Appeal Case Summaries

JELD-WEN Australia Pty Limited v BLH [2023] NSWPICPD 39

WORKERS COMPENSATION – section 4(b)(ii) of the 1987 Act – main contributing factor – AV v AW [2020] NSWWCCPD 9 applied

Parker SC ADP

10 July 2023

Facts

The respondent worker was employed by the appellant as a customer clerk/data specialist from December 2017. Her employment was terminated on 17 April 2020. The respondent alleged that she sustained a psychological injury within s 4(b)(ii) of the 1987 Act. The basis of the claim was that the psychological injuries had been caused by bullying and harassment in the workplace.

Liability was ultimately denied on the basis that the respondent had not sustained injury in the course of employment as required by s 4 of the 1987 Act.

The Member found that the respondent suffered a psychological injury by way of aggravation of a pre-existing condition in the course of her employment with the appellant, with a deemed date of injury of 20 January 2020. The Member ordered the payment of weekly compensation. The employer appealed.

The issues on appeal were raised in the following grounds of appeal:

(a) to reach his conclusion that the worker had established that employment was the main contributing factor to the aggravation of her underlying condition, the Member specifically and erroneously proceeded on the basis that the worker’s qualified medical expert supported that conclusion (Ground 1);

(b) in preferring the evidence of Dr Allan (consultant psychiatrist qualified by the respondent), the Member failed to observe that that evidence had been based on a flawed premise, given that Dr Allan had not been provided with relevant facts (Ground 2);

(c) to reach his conclusion that the worker established that employment was the main contributing factor to the aggravation of her underlying condition, the Member further specifically and erroneously proceeded on the basis that the worker’s treating psychiatrist supported that conclusion (Ground 3), and

(d) in concluding that the worker had sustained panic attacks prior to 20 January 2020, the Member fell into material error, in that he ignored both persuasive expert evidence to the contrary and the worker’s own clear histories, which contradicted her evidence (Ground 4).

Held: The Certificate of Determination dated 2 June 2022 was confirmed.

Ground 1

1. The appellant took issue with the Member’s finding at [45] of the reasons. The conclusion that Dr Allan provided support for the proposition that the worker’s employment was the main contributing factor to the aggravation of the worker’s psychological condition was not accepted by the appellant, indeed it was then said Dr Allan “had done no such thing”. The appellant referred to the question posed to Dr Allan in the letter requesting the report, in which the doctor was asked to opine on whether the worker’s employment was “a substantial contributing factor to the injury?” with guidance as to what substantial contributing factor meant. The response given by Dr Allan was in the affirmative. ([47]–[49])
2. Acting Deputy Parker SC observed that in this ground of appeal, the appellant focused on the Member’s reliance on the opinion of Dr Allan but this did not recognise that the Member was persuaded by a number of matters which he considered and that Dr Allan’s opinion was regarded as a supporting, rather than determinative, opinion. ([61]–[63])

(AV v AW [2020] NSWWCCPD 9 applied)

3. While the solicitor’s interrogation of Dr Allan may not have addressed the statutory enquiry, Dr Allan’s reply was broadly expressed. He said, “the treatment from Mr Palmer was the substantial contributing factor to the deterioration and exacerbation of [the respondent’s] pre-existing major depressive disorder” (emphasis added). ([65])
4. The Acting Deputy President noted that s 4(b)(ii) requires employment to be the main contributing factor to the aggravation of the disease. Dr Allan did not use the words “the main contributing factor”, he said: “[t]he enduring difficulties with Mr Palmer over a 12-month period were the predominant cause for her decline in mental state”. This was not an expression of opinion in terms of the statute. But it did not seem to the Acting Deputy President that the expert needs to use the precise terminology of the section to provide useful evidence. ([69])
5. Dr Allan’s opinion provided evidence that the events in the course of employment involving Mr Palmer were the main contributing factor to the respondent’s deteriorating mental health. The narrow focus in the appellant’s submissions in support of this ground overlooked the extent to which the Member’s conclusion was the result of a wide ranging evaluation of the factual and medical evidence. ([71]–[72])
6. The factual evaluation of the evidence led the Member to conclude the respondent should be preferred over any inconsistent or contradictory evidence given by Mr Palmer. The preference for the respondent’s evidence was joined with a preference for the evidence of the treating specialist, Dr Nguyen, over the evidence of Dr Roberts (independent medical examiner for the appellant). Those conclusions of themselves would have been sufficient to support the finding of injury. The Member found further support for his conclusion to prefer Dr Nguyen’s opinions over Dr Roberts’ because they were “broadly supported by Dr Allan”. The Member based his conclusion on the treating specialist, Dr Nguyen. Dr Allan’s opinion was peripheral and not decisive. Ground 1 was rejected. ([73]–[75])

Ground 2

7. There was a sense that the complaint with respect to this ground was not that Dr Allan did not have and take into account the non-employment factors, but that he failed to give these factors the emphasis and importance that the appellant would wish to attach to them. Acting Deputy President Parker SC observed that plainly Dr Allan had the essential information because he had and considered Dr Roberts’ report of 16 March 2020, and also a report of Dr Khan, consultant psychiatrist, of 21 June 2020. Dr Allan also had Dr Nguyen’s reports and the notes from the general practitioner. Dr Roberts in particular had the history in detail and emphasised the non-employment aspects. ([87]–[88])
8. The Acting Deputy President found that the appellant had not demonstrated that the history recorded by Dr Allan was so discordant with the history accepted by the Member as to mean that the Member’s acceptance of Dr Allan’s opinion based on the history was in error. Furthermore, it was not correct that Dr Allan regarded the non-employment stressors as “trivial”. He said they made a minor contribution but he nevertheless regarded them as relevant. Other experts may have attached different weight to the non-employment factors, but the Member’s acceptance of the conclusions that Dr Allan attached was not an error on the Member’s part. Ground 2 was rejected. ([93]–[94])

