Appeal Case Summaries

lnghams Enterprises Pty Ltd v Mella [2023] NSWPICPD 32

WORKERS COMPENSATION – section 4(b)(ii) of the 1987 Act – aggravation of a disease injury – alleged failure to provide adequate reasons – no error identified on appeal – Kowalski v Repatriation Commission [2011] FCAFC 43 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied – appeal dismissed

Phillips P

8 June 2023

Facts

The respondent worker was employed by the appellant as a process worker for approximately 27 years between 1992 and 2019. During the course of this employment the respondent said that she contracted a disease, degenerative spondylolisthesis, which was due to the nature and conditions of her employment as a process worker. The respondent also alleged that there were two specific incidents involving aggravations of the disease, the first in 2014 when she fell off a chair, the second on 15 August 2018 when she slipped on a piece of chicken skin. The respondent ceased employment on or about 24 June 2019. As a consequence of the above circumstances, the respondent alleged that she suffered a consequential psychological injury. The appellant denied these claims.

The Member held that the respondent sustained injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a lower back condition as a result of the incident in 2014; the nature and conditions of employment between July 2014 to August 2017, and significantly, the incident in 2018. Awards were made in favour of the respondent in respect of weekly compensation and medical treatment expenses. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) law and discretion by reason of denial of procedural fairness (Ground A);

(b) law in a failure to give out adequate reasons (Ground B);

(c) law in determining the matter on a basis not put by or to the parties (Ground C), and

(d) law and fact in failing to properly weigh and consider the evidence (Ground D).

Held: The Certificate of Determination dated 30 May 2022 was confirmed.

Ground A

1. The appellant advanced two complaints alleging that the Member denied the appellant procedural fairness. The first complaint related to the respondent’s application to amend the Application to include a consequential psychological condition. The President found that a review of the transcript of 31 March 2022 clearly revealed the respondent making the application to amend the claim which was opposed by the appellant. The President referred to the parts of the transcript that contained the appellant’s opposition to the amendment and recorded that thereafter there was an exchange between the Member and the solicitor for the appellant regarding the medical notes from the St Andrews Medical Centre. His Honour held that in no way could it be said that the appellant was denied the opportunity to be heard on the amendment application. This submission was without basis. ([42])
2. The appellant also complained that after the Member permitted the amendment, an adjournment application, presumably made by the appellant, was refused. The President carefully reviewed the transcript of the argument before the Member, in particular the parts of the transcript to which the appellant referred. His Honour found that nowhere in the transcript was there any suggestion, let alone any record, of the appellant seeking an adjournment of the proceedings as a result of the amendment application being granted. In any event, the President noted that the matter did not conclude before the Member on that day and the parties were directed to file written submissions. The suggestion or inference arising from the appellant’s argument under this ground, namely that an amendment to the application was made (over its objection) and then an adjournment application was denied, was simply incorrect. No adjournment application was made. ([43])
3. In terms of the respondent’s psychological condition, the President remarked that the appellant had been on notice of this claim for some time. His Honour noted that in the s 78 notice dated 19 May 2020, the appellant denied all liability with respect to the respondent’s claimed secondary psychological injury relying on reports of Dr Casikar (neurosurgeon qualified by the appellant) dated 17 February 2020 and Dr Roberts (psychiatrist qualified by the appellant) dated 5 May 2020. Whilst it was unfortunate that the application to amend the respondent’s claim had not been made sooner, it was not as if the appellant had no knowledge of the claimed condition. ([44])
4. Whilst this argument was not particularly clear, there was a suggestion in the appellant’s submissions dated 22 July 2022 that an aspect of the denial of procedural fairness was the fact that the appellant could not obtain a further report from Dr Roberts to comment upon material from the St Andrews Medical Centre. The way this complaint was framed suggested that the records were admitted without the appellant’s knowledge and that this was procedurally unfair for that reason and because the appellant had no opportunity for its medical expert to review and comment on the said records. The President noted that the appellant accepted it had access to these records for at least two weeks prior to the arbitration hearing. His Honour also remarked that the St Andrews Medical Centre records were produced to the Commission at the request of the appellant. The President did not accept the appellant’s argument, namely that the appellant had no opportunity to review the records which had been produced. The failure here was the appellant’s failure to review the records that it had caused to be produced to the Commission. ([45])
5. The second complaint related to the Member admitting material from the St Andrews Medical Centre “without even providing the appellant with the opportunity of being heard in respect of that application”. The President found this submission was without basis. The appellant was provided with a copy of the submissions and responded on 22 April 2022. No issue was taken in the appellant’s response submissions with respect to this application. It was simply incorrect for the appellant to allege on the appeal that it had been given no opportunity to be heard on this matter. It was clearly raised in the respondent’s submissions before the Member and the appellant said nothing in response, notwithstanding having the opportunity to do so. The Member was entitled to receive and consider the documents given that the appellant took no issue with the respondent’s request. ([46]–[47])

(Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell) applied)

6. The Member was entitled to rely upon the written submissions of the parties and if an application to rely on additional documents is made, as was made in this case and which was not opposed by the appellant, axiomatically it was not an error to admit that material. Ground A was without merit and was dismissed. ([48]–[49])

Ground B

7. In considering this appeal ground, it was necessary for the President to consider how appeals are dealt with in the Commission. His Honour noted the power to intervene on appeal requires the identification and correction of error. It is not the function of a Presidential Member to go looking for error. In this ground the appellant had made a broad assertion that the Member’s reasons were inadequate, pointing to three paragraphs of the reasons which were said to contain “elements of the deficiencies in the reasoning”. What these deficiencies were was not stated. The President set out [25] of Procedural Direction WC3 – Presidential appeals and questions of law in which it is said “It is not acceptable to merely allege that the member erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.” ([50]–[51])

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

8. The President quoted and applied the Full Federal Court in Kowalski v Repatriation Commission [2011] FCAFC 43 at [21], in which it was said “A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be”. The President held that this appeal ground offended these principles. It is insufficient for an appellant to make a broad allegation of error and then simply point to several paragraphs in the decision. This ground failed, even in the most rudimentary way, to identify how the error in terms of inadequacy of reasons was said to have occurred let alone how it affected the ultimate result. Ground B failed to engage with the principles required to establish error on appeal. Ground B was dismissed. ([53]–[54])

Ground C

9. The appellant alleged that the Member determined the matter on a basis which was not put by or to the parties. Ground C was based upon an allegation that the Member proceeded to make findings on a number of matters which were not put by the respondent worker, nor were they matters that were raised with the parties. In submissions filed by the appellant following review of the transcript, the appellant pointed to [36], [41], [44] and [57] of the reasons. This assertion was based upon what transpired before the Member in the hearing on 31 March 2022. The President ultimately did not accept the appellant’s submission. The fact that the matters were not raised in the transcript of 31 March 2022 was not surprising given that written submissions were directed to be filed by the Member. When those written submissions were considered in addition to the material which both parties had relied upon, it was apparent that the assertions made in Ground C had no basis in fact. Ground C was dismissed. ([55]–[75])

