Appeal Case Summaries

Temple v Woolworths Group Limited [2022] NSWPICPD 16

WORKERS COMPENSATION – distinction between injuries pursuant to ss 4(a) and 4(b) of the 1987 Act – application of s 16 of the 1987 Act – Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; (1998) 45 NSWLR 606; Rail Services Australia v Dimovski [2004] NSWCA 267 discussed and applied

Wood DP

9 May 2022

Facts

The appellant worker was employed by the second respondent, Allstaff Pty Ltd, which was a company providing labour for hire to Woolworths Group Limited (the first respondent). The appellant was employed as a store person, performing picking and packing duties. On 9 November 2017, the appellant injured her back when she was hit by a reversing forklift vehicle. The second respondent accepted liability for the injury, paid the appellant weekly compensation for a period and paid her treatment expenses. The appellant returned to her pre-injury duties by 27 March 2018.

On 3 June 2019, the appellant commenced full-time employment (36 hours over a four-day period) directly with the first respondent, Woolworths Group Limited, performing essentially the same work and in the same location as she had done while on labour hire during employment with the second respondent. The appellant asserted that the work she was performing with the first respondent caused her to experience back pain. She alleged that she ceased work early on 18 July 2020 because of back pain, which was a day prior to the commencement of her annual leave. On 21 July 2020, the appellant felt an immediate onset of increased back pain at home when she lifted a basket of dry laundry. Following that event, she sought treatment from Nepean Hospital and her general practitioner. She was referred for radiological investigations and for specialist review. She did not return to work.

The appellant lodged a claim for compensation with the second respondent, who denied liability. She then commenced proceedings in the Commission against both the first and second respondents. She alleged a frank injury on 9 November 2017 when employed by the second respondent. She further alleged an injury in the form of a disease or an aggravation of a disease in accordance with s 4(b)(ii) of the 1987 Act as a result of the “nature and conditions” of the work performed in the employ of the first respondent.

The Member determined that the appellant suffered from an aggravation of a disease condition in her lumbar spine and that liability for the appellant’s incapacity and treatment expenses flowing from the back condition rested entirely with the first respondent. The appellant appealed that decision.

The issues on appeal were whether the Member erred in:

(a) law by failing to determine a substantial, clearly articulated argument that was material to the central issue in these proceedings, namely the claim against the second respondent (Ground 1);

(b) law by failing to provide any, or any adequate reasons for entering an award in favour of the second respondent (Ground 2), and

(c) fact by finding that the appellant had current work capacity of $500 per week (Ground 3).

Held: The Certificate of Determination dated 11 August 2021 was revoked and the matter was remitted to a different Member for re-determination.

1. The appellant did not seek to disturb the Member’s reasoned conclusion that the injury (the aggravation of the disease) in fact occurred as a consequence of the nature of the appellant’s duties and no appeal against the Member’s determination had been raised by either respondent. ([112])

Grounds 1 and 2

2. The appellant’s first ground of appeal asserted error on the part of the Member in that the Member failed to make a determination in respect of whether the appellant’s incapacity in 2020 arose from the injury on 9 November 2017, the subsequent “disease” injury, or both. The substance of the appellant’s submissions was that when the Member determined that the nature of the work with the first respondent aggravated the appellant’s disease condition in her lumbar spine, the Member went no further in terms of the issues raised that remained for determination. The appellant also asserted in Ground 2 of the appeal that the Member failed to give reasons in respect of her decision to enter an award in favour of the second respondent. ([113]–[114])
3. Wood DP observed that the pleadings, and the Member’s reasons, clearly identified that the case against the second respondent was that the appellant had suffered a “frank” injury on 9 November 2017, that is, a personal injury within the meaning of s 4(a) of the 1987 Act, rather than a “disease injury” as defined by s 4(b) of the 1987 Act. The parties did not address the application of s 16 of the 1987 Act in those circumstances, in the event that the appellant succeeded in establishing an injury pursuant to s 4(b)(ii) of the 1987 Act with a deemed date of 21 July 2020 as against the first respondent. ([118]–[125])

(Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; (1998) 45 NSWLR 606 (Mecha), and Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski) discussed and applied)