Ground 3

9. The appellant submitted that Dr Nguyen’s report of 23 November 2021 failed to address the correct statutory enquiry. Acting Deputy President Parker SC held that the criticism of the Member that he followed and relied upon Dr Nguyen’s opinion to question 5 was unfair. It was up to the appellant in the proceedings to object to the evidence if sense could not be made of it without the question being before the Member. In so far as no objection was taken to the report in the form in which it was received, the Member could not be criticised for making what he could of the answer. Of more significance in the Acting Deputy President’s view was that the criticism failed to take account of the entire answer given by Dr Nguyen. ([95], [100]–[102])
10. To the extent the answer to question 5 stood alone, properly understood, the specialist was plainly suggesting that the respondent’s “main distress” was the workplace bullying and harassment from her supervisor. Again, while the language used by the doctor did not accord precisely with the statutory language, the Member was required to evaluate all of the evidence including the opinion evidence of Dr Nguyen. The Member was not in error in reaching the conclusion that he did, namely, that Dr Nguyen was of the opinion that the main contributing factor to the worker’s aggravation was the workplace bullying and harassment by the supervisor. Ground 3 of the appeal was rejected. ([104]–[106])

Ground 4

11. The appellant submitted that there was evidence before the Commission that on leaving the employer’s premises and journeying home after her encounters with a fellow employee, the worker suffered a panic attack. Further there was evidence that this was her first panic attack. The appellant submitted at the hearing before the Member that the proximity in time between the confrontation with the fellow employee and the attack supported the proposition that the confrontation was the significant causative event. The appellant said that medical practitioners rather than lay persons were in a position to diagnose panic attacks. The worker was very clear in her accounts to both Dr Allan and Dr Nguyen. In rejecting the argument that the first panic attack followed hard upon the confrontation with the fellow employee, the appellant argued that the Member fell into error which affected the outcome of the determination. ([107]–[111])
12. Acting Deputy President Parker SC held that the Member’s preference for the respondent’s evidence was not challenged. To the extent there was a contradiction between the worker’s evidence to the Commission and the content of the notes which presumably emanated from the worker in the course of their examinations the evidence accepted by the Member prevailed. Given the appellant did not challenge the Member’s conclusion that he accepted and preferred the evidence of the respondent, no error was demonstrated by showing that that evidence was contradicted by material contained in the medical reports. Ground 4 was rejected. ([116]–[118])

Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork Pty Ltd [2023] NSWPICPD 40

WORKERS COMPENSATION – Factual error; extension of time to appeal – application of Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; the duty to give reasons – Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; alleged denial of procedural fairness – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; s 322A of the 1998 Act – application of Merchant v Shoalhaven City Council [2015] NSWWCCPD 13; Galluzzo v Little [2013] NSWCA 116; injury pursuant to s 4 of the 1987 Act – the ‘disease’ provisions; application of Crisp v Chapman [1994] NSWCA 73; (1994) 10 NSWCCR 492

Snell DP

17 July 2023

Facts

The worker performed physically hard work in the building industry, erecting and dismantling formwork, from about 1984. He worked with multiple employers over the years. On 1 July 1988, while working with Daros Constructions, he fell from formwork, injuring his spine, right leg and a middle finger. He had three weeks off work and then resumed working with intermittent back and neck pain that worsened with time.

The worker suffered an injury to his back in August 1992 while carrying timber at a worksite. He worked with Fast Form at that time. He said that he was off work for eight weeks (for which he received workers compensation) and then resumed normal duties. He said he resigned from this job and then did not work for 18 months until commencing with Pedy Concrete in 1994. He injured his left index finger on 16 March 1994 and also hurt his back in the process of supporting his bodyweight at that time. He continued with Pedy Concrete until it went into administration. He worked for multiple employers thereafter until commencing with Lazio Formwork Pty Ltd (Lazio) in February 2010.

The worker described the work with Lazio in April 2010, at a site in Bankstown, as “particularly heavy”. He said that while doing that work his right knee and back became “very painful”. There was not a “specific injury” with Lazio. The worker’s last date of employment with Lazio was 9 April 2010. He had not worked since.

Over the years, the worker had proceedings in the former Compensation Court (against Daros Constructions Pty Ltd, Fastform (Australia) Pty Ltd and Pedy Concrete (NSW) Pty Ltd) and two sets of prior proceedings in the former Workers Compensation Commission. The first of those was against Daros Constructions, Fast Form and Pedy Concrete Constructions in proceedings no. 161/14. The second was against Lazio in proceedings no. 6091/14.

The current proceedings were brought against Lazio only.

The worker described symptoms in his back, neck and right knee.

