent changed its name to the second respondent. ([74])
9. It appeared that at the time of the appellant’s first period of incapacity, the Central Mapping Authority (or its successor) operated under the umbrella of the Secretary, Department of Planning, Industry and Environment (the first respondent). The first respondent was the only respondent nominated by the appellant in these proceedings. At the arbitration hearing, the first respondent indicated that there was an issue as to the correct identity of the appellant’s employer in relation to the two different dates of injury pleaded. The Member directed the parties to file written submissions, including submissions addressing that issue. ([75])
10. The respondent submitted that it was instructed that the pleaded employer, Secretary, Department of Planning, Industry and Environment was the employer at the time of the deemed date of injury on 1 April 2009 but that, as the alleged deemed date of injury was claimed to be 6 August 2018, the correct employer was the Secretary, Department of Customer Service. In her Certificate of Determination, the Member, relying on the information from the respondents’ representative, observed that the appellant was employed by the first respondent (Secretary, Department of Planning, Industry and Environment) “until the name of her employer changed” to that of the second respondent (Secretary, Department of Customer Service). She amended the pleadings accordingly to add the second respondent. ([76]–[77])
11. The Deputy President held that the respondents’ instruction that the correct employer in respect of the alleged deemed date of injury was the Secretary, Department of Customer Service was patently incorrect. The Department of Customer Service was not established until 1 July 2019. The named entity was also inconsistent with the appellant’s many payment summaries and payslips annexed to the ARD, which name the employer as Department of Finance, Services and Innovation during the period from 1 July 2012 to 27 June 2019 and only thereafter as Department of Customer Service. Those documents, together with the contemporaneous references in various medical reports and certificates of capacity to the appellant’s employer being “Department of Finance,” were in the possession of both parties and in evidence. Additionally, the appellant’s letter dated 10 August 2020 claiming s 66 lump sum entitlements with an alleged deemed date of 6 August 2018 was directed to Department of Finance, Services and Innovation. ([78])
12. With due care and proper attention to the matter, the parties could have, and should have, accurately identified the correct employer. The Member, who relied upon the misinformation provided to her by the first respondent, was unfortunately in error in amending the pleadings to add as a second respondent the Secretary, Department of Customer Service. While the appellant raised an allegation of error on the part of the Member in so amending the pleadings, the submissions asserted a different basis upon which that error occurred. The appellant contended that there should have been one respondent, and that that entity simply changed its name. That submission was not correct. In April 2009, the appellant’s employer was the Secretary, Department of Planning, Industry and Environment. In 2018, her employer was the Secretary, Department of Finance, Services and Innovation. Those departments are separate entities established by the relevant NSW Government’s administration orders. ([79])
13. Nonetheless, there was no basis upon which to join the Secretary, Department of Customer Service to these proceedings and the Member’s determination to amend the pleadings to include the nominated second respondent was erroneous. ([80])
14. The Deputy President therefore considered the pleadings required amendment to join the proper respondent to the proceedings and remitted the matter for re-determination by another member. ([81]–[83])

Honarvar v Professional Painting AU Pty Ltd [2022] NSWPICPD 12

WORKERS COMPENSATION – Sections 59 and 60 of the 1987 Act – ‘reasonably necessary’, ‘curative apparatus’ – Diab v NRMA Ltd [2014] NSWWCCPD 72; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216; evidence in the Commission – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351, weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308; factual error

Snell DP

31 March 2022

Facts

The appellant worker was a house painter. On 8 July 2017 he was painting a ceiling when he fell to the ground from a ladder, landing on his right ankle. He has not worked since. On 11 July 2017 Dr Dave, an orthopaedic surgeon, performed an open reduction and fixation of the right ankle. The appellant stated that he was on crutches thereafter. He developed low back and neck pain following the accident, for which the respondent’s insurer accepted liability.