4. In this case, the Member determined that the appellant suffered an aggravation of a disease in the course of her employment with the first respondent and that the appellant’s employment with the first respondent was the main contributing factor to that aggravation. The Deputy President held that it was apparent from the Member’s reasons that the Member proceeded on the basis that s 16 of the 1987 Act applied to both the injury deemed to have occurred on 21 July 2020 and the frank injury that occurred on 9 November 2017. In accordance with Mecha and Dimovski, s 16 did not apply to the injury on 9 November 2017, and thus the Member erred in failing to deal with the appellant’s submission that she suffered two injuries which both materially contributed to her incapacity. As the Member entered an award in favour of the second respondent, it could be inferred that the reasoning provided by the Member was that s 16 applied to the injury on 9 November 2017. That reasoning was wrong. ([126]–[127])
5. As a consequence of that error, the Member failed to address the case raised by the appellant that the frank injury materially contributed to the appellant’s incapacity, and, by applying s 16, did not proceed to determine whether the appellant had recovered from the effects of the injury on 9 November 2017, a notion that was resisted by the appellant and argued against by the first respondent. It followed that Grounds 1 and 2 succeeded. The issue required re-determination. ([128]–[129])

Ground 3

6. The errors identified in Grounds One and Two required that the matter to be re-determined. The re-determination will require a consideration of the causation of any incapacity suffered by the appellant, which necessarily involves a review of the medical evidence about that incapacity. It may also require a consideration of the appellant’s entitlement to compensation, given that the amount of the pre-injury average weekly earnings with the first respondent was different to that of the second respondent. The errors identified in Grounds 1 and 2 had therefore impacted the Member’s determinations in respect of the claim for weekly payments and it was therefore appropriate for the whole Certificate of Determination to be revoked and the matter remitted for re-determination of all issues. ([130]–[131])

Zgouras v Australian Associated Motor Insurers Limited [2022] NSWPICPD 17

WORKERS COMPENSATION – Rule 78 of the 2021 Rules – adequacy of reasons and approach to review of reasons – Roncevich v Repatriation Commission [2005] HCA 40 considered – rules of evidence excluded by statute – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282

Phillips P

12 May 2022

Facts

The appellant worker was employed by the respondent as a call centre operator between 2002 and 2007. Her sedentary duties required her to sit at a desk, take calls and complete data entry on a computer in relation to customers looking for car insurance. She sustained an injury to her cervical spine in 2003 when in the course of these duties for prolonged periods. The appellant had previously brought proceedings in the former Workers Compensation Commission which resulted in an agreement between the appellant and the respondent with respect to 33% whole person impairment in relation to the appellant’s cervical spine as a result of the nature and conditions of the appellant’s employment.

The appellant brought the present proceedings pursuing a claim with respect to asserted injuries to her lumbar spine and thoracic spine arising from the nature and conditions of her employment with the respondent, and sought the referral of these injuries to a Medical Assessor for the determination of whole person impairment. These injuries were disputed by the respondent. There was an additional claim which was not contested with respect to the cervical spine.

The contest in this matter required the appellant to prove that the asserted symptoms in her lumbar and thoracic spine were causally related to the nature and conditions of her employment with the respondent. The Member found that the appellant had suffered an injury to the lumbar spine in the course of her employment, but determined that the thoracic symptoms were not related to the appellant’s employment. In coming to this decision, the Member was firstly not persuaded on the appellant’s medical case as to the cause of any thoracic symptomatology; and secondly, should symptomatology have been caused by a thoracic syrinx identified in the appellant’s radiology, the Member was not persuaded that the syrinx itself arose from the nature and conditions of the appellant’s employment.

As a consequence, the Member declined to refer the matter to a Medical Assessor as the permanent impairment claim involving the lumbar spine injury did not meet the relevant threshold to claim lump sum compensation.

The appellant appealed from the decision in respect of the thoracic spine injury.

The issues on appeal were whether the Member:

(a) erred in law in finding that the appellant did not suffer an injury to her thoracic spine arising out of or in the course of her employment (Ground 1);

(b) failed to give any or any adequate reasoning for determination (Ground 2), and

(c) failed to take into account relevant evidence insofar as the thoracic spine injury was concerned (Ground 3).

Held: The Member’s Certificate of Determination dated 18 May 2021 was confirmed.

Ground 1

1. The appellant in Ground 1 alleged that the Member had erred in law by posing and answering the wrong question. It was submitted that the question posed by the Member was to the following effect: “Was the syrinx caused by the [appellant’s] employment?” ([54])
2. The President did not agree with the appellant’s submission that the Member limited herself to asking only one question, namely whether the thoracic syrinx was caused by the appellant’s employment. The President held that it was evident from a review of the Member’s consideration of the medical evidence that close attention was paid by the Member to all complaints pertaining to the appellant’s thoracic spine. Clearly, the appellant in her statements had recounted symptomatology arising from that area but on the appellant’s own medical case, the Member could not find support for any causal relationship to her work, whether this was injury to the thoracic spine caused by the nature and conditions of her employment or whether the thoracic syrinx, which was said to be traumatic, was work related. The syrinx and its possible impact upon the appellant’s symptoms, thus making it a possible cause of the appellant’s pain and disability, had to be considered by the Member. It was a part of the medical opinion pertaining to the precise area of the appellant’s body that was under consideration. The President held there was no error in the Member’s approach by considering the possible impact of the thoracic syrinx upon the appellant’s case. ([61])
3. President Phillips added that it was not an error for the Member to attempt to ascertain the question of causation of the appellant’s thoracic symptoms. The state of this evidence, the Member found, was insufficient and there was no error in that approach. The President did not accept that the Member only addressed the single question regarding the syrinx as alleged by the appellant. The Member’s enquiry was wider than the syrinx and encompassed examination of the evidence to ascertain whether or not the causal relationship between the appellant’s complaints of thoracic pain could be linked to the nature and conditions of her employment. This was a proper approach, no error had been identified. Ground 1 failed. ([62]–[65])