On 6 April 2022, the worker made a claim for weekly compensation from 7 October 2017, relying on Dr Burns’ (AMS) assessment of 13% WPI (relating to the right knee injury) and A/Prof Fearnside’s assessment of 23% WPI (relating to the cervical spine injury). It sought to have the impairments assessed together pursuant to s 322 of the 1998 Act. Lazio denied liability on 22 June 2022, disputing injury to the neck and also disputing that there was permanent impairment resulting from injury in its employment that was more than 20%. Reference was made to s 66(1)(a) of the 1987 Act and the insurer said the worker had “exhausted” his one claim for permanent impairment lump sum compensation. The employer relied on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun). It asserted that in proceedings no. 6091/14 the worker discontinued claims that related to injury to the neck, and that this gave rise to “an Anshun estoppel in relation to the alleged neck injury”.

In a Certificate of Determination dated 13 September 2022, there was an award in Lazio’s favour on the allegation of injury to the neck. The worker succeeded on the allegations of injury to the lumbar spine and the right lower limb. The matter was remitted to the President for referral to a Medical Assessor to assess whole person impairment in respect of the lumbar spine, with a deemed date of injury of 10 April 2010.

The employer appealed. The worker also subsequently appealed.

The issues on the employer’s appeal were whether the Member erred in:

(a) fact in finding the date of injury was 10 April 2010 (note, this was a slip and was of no significance) (Ground 1);

(b) fact in finding that the worker had not previously made a claim for the relevant injury/incident (Ground 2);

(c) law in failing to deal with clearly articulated submissions (Ground 3);

(d) law in failing to provide lawful reasons (Ground 4), and

(e) law in construing the effect of s 322A of the 1998 Act (Ground 5).

The issue on the worker’s appeal was whether the Member erred when he considered that he had to find that there was a specific aggravation of the degenerative neck condition whilst in the employ of the employer.

Held: The employer’s appeal in matter no. A1‑W3685 succeeded. The worker’s argument in matter no. A2‑W3685 succeeded, but that appeal was not upheld as the issue on which it succeeded was not dispositive. The Member’s decision dated 13 September 2022 was revoked. In lieu thereof, there was an award for the respondent (the employer).

THE EMPLOYER’S APPEAL

Ground 1

1. The Application to Resolve a Dispute (ARD) pleaded injury to the lumbar spine, the cervical spine and the right knee, relying on the worker’s “heavy and arduous duties” from 1984 to 9 April 2010. The duties were alleged to have “caused, aggravated, exacerbated or accelerated a degenerative condition” in these body parts. The worker’s last date of employment was 9 April 2010, after which he did not work. The ARD pleaded a deemed date of injury of 10 April 2010. This was consistent with that date being the first date of incapacity resulting from the deemed injury. ([130])
2. Deputy President Snell observed that in earlier proceedings between the same parties, in the former Workers Compensation Commission, the worker pleaded a frank injury to the right knee on 9 April 2010 together with aggravation of a disease due to heavy and repetitive stress. The MAC of Dr Burns, AMS, dated 24 February 2015 assessed 13 per cent WPI in respect of the right knee and scarring. Dr Burns did not record any history of a frank incident on 9 April 2010. His assessment was based on a history of “heavy work” in early April 2010. The Workers Compensation Commission issued a Certificate of Determination dated 3 March 2015 in the sum of “$18,700 in respect of 13% permanent impairment resulting from injury on 9 April 2010”. ([131])
3. Consistent with the pleadings in the current matter, the Member’s finding of injury and referral to a Medical Assessor referred to injury to the lumbar spine deemed to have occurred on 10 April 2010. Whether the referral for medical assessment in the current matter was in respect of the same injury as that the subject of the MAC dated 24 February 2015 assumed importance given the issue about s 322A of the 1998 Act. ([132])
4. The Deputy President noted that for the reasons with respect to Grounds 2, 3, 4, and 5 the employer’s appeal was upheld and the matter was re-determined. It was appropriate to deal with the issue regarding the injury date as part of the re-determination. Both counsel submitted that nothing turned on whether it was 9 or 10 April 2010. Snell DP held that the date of 10 April 2010, pleaded in the current matter, was more consistent with the terms of s 16(1)(a)(i) of the 1987 Act. Both dates were arguably available. Given that 9 April 2010 was the deemed date previously found in the 2014 proceedings (proceedings no. 6091/14), and the two should be consistent, it was appropriate that 9 April 2010 be the deemed date of injury in the current proceedings. ([133])

Grounds 2, 3 and 4

5. The Member’s reasons at [6] referred briefly to the issue pursuant to s 322A of the 1998 Act. The Member’s reasons at [62] to [64] dealt with ss 322A of the 1998 Act and 65 of the 1987 Act. Deputy President Snell held that it was accurate that the worker had not, before the current claim, made a claim in respect of permanent impairment resulting from back injury with Lazio. Although it was expressed vaguely, read in context the second finding in the reasons at [63] could only be read as a finding that there had not, prior to the current proceedings, been an assessment of permanent impairment resulting from injury with Lazio. This involved factual error. ([134]–[138])
6. It was clear that the right knee injury assessed by Dr Burns resulted from heavy work with Lazio in the period up to 9 April 2010 (the last date of such employment). Although the Member in the current matter made a finding of injury on 10 April 2010, this was (similarly) a deemed date based on the ‘disease’ provisions of the 1987 Act. Neither party submitted that anything turned on the discrepancy between 9 and 10 April 2010. ([140])
7. A statement of reasons should be looked at as a whole. As the employer correctly noted, the Member at other places in his reasons referred to the existence of two Medical Assessment Certificates from Dr Burns. The employer’s submissions speculated that the Member may simply have been mistaken. Whatever the explanation, the finding at [63] of the reasons, that there had not been a previous “assessment” relating to employment injury with Lazio, was wrong and involved error. ([141])