He had further surgery on the right ankle on 14 April 2018, again performed by Dr Dave, to remove the plate and screws from the earlier surgery. In June 2019 the appellant had a further procedure to the ankle, this time performed by Dr Carmody, involving arthroscopic debridement. None of these further procedures helped much. The appellant came under the care of Dr Al Khawaja, a neurosurgeon, for his back and neck pain, from late 2019. An MRI scan demonstrated disc protrusions at C5/6 and C6/7. Dr Al Khawaja performed facet joint injections to the neck which provided limited assistance. The doctor recommended an anterior lumbar fusion at L5/S1. He also recommended that the appellant sleep on a firm mattress.

Dr Sheehy, neurosurgeon qualified by the respondent, following a medical examination on 8 September 2020, described the appellant’s “prognosis for improvement” as “remote”. He said the failure of conservative treatment was “not an indication for anterior lumbar surgery”, and the surgery recommended by Dr Al Khawaja in the nature of an anterior lumbar fusion was “not reasonably necessary”. The respondent denied liability for the cost of the proposed lumbar surgery on the basis that it was not reasonably necessary, relying on the opinion of Dr Sheehy. On 26 November 2020 the insurer denied liability for the cost of an orthopaedic bed, on the basis that the mattress and base did not fall within the definition of ‘medical or related treatment’ in s 59 of the 1987 Act.

Dr Al Khawaja reported to the appellant’s solicitors on 16 March 2021 and described the proposed lumbar fusion as “reasonably necessary”. He said the appellant had “tried all pain management types including painkillers, physiotherapy, injections and nothing helps his condition”. The doctor said “there is a good chance for this to help his current symptoms although I cannot guarantee it”.

The Member accepted the respondent’s argument that the bed and mattress did not fall within the definition of ‘curative apparatus’ provided by subparagraph (e) of the definition of ‘medical or related treatment’ in s 59 of the 1987 Act. The Member did not accept that the proposed lumbar surgery was ‘reasonably necessary’ treatment. He entered an award in favour of the respondent for the bed, mattress and surgery. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) failing to apply the correct legal test under s 60 of the 1987 Act (Ground 1);

(b) making factual findings that were not open to him on the evidence including that the appellant had based his case on the assumption that all he has to prove is that alternative treatment has not been effective. This involved a breach of procedural fairness (Ground 2);

(c) failing to provide sufficient reasons about why he was not assisted by the appellant’s self-assessment as to the effectiveness of the alternative treatment he received (Ground 3);

(d) making factual findings that were not open to him on the evidence including that the evidence about the effectiveness of alternative treatment principally came from the appellant only (Ground 4);

(e) making factual findings that were not open to him on the evidence including that treating practitioners recommended surgery on the basis that nothing else had worked (Ground 5);

(f) making factual findings that were not open to him on the evidence including that there was a failure to lodge any supporting material from any of the practitioners who provided the alternative treatment (Ground 6);

(g) finding that the appellant’s mental state was what was preventing him from recovery. This was an error of law and fact (Ground 7 and repeated at Ground 12);

(h) finding that the criterion of the availability of alternative treatment had not been properly addressed. This was an error of law and fact (Ground 8);

(i) making factual findings that were not open to him on the evidence including that Dr Al Khawaja was not aware of the MRI dated 17 September 2020, which showed no nerve compression of significance and, therefore, that he was not satisfied that the claimant’s injury is now as significant [as] Dr Al Khawaja assumed on the basis of the outdated MRI (Ground 9);

(j) finding that the surgery would not have potential or actual effectiveness. This was an error of law and fact (Ground 10);

(k) relying upon Dr Carmody’s opinion of pain management being the appropriate treatment. This was an error of law and fact (Ground 11), and

(l) finding that there are no therapeutic or curative qualities in the mattress as recommended (Ground 12).