Ground D

10. The appellant submitted that the Member failed to properly consider and assess the evidence in the proceedings. Before dealing with this ground, the President paused to restate the duty of a Presidential Member on appeal. This was necessary because of the manner in which this ground had been framed by the appellant, seemingly inviting a different view of the facts be substituted for those found by the Member without identifying error. In Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255, Basten JA stated at [31] that the fact that the Deputy President took a different view of some facts to that of the arbitrator (now member), did not demonstrate error for the purposes of s 352(5) of the 1998 Act. As described in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 ; 10 DDCR 156, it must be shown that the Member was wrong. ([76]–[77])
11. The appellant asserted that because the general practitioner’s notes were silent on the injury being work-related, that this was “evidence to the contrary” of the respondent’s statement or version of events. The President noted that the respondent, in her statement of 11 June 2021, said she recalled telling the doctor the pain was due to “workplace activities”. His Honour did not accept the appellant’s submission that the fact that the general practitioner’s notes were silent on the injury being work-related meant that this constituted contradictory evidence. It is well-established that inconsistencies or indeed omissions in medical records should be approached with caution. ([78])

(Mason v Demasi [2009] NSWCA 227 (Demasi) applied)

12. Clearly the respondent was attending the general practitioner for the purposes of medical treatment. The notes recorded the two August 2017 attendances upon the general practitioner as referred to by the respondent in her statement which was produced almost four years later. The fact that the clinical notes and the respondent’s recollection were not in complete harmony was unsurprising. But they were not in opposition as the appellant submitted. The view reached by the Member at [28] of the reasons was an available finding by the first instance decision-maker. No error had been identified and there was no power on appeal to substitute the appellant’s preferred view of the facts. The President added that for the reasons outlined by Basten JA in Demasi, clinical notes do need to be viewed with caution and they certainly do not serve to undermine the respondent’s credit as asserted by the appellant. ([79])
13. The next complaint in this ground related to the assertion that at the time of the injury, the respondent failed to report the injury despite “clearly being aware of the opportunity (if not the obligation) to report workplace injury”. This failure to report, the appellant alleged, was “contradictory evidence” and meant that the respondent’s statement could not be accepted. The President noted that this argument put by the appellant on the appeal, was not put to the Member. Certainly issue was taken with respect to alleged inconsistencies between the clinical notes and the respondent’s statements, but nowhere was this failure to report the injury argument pursued in the appellant’s written submissions. By definition, the Member could not be in error by failing to consider an argument that was not put. Ground D was dismissed. ([80]–[82])

(Bell and Watson v Qantas Airways Ltd [2009] NSWCA 322 applied)

Prescott v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 33

WORKERS COMPENSATION – Section 352(5) of the 1998 Act – requirement to show error in order revoke a Certificate of Determination

Wood DP

21 June 2023

Facts

The appellant worker made a claim for weekly compensation, medical expenses and a lump sum pursuant to s 66 of the 1987 Act in respect of a psychological injury. The injury was said to have occurred as a result of numerous events in the course of her employment over the period from 1 January 1993 to 8 March 2012. The respondent denied liability for the alleged injuries, disputing that the appellant suffered an injury within the meaning of s 4 and s 11A(3) of the 1987 Act, and disputing that the appellant’s employment was a substantial contributing factor to any such injury pursuant to s 9A of the 1987 Act.

The Member determined that she was not satisfied that the appellant’s employment was a substantial contributing factor to the injury and thus she was not satisfied that the appellant suffered an injury pursuant to s 4(b)(i) of the 1987 Act. The appellant appealed.

After the appeal was lodged, but before the matter was allocated to a Presidential Member, the respondent lodged draft consent orders signed by both of the parties reflecting an agreed resolution of the dispute. The following orders were sought:

(a) the appeal to be allowed;

(b) the respondent to pay the appellant lump sum compensation in respect of 15% whole person impairment for psychological injury resulting from numerous stressors, with a deemed date of injury of 8 March 2012, and

(c) the application before the Commission to be otherwise discontinued.

The first ground of appeal asserted that the Member erred in law by applying the test of the employment being the “main contributing factor” to the injury in accordance with s 4(b) of the 1987 Act, rather than “a substantial contributing factor” as required by s 9A of the 1987 Act.

Held: The Member’s Certificate of Determination dated 6 July 2022 was revoked. The proceedings, including the proposed consent orders, were remitted to the Division Head of the Workers Compensation Division of the Commission for the purpose of giving effect to the proposed consent orders.

Consideration

1. The appellant submitted that the deemed date of injury was 8 March 2012. The appellant argued that s 4(b) of the 1987 Act was amended from 19 June 2012 to include the requirement that the injured worker’s employment was the main contributing factor to a disease injury (s 4(b)(i)) or to the aggravation of a disease (s 4(b)(ii)). The appellant said that prior to that amendment, the employment was only required to be “a contributing factor” to either “disease injury”. She asserted that the Member applied the wrong test in making her determination. ([7])
2. Deputy President Wood found the Member identified the dispute to be determined was whether the appellant suffered a psychological injury in accordance with s 4(b)(i) of the 1987 Act as a result of numerous workplace stressors with a deemed date of injury of 8 March 2012. The deemed date of injury as pleaded in the Application to Resolve a Dispute was 8 March 2012, and the injury was pleaded as a disease injury within the meaning of s 4(b)(i) of the 1987 Act. It was clear that this was the injury the subject of the dispute between the parties. ([9]–[10])
3. In this matter, on 10 May 2022, the appellant lodged a notice of psychological injury with a date of injury as 8 March 2012 and indicated that she ceased work on 16 April 2012. On 5 July 2012, the respondent corresponded with the Community Emergency Mental Health Team, advising that the respondent gave approval for the appellant to undergo admission to a private hospital for assessment and treatment in relation to her workers compensation claim. ([12])

(AP v NSW Police Force [2013] NSWWCCPD 11 applied)

4. The Deputy President held that the incapacity suffered by the appellant for which she claimed compensation manifested no later than 16 April 2012, when she ceased work. The appellant’s date of injury therefore pre-dated the amendments to s 4(b) of the 1987 Act. The Member erred in giving consideration to and making a determination as to whether the appellant’s employment was the main contributing factor to her injury. It was unfortunate that the Member was not assisted by any submissions from either party as to the proper test to be applied and was certainly not assisted by the voluminous nature of the evidentiary material places before her. ([13])
5. Deputy President Wood concluded that the Member’s determination was affected by error of law and was revoked. The Deputy President was of the view that the remaining orders sought by the parties were matters more appropriately dealt with by a non-presidential member. ([14])

Vila v Essential Smash Repairs Pty Ltd (Deregistered) [2023] NSWPICPD 34

WORKERS COMPENSATION – Statutory interpretation – consideration of the term “actual earnings paid or payable to the worker in respect of that week” in section 44E(1) (in force at date of injury but since repealed) of the 1987 Act – whether proper application of the principles of construction – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27; 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No. 73943 [2014] NSWCA 409; 88 NSWLR 488 applied

Perry ADP

22 June 2023

Facts

The appellant (Mr Vila) commenced employment with the first respondent, Essential Smash Repairs Pty Ltd (Deregistered) (ESR) on 7 January 2013 as a full-time panel beater. ESR was insured by QBE Workers Compensation (NSW) Ltd (QBE) until 20 February 2013 and uninsured thereafter. The second respondent was the Workers Compensation Nominal Insurer (the nominal insurer).

The appellant suffered a back injury in the course of his employment with ESR on 20 February 2013. On 13 May 2013, QBE accepted liability with respect to the injury and began to pay Mr Vila weekly compensation. GIO General Insurance Ltd (GIO) subsequently took over or assumed responsibility for liability under the 1987 Act with respect to the injury. QBE and GIO accepted Mr Vila as having no current work capacity since 13 May 2013.