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

8. It was an established fact that, contrary to the Member’s finding at [63] of the reasons, Dr Burns had previously assessed the worker’s permanent impairment resulting from a ‘disease’ injury involving his work duties up to 9 April 2010. The employer at first instance, relying on s 322A(1) of the 1998 Act, argued that “only one assessment may be made of the degree of permanent impairment of an injured worker”. It relied on various authorities in support of that proposition. This argument, if accepted, excluded the making of a further order referring the ‘disease’ injury for assessment of permanent impairment, such impairment having already been assessed in the MAC dated 24 February 2015. It was a clearly articulated argument. Factually, it depended on the proposition that an assessment of permanent impairment resulting from the worker’s duties with the employer had already been made and represented the “one assessment” to which he was entitled. This was consistent with the MAC dated 24 February 2015. The Member failed to address this argument, which constituted error. ([143])
9. The employer additionally relied on an alleged failure by the Member to provide adequate reasons. Deputy President Snell held that the Member’s reasons dealing with s 322A of the 1998 Act failed to engage in any meaningful way with the section and the scheme of the legislation. The employer relied on the decision of Keating P in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13 (Merchant), which dated back to 2015, and which had been applied in the Commission, including the former Workers Compensation Commission. The decision in Merchant was on point and supported the employer’s argument. The employer submitted that proper reasons at least would have required a consideration of Merchant and Tokich v Tokich Holdings Pty Ltd [2015] NSWWCCPD 72 and why s 322A did not prevent the referral. ([144]–[147])
10. In Brambles Ltd v Bell [2010] NSWCA 162 Hodgson JA said “the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties.” It is necessary that the decision maker enter into the issues and provide explanation for why one case is preferred over the other. It is necessary that the Member “expose his reasoning in sufficient detail to enable a losing party to understand why they lost”. Deputy President Snell accepted the employer’s argument regarding the adequacy of the reasons. The Member’s reasons did not, in the Deputy President’s view, satisfy the established general legal requirements or those in r 78 of the 2021 Rules. It followed that Grounds 1, 2, 3 and 4 succeeded. ([149]–[151])

(Moylan v Nutrasweet Company [2000] NSWCA 337)

Ground 5

11. Deputy President Snell stated that the construction by Keating P in Merchant v Shoalhaven City Council [2015] NSWWCCPD 13, dealing with s 322A of the 1998 Act was correct. The emphasis placed by his Honour on the word “any” in s 322A(2) highlighted the emphatic language employed by the legislature in that sub-section. The words of the section do not suggest that there are exceptions to this prohibition. To read s 322A, in the way the worker submitted, would involve a reading that conflicts with the plain, unlimited words of sub-s (1). His Honour’s reading of s 322A involved internal consistency within the section. The Deputy President accepted the employer’s submission that the words in parentheses should be read as providing examples. They do not purport to be exhaustive. There are certain statutory exceptions to the prohibition in s 322A, for example medical appeals (ss 327 and 328 of the 1998 Act), referrals under s 329 of the 1998 Act, and Pt 2A of the 2016 Regulation. It was not argued that these had application in the current matter. ([164])
12. Section 322 of the 1998 Act provides that, in assessing permanent impairment, impairments that result from the same injury are to be assessed together, and impairments that result from more than one injury arising out of the same incident are to be assessed together. It also provides for the deferral of an assessment until the degree of permanent impairment is “fully ascertainable”. ([166])
13. The Deputy President held that the dispute in this matter, going to whether the worker suffered a degree of permanent impairment sufficient to receive ongoing weekly payments having regard to s 39 of the 1987 Act, fell within the definition of a ‘medical dispute’. ([167])
14. The MAC dated 24 February 2015 certified that the worker suffered 13 per cent permanent impairment as a result of the nature and conditions of his work with Lazio with a deemed date of injury of 9 April 2010. The Deputy President noted in Ground 1 that the date of deemed injury was initially found to be 9 April 2010 in proceedings no. 6091/14 and 10 April 2010 in the current matter. It was clear that in both instances the alleged injury was one based on the ‘disease’ provisions during the full period of the worker’s employment with Lazio, which came to an end on 9 April 2010. Quite properly, neither party argued that anything turned on the discrepancy in the deemed dates and the parties agreed that the deemed dates should be consistent. It was described as common ground that the right knee condition, which was previously assessed, also arises out of the ‘nature and conditions’ of employment. ([168])

(Galluzzo v Little [2013] NSWCA 116, and Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 applied)

15. It was not to the point, as the Member said at [63] of the reasons, that the worker “has not made any ‘claim’ in the sense of s 66(1A) for permanent impairment as a result of any back injury with the current [employer]”. ([171])
16. Section 322A was inserted into the 1998 Act by the 2012 amending Act. The Court of Appeal referred to the 2012 amendments in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250, where it said that these legislative reforms “marked a legislative policy favouring cost-saving and administrative reforms to the existing scheme for lump sum compensation under the 1987 and 1998 Acts.” Deputy President Snell accepted the employer’s submission that the worker was precluded by s 322A of the 1998 Act from obtaining the further referral to a Medical Assessor which he sought. Ground 5 succeeded. ([172]–[173])

THE WORKER’S GROUND OF APPEAL

17. It followed from the above that the worker’s application failed overall. Although it was not dispositive, it was appropriate that the Deputy President dealt briefly with the appeal put on by the worker. Deputy President Snell accepted the worker’s submission that the Member erred in the test that he applied in respect of the allegation of work injury involving the neck. ([174]–[181])