Held: The Member’s decision dated 9 August 2021 was revoked. Snell DP re-determined the matter and found that the spinal surgery and provision of a suitable mattress and base were reasonably necessary.

d [1979] 1 NSWLR 216 applied)

Ground 1 – Failure to apply the correct test

1. The parties did not disagree on the statutory test. The Member accepted that Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) set out the criteria to be applied. The issue was whether there was error in the application of the test. This was alluded to in only the most general way in the appellant’s submissions dealing with Ground 1, which did not satisfactorily identify error. Ground 1 was not a ‘stand-alone’ ground. Ground 1 did not sufficiently identify appealable error. ([37]–[38])

Ground 2 – Making factual findings that were not open, and

Ground 3 – Reasons relevant to the appellant’s self-assessment regarding alternative treatment

2. Grounds 2 and 3 were framed on the basis of the test applied and the alleged inadequacy of the reasons. Ground 3 also alleged a breach of the principles of procedural fairness. ([59])
3. The Member said he was “unpersuaded that the proposed surgery was actually or potentially effective in view of the comments I have made regarding the possible relevance of [the appellant’s] mental state”. The Member said he preferred the views of Drs Sheehy and Carmody, that pain management was “more likely” to alleviate the appellant’s condition than the proposed surgery. He declined to make the declaration pursuant to s 60(5) of the 1987 Act. It was observed that the Member considered and rejected the appellant’s case regarding (i) the appropriateness of the lumbar surgery, (ii) the potential effectiveness of the proposed lumbar surgery, and (iii) the availability of alternative treatment. The matter was conducted and decided having regard to conventional principles consistent with Rose and Diab, which both parties agreed, and the Member found, represented the appropriate approach. ([64])
4. The discussion and findings regarding alternative treatment were significant in the reasoning leading to the result. Dealing with the topic of ‘alternative treatment, the Member said he was not impressed with the appellant’s self-assessment of its effectiveness. This approach taken by the Member had the consequence that a significant part of the appellant’s lay and medical case was taken to be without probative force. The Member’s discussion and findings regarding alternative treatment went to a point critical to the contest between the parties. It was necessary that the reasoning on the issue be adequately exposed. The Member effectively concluded, in the Deputy President’s view erroneously, that the lay and medical evidence supporting the appellant’s case was deprived of any probative force, because records relating to treatment by the general practitioner, physiotherapist and hydrotherapy provider were not in evidence. The Deputy President discussed the probative force of evidence in the Commission. He said it was difficult to think of circumstances, at least in the absence of significant issues regarding reliability, where a worker’s subjective assessment of the helpfulness (or lack of it) of alternative treatments which they had undergone, would not be relevant on that topic. The Member’s reasons for this were not adequate. They consisted largely of speculative questions regarding what such records may have revealed. Additionally, the finding regarding the weight of the evidence involved error. Ground 3 was made out. It was an error of law. ([65], [74], [86])

(Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, applied)

Ground 4 – Making a factual finding not open, that evidence about alternative treatment came only from the appellant

5. Ground 4 alleged error in the Member’s factual finding that the evidence about the effectiveness of alternative treatment principally came from the appellant only. The appellant submitted this finding failed to take account of the evidence from Dr Al Khawaja, in particular that regarding the lumbar injection administered on 26 February 2020. ([89])
6. Snell DP held that it was apparent from Dr Al Khawaja’s reports that the doctor tried the lumbar injection as an alternative to the more radical option of lumbar fusion surgery. The doctor recorded there was only short-term relief with the injection. The doctor’s reports made it clear that in those circumstances the only remaining option he could offer the appellant was the proposed surgery. The Deputy President accepted the appellant’s submission that the finding, at [97] of the reasons, misstated the position regarding the source of the evidence on which the appellant relied, regarding alternative treatment. The evidence of Dr Al Khawaja dealt in clear and appropriate terms with the treatment he arranged for the appellant, before finally concluding the appropriate treatment option was lumbar surgery. The doctor also referred to his understanding of the history of alternative treatments which had been tried in the past. It was not suggested that this history was unreliable; it was generally consistent with the appellant’s statements on this topic. This was apparently reliable evidence from the treating neurosurgeon. It was entitled to weight. It was necessary that it be considered, including in a consideration of the availability of alternative treatment in compliance with the decision in Rose. The error alleged in Ground 4 was made out. ([90])