Ground 2

4. The appellant asserted that the Member had failed to give any or any adequate reasons. The appellant submitted that “[i]t is not enough to set out opinions without the [M]ember providing reasons in such a way as to understand the processes and methodology that the [M]ember used in coming to those opinions.” Specifically, the appellant alleged that a consideration of [89]–[98] of the Member’s reasons failed to disclose what material was relevant to the Member’s decision. ([66]–[67], [73])
5. The President noted that the starting point is r 78 of the 2021 Rules. This rule requires that a “brief statement of the appropriate decision-maker’s reasons” address the three matters referred to in r 78(2) of the 2021 Rules. Rule 78(3) then provides further direction to the decision-maker as to how the reasons are to be stated sufficiently, namely, that each party is made aware of the decision-maker’s view of their case. This rule is expressly stated as not limiting the decision-maker’s task as specified in r 78(2). Reasons can be brief, they must expose the member’s path of reasoning in reaching certain conclusions and should not be subject to overly close scrutiny in search of error. ([69]–[71])

(Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; Roncevich v Repatriation Commission [2005] HCA 40 (Roncevich), and NSW Police Force v Newby [2009] NSWWCCPD 75 applied)

6. A fair reading of the Member’s decision as a whole revealed that the Member had significant concerns about the medical opinion said to support the appellant’s claim. The Member closely examined the medical evidence, particularly the evidence of Dr Maniam (treating orthopaedic surgeon), and was not satisfied that it provided an adequate explanation regarding causation of the appellant’s thoracic symptoms. The President held that the assertions made by the appellant in Ground 2 (see para. [4] above) were not made out. The Member’s reasons, though brief and succinct, readily revealed the Member’s reasoning as to why she was not satisfied with the appellant’s case on causation with respect to the thoracic spine. The assertion in this ground that the Member had failed to give any or adequate reasons had not been successful and Ground 2 was dismissed. ([83]–[84])

Ground 3

7. The appellant alleged under Ground 3 that the Member failed to take into account relevant evidence in so far as the thoracic spine injury was concerned. The appellant identified five separate pieces of evidence which were said to substantiate this submission. Four of the pieces of evidence related to certificates indicating physiotherapy attendances; the final was an attendance in relation to an MRI scan. ([85])
8. After reviewing the first four pieces of evidence, the President accepted that each certificate was an accurate record of the physiotherapy treatment administered to the appellant on each of these occasions. At its highest, these certificates revealed that the appellant was experiencing pain or discomfort to those parts of her body that required treatment by the physiotherapist. However, the certificates in and of themselves were neither probative of nor suggestive of the occurrence of any thoracic injury. ([87]–[88])
9. The President then dealt with the report of Dr Masters dated 9 August 2003 reporting upon the results of an MRI of the appellant’s cervical and thoracic spine. President Phillips held that from a consideration of the Member’s decision, it was clear that she was aware of both the MRI scan and the remarks made by the physiotherapist in the series of reports. Indeed, the Member accepted at [60] of the reasons that it was “clear” in 2003 that the appellant was having physiotherapy treatment for her neck and lower back which was an accurate summation of the material that the appellant relied on under this ground of appeal. ([89]–[94])
10. If one considered the decision as a whole, it was quite clear that what the Member was concerned with was whether or not the appellant’s complaints of pain in her thoracic spine were caused by the nature and conditions of her work with the respondent, or alternatively whether they were related to the thoracic syrinx that her treating specialist Dr Maniam had referred to. There was no finding by the Member that the appellant was not suffering symptomatology from her thoracic spine. The question that the Member had to grapple with was what was the cause of the appellant’s pain in her thoracic spine? ([95])
11. In the Findings and Reasons section of the Member’s decision, the Member did not refer in terms to the evidence relied upon by the appellant under this appeal ground. The President did not accept that this was an error on the part of the Member. To do so would be to over-scrutinise the Member’s reasons without regard to the statutory requirement of providing brief reasons and the cases such as Roncevich. Further, President Phillips was of the view that the Member had explained her path of reasoning in terms of the appellant’s failure to establish causation, and that the evidence relied upon by the appellant was insufficient to displace those conclusions. Ground 3 was not established and failed. ([96]–[97])