On 5 August 2015, the respondents made a work capacity decision (WCD) which determined, relevantly, Mr Vila’s pre-injury average weekly earnings (PIAWE) as $1,000 per week. He disputed this, alleging his PIAWE were $1,100 net per week pursuant to a term of the employment contract he made with ESR through Mr Silvestro. The insurer made a further WCD on 30 August 2016, determining Mr Vila’s PIAWE as $1,269 – the asserted gross figure based on net weekly earnings of $1,000.

On 27 July 2021, the respondents determined Mr Vila’s PIAWE were $1,270 gross and moved by indexation to $1,450 from 12 February 2021 and $1,460 from 1 April 2021. That determination was based on a decision that Mr Vila was paid $1,000 net per week with ESR, on the basis of this being the amount agreed between the parties.

The dispute before the Member involved two issues: firstly, as to the correct construction of (the now repealed) s 44E(1) of the 1987 Act – which dealt with the “ordinary earnings” ingredient of PIAWE (s 44E(1) or the s 44E(1) issue); and secondly, what were the terms of the agreement relevant to Mr Vila’s ordinary earnings with ESR (the contract issue). The Member found Mr Vila’s ordinary earnings for the purposes of s 44E(1)(b) of the 1987 Act were $1,000 net per week. Mr Vila appealed against that finding and determination.

The issues on appeal were whether the Member failed to:

(a) apply the principles of statutory construction correctly and thereby misconstrued the meaning of the phrase in s 44E(1)(b)(i) “the actual earnings paid or payable to the worker” (Ground 1), and

(b) address, engage with, or respond to, a substantial, clearly articulated argument relying on established facts that was put before her regarding the meaning of the phrase “or payable to the worker”, thereby denying the appellant procedural fairness/failing to accord the appellant natural justice and that failure constituted a constructive failure to exercise jurisdiction (Ground 2).

Held: The Member’s Certificate of Determination dated 20 April 2022 was revoked. The matter was remitted for re-determination by a different Member.

Discussion

1. Acting Deputy President Perry acknowledged that the respondents submitted on appeal that the Member had correctly applied the principles of statutory construction, and that the interpretation of s 44E(1)(b)(i) in the reasons should not be disturbed, their submissions to the Member were that “the actual earnings paid or payable” meant “the actual earnings paid or entitled to be paid”. The respondents also submitted to the Member, after discussing the statements in Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 and Hee v State Transit Authority of New South Wales [2018] NSWWCCPD 6 , that they “in general [agree] with the [appellant’s] assessment of the case law”. ([61])
2. However, the Member still had a duty to construe the section and was not bound by the submissions. Nevertheless, in the Acting Deputy President’s opinion, the submissions were correct and the concessions by the respondents were appropriate. More importantly, Perry ADP agreed with the appellant’s submission that the Member erred in law in failing to correctly apply the principles of statutory construction and thus misconstrued s 44E(1)(b) of the 1987 Act. His reasons for finding such error essentially arose from the reasons failing to properly take into account the word “payable” in s 44E(1)(b)(i), thereby failing to apply the principles of statutory construction correctly. ([62])