Ground 5 – Making a factual finding not open, that treating practitioners recommended surgery as nothing else worked

7. In the reasons at [102] the Member was critical of the treating practitioners on whom the appellant relied, saying they recommended the lumbar surgery on the basis that nothing else had worked. The appellant, dealing with Ground 5, submitted that this failed to take account of Dr Al Khawaja’s opinion. Deputy President Snell noted that one factor the doctor referred to was the failure of conservative measures to alleviate the appellant’s symptoms. There were others. The appellant said he was getting worse. He suffered from a high level of pain, which he assessed at “8/10”. The pain was affecting the appellant’s daily life, his sleep and his functional capacity significantly. The doctor said that without the surgery the appellant would be “incapacitated and disabled because of severe back and neck pain with radiation to the left arm and the left leg ... he will not be fit to do any duties”. The doctor considered that the surgery provided a good chance to help the appellant’s condition, although this could not be guaranteed. ([91]–[92])
8. The Deputy President held that the finding made in the reasons at [102] involved factual error in how the Member dealt with the evidence from Dr Al Khawaja. Ground 5 was made out. ([93])

Ground 6 – Making a factual finding not open, that no supporting material was lodged from practitioners who provided alternative treatment

9. The Member, in his reasons at [106], said there was a lacuna in the evidence due to a “failure by the [appellant] to lodge any supporting material from any of the practitioners who provided the alternative treatment” (emphasis added). The appellant again referred to the evidence from Dr Al Khawaja. Snell DP held it was clear that Dr Al Khawaja provided alternative treatment, in the form of a lumbar epidural injection, before making the final decision to proceed with the proposed lumbar surgery. The error alleged in Ground 6 was made out. ([94])
10. The errors identified in Grounds 4, 5 and 6 all went to the adequacy of the evidence relied on by the appellant regarding alternative treatment. Like the finding the subject of Ground 3, these erroneous findings undermined the appellant’s case on that issue. That issue was one on which the Member placed significant reliance in declining to make a declaratory order in respect of the proposed surgery. The errors identified in Grounds 3, 4, 5 and 6 had affected the result and constituted appealable error. ([95])

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

Grounds 7 and 12 – Making a finding that the appellant’s mental state is what is preventing his recovery

11. The appellant submitted that there was no medical evidence to support the Member’s reasons at [107]. The Member, in the reasons at [107], raised the “possibility” that there was “some other condition” preventing recovery, referring to the fact that the appellant had received psychiatric care in the past and the absence of evidence from these sources raises the possibility of his mental state preventing recovery. He said the Member did not refer to any medical opinion supporting this proposition. ([85], [96]–[97])
12. The Deputy President found that [107] of the reasons did not include any specific factual finding. It identified four conjectural questions. The aspect of the appellant’s injuries at issue in the current application was his lower back. The passage in [107] postulated that it was possible, or probable, that the appellant’s recovery was prevented by his mental state. This was conjecture unsupported by evidence. ([100])
13. Snell DP held that the highest one could put the ‘finding’ at [107] of the reasons was that there was a possibility that the appellant’s mental state prevented the recovery from his lower back symptoms. This was not supported by evidence and disclosed error. Whilst this ‘finding’ was made in equivocal terms, the Member specifically relied on it, in the reasons at [114], in support of his finding that the appellant had not proved that “the proposed surgery would result in any significant improvement or associated functional gains”. This finding was said to “reinforce the view of Dr Sheehy”. It was one of a series of findings, along with those referred to in the discussion of Grounds 4, 5 and 6, that (in the Member’s reasoning) undermined the appellant’s lay and medical case. These findings, taken together, affected the result. The error identified in Ground 7 (repeated as 12) involved appealable error. Ground 7 succeeded. ([101])