Maatta v Owen Dwyer t/as Owen Dwyer Builders [2022] NSWPICPD 18

WORKERS COMPENSATION – section 4 of the 1998 Act and cl 2 of Sch 1 to the 1998 Act – requirement to establish an intention to create legal relations – Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66 discussed – principles applicable to disturbing a Member’s factual determination – Raulston v Toll Pty Limited [2011] NSWWCCPD 25 applied

Wood DP

13 May 2022

Facts

On 16 May 2012, the appellant was performing carpentry work using a power saw at a building site, when a piece of metal flew up and penetrated his left eye. The appellant alleged that, at the time of the injury, he was either a worker within the meaning of s 4 of the 1998 Act or a deemed worker as provided for by cl 2 of Sch 1 to the 1998 Act. He alleged that he performed work on the building site at the request of the first respondent, Mr Dwyer, or at the request of Mr Robb (the second respondent to the proceedings below).

Liability for the claim was denied on the basis that the appellant was neither a worker or a deemed worker within the meaning of the 1998 Act, and because the appellant had made his claim for compensation well outside of the time frames for giving notice of injury and making a claim as required by ss 254 and 261 of the 1998 Act.

The appellant joined the Workers Compensation Nominal Insurer (the second respondent on the appeal) to the proceedings as Mr Dwyer was uninsured.

The appellant asserted that he was employed by the first respondent as a carpenter on a full-time basis and that he did not work for anyone other than the first respondent.

It was alleged that on the day the appellant was injured, Mr Robb had informed the appellant about the job and requested the appellant’s assistance. The appellant submitted that the first respondent was aware of the job. The first respondent contended that he did not arrange for the appellant’s attendance on this job and therefore, there was no contract between the appellant and first respondent.

The Member was not satisfied that the appellant had discharged the onus of proving that he was a worker in the employ of the first respondent or a deemed worker for the first respondent. The Member issued a Certificate of Determination dated 25 August 2021. The appellant appealed that decision.

The appellant raised one ground of appeal, being that the Member erred by failing to find that the appellant was a “worker” or a “deemed worker.”

Held: The Member’s Certificate of Determination dated 25 August 2021 was confirmed.

Consideration

1. For the appellant to succeed in this appeal, he was required to establish that the Member erred in her factual conclusions, or misapplied the legal requirements, or misused her discretion. It is not sufficient to merely assert that the Member ought to have arrived at a different conclusion. The Deputy President noted that the Member’s conclusions were conclusions of fact. ([87])

   (Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 and Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156 applied)

2. The Member concluded that there was no evidence of an intention to create a legal relationship between the first respondent and the appellant. The Member relied on the observations of Roche DP in Secretary, Department of Family and Community Services v Bee [2014] NSWWCCPD 66, which was a case involving an allegation that the injured applicant was a deemed worker in accordance with cl 2 of Sch 1 to the 1998 Act. ([89]–[90])

3. Deputy President Wood held that it is clear that s 4 and cl 2 of Sch 1 both require the existence of a contract, either of service or a contract to perform work. The appellant did not take issue with the Member’s observation that a contractual arrangement is required before either of those provisions is satisfied. Nor did the appellant point to any evidence that disclosed that the Member erred in concluding there was no evidence to support the essential element of a contract, namely an intention to create a legal relationship, and thus neither s 4 nor cl 2 of Sch 1 was satisfied. A statutory right of appeal requires a demonstration that the decision appealed against was affected by error. As the first respondent submitted, any error in the Member’s factual conclusions must have affected the outcome. ([91]–[92])

4. The first respondent succinctly identified the appellant’s assertions as to the facts that should have been found. That is, that:

(a) the payment of $450 was evidence that the appellant worked over a number of days;

(b) the “tax invoices” were evidence that the appellant did not work for other entities, and

(c) the first respondent had knowledge that the appellant was working on the site on the day of injury. ([93])