Ground 1

3. Acting Deputy President Perry disagreed with the Member’s construction of s 44E(1). Firstly, the terms “that week” and “a week” had been erroneously misconstrued at [65] of the reasons. Consistent with the passage in 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No. 73943 [2014] NSWCA 409 ; 88 NSWLR 488 at [82], they need to be read in this fuller context: “... in relation to [PIAWE], the ordinary earnings of a worker in relation to a week during the relevant period are ... the actual earnings paid or payable to the worker in respect of that week”. The reference to “a week” in s 44E(1)(b)(i) refers to a week during the relevant period (in this case the period of Mr Vila’s continuous employment with ESR). ([63])
4. This assisted the identification of the temporal aspect of the PIAWE calculation required by s 44C and sprung from the reference to these relevant words in s 33: “If ... incapacity ... results from an injury, the compensation payable ... shall include a weekly payment during the incapacity”. ([64])
5. The Acting Deputy President held that the provisions in Div 2, Subdiv 4 of the 1987 Act contribute to the determination (by s 35 of the 1987 Act) and calculation of a weekly payment rate. This was consistent with the reference to these words in s 44C(1)(a). Section 44D of the 1987 Act defines “the relevant period” in relation to PIAWE for a worker “who has been continuously employed by the same employer for less than 52 weeks immediately before the injury” (Mr Vila’s case), as “the period of continuous employment”. Section 35 was also relevant, providing for various factors “used to determine the rate of weekly payments payable to an injured worker in respect of a week”. It was in that context that s 44E set out the factors to determine the ordinary earnings aspect of the PIAWE factor to assist the determination of the rate of weekly payments. ([66]–[68])
6. Perry ADP found the finding at [61] of the reasons that “[the sections] look at what has been paid in the past so that post-injury payments are consistent with past earnings” was erroneous. The error lay in the words “paid in the past” having application to the words “or payable”. There was also no explanation of how the word “payable” had been interpreted, given any work to do, or otherwise taken into account. The word “or” in s 44E(1)(b)(i) was clearly disjunctive. ([69])
7. The Acting Deputy President noted the finding at [61] of the reasons (second sentence) was a conclusion. The reasons followed at [64]–[65]. But Perry ADP also found error in the construction of s 44E(1) in those paragraphs. The reasons at [64] found: “Actual connotes what did occur rather than what Mr Vila says should have occurred”. Again, the words “or payable” had not been taken into account or were erroneously construed. This finding was essentially a conclusion with the reasons following (at [65]). ([70])
8. There was also error in the finding at [65] that the words “that week” and “a week” together result in the sub-section referring to an amount which is paid or is to be paid “because of work which has been done or would have been done if the full week had been worked”. There is no reference in the text of s 44E(1) to “work” which would have been done if the full week had been worked, nor was there any clear reason why such words should be read in. It was also unclear what was meant by all these words: although it seemed that the reference to an amount which “is paid” was intended to relate to “work which has been done”, with the reference to an amount which is “to be paid” intended to relate to “work which ... would have been done if the full week had been worked” (emphasis added). This was erroneous because there is no reference in the text to these words, with no apparent reason to read them in. To do so would produce too much tension between s 44E(1) and the terms of s 44C(1)(a). ([71])
9. In the Acting Deputy President’s opinion, the purpose of the s 44C(1) exclusion was to avoid an excluded week skewing the ordinary earnings aspect of the PIAWE calculation by producing an incongruous amount for that week. The s 44C(1) exclusion of ordinary earnings during the relevant period is still a different concept to “actual earnings paid or payable to the worker in respect of that week”. For example, even if an exclusion applies to “any week”, this only means such week is excluded from the calculation of ordinary earnings. It did not necessarily mean, or apply to, the “actual earnings payable” in respect of non-excluded weeks. The words “or payable” would remain otiose on this construction. Also, and contrary to the reasons at [65], the text of ss 44C(1) and 44E(1) does not refer to, or suggest, “the amount which he has been receiving”, even if it be considered on the basis of what the worker earns “in ordinary circumstances on a week to week basis” – except in relation to the word “paid” only, and Perry ADP so found. ([73]–[74])
10. Whether or not the reference to “actual earnings” in s 44I was relevantly analogous to the meaning of this term in the context of the 1926 Act and the 1987 Act before the 2012 amendments was unnecessary to decide in this case. But it was clear, and the Acting Deputy President did decide, that this term in s 44E(1) was a significantly different concept, and had a significantly different meaning to, the term “actual earnings” as referred to in authorities such as Aitkin v Goodyear Tyre & Rubber Company (Australia) Limited [1945] NSWStRp 29; 46 SR (NSW) 20 and Mitchell v Central West Health Service (1997) 14 NSWCCR 526. This was mainly because the provisions of the two earlier Acts did not include the critically important words appearing in s 44E(1) – actual earnings paid or payable. ([82])
11. In Acting Deputy President Perry’s opinion, “earnings” meant “money earned”, not only in accordance with its ordinary and natural meaning, but also the text, context and purpose of “earnings” in s 44E(1) and the 1987 Act more generally. But in the context of this statutory provision, money earned does not necessarily equate to money received. Firstly, the word “received”, or anything resembling it, does not appear in the relevant text. Secondly, “earnings” should not be read in isolation. It should be read in the context of the sentence as a whole, but with particular importance on the phrase “actual earnings paid or payable ... in respect of that week” (emphasis added). It does not matter whether “payable” is an adjective or a noun. If an adjective, it also (with “actual”) modifies the noun “earnings” or is a noun itself. Either way, it is an important word in the text and should be employed. ([85])
12. In Perry ADP’s opinion, it was clear enough that it is used to contrast “actual earnings” in s 44E(1)(b) with the “amounts paid or payable as piece rates or commissions in respect of that week” in sub-s (b)(ii), and, even more clearly, the reference to “the monetary value of non-pecuniary benefits provided ...” in sub-s (b)(iii), and the Acting Deputy President so found. There is a clear difference between actual money earnings and non-pecuniary benefits, such difference creating a need to delineate the modes of remuneration. This was also the case, although less clearly seen, with respect to piece rates or commissions. ([86])
13. It could be accepted that the word “payable” has work to do by reference to a worker’s actual earnings which are not yet paid but are due to be paid in respect of a week. But again, not in the sense of the worker having received money earned. The section does not say that. It suggests the contrary, by using the words “or payable”. Acting Deputy President Perry also did not read the provision as limiting “payable” only to a situation where a worker’s actual earnings are not yet paid but are due to be paid in respect of a week. In his opinion, “payable”, taking into account the text, context and purpose of the statute, also was capable of meaning an amount of money earned which is still owed, or due to be paid because the correct amount of actual earnings payable remains payable and due, even if an incorrect amount has already been paid in respect of that week. That also conformed with the ordinary and natural meaning of the word “payable”. The reference in the text to actual earnings which are payable clearly contemplates situations where such earnings have not been received. In these situations, the ordinary earnings are clearly enough not limited to, contrary to the reasons, “what has been paid in the past”, or “what did occur rather than what ... should have occurred”, or “... the amount which he has been receiving”. Therefore, the reasons in this respect (at [65]) were erroneous, including because there was no or no adequate analysis of the critically important word “payable”. This related to an absence of such analysis in the reasons generally, not only at [65]. ([87])
14. In the context of the 1987 Act generally, in particular Pt 3, Subdiv 4, and more particularly, s 44E(1)(b)(i), Perry ADP did not think it likely that the word “payable” only refers to earnings “because of work which has been done or would have been done if the full week had been worked”, nor did he think it likely that it only suggested “the amount which he has been receiving” (on a week to week basis). The Acting Deputy President found an error of law in this construction because no or no sufficient regard was paid in the statutory interpretation process to the word “payable”, and s 44E(1)(b)(i) had been misconstrued. ([93])
15. The Member’s comment that “[a]ctual connotes what did occur rather than what Mr Vila says should have occurred” focused on the past tense with respect to the words “actual earnings paid”, then differentiated between “what did occur” and what “should have occurred”. The Member appeared to be implying that actual does not include something that “should have occurred”. The only such matter that could be relevant would be the contract. This also constituted error. If the parties did come to an agreement as was alleged by the appellant, it would have been made or competently varied before the injury. So, if the Member was implying that the word “actual” does not contemplate what “should have occurred”, this would be at odds with an agreement existing already. Alternatively, if the Member was referring to a payment or receipt of earnings which “should have occurred”, that would be consistent with the appellant’s argument that such construction fails to fully or properly take into account the words “is payable”. ([95])
16. The Acting Deputy President ultimately found the Member erroneously misconstrued s 44E(1)(b)(i) of the 1987 Act. Accordingly, Ground 1 of the appeal succeeded. ([98])

Ground 2

17. Acting Deputy President Perry did not accept Mr Vila’s submissions. The Member carefully recorded the submissions for Mr Vila in this respect – particularly at [42]–[43] of the reasons. Also, contrary to the appellant’s submissions, Perry ADP held that the Member did address, engage with or respond to the meaning of the phrase “or payable to the worker”. The Acting Deputy President did not think this was procedurally unfair to the appellant. However, in his opinion, such construction was erroneous. Ground 2 failed. ([99]–[100])

    Was there a finding on the contract issue?

18. The appellant submitted that “the Member accepted Mr Vila’s version” but had not developed that submission by identifying how or why that occurred. Perry ADP agreed with the respondents’ submission that there was no finding by the Member of an agreement to pay $1,100 per week. He also accepted the submission for the respondent that there was only a finding of a discussion between Mr Vila and Mr Silvestro that Mr Vila’s pay would be increased subject to “seeing how he went”, and that this did not equate to a finding that his pay should have been increased, nor did it amount to any finding that Mr Vila was underpaid. The Acting Deputy President also accepted the respondents’ submission that a finding of a discussion regarding future wages based on a condition precedent was not a finding of a promise to pay. ([101])
19. The Member did note that Mr Vila’s “pay was not increased at the expiry of the first month and he may well have had a legitimate complaint about that and other employment entitlements”. But this clearly fell far short of the resolution of the substantive issue. ([102])

Conclusion

20. Having found the errors of law in the reasons that are referred to above in the present determination, Perry ADP revoked the Member’s decision and the Certificate of Determination and remitted the matter to another non-presidential member for determination of the contract issue pursuant to s 352(7) of the 1998 Act. There were only two grounds of appeal in this case. The first, in essence, was that the Member misconstrued s 44E(1)(b)(i). The second, in essence, alleged procedural unfairness and constructive failure to exercise jurisdiction because the appellant’s submissions regarding the phrase “or payable to the worker” were not addressed. Neither party raised, in this appeal, any matter or submission going to the contract issue – except as to whether or not that issue was determined by the Member. The Acting Deputy President’s finding that the contract issue was not decided was a separate matter to the contract issue itself. The parties did not otherwise raise the contract issue, either in the appeal grounds or their submissions. In these circumstances, the Acting Deputy President held he did not have jurisdiction to decide the substantive issue. ([103]–[107])

Secretary, Department of Communities and Justice v Stewart [2023] NSWPICPD 35

WORKERS COMPENSATION – Clause 2 of Schedule 3 to the 1987 Act – calculation of pre-injury average weekly earnings – whether regulations 8C, 8D or 8E of the 2016 Regulation apply to exclude from the “relevant earning period” the period when workers compensation payments were received in respect of an earlier injury – statutory construction – Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16 applied

Wood DP

23 June 2023

Facts

The respondent worker was employed by the appellant as a Senior Prison Officer. On 20 November 2020, the respondent sustained a shoulder injury in the course of his employment. He was incapacitated for work from that date until 1 February 2021. Liability for that injury was accepted by the appellant and he was paid weekly payments of compensation for that period.