Ground 8 – Making an erroneous factual finding that the availability of alternative treatment was not properly addressed

14. At [108] of the reasons, the Member said: “I cannot be satisfied accordingly that the criterion of the availability of alternative treatment has been properly addressed”. The appellant submitted that it “clearly addressed” alternative treatment and the fact that such treatment had not assisted. Dr Al Khawaja took a history, consistent with the appellant’s evidence, and concluded that surgery was required. The appellant submitted that, consistent with Rose and Diab, it was not necessary that all evidence from providers of alternative treatment be tendered. The Member was required to consider whether there was alternative treatment available and whether it would be effective. There was no evidence that there was such treatment available, besides surgery. ([102]–[103])
15. The Deputy President noted that paragraph [108] of the reasons came at the conclusion of a discussion at [94] to [107], in which the Member assessed the state of the evidence on the availability of alternative treatment. The Member’s statement that he could not “be satisfied accordingly ...” depended on the findings of fact and discussion that went before. Much of the fact finding going to alternative treatment was the subject of the earlier grounds of appeal. Having found that Grounds 3, 4, 5, 6 and 7 involved appealable error, it followed that Ground 8 was made out, as the Member’s summation of the fact finding which supported the reasons at [108] was itself flawed, because of the earlier identified errors. For completeness the Deputy President added that he accepted, as a general proposition, that it is not necessary that a worker in such an application tender material from the providers of all alternative treatment. The evidentiary material that needs to be tendered, for a worker to discharge his or her onus, will always depend on the facts of the individual case. ([105])

Ground 9 – The MRI evidence relied on by Dr Al Khawaja

16. The Member referred to MRI scan reports dated 4 December 2019 and 17 September 2020. The Member relied on a comparison of these reports in concluding he was not satisfied “that the injury is now as significant as Dr Al Khawaja assumed on the basis of the outdated MRI”. The Member described this as impinging “not only on the question of whether the proposed surgery is appropriate, but it also raises the question as to whether it is actually or potentially effective”. Snell DP found that the appellant’s point raised in this ground was valid; the radiologist in the later of these reports, commenting on the appearances at L5/S1, specifically said there was no change compared with the previous report. The respondent’s submissions did not take issue with the validity of the comparison. The Deputy President held that this involved factual error. The Member decided these issues contrary to the appellant’s interests. Ground 9 succeeded. ([116]–[117])

    Ground 10 – Would the surgery have potential or actual effectiveness?

17. The Member specifically dealt with the issue of whether the proposed surgery would be actually or potentially effective at [113] to [115] of the reasons. He referred to his finding, at [112] of the reasons, that he was “not satisfied therefore that the injury is now as significant as Dr Al Khawaja assumed on the basis of the outdated MRI”. For the reasons dealing with Ground 9, Snell DP concluded that this finding, based on an alleged misunderstanding by Dr Al Khawaja of the most recent lumbar MRI scan, was erroneous. The Member further considered the issue of whether the proposed surgery would be actually or potentially effective, in the reasons at [114]. The Member said that he was “unpersuaded” on the issue, in view of his comments regarding the “possible relevance of [the appellant’s] mental state, which was also the subject of Dr Carmody’s first impression that [the appellant’s] condition might have been affected by some depression”. The Deputy President in dealing with Ground 7, found there to be error in how the Member dealt with this issue.
18. The Member continued, in the reasons at [115], to say that “[t]hese reservations reinforce the view of Dr Sheehy that it was unlikely that the proposed surgery would result in any significant improvement or associated functional gains.” ([121])
19. In context, “these reservations”, where the phrase was used at [115] of the reasons, was a reference to the matters discussed at [112]–[114] of the reasons (the comparison between the two MRI scans). The erroneous fact finding on the MRI scans infected the ultimate fact finding at [115], in which the Member rejected the appropriateness of the proposed surgery. It followed that the finding at [115], going to whether “the proposed surgery would result in any significant improvement or associated functional gains” involved error. Ground 10 succeeded. ([122])