5. The appellant did not explain why the number of days worked by the appellant was relevant to the question of the existence of a contract of any type between the first respondent and the appellant. Wood DP observed that the Member dealt with this suggestion in her reasons, and the Member’s assessment of the evidence was logical and available to her. How that amount was calculated was unexplained by evidence from the appellant, or anyone else, and there were other inferences that could be drawn as to what the payment represented. In any event, whether the appellant worked one or more days was irrelevant to the central issue, which was an assessment of the relationship between the appellant and the first respondent. ([94]–[95])
6. Similarly, the appellant had failed to explain why the first respondent having an awareness that the appellant was on site on the day of injury bore any relevance to the issues for determination. The appellant conceded that it was Mr Robb who approached the appellant about working on the site. It was conceivable that the head contractor of a worksite would be aware of the presence of various subcontractors on any site. Any such awareness was not probative evidence of there being any contractual relationship between the head contractor and a person present on the site, particularly when the person was there by arrangement with another party. ([96])
7. The Member concluded that the appellant earned income from other work and thus was carrying out work incidental to his own business. She did so on the basis that the appellant’s business income recorded in the taxation returns disclosed that the appellant earned a greater total income in that year than could be attributed to working only for the first respondent. The appellant did not assert that the Member erred in her reasoning for reaching her conclusion. Nor did the “tax invoices” provide such probative evidence that it could be said that the Member’s conclusion was against the weight of the evidence. ([97])
8. Deputy President Wood concluded that none of the submissions made by the appellant established that the Member erred by overlooking material facts, or giving undue or too little weight to material evidence, or that the available inference in the opposite sense was so preponderant that the Member’s decision was wrong. None of the matters raised by the appellant disclosed that the Member erred in her ultimate determination that there was no probative evidence to satisfy the critical requirement that there was a contract in existence between the appellant and the first respondent. It followed that the appeal failed. ([98]–[99])

ACW v ACX [2022] NSWPICPD 19

WORKERS COMPENSATION – medical evidence, alleged factual error – application of Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510, Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; common-sense factual findings on the basis of common knowledge or experience, procedural fairness – application of New South Wales Police Force v Winter [2011] NSWCA 330

Snell DP

17 May 2022

Facts

The appellant worker was employed by the respondent in a senior role in a New South Wales Government Department (the respondent) from February 2015. He injured his back and neck in a motor vehicle accident in the Australian Capital Territory on 25 February 2014. This was the subject of a third party claim that was resolved by way of a deed of release dated 3 February 2017.

The appellant suffered injury in his employment with the respondent on 6 June 2016 when he fell from a chair. He saw a GP and had some physiotherapy, took painkilling medications and carried on at work. The appellant stated that he deteriorated with time, and in around August/September 2016 he started to notice pins and needles in his legs and bladder leakage. He stated that he continued at work with increasing difficulties.

On 7 May 2017, the appellant attended an Ikea store with his family. He described severe lower back symptoms during the two days prior. Whilst at the Ikea store the appellant spilled coffee on the floor and slipped on it, landing in a seated position on the ground. An ambulance attended. The appellant stated that he felt severe pain in his lower back. He said he made his way home that evening and took Panadeine Forte. The next morning his pain levels were pretty much the same as they had been before he had the fall at Ikea. The appellant went to work the next day, feeling “not a lot worse than I had been suffering for months prior to 7 May 2017”.

The appellant saw Dr Coughlan and Dr Steel, both neurosurgeons, separately, on 16 June 2017. An MRI scan on that day demonstrated a disc protrusion at T12/L1. Dr Coughlan performed a microdiscectomy at the level T12/L1 on 29 June 2017. The appellant remained off work, having rehabilitation, physiotherapy and hydrotherapy. By October 2017 he was having increased pain in the low back, nerve pain in the left leg and bladder leakage. The appellant resumed work in about November 2017. Following a further MRI scan on 13 November 2017 the appellant was reviewed by Dr Coughlan, who recommended fusion at T12/L1, which was performed on 30 January 2018. The appellant fell while walking in his garden at home on 8 February 2018. He was taken by ambulance to St George Hospital. There did not appear to be significant damage from the fall. The appellant resumed work from about late March 2018. By April 2018 the appellant was suffering acute low back pain and deteriorating symptoms affecting his bladder, bowel and legs.

Dr Coughlan performed further surgery involving decompression at T12/L1 on 11 September 2018. The appellant stated that his symptoms subsequently worsened when he resumed work and was placed under increasing pressures, including working long hours and travelling.

The respondent’s offices were to relocate to Parramatta in late 2019. The appellant was concerned about his ability to cope, including with increased travelling time and obtaining medical treatment. After some discussion with ‘HR’ the appellant was offered and accepted a voluntary redundancy, effective 25 October 2019. He did a little casual work thereafter.

The insurer initially paid compensation for the appellant’s fall on 6 June 2016, and on 1 May 2017 (prior to the fall at Ikea), it wrote to the appellant stating it was closing the claim from that date due to his successful return to pre-injury employment and the end of treatment. Liability was ultimately declined, with the insurer disputing that the appellant’s “medical condition” resulted from a work injury. It disputed that he suffered an injury at the level T12/L1 in the work-related injury of 6 June 2016. It asserted that the injury at T12/L1 resulted from the fall at Ikea on 7 May 2017. It described the incident on 7 May 2017 as a novus actus interveniens and said that incident was the cause of any incapacity or need for treatment after that date.