On 1 February 2021, the respondent lodged a claim for workers compensation for a psychological injury in the form of a post-traumatic stress disorder resulting from the “nature and conditions” of his employment. Liability was accepted for that injury.

This appeal concerned a dispute between the parties as to how the respondent’s pre-injury average weekly earnings should be calculated given that during the 52 weeks prior to the pleaded date of injury, the respondent was in receipt of weekly payments of compensation. The Member determined that the period during which the respondent received weekly payments of compensation should not be included in the 52 week period, applying Regulation 8D of the 2016 Regulation.

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

(a) in the application of the provisions of the 1987 Act and the 2016 Regulation in respect of the “relevant period” (Ground 1);

(b) by entering an award in favour of the respondent that the relevant earning period for the calculation of pre-injury average weekly earnings should be adjusted to exclude the period where the respondent was paid workers compensation benefits for an unrelated injury (Ground 2);

(c) when finding that the relevant earning period for the calculation of pre-injury average earnings should be adjusted and reduced to 1 February 2020 to 19 November 2020 (Ground 3), and

(d) in determining that reg 8D of the 2016 Regulation applied (Ground 4).

The respondent also lodged a Notice of Contention. The respondent contended that the definition of pre-injury average weekly earnings in cl 2 of Sch 3 to the 1987 Act of itself provides for the reduction of the earnings period, so that in any event the respondent’s relevant earning period could be adjusted.

Held: Order Number 1 of the Certificate of Determination dated 28 June 2022 was confirmed. Order Number 2 of the Certificate of Determination dated 28 June 2022 was amended to read: “The relevant earning period for the calculation of the pre-injury average weekly earnings is adjusted to 1 February 2020 to 19 November 2020 pursuant to regulation 8E of the Workers Compensation Regulation 2016.”

Consideration

1. Section 352(5) of the 1998 Act provides that an appeal from 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. The appeal is not a review or new hearing. The respondent sought to rely upon a Notice of Contention, which raised a new argument that was not ventilated by the parties at arbitration. A Notice of Contention can only be filed if a respondent to the appeal seeks to contend that the Member’s decision should be affirmed on grounds other than those relied on by the Member but does not seek a discharge or variation of any part of that decision. In the context of an appeal from a decision of a non-presidential member, where the appeal is limited to the identification of error on the part of the Member and the correction of the error, matters referrable to the respondent’s contention which were not raised before the Member cannot be relevant to an assessment of whether the Member erred but can become relevant to any re-determination. ([70])
2. The grounds of appeal, while expressed as four separate grounds, all asserted error on the part of the Member in determining that the respondent’s relevant earning period could be adjusted in accordance with reg 8D of the 2016 Regulation. The appellant submitted that the regulation is limited in its application to only allow a re-alignment of the 52 week period so that it aligns with the worker’s pay periods, such as when a worker is paid fortnightly or monthly. The appellant further submitted that the respondent’s circumstances did not fit within the circumstance described in the regulation and that the term “regular interval” within the regulation, which, when afforded a dictionary definition, means “a period between two events”, must be given work to do. ([71])
3. Deputy President Wood accepted the appellant’s submission that reg 8D did not apply to the respondent’s circumstances and that the Member’s interpretation of reg 8D was erroneous. On a proper reading of reg 8D, it does not operate to shorten the 52 week period, which the Member did. Further, the Member did not explain how the term “regular interval” sat with the respondent having worked for a finite period and then remaining off work on workers compensation. ([72])
4. Clause (1) of the regulation provides: “(1) The relevant earning period for a worker in employment may be adjusted to align the relevant earning period with any regular interval at which the worker is entitled to receive payment of earnings for work performed in the employment” (emphasis added). When a court or tribunal seeks to construe a statutory provision it must strive to give meaning to every word of the provision. Wood DP held that the Member did not provide any consideration of the term “any regular interval”, other than to say that reg 8D had:

“... the effect of aligning the relevant period for PIAWE calculation to the regular interval during which the [respondent] was entitled to receive earnings from his employment. That is, in my view, those provisions have the effect of removing from calculation both the workers compensation payments received by the [respondent] for the unrelated injury and the period for which those payments were received.” ([73]–[74])

(Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 applied)

5. The appellant submitted that the dictionary definition of “interval” was a period between two events. The appellant did not indicate the source of that definition and it is rare for a dictionary definition to assist in seeking the legal meaning of a provision. However, the task in statutory construction is to construe the language of the statute, not the individual words. Deputy President Wood considered that the proper construction of the composite phrase “regular interval” denotes something that occurs repetitiously, or on a number of periodic occasions. Such occurrences did not apply in the respondent’s circumstances. That construction was logical and consistent with the legislative intention expressed in cl 2(3)(b) of Sch 3 to the 1987 Act. The Deputy President accepted the appellant’s submission that the regulation provides for the 52 week period to be re-aligned so that it reflects the regular intervals at which a worker received payment (such as fortnightly or monthly payments) for work performed. As a consequence, the Member was in error to apply reg 8D in this case. ([75]–[76])

   (Campbell v R [2008] NSWCCA 214 and St George Bank Ltd v Federal Commissioner of Taxation [2009] FCAFC 62 applied)

6. Deputy President Wood considered it appropriate and in the interests of the parties to re-determine the matter. ([77])

Re-determination

7. Clause 2(2) of Sch 3 to the 1987 Act defines the relevant earning period as 52 weeks from the date of injury, excluding any period prior to or after that period. Wood DP noted that the matter proceeded on the basis of a date of injury of 1 February 2021, despite the respondent having not worked since 20 November 2020. Neither party agitated for a different date of injury. ([78])
8. The respondent contended that cl 2 only defines the maximum period and that the clause itself, when read with cl 6(2)(c), allows for the 52 week period to be shortened to account for the period during which weekly payments of compensation were paid in respect of the earlier injury. That was not a submission made to the Member and it did not form part of the Member’s reasoning. It is not generally open to a party to raise a new issue or make a new submission on appeal. However, the matter required determination, and the appellant had had the opportunity to reply to the contention. Deputy President Wood dealt with the issue in this re-determination, ultimately rejecting the submission. She found the interpretation put forward by the respondent as to the effect of cl 2(2) required additional words to be read into the regulation in order to arrive at that meaning. There was nothing in the clause that indicated that the relevant earning period is a “maximum” of 52 weeks. ([79]–[81])

(Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4; Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68, and Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 applied)

9. There is no apparent simple, grammatical or drafting error in cl 2(2) of Sch 3 that defeats its purpose, which is to provide for a period over which a worker’s earnings are to be taken into account in the calculation of the pre-injury average weekly earnings. The inclusion of the concept that the 52 weeks is to be considered a “maximum” period is not consistent with the principles of statutory construction and is not permissible. Further, cl 2(2) of Sch 3 defines the “relevant earning period” as the “52 weeks immediately prior to the injury”. ([82])
10. Deputy President Wood observed that the only relief available for an injured worker in the circumstances where the worker received payments of weekly compensation during the relevant earning period is that provided for in Div 2 of Pt 4 of the 2016 Regulation, regulations 8A to 8EA. Regulation 8A provides for adjustment in the following circumstances and in the following order:

(a) adjustment for workers not continuously employed (reg 8B);

(b) adjustment for financially material change to earnings (reg 8C);

(c) alignment of relevant earning period with pay period (reg 8D);