    (Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267; Crisp v Chapman [1994] NSWCA 73; 10 NSWCCR 492; Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd [1995] NSWCA 183 ; 12 NSWCCR 365, and StateCover Mutual Ltd v Cameron [2015] NSWCA 127 applied)

RE-DETERMINATION

18. Both parties submitted that the matter should be re-determined. The parties did not submit that the findings dealing with Anshun estoppel, injury to the back and injury to the right lower limb (knee) should be disturbed. ([183])
19. Snell DP found that the date of injury, in the ‘injury’ finding against Lazio in the current proceedings, should be amended to 9 April 2010. He noted the permanent impairment associated with the right knee injury was previously assessed by Dr Burns at 13 per cent, in his MAC dated 24 February 2015. This assessment related to the worker’s prior claim against Lazio in respect of permanent impairment compensation, in respect of the right knee and scarring. The Deputy President found that the worker was not entitled to bring a further application for assessment of the degree of his permanent impairment in respect of his injury based on the ‘nature and conditions’ of employment with a deemed date of 9 April 2010. ([184])
20. It followed that the application for weekly payments in these proceedings could not succeed due to the operation of s 39 of the 1987 Act. This applied to the allegations that were the basis of both sets of proceedings before the Deputy President. ([185])

White v Marist Youth Care Limited [2023] NSWPICPD 41

WORKERS COMPENSATION – evidentiary value of medical records and the obligation of a member to consider the evidence – Mason v Demasi [2009] NSWCA 227 considered – Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 applied – requirement to respond to substantial, clearly articulated arguments – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 and Wang v State of New South Wales [2019] NSWCA 263 applied – failure to have regard to arguments in respect of work capacity – sections 33 and 37 of the 1987 Act – error in failing to consider consequential psychological injury when addressing capacity for work arising from a physical injury

Phillips P

17 July 2023

Facts

The appellant worker was employed on a full-time basis by Marist Youth Care, the respondent, as a youth worker. In this role, the appellant was allocated a home conducted by the respondent in North St Marys. Resident in the home were several young people or “clients” aged between 13–16 years under the care of the respondent’s service. The appellant’s role required him to cook, clean and perform general housework around the home.

The appellant stated that on 19 March 2017, he slipped on a set of stairs in the house and suffered injury. He said this was due to shampoo being poured onto the stairs by one of the home’s clients as a practical joke. The appellant alleged injuries to his cervical and lumbar spines, both shoulders and a consequential psychological condition. The respondent denied the incident occurred as alleged or at all.

The Member found that the appellant did suffer injury to his lumbar spine in the subject incident and also found that the appellant suffered from a consequential psychological condition. The Member entered awards in favour of the respondent for allegations of injury to the cervical spine and both shoulders. The Member also found that the appellant, whilst unfit for his pre-injury duties, did have a residual working capacity and adjusted the award of weekly compensation accordingly.

The appellant appealed against only those aspects of the Member’s decision that were adverse to his application.

The issues on appeal were whether the Member erred in:

(a) law by not determining whether the appellant sustained injuries to his cervical spine and/or both shoulders on the balance of probabilities and on the basis of the whole of the evidence (Ground 1);

(b) law by requiring the appellant to have corroboration in order to succeed (Ground 2);

(c) law and failed to accord the appellant natural justice by failing to respond to substantial, clearly articulated arguments (Ground 3);

(d) law because he provided reasons that were neither rational nor logical (Ground 4);

(e) law by failing to have regard to the appellant’s consequential psychological condition when addressing the question of capacity (Ground 5);

(f) fact by determining the appellant had capacity to work 25 hours per week and earn $25 per hour (Ground 6);

(g) law by failing to provide adequate reasons for his findings in relation to injury to the appellant’s cervical spine and shoulders in circumstances where he had indicated the appellant’s “credit in view of the evidence has not been shaken” (Ground 7), and

(h) fact by determining Dr Anderson “comes to the conclusion that the [appellant] is unfit for his pre-injury work but it follows from his opinion that he is fit for some work, albeit with some restrictions” (Ground 8).

Held: Order 4 of the Certificate of Determination dated 19 July 2022 was revoked. The remaining orders in the Certificate of Determination dated 19 July 2022 were confirmed. The matter was remitted back to the same Member to determine the issue of work capacity and the claim for weekly compensation.