The appellant commenced proceedings in the Commission to determine this dispute. The Member found against the appellant and made an award for the respondent in a Certificate of Determination dated 16 July 2021. The fundamental reason for the Member rejecting the appellant’s medical case was the lack of correlation between the history relied on by the doctors, and the true history as found by the Member, based on treating material and other documents. The worker appealed.

The issues on appeal were whether the Member erred in the following grounds of appeal:

(a) rejecting the opinion of Dr Coughlan, the Member fell into material error in ignoring the fact that that opinion had multiple bases, two of which were, as a result of this error, not addressed by the Member (Ground 1);

(b) rejecting the opinion of Dr Steel, the Member erred in concluding that it was immaterial whether or not Dr Steel was contracted by the respondent’s insurer to provide an opinion on the critical question and further erred in holding that Dr Steel was not so contracted (Ground 2);

(c) rejecting the opinion of Dr Steel, the Member fell into material error in ignoring the fact that that opinion had multiple bases, two of which were not, as a result, addressed by the Member (Ground 3);

(d) rejecting the opinion of Associate Professor Fearnside (neurosurgeon qualified by the appellant), the Member ignored the material fact that Associate Professor Fearnside was guided in forming his opinion both by the pathology and by the mechanism of the fall (Ground 4);

(e) proceeding on the basis that each of the expert witnesses relied upon by the appellant conceded that the T12/L1 lesion could have been caused by the Ikea incident (Ground 5), and

(f) concluding that a finding that the appellant was “not always reliable” led to the conclusion that the onus was not discharged (Ground 6).

Held: The Certificate of Determination dated 16 July 2021 was confirmed.

Ground 1 – rejecting the opinion of Dr Coughlan

The first argument

1. The appellant referred to the history relied on by Dr Coughlan, the treating neurosurgeon. It submitted this was consistent with that which the respondent argued to be the correct history. It was necessary that the doctor’s reports be read together. ([56])
2. Deputy President Snell accepted the respondent’s submission that it would simply have been speculative for the Member to embark on an analysis of what Dr Coughlan’s opinion on causation might have been, if the doctor were aware of the true factual background having regard to the Member’s analysis and findings. It was necessary that the Member give such weight to Dr Coughlan’s opinion as was appropriate, having regard to the extent of the compliance of his report with the usual requirements that govern expert evidence. It was necessary that the Member, as the tribunal of fact, assess the extent to which any lack of correlation between the facts as proven, and the assumed facts, deprived the opinion of Dr Coughlan of weight. ([51], [57])

(Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 (Paric No. 1) applied)

3. The Member described the histories assumed by the neurosurgeons as “not consistent with the facts proven in evidence”. The Member described the evidence of symptoms after the fall at Ikea as “grossly inconsistent with the assumed histories of the doctors who support the [appellant’s] case”. The Member found that these inconsistencies could not be “put to one side” given his opinion regarding the lack of reliability of the appellant’s evidence. The Member plainly regarded the opinion of Dr Coughlan as deprived of probative force. Snell DP considered that this conclusion was properly open on the evidence. The first argument did not succeed. ([58])

   The second argument

4. Dr Coughlan’s recorded history was that the appellant suffered from severe symptoms, including of a neurological nature, subsequent to the injury on 6 June 2016 and before the injury in May 2017. The doctor proceeded on a history that the incident in May 2017 aggravated symptoms that were already present. This scenario was different to the Member’s analysis and findings based on the treating practitioners’ notes. The appellant submitted any lack of correlation between the facts proved and the history relied on by Dr Coughlan was “not material”. The Deputy President rejected that submission. ([59])
5. The appellant submitted that the Member did not reject the appellant’s evidence in this regard. Snell DP observed that the Member made a finding that the discrepancies between the clinical records and the appellant’s evidence “only fortify my previously expressed opinion of the reliability of [the appellant’s] evidence”. He found that “the histories recorded by the [appellant’s] neurosurgeons, both treating and qualified, and assumed as the basis of their opinions, are not consistent with the facts proven in evidence”. The question identified in Paric No. 1 was “whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed”. In the context of the Commission, the lack of correlation between the facts assumed and the facts as proven, deprived Dr Coughlan’s opinion of probative force. This was inherent in the Member’s finding in the reasons at [103], that the appellant had failed to prove the relevant causal connection. The second argument was not made out. Ground 1 failed. ([60]–[61])

(Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 applied)