(d) adjustment for unpaid leave (reg 8E), and

(e) adjustment for prescribed periods relating to COVID-19 (reg 8EA). ([86]–[87])

11. At the oral hearing of this appeal, both parties were in agreement that the application of each of the regulations 8B to 8EA were to be considered in the order in which they are listed. Neither party asserted that reg 8B or reg 8EA applied and the Deputy President had already determined that the respondent’s circumstances did not fall within reg 8D. ([88])
12. Deputy President Wood noted that this case differed from her earlier decision in Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19. The respondent in this case did not return to work after he was incapacitated because of his earlier injury. There was, therefore, no ongoing change in the nature of his employment that resulted in a financially material change to his earnings. The parties, as well as the Member below, acknowledged that, if reg 8C was applied, it would result in a capricious or unjust outcome in that the respondent’s pre-injury average weekly earnings would be zero. The Deputy President did not consider that reg 8C was applicable in the respondent’s circumstances and it was therefore necessary to descend further into the regulations in order to consider whether the subsequent regulations provide relief in favour the respondent. ([89]–[90])
13. The only remaining regulation that could be considered was reg 8E, which provides that, in circumstances where no earnings in the employment were paid or payable to the worker during a period of unpaid leave, the relevant earning period is to be adjusted by excluding that period of unpaid leave. In the Deputy President’s view, an unjust outcome would result if a narrow view was taken to the term “unpaid leave.” If it was construed as referring only to a period during which a worker took leave without pay, for example for personal reasons, such a construction would entitle the worker to have the “relevant earning period” adjusted to discard the period of unpaid leave. On the other hand, a worker in the circumstances of the respondent in this case, who was not in receipt of “earnings” because he had suffered a work-related injury and the weekly payments were not included in “earnings”, would be unable to have the “relevant earning period” adjusted. Such an outcome would be plainly unfair and contrary to the intention of legislation, which was clearly to apply fairness to the calculation of the pre-injury average weekly earnings. ([91]–[94])
14. The “earnings” received by a worker in respect of a week are defined as the amount that is the income the worker received for work performed in any employment during the week. It followed that the respondent did not receive “earnings”, and earnings were not payable, when he was incapacitated and in receipt of weekly payments of compensation. By operation of cl 6(2)(c) of Sch 3, weekly payments of compensation are excluded from the earnings calculation. ([95])
15. In the context where weekly payments of compensation are excluded from the calculation of earnings, and no earnings were paid or payable to the respondent, Wood DP concluded that the respondent was on “unpaid leave” for the period during which he was incapacitated because of his prior injury, in accordance with reg 8E of the 2016 Regulation. The relevant earning period was therefore to be adjusted to the period from 1 February 2020 to 20 November 2020 in accordance with reg 8E. ([96])

Secretary, Department of Communities and Justice v Nitchell [2023] NSWPICPD 36

WORKERS COMPENSATION – Clause 2 of Schedule 3 to the 1987 Act – calculation of pre-injury average weekly earnings – whether Regulation 8C of the 2016 Regulation applies to exclude from the calculation a period when workers compensation payments were received in respect of an earlier injury – Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19 discussed – statutory construction – circumstances when words can be read into the statute – Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 considered; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 discussed and applied

Wood DP

23 June 2023

Facts

The respondent worker was employed by the appellant on a part-time basis as a child protection caseworker. On 12 November 2021, she suffered an injury to her back when travelling in a faulty lift. Liability for the injury was accepted by the appellant. The respondent ceased work, returning to work on a graduated basis from 27 January 2022. She returned to her usual pre-injury hours on 21 February 2022. On 17 March 2022, the respondent suffered a psychological injury in the context of threats made by the parent of a child. She claimed weekly compensation and her claim was accepted.

The dispute before the Commission was about how the pre-injury average weekly earnings in respect of the injury on 17 March 2022 (the second injury) should be calculated. In the calculation of the respondent’s pre-injury average weekly earnings, the appellant disregarded the weekly compensation amount paid in respect of the earlier injury, as required by cl 6(2)(c) of Sch 3 to the 1987 Act. That is, the appellant applied the full period of 52 weeks prior to the injury to the calculation for the earlier injury. The respondent asserted that the relevant earning period should be reduced because of the exclusion of the earlier workers compensation payments from her gross earnings. The respondent relied upon regulations 8A to 8EA in Div 2 of Pt 4 of the 2016 Regulation. Those regulations provide for an adjustment of the “relevant earning period” defined in cl 2(2) of Sch 3 in certain circumstances for the purpose of calculation of the worker’s pre-injury average weekly earnings.

The appellant disputed that the respondent’s relevant earning period could be adjusted.

The Member determined that:

(a)     the phrase “immediately before the date of injury” in cl 2(2) of Sch 3 should be read as “immediately before the date of injury, or as adjusted where a worker receives income as defined by Clause 6(2)(c) hereof” (emphasis added), and

(b)     the appellant contravened cl 6(2)(c) of Sch 3 by:

(i)      including the respondent’s earnings received when performing suitable duties as a result of her unrelated injury, and

(ii)      including the period when the respondent was in receipt of weekly payments for her unrelated injury.

The Member issued further orders on 24 October 2022 and 28 October 2022 in respect of the respondent’s pre-average weekly earnings figure, which he determined was $1,636.25, and the amounts of weekly compensation payable. The employer appealed.

The issue on appeal was whether “the Member erred in his interpretation of Schedule 3 of [the 1987 Act] ... in that the Member determined that the relevant earning period could be adjusted by deducting 14 weeks by applying the definition of earnings from Schedule 3(6)(2)(c).”

Held: The Member’s Certificate of Determination dated 14 October 2022, the Member’s further orders dated 24 October 2022 and the Member’s final orders dated 28 October 2022 were all revoked. The respondent’s “relevant earning period”, as defined by cl 2(2) of Sch 3 to the 1987 Act was adjusted to be the period from 21 February 2022 until 17 March 2022 inclusive, in accordance with reg 8C of the 2016 Regulation.

Consideration

1. The appellant asserted error on the part of the Member in that he found that cl 2 of Sch 3 enabled him to adjust the relevant earning period without recourse to regulations 8B to 8E of the 2016 Regulation. ([66])
2. Deputy President Wood held that on a plain reading of the words of the statute, there was no ambiguity within cl 2 of Sch 3. Clause 2(1) of Sch 3 defines “pre-injury average weekly earnings” as the weekly average of the worker’s gross pre-injury earnings. Clause 2(2) provides that earnings earned outside of the 52 weeks immediately prior to the injury are not to be taken into account in the calculation, and the period of 52 weeks ending immediately before the date of the injury is the “relevant earning period”. Clause 2(3) permits the clause itself, or the regulations, to provide for the adjustment of “the relevant earning period” in the circumstances described therein. Thus, the “relevant earning period” is the 52 week period, unless it can be adjusted in accordance with cl 2 of Sch 3, or by the regulations. ([69])
3. The Deputy President found that there was nothing in cl 2 of itself that made provision for the adjustment of the “relevant earning period”, which is defined as the 52 weeks immediately prior to the injury. In her view, there was nothing in cl 2 or indeed in the regulations that supported the notion that the 52 weeks could be considered the “maximum” earning period, which could be shortened or otherwise adjusted at the discretion of the decision maker. Wood DP accepted the appellant’s submission that, in the absence of any such provision in cl 2 , in order to adjust the 52 week period, the only recourse is to be had in the regulations enacted in accordance with that clause. The exclusion of payments of weekly compensation from the calculation of pre-injury average weekly earnings in accordance with cl 6(2), on a plain reading of the text and in the context of the provision, does not extend to permission to exclude the weeks when weekly compensation was received from the relevant earning period. ([70])
4. The Member determined that he was not required to find relief in favour of the respondent from the regulations. Wood DP found the Member erred in so concluding. ([71])
5. The appellant further asserted that the Member was in error to read additional words into cl 2 of Sch 3 to the 1987 Act. After setting out the Member’s reasoning process, Wood DP said that it was not clear from the additional wording what the Member was trying to achieve. Clause 6(2) of Sch 3 provides that “income” does not include weekly payments of compensation so that the respondent did not receive any “income as defined by cl 6(2)(c)”. It was not open to the Member to read into the clause a provision which adjusted the relevant earning period. The clause, and the context in which the clause was expressed, did not infer any such intention but rather made provision for the circumstances in which the regulations could permit the relevant earning period to be adjusted. ([74]–[75])
6. Deputy President Wood concluded that in the circumstances of this case, the suggested addition to the clause did not work to correct any simple, grammatical drafting errors. It was apparent that the Member was attempting to fill a gap in the legislation and the Member erred in doing so. It followed that the Member’s Certificate of Determination dated 14 October 2022, and the further and final orders made on 24 October 2022 and 28 October 2022 respectively were revoked. Given the nature of the issues on appeal, the Deputy President considered it appropriate to re-determine the matter. ([78]–[80])