Ground 11 – Dr Carmody’s opinion about pain management

20. The Member said that Dr Carmody, like Dr Sheehy, spoke of “pain management being the appropriate treatment” at reasons [115], with the Member accepting these opinions as “being more likely to alleviate [the appellant’s] condition than the proposed surgery. This observation regarding Dr Carmody and Dr Sheehy failed to acknowledge that Dr Carmody’s opinion on pain management did not go beyond his view that this was appropriate treatment, when the right ankle failed to maintain continued improvement following debridement. Dr Carmody expressed no opinion whatsoever on the role of pain management, surgery or any other regime in the treatment of the appellant’s lumbar spine. The reasons at [115] proceeded on the basis that Dr Carmody gave support to Dr Sheehy’s opinion, that pain management (as opposed to the proposed lumbar surgery) was appropriate. It did not. Dr Carmody expressed no opinion whatsoever on treatment of the spinal complaints. It could not be appropriately inferred that Dr Carmody held such an opinion, on the basis of his opinion following debridement of the right ankle. This would simply be conjecture. ([128])

    (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 19; 85 CLR 352, and Fuller-Lyons v New South Wales [2015] HCA 31 applied)

21. It followed that the reasons and finding at [115] relied on a misstatement of the evidence of Dr Carmody. That was relied upon in the reasons to support a finding on which the result turned. It was appealable error. Ground 11 succeeded. ([129])

The ground involving the bed (Ground 12)

22. In filing amended submissions in support of his appeal, the appellant inadvertently left out a ground raised in his original appeal submissions in respect of the bed, in which it was submitted that “the Member erred in finding that there are no therapeutic or curative qualities in the mattress as recommended (COD 119). Such a finding completely ignores the evidence of Dr Al-Khawaja (ARD 71) and also of Recovre (ARD 78).” ([132])
23. As there was an intention to pursue an appeal in respect of the claim for the cost of a bed and mattress, it was preferable that this be dealt with. Snell DP referred to this submission as Ground 12. ([135])
24. The reasons did not indicate that the Member engaged with Dr Al Khawaja’s opinion on this topic. The Member remarked at [119] that there were no particular therapeutic or curative qualities in the supply of the bed and mattress. This failed to deal with the doctor’s explanation, which the Deputy President accepted, regarding what the bedding was intended to achieve medically. Additionally, a report of Ms Davey (an occupational therapist) added a lay context to Dr Al Khawaja’s recommendation. The bed was intended to reduce pain and to improve sleep. This would lessen fatigue and assist in the control of mental health issues. There was no medical or related evidence contrary to the evidence from Dr Al Khawaja and Ms Davey. Dr Al Khawaja, a treating specialist for approximately one year, was well placed to comment. The Member referred briefly to the evidence of Dr Al Khawaja and Ms Davey on this topic and dismissed it. He did not engage with or properly consider the evidence. Snell DP concluded that the Member did not appropriately examine and consider that evidence, which was central to this aspect of the claim under s 60. Error was made out. It affected the result. Ground 12 succeeded. ([156])

(Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816 applied)

Re-determination

25. Snell DP was satisfied that it was reasonably necessary that the appellant undergo the proposed lumbar surgery and that a declaration to that effect should be made pursuant to s 60(5) of the 1987 Act. ([162]–[186])

    (Rose and Diab applied)

26. The Deputy President accepted the evidence of Dr Al Khawaja and Ms Davey on the issue of the orthopaedic bed and mattress issue. He accepted that the relevant orthopaedic bed and mattress had therapeutic properties and fell within the definition of a ‘curative apparatus’ in subparagraph (e) of the definition of ‘medical or related treatment’ in s 59 of the 1987 Act. ([187])

(Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 applied)