Ground 2

6. Ground No. 2 disputed whether Dr Steel, a neurosurgeon, was qualified by the insurer or not. Deputy President Snell observed that the Member acknowledged the appellant’s submission on the point and said it appeared “more likely” that Dr Carr (the GP) referred the appellant to Dr Steel. The Member did not make a specific finding to that effect, for the stated reason that “nothing turns on this”. The appellant postulated that the insurer, if it made the referral, could have invited some further comment if the history was flawed in some significant way. This did not go to whether the alleged error was dispositive. The appellant carried the overall onus of proof in these proceedings. One aspect of this was adducing medical evidence that had a sufficient correlation between the facts on which expert reports were based and the facts proven, that the expert evidence had sufficient weight to discharge the appellant’s onus. The respondent carried no onus to remedy any such deficiencies. The Deputy President held that the alleged factual error, if made out, would not constitute appealable error. There was no identified basis on which the alleged error, regarding which party qualified Dr Steel, could have affected the Member’s decision. The Member’s reasons were specifically to the contrary, “nothing turns on this”. It followed that Ground 2 failed. ([66])

Ground 3

7. Snell DP referred to his earlier consideration dealing with the first ground of appeal, accepting the respondent’s submission that this ground should fail for the same reason as Ground 1. The Member concluded that the appellant could not discharge his onus on the causation issue, because of the lack of appropriate correlation between the facts assumed (in this instance by Dr Steel) and the proven history as found by the Member. This finding was open to the Member. Ground 3 failed. ([87]–[91])

Ground 4 and 5

8. The attacks on the decision made in the first argument in Ground 1 and Ground 3 proceeded on the basis that the opinions of Dr Coughlan and Dr Steel were not based only on the appellant’s history, found by the Member to be inaccurate. It was argued those opinions were based additionally on the doctors’ consideration of the mechanics of injury and the pathology. These were argued to not necessarily be dependent on the accuracy of the history given. That argument was rejected by the Deputy President, on the basis that the doctor’s opinions on causation were based on a combination of not only these other matters but also the history, found to be inaccurate. Dr Coughlan and Dr Steel both recorded histories, of the symptomatology from time to time, that substantially inculpated the injury in June 2016. Both expressed their opinions to be based on a combination of history, mechanics of injury and pathology. ([107])
9. The appellant’s submissions referred to radiological investigations, which were submitted to be inconsistent with the discal injury at T12/L1 occurring at the time of the incident at Ikea on 7 May 2017. Neither Dr Coughlan nor Dr Steel said this. Radiological examinations and reports discussed by those doctors refer to appearances such as calcification, partial calcification and desiccation at T12/L1. The appellant submitted that Dr Coughlan also reported calcification of the injury that is inconsistent with it having occurred in the fall at Ikea. The appellant referred to instances where the doctors referred to calcification. Dr Coughlan and Dr Steel did not specifically comment on the extent to which such appearances were inconsistent with the occurrence of a discal injury at T12/L1 in the Ikea incident. Snell DP found that Drs Coughlan and Steel had not expressed the same view as Associate Professor Fearnside regarding the significance of what they observed in the radiology. ([108]–[110])

(Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 ; Harrison and Siepen v Craig [2014] NSWWCCPD 48, and Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419 applied)

10. The appellant’s submissions in reply, before the Member, raised Associate Professor Fearnside’s opinion regarding the MRI scan dated 7 June 2017 and the doctor’s opinion that the appearances were inconsistent with recent acute injury. The appellant submitted that Dr Black, radiologist, reached the same conclusion about the MRI scan dated 16 June 2017, where Dr Black said “there is no evidence for an acute compression injury”. The evidence from Associate Professor Fearnside on this point was relevant to the causation issue. Having been raised, it should have been dealt with. The failure to do so involved error. This left the question of whether the error affected the result. Snell DP concluded that this error was not dispositive and did not constitute appealable error. Grounds 4 and 5 failed. ([113]–[128])

    (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; Walshe v Prest [2005] NSWCA 333; Leichhardt Municipal Council v Seatainers Terminals Pty Ltd (1981) 48 LGRA 409 , and Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 applied)

Ground 6

11. The appellant referred to various matters on which it was submitted the Member did not make findings. He was said to have failed to make a finding regarding acceptance of a handwritten statement with diagrams of what happened on 6 June 2016. He was said to have failed to respond to the respondent’s submission that the appellant’s evidence was “carefully crafted”. The appellant submitted the Member accepted the injury occurred on 6 June 2016 and did not make a finding that his evidence was carefully crafted (each of these conclusions was in the appellant’s favour, the occurrence of injury on 6 June 2016 was not disputed). The appellant submitted that, in the absence of a finding that the whole or specific parts of the appellant’s account of his symptoms should be rejected, there was no basis for a finding that the medical witnesses proceeded on a false history. ([142])
12. Deputy President Snell observed that there were inconsistencies between statements made at around the time when events occurred and in contemporaneous medical evidence, as opposed to later summations of events in statements prepared for the proceedings or for doctors qualified for the proceedings. It was clear, when the reasons were read as a whole, that the Member preferred the evidence contained in contemporary documents rather than conflicting accounts prepared later for use in the proceedings. This was generally consistent with the discussion in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403 (Onassis). The evidence which the Member accepted, and why, was clear enough from a fair reading of his reasons as a whole. The appellant’s submission that evidence must have been a fabrication if it was grossly inconsistent with proven facts, was not consistent with Onassis. Ground 6 failed. ([143]–[155])