Re-determination

7. This matter involved similar considerations to those in Sidhu v Secretary, Department of Communities and Justice [2021] NSWPIC 522 and Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19 (Pell), that is, how the worker’s pre-injury average weekly earnings should be calculated. ([81])
8. Taking into account the ordinary and grammatical meaning of the words of Reg 8C, the context (in terms of the existing state of the law expressed in the enabling clause, cl 2 of Sch 3) and the mischief that the regulation was intended to address, Deputy President Wood was satisfied that the same approach taken in Pell should be applied in this case. For those reasons, and the reasons expressed in Pell, the Deputy President found that reg 8C applied. ([82]–[84])
9. Deputy President Wood noted that the parties were given the opportunity to address as to how the relevant earning period should be adjusted if reg 8C applied. Both parties agreed that in those circumstances, the period from 18 March 2021 to the respondent’s return to work after the earlier injury should be excluded. Wood DP held the period during which the respondent performed selected duties was not a “change of an ongoing nature” which resulted in a financially material change to her earnings. She performed those duties on reduced hours, for a short period of time, and received weekly compensation in the form of “make-up” payments. ([86])
10. Consequently, as the change of an ongoing nature to the respondent’s earnings, which would have continued but for the second injury, occurred on 21 February 2022, the respondent’s relevant earning period as adjusted was from 21 February 2022 until 17 March 2022. No submissions were made as to what amount constituted the respondent’s pre-injury average weekly earnings if reg 8C applied. The Deputy President had determined the dispute as to the respondent’s relevant earning period and left the calculation of the respondent’s pre-injury earnings to the parties. ([87])

Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38

WORKERS COMPENSATION – appeal against Member’s decision to refer a matter for further medical assessment under section 329(1)(a) of the 1998 Act – Skates v Hills Industries Ltd [2021] NSWCA 142 and Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52 considered – monetary threshold to appeal satisfied under section 352(3) of the 1998 Act – DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30 and Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied – leave granted to appeal against interlocutory decision under section 352(3A) of the 1998 Act – Licul v Corney [1976] HCA 6, Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5 and Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31 applied

Phillips P

30 June 2023

Facts

The respondent worker was employed by the appellant as a teacher. On 30 September 2009, she sustained injuries to her cervical spine and left shoulder when a volleyball struck the left side of her head and temporal region. How the respondent came to suffer those injuries was not disputed, and she ultimately came to cervical surgery in the nature of C5/6 and C6/7 foraminotomies. On 20 May 2020, the respondent made a claim for lump sum compensation in respect of 26% whole person impairment.

Due to the COVID-19 pandemic, the claim was not determined as the respondent could not be assessed by the appellant’s independent medical experts.

In the Commission, the matter was referred to a Medical Assessor, Dr Pillemer, with the referral of 29 June 2021 identifying the body parts to be assessed as the cervical spine and left upper extremity. In the MAC of 18 November 2021, the body parts referred for assessment of whole person impairment pursuant to s 319 of the 1998 Act were the cervical spine and left upper extremity. He was of the view there was no actual injury to the left shoulder, and accordingly, the Medical Assessor did not assess impairment for the respondent’s shoulder, finding the symptoms experienced were “part and parcel of the DRE Category III of [the respondent’s] cervical spine”. The Medical Assessor assessed 20% WPI with respect to the cervical spine, and 0% WPI with respect to the left upper extremity. The Medical Assessor opined that the respondent would also be entitled to a further 1% WPI for scarring, but as this was not part of the referral, the Medical Assessor did not include it in the overall assessment.

On 14 December 2021, the respondent filed an Application for Reconsideration of the Medical Assessment Certificate (the Reconsideration Application) pursuant to s 329(1) of the 1998 Act. The Reconsideration Application was heard by Member Wright by way of oral submissions, who issued a Certificate of Determination on 21 June 2022.

The Member determined the Reconsideration Application in favour of the respondent, and ordered that the matter be referred back to Medical Assessor Pillemer to assess the degree of permanent impairment in respect of the cervical spine, the left upper extremity, occipital neuralgia and scarring in accordance with s 329(1)(a) of the 1998 Act, allowing liberty to the parties to apply in respect of further medical evidence as to the degree of permanent impairment with respect to occipital neuralgia and scarring.

These latter two injuries had not been referred to the Medical Assessor for assessment at first instance, and it was the Member’s findings in respect of these two injuries and decision to refer them for further medical assessment that were said to constitute both an error of law and error of fact in this appeal. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) law in failing to properly apply the decision in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) (Ground 1);

(b) fact in finding that the respondent did not specify the precise body systems claimed (Ground 2);

(c) law in finding that occipital neuralgia and scarring formed part of the respondent’s claim (Ground 3);

(d) law in finding that occipital neuralgia and scarring formed part of the ‘medical dispute’ between the parties (Ground 4A);

(e) law in finding that the respondent could amend the claim following the amended MAC dated 18 November 2021 (Ground 4B), and

(f) law in finding that the grounds of the respondent’s appeal were capable of being made out (Ground 5).

Held: Leave to appeal pursuant to s 352(3A) of the 1998 Act was granted. The Certificate of Determination dated 21 June 2022 was revoked. The matter was remitted to the Member, to refer the matter back to Medical Assessor Pillemer, in accordance with this decision, for the sole purpose of assessing the respondent’s degree of permanent impairment in relation to her left upper extremity (left shoulder) absent any consideration of the occurrence of injury.