Ground 1

1. The appellant submitted that the Member did not determine the matter on the totality of the evidence and on the balance of probabilities. The appellant said that rather, the Member determined the matter on the basis of what he considered to be contemporaneous. The appellant argued that when considering the treating medical records which were created once the appellant sought treatment post injury, there was a lack of recorded complaint about injury to the appellant’s cervical spine and shoulders. The appellant said that this approach to those medical records, being the GP’s clinical notes, was determinative with respect to the Member’s adverse findings regarding cervical spine and shoulders, to the exclusion of a consideration of the “whole of the evidence”. The appellant complained that this was not the standard that he was required to satisfy to be successful. The appellant further complained that the Member did not indicate what he considered to be “contemporaneous”. ([33])
2. The President noted that the respondent had always placed injury in issue in this matter, not only injury on 19 March 2017, but also the appellant’s various claims of injury to different parts of his body. Given this was the manner in which the parties framed the dispute, it was thus necessary for the Member to grapple with what were clearly the “real issues” placed in dispute. The President did not accept the appellant’s submission, advanced in this ground, that the Member was obliged to consider the “whole of the evidence”. This submission framed a decision-maker’s obligation perhaps too highly. ([47]–[48])
3. His Honour held that it is not necessary for a Commission member to refer to every piece of evidence placed before them. A member is obliged to carefully review, construe and analyse the relevant evidence which pertains to the real issues that are in dispute. Where evidence is to be accepted, preferred, discounted or not given much weight, the member is obliged to expose his or her path of reasoning in arriving at this conclusion. ([49])
4. Whilst the President accepted that the Member did not specifically deal with the appellant’s submissions with respect to Dr Anderson (occupational physician qualified by the appellant), this error in his Honour’s view would not affect the result once one reviewed the doctor’s reports. In terms of the shoulder injury claimed, there was no support for this claim in either of the reports. The complaints of neck injury, as opposed to complaints of ongoing pain, as the Member noted from the respondent’s submissions, were made to Dr Anderson long after the event. ([69], [71])
5. Viewing the Member’s decision as a whole, the Member was concerned to identify the appellant’s complaints of pain and injury to his neck and shoulders during the period which was reasonably proximate to the date of injury. Two of the documents relied upon by the appellant, the incorrectly named “Incident Report” and the SIRA Claim Form, had little or no probative value. Both of these documents were completed by the appellant. The reports of Drs Anderson and Allan (psychiatrist qualified by the appellant) were, as the Member rightly identified, created well after the date of injury. There were also the issues with the appellant’s statements which the Member identified. ([79])
6. Whilst the Member had made errors, they were not determinative in the outcome when one considered the contents of the evidence not specifically referred to. The Member had, consistent with his statutory mandate, provided “brief reasons” revealing his reasoning. It was not the Member’s duty to refer to the whole of the evidence as asserted by the appellant. The Member had referred to evidence, beyond the clinical notes, and was clearly not satisfied that the appellant’s claims of injury to his neck and both shoulders were established. Ground 1 had not been established and was dismissed. ([80]–[81])

Ground 2

7. The appellant, relying on Chanaa v Zarour [2011] NSWCA 199 (Chanaa), at [86], said that the Member erred by requiring the appellant’s complaints of injury to his neck and both shoulders to be “corroborated”. Specifically, the appellant alleged that the error related to the Member’s approach of requiring corroboration of his complaints in the clinical records of his treating doctors. This, the appellant said, was the application of a more onerous burden of proof on the appellant. ([82])
8. The President observed that the principle relied upon by the appellant was not controversial. Corroboration is not required in a civil case. The question is whether the Member, contrary to this principle, actually required corroboration of the appellant’s complaints of pain and injury to his neck and both shoulders. ([87])

(Woolworths Ltd v Warfe [2013] VSCA 22 and Chanaa applied)

9. The issues in this dispute as framed by the parties required the Member to decide whether in the subject incident the appellant suffered injury to his neck and both shoulders. In approaching this task, the evidence has to induce in the Member’s mind an actual persuasion that the fact does or does not exist at the relevant time. ([89])

   (Nguyen v Cosmopolitan Homes (NSW) Limited [2008] NSWCA 246 (Nguyen) applied)

10. The President did not consider that the Member’s approach was to require corroboration of the appellant’s complaints. Reading the decision as a whole, the Member was well aware that one of his tasks required the determination of whether the appellant’s neck and both shoulders were injured in the subject accident. This was the dispute presented to the Member for resolution. The Member’s approach to fact-finding was consistent with the approach the President had identified in terms of Nguyen. By the time the Member reached [36] of the reasons, he was not expressing a view of being actually persuaded in terms of the allegation of injury to the neck and both shoulders. This finding took place after the review of the evidence which was more than just the clinical notes. No error had been identified and Ground 2 was dismissed. ([90]–[93])

Ground 3

11. The appellant in this ground advanced an argument that, contrary to the High Court decision in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 (Dranichnikov), the Member failed “to respond to a substantial, clearly articulated argument relying upon established facts.” The President held that it was also necessary to apply the principles in Wang v State of New South Wales [2019] NSWCA 263 (Wang). ([94]–[99])

Sub-ground 1

12. The appellant asserted that the Member did not have regard to or address the submissions made at paragraphs [12], [14], [15], [148], [149], [150], and [151] of the appellant’s written submissions. ([101]–[102])
13. The President observed that the basic principle from Dranichnikov requires the following matters to be established. Firstly, the appellant must have submitted to the Member a substantial, clearly articulated argument. Secondly, this argument had to rely upon established facts. Thirdly, the Member must have failed to respond to this argument based on the facts as established. But this is not all that must be considered to make good this point. His Honour noted that in Wang, the Court of Appeal had held that Dranichnikov “is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings”. ([110])
14. The President concluded that sub-ground 1 had no merit. It was very much the type of submission which Wang says does not engage the Dranichnikov principles. The submissions in this sub-ground failed to identify what was said to be the “established fact” underpinning the argument said to be not addressed as required by Dranichnikov. Sub-ground 1 was not established. ([112]–[113)

Sub-ground 2

15. Sub-ground 2 pertained to the SIRA Claim Form that the President dealt with in Ground 1. His Honour held that for the reasons in Ground 1, this document had little probative value with respect to the appellant’s claimed shoulder injury, and was of no probative value with respect to the alleged injury to the neck. Notwithstanding the fact the appellant drew this document to the Member’s attention, the Member did not mention it in his reasons. The President said that even if this was an error, it was an error that could not affect the result. His Honour also considered that the SIRA Claim Form sat comfortably within the category of arguments and evidence that did not need to be referred to in accordance with Wang. As with sub-ground 1, this sub-ground also did not specify, in terms, the established fact said to underpin the argument mounted in relation to the document. The complaint simply was that this document was drawn to the Member’s attention, and he failed to deal with it. This was insufficient for this sub-ground to be made out. ([114]–[115])

Sub-ground 3

16. In this sub-ground, the appellant asserted that he argued before the Member that he was totally incapacitated by both his physical and psychological conditions arising from the subject incident. The Member found that the appellant had established injury to his lumbar spine and a secondary or consequential psychological injury. The appellant asserted that contrary to his submissions and this finding, the Member determined the question relating to the appellant’s capacity for work by reference only to his lumbar spine injury. The appellant asserted that the Member did not address the psychological component to the appellant’s incapacity for work. ([104]–[105])
17. There was no dispute between the parties that the appellant submitted to the Member that he was totally incapacitated for work and that this was a result of both physical and psychological injuries. The Member found that the appellant suffered injury to his lumbar spine and that the consequential psychological injury had been established. The Member dealt with the issue of capacity at [41] to [44] of the reasons. Nowhere in these passages did the Member expressly deal with the question of incapacity arising from the found consequential psychological injury. Whilst the respondent invited a reading of the decision as a whole to infer that the Member did have regard to the appellant’s psychological injury, this was not an answer to the Dranichnikov argument being pursued in this ground. ([116]–[117])
18. The President found that the argument was put to the Member, in terms, that the appellant’s incapacity for work was total and due to both his physical and psychological injuries. This argument was central to the dispute in this matter. The Member found specifically as a matter of fact that injury to the lumbar spine and consequential psychological injury had been established. It was apparent the consequential psychological injury, being the relevant “established fact”, was not expressly dealt with by the Member in considering the appellant’s submission or argument with respect to his incapacity for work. Consequently, the elements necessary to make out the Dranichnikov argument had been established with respect this sub-ground. It was here the Member erred, and sub-ground 3 was established. ([118]–[119])

Ground 4

19. The appellant submitted that the Member’s decision, in so far as it dealt with the appellant’s capacity for work, lacked “evident and intelligible justification”. This submission relied upon the High Court authority of Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li). The President noted that Li was an immigration case. The issue arose when the Migration Review Tribunal (MRT) declined to adjourn a review. The MRT had been given a variety of powers and discretions under its legislation, one such power being the power to adjourn a review. The High Court discussed the requirement for reasonableness to be exercised as an essential element of lawful decision making. ([120]–[124])
20. In this case, the Member was exercising his powers under the 2020 Act, the 1987 Act and the 1998 Act in the arbitration of the dispute. In terms of the 2020 Act, the conduct of the proceedings is governed by ss 42 and 43 of that Act. The Member’s obligation to give reasons for his decision is guided by s 294(2) of the 1998 Act. ([127])
21. In terms of the appellant’s arguments in this ground, he essentially criticised the Member’s approach to the evaluation of the evidence of Dr Anderson and his failure to consider the consequential psychological condition in assessing capacity for work. Whilst the President had found in the other grounds that were closely related to this ground (one aspect of Ground 3, and Grounds 5, 6 and 8), that the Member was in error, those findings made by his Honour did not automatically mean that this ground was also substantiated. The fact that a Member may have been in error based on the application of the usual principles of appellate review does not mean that the decision was, to use Gageler J’s words in Li, “so unreasonable that no reasonable repository of the power could have so exercised the power.” ([128])
22. The President held that the Member was wrong to construe Dr Anderson’s opinion as providing support for his decision on the appellant’s capacity for work. The Member was wrong in failing to have regard to the appellant’s consequential psychological condition on the question of work capacity. But the reasons underlying the Member’s decision were able to be followed and were easily comprehended. The Member was exercising a broad, evaluative judgement on these matters in the context of the statutory framework requiring the quick, just and efficient resolution of the real issues in dispute. Before the Member were competing submissions on incapacity which the Member had to resolve. This was not a dispute where there was overwhelming evidence in the appellant’s favour. The Member made his decision which in part involved the errors his Honour had identified. However, much of the decision was unchallenged and this appeal succeeded only in part. The appellant’s broad approach had been to identify what he said was an error and then to assert that ipso facto, that error was unreasonable. The President did not accept that was the correct approach to considerations of a submission based on Li. One must be careful not to ascribe Li type unreasonableness to mere errors in decision-making. The appellant had failed to establish that the Member’s errors were of the unreasonable nature or quality required by Li. Ground 4 was dismissed. ([129]–[132])

Ground 5

23. This appeal ground was, for all intents and purposes, the same argument as found to be established with respect to Ground 3 (sub-ground 3). The only difference was that Ground 3 was advanced as a Dranichnikov argument, but the underlying error was still the same. Namely, when considering the incapacity of the appellant, the Member having found injury to both the lumbar spine and a consequential psychological injury was obliged to take both injuries into account when dealing with incapacity. The Member failed to have regard to the consequential psychological injury when considering the appellant’s incapacity for work. This was an error. Ground 5 was established. ([133]–[134])

Ground 6

5. The appellant argued that Dr Anderson’s evidence was that the appellant did not possess capacity to undertake his pre-injury role as a youth worker, and consequently provided no support of the Member’s finding at [42] of the reasons that he could engage in that work. Indeed, the appellant, with some justification, said that the Member’s findings at [42] of the reasons were internally inconsistent. The President accepted this submission. The Member had clearly and accurately recorded Dr Anderson’s opinion that the appellant was unfit for his pre-injury work but then went on to find that he could work in that calling for 25 hours per week. ([136])
6. The President noted that both parties were in agreement that the Member was wrong to draw the conclusion that the appellant was fit for his pre-injury duties based upon Dr Anderson’s opinion. Dr Anderson’s opinion was in fact to the contrary. The Member was thus in error in relying upon an opinion that Dr Anderson did not hold to substantiate his decision regarding the appellant’s capacity for work. Ground 6 was established. ([137]–[138])

Ground 7

26. Ground 7 was a variation of what was alleged in Ground 1, the exception being that this ground was advanced on the basis that the Member failed to give adequate reasons with respect to the same or similar issues as dealt with in Ground 1. ([146])
27. A fair reading of the Member’s reasons as a whole revealed that he was not persuaded that the appellant suffered injury to his neck and shoulders. The Member carefully reviewed the contemporaneous material and was not satisfied of the appellant’s claims of injury to his neck and shoulders. This did not involve an adverse finding contrary to the appellant’s credit, rather it was the end point of the evaluative exercise undertaken by the Member to establish whether injury occurred as alleged. The Member’s reasons do not have to be lengthy nor does he have to refer to all the evidence. Ground 7 failed. ([154]–[156])

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

Ground 8

28. This ground also took issue with the reasons at [42]. The appellant stated that there was no support in Dr Anderson’s opinion for the view taken by the Member that the appellant was fit for “some work”. ([157])
29. The President held that the Member was in error when he found at [42] of the reasons that the appellant was fit for “some work” based upon Dr Anderson’s answer to question 6 in the second report. A consideration of the entirety of Dr Anderson’s two reports did not support the Member’s finding. Ground 8 was established. ([164]–[165])

Al Hadidi v Form 1 Building and Construction Pty Ltd [2023] NSWPICPD 42

WORKERS COMPENSATION – Civil proceedings – a tribunal can accept uncorroborated testimony Chanaa v Zarour [2011] NSWCA 199; Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 discussed – tribunal not bound to accept evidence that was not the subject of cross-examination – Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 applied – evidence may be rejected if it is inconsistent with accepted evidence – Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 applied – where evidence is unreliable, it is open to the tribunal to look for assistance from other evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied – no necessity for the Member to advert to an adverse finding if the risk of the finding is apparent – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 applied

Wood DP

26 July 2023

Facts

The appellant brought proceedings in the Commission seeking weekly compensation in respect of an injury to his back while performing work for the respondent on 9 September 2019. He also claimed that he suffered from a psychological condition secondary to the back injury. The appellant asserted that he was in an employment relationship with the respondent and that his pre-injury average weekly earnings figure was $1,800.

The respondent disputed that the appellant was in its employ, or in the alternative that the respondent was a “deemed worker” within the meaning of cl 2 of Sch 1 to the 1998 Act. The respondent asserted that the appellant performed the work with the respondent as an independent contractor.

The Member determined that the appellant was a “deemed worker” within the meaning of cl 2 of Sch 1 to the 1998 Act. The Member determined that the appellant’s pre-injury average weekly earnings figure was $625. The appellant appealed the decision, asserting that the Member erred in determining that the pre-injury average weekly earnings figure was $625.

The issues on appeal were whether the Member erred in:

(a) fact in determining that the tax invoices and ABN xx xxx xxx 641 belonged to the appellant (Ground 1);

(b) law by failing to respond to substantial, clearly articulated arguments (Ground 2);

(c) law by making findings and determinations without putting the appellant on notice that she intended to do so (Ground 3)

(d) law by requiring the appellant to corroborate his evidence in order to succeed (Ground 4), and

(e) fact by determining the appellant’s pre-injury average weekly earnings figure to be $625 per week (Ground 5).

Held: The Member’s Certificate of Determination dated 28 June 2022 was confirmed.

Ground 1

1. The Member recorded in her reasons that the appellant disputed that the tax invoices and the ABN were his on the basis that the handwriting was not his own, the invoices were not in his name and the ABN appearing on the invoice was not his. ([103])
2. The appellant submitted that the Member “overlooked” the appellant’s evidence that he denied the tax invoices were submitted by him and “overlooked” the appellant’s evidence that the appellant lacked skills in English. The Member clearly took into account those matters and engaged with the appellant’s submissions, but determined otherwise. There was no error in the Member’s approach and in her conclusions reached. Ground 1 of the appeal failed. ([116]–[117])

Ground 2

3. The appellant submitted that, while the Member “addressed” the submissions from the appellant that the name on the tax invoices was not his and he was not literate in English, she did not explain why she accepted that the tax invoices and the ABN were his. The appellant asserted that, had the Member taken those submissions into account, she “ought” to have arrived at a different conclusion. The appellant said that the Member would not have excused the misspelling of his name for the reasons she gave in the decision at [279] if the tax invoices were his. ([118])
4. Deputy President Wood held that the Member did not “overlook” the appellant’s evidence that he did not read or write English. The Member noted the appellant’s assertions but expressed dissatisfaction with the appellant’s evidence because it was internally inconsistent, problematic and unsupported by any documentary evidence. As the Member concluded, the complaint that the