Sharp v Sylvanvale Foundation Limited [2022] NSWPICPD 20

WORKERS COMPENSATION – Section 352(5) of the 1998 Act – identification of error – appeal allowed in accordance with the consent between the parties

Wood DP

17 May 2022

Facts

The appellant was employed by the respondent as a disability care worker. On 30 October 2014, the appellant was involved in an incident in which she suffered a significant injury to her right leg when a client made verbal threats to kill her and repeatedly ran over her right leg with his wheelchair. The appellant claimed compensation and liability was accepted by the respondent. The payments of compensation were originally made by QBE Workers Compensation (NSW) Ltd (QBE). Subsequently, the claim was transferred to AAI Limited trading as GIO (GIO). GIO continued to pay the appellant’s compensation entitlements until 22 December 2019, when payments ceased because of the operation of s 39 of the 1987 Act, which limits the period of weekly payments to 260 weeks (except for workers with greater than 20% permanent impairment). The appellant’s right leg was assessed as 13% whole person impairment.

Following the injury to her right leg, the appellant was off work until April 2015, when she returned to work in alternate duties. On 11 May 2015, the appellant was returning paperwork to the office in the course of her employment when she observed the same client chasing and threatening to kill another client. She said that this event triggered memories of the assault on 30 October 2014. She ceased work and sought psychological treatment. Her treatment expenses associated with her psychological condition were paid by QBE and subsequently GIO, who attributed her psychological condition to the physical injury on 30 October 2014.

On 24 September 2018, the appellant completed a claim for weekly payments and treatment expenses in respect of her psychological condition, nominating 11 May 2015 as the date of injury. It appeared that the claim form, together with a certificate of capacity dated 24 September 2018, was forwarded to the respondent by the appellant’s legal representatives under cover of a letter dated 17 December 2018. The letter nominated the date of injury as 11 May 2015. On 31 July 2019, icare Workers Insurance (icare) acknowledged receipt of information that the appellant had provided and allocated a claim number.

The appellant commenced proceedings seeking weekly payments and a lump sum pursuant to s 66 of the 1987 Act. The matter proceeded on the basis that the appellant had suffered a frank injury on 11 May 2015, alleging a psychological injury in the form of a post-traumatic stress disorder. The respondent raised a late issue that the Commission had no jurisdiction to determine the claim now pleaded because that claim had never been made or disputed, and further asserted that Employers Mutual Limited (EML) was not the “insurer on risk” for the injury alleged.

The Member then issued a Certificate of Determination dated 20 August 2021, in which he dismissed the matter on the basis that the Commission had no jurisdiction to determine the matter because the appellant had never made the claim for injury on 11 May 2015, the insurer had not disputed the claim, and the correct insurer on risk had not been nominated.

The appellant appealed that decision. After protracted case management steps were taken following lodgement of the appeal, on 6 May 2022, the parties indicated that they had resolved the matter in principle. The parties forwarded consent orders on 16 May 2022, reflecting their agreement that the appeal should be allowed, and the matter should be remitted to a different Member for re-determination.

Held: The Member’s Certificate of Determination dated 20 August 2021 was revoked and the matter was remitted to a different Member for re-determination in accordance with the consent orders signed by the parties and dated 16 May 2022.

Consideration

1. Section 352(5) of the 1998 Act provides that an appeal from a decision of a non-presidential member is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. On that basis, in order for the appeal to succeed and for the Certificate of Determination to be revoked, the Presidential Member must be satisfied that an error of fact, law or discretion has occurred. ([8])
2. It was patently clear from the evidence that the appellant had in fact made a claim for compensation on 17 December 2018 in respect of the pleaded injury. This fact was confirmed by responses to enquiries made by the appellant directed to icare following a Direction issued by the Deputy President on 6 April 2022. Further, the respondent was given leave by the Member to dispute the claim on the basis of “injury” before the matter proceeded to arbitration. ([9])
3. The Member’s determination that the matter should be dismissed on the basis that there had never been a claim made for the injury and that it had not been disputed, thus the Commission had no jurisdiction to determine the matter, was clearly affected by demonstrable error of the kind required by s 352(5) of the 1998 Act. The appeal therefore succeeded, and the Certificate of Determination was revoked. ([10])