Ground 1

1. The appellant relied upon the Court of Appeal decision in Skates in terms of defining what is a medical dispute and, as a consequence, what is then referred to a medical assessor for assessment. The appellant stated that no claim was ever made by the respondent for whole person impairment arising from scarring or occipital neuralgia and as a result such body parts could not be a matter for referral now. ([71]–[72])
2. The President set out the principles arising from the majority decision in Skates. Skates was a medical dispute as to the degree of permanent impairment arising from certain injuries. The worker in that case suffered serious injuries to his wrist and his left ring finger when he fell off a ladder at work. The medical dispute was referred to an Approved Medical Specialist (now medical assessor) who assessed the worker’s left upper extremity (left arm). The insurer appealed to an Appeal Panel, which upheld the appeal on the basis that the doctor had erred by going outside the terms of the Registrar’s referral and assessing body parts not referred to him. It was noteworthy that the insurer had conceded that the referral should have included a reference to the left wrist in addition to the left upper extremity (joint ring finger) and scarring. However, the Appeal Panel did not give effect to the concession considering itself bound by the terms of the referral. ([75])
3. The President noted that the Member was of the view that this matter fell outside the issues considered by the majority in Skates. The Member then considered the question as to whether or not the medical dispute was fixed or static at the time the application was lodged and found that it was not. The Member found that the MAC itself, in terms of the Medical Assessor’s own clinical judgment, was further evidence not available to the respondent, nor could it have reasonably been obtained by the respondent prior to the MAC. The Member then referred the matter again to the Medical Assessor for further assessment to encompass further claims of occipital neuralgia and scarring. The President held the Member was in error so to find. ([79]–[81])
4. His Honour held that contrary to the Member’s acceptance that the MAC issued by the Medical Assessor was “further evidence that was not available to the [respondent]”, it was in fact the ultimate and binding resolution of the medical dispute. The acceptance that the MAC was further evidence was an error. As Basten JA said in Skates at [27], the jurisdiction of the Commission in a claim for lump sum compensation is “not at large”. The effect of the Member’s reasoning was contrary to these remarks and was contrary to the binding authority of Skates. This approach was also consistent with Snell DP’s remarks in Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52. Neither scarring nor occipital neuralgia formed part of the “medical dispute” notified in this matter. Ground 1 was established. ([84]–[86])

Ground 2

5. The Member at [56] of the reasons said that the letter of 20 May 2020 did not specify the precise body systems claimed. The letter attached Dr Patrick’s (general, vascular, and trauma surgeon qualified by the respondent) report of 8 August 2019 which did specify, with great precision, the body parts assessed and how the WPI claim of 26% was calculated. The President did not read the respondent’s reply to this ground as taking issue with the appellant’s assertion, rather submitting that the “initial claim did not include scarring or occipital neuralgia”. ([87])
6. The President held that to the extent this factual finding was used by the Member to distinguish the Court of Appeal decision in Skates, the Member was in error. Indeed, as Leeming JA said in Skates at [48]: “the fundamental legal concept is a dispute.” Without a dispute there is no need for any application to the Commission. A fair reading of the respondent’s claim, its supporting documentation and the Application to Resolve a Dispute would plainly reveal the metes and bounds of the dispute, namely whole person impairment of the cervical spine and the left upper extremity (shoulder). ([88])
7. The President noted that neither party, and in particular the respondent, took any issue with the terms of the referral to the Medical Assessor. Nor was any issue taken with the body parts examined and reported on by the Medical Assessor (other than the agreed position that the Medical Assessor was in error to find no injury to the left upper extremity (shoulder). Contrary to the assertion in this ground, the respondent did specify the body parts claimed with precision. Ground 2 had been established. ([89]–[91])

Ground 3

8. The appellant referred to the Member’s reasons at [57] and [63] in support of a submission that the Member found that occipital neuralgia and scarring formed part of the respondent’s claim for whole person impairment. This, the appellant said, was an error in that no such claim had been made. ([92]–[94])
9. Whilst the parties debated whether a claim had been made in accordance with the Act and the authorities dealing with the making of a claim with respect to these two body systems, it was common ground that no such claim was made until after the MAC had been issued. The difficulty for the respondent’s position was as outlined by Leeming JA in Skates at [47]. Namely, the outcome of the assessment by the issuing of the MAC constituted the resolution of the medical dispute. The fact that there were references to these two body parts in the medical material did not assist the respondent, no further claim had been made before the resolution of the dispute. The Member was in error in finding that these two body parts formed part of the respondent’s claim. Ground 3 was established. ([95]–[97])

Ground 4A

10. This appeal ground was a derivation of that dealt with in Grounds 1 and 3. For the same reasons that the President upheld Ground 1 and Ground 3, Ground 4A was also established. ([98]–[100])

Ground 4B

11. The appellant submitted that “the Member also erred in finding that in the alternative, the ‘medical dispute’ between the parties was capable of being amended by way of the filing of the application for reconsideration.” The appellant pointed to [65]–[66] of the reasons as the offending sections of the decision. For the reasons given in Ground 1, the Member was in error in finding that the claim could be amended following the issuing of the MAC. The effect of the MAC is, subject to appeal or the application of a slip rule exception, the final resolution of the medical dispute. Ground 4B was established. ([101]–[105])

Ground 5

12. The appellant took issue with the Member’s opinion that the MAC was “further evidence that was not available to the [respondent]”. The appellant complained that the Member relied upon this finding in order to justify exercising his delegated power under s 327(4) of the 1998 Act. The appellant also complained that the Member relied upon the error made by the Medical Assessor in finding that there had been no injury to the respondent’s left shoulder. Both parties agreed that this finding was an error as injury had not been disputed. The appellant submitted that it was this error that should have been the focus of the appeal to the Medical Appeal Panel, and not the other arguments asserted by the respondent. The respondent asserted that “[t]he proposition that expert opinion is not evidence is fundamentally wrong”. ([106]–[107])
13. The President held that this ground misunderstood the role of the medical assessor. A medical assessor is a “decision-maker” in accordance with the definition found in s 32 of the 2020 Act. The MAC is not a forensic medical report, it is a decision. A MAC, of course, can be before a member in the deciding or resolution of a dispute. The status of the MAC is that as bestowed upon it by the legislation. Namely, a conclusive expert determination within a highly regulated framework that resolves the medical dispute between the parties. ([108])

(Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 applied)

14. In terms of the error that the Medical Assessor did make, namely finding that there had been no injury to the respondent’s left shoulder, this type of matter is covered by Procedural Direction PIC7 (PD PIC 7) relating to the correction of obvious errors in Medical Assessment Certificates. In particular, the President noted paragraphs [73]–[76] of PD PIC 7 and the Commission’s statutory imperative to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”. Given that both parties did not dispute that the Medical Assessor was in error to find that there was no injury to the respondent’s left shoulder, when injury had been conceded, this obvious error should have been agreed and brought to the attention of the Medical Assessor. It is then for the Medical Assessor to consider or assess the degree of permanent impairment in relation to the left shoulder (left upper extremity), absent any consideration of the causation of that injury. ([109])
15. The President did not agree with the Member’s finding that the MAC was “further evidence” in the sense in which it was deployed to justify the orders made by the Member. His Honour did not accept the Member’s finding that the respondent was relevantly limited in terms of the forensic medical reports that she could rely on. It is true that the 2016 Regulation at subcl 44(1) does limit parties to a single report, but subcl 44(3) is an exception which permits additional reports in other specialities, which was clearly the case in this matter with respect to occipital neuralgia. But his Honour noted that the respondent was on notice of the occipital neuralgia issue as a result of A/Prof Boesel’s (treating pain specialist) letter to the respondent’s GP dated 6 March 2019. Additionally, the respondent did have an assessment of scarring from Dr Patrick. The President therefore did not accept the Member’s finding at [74] of the reasons, that the argument under s 327(3)(b) of the 1998 Act was capable of being made out. The facts did not prove the matters set out in that provision. The Member was in error so to find. Ground 5 was established. ([110]–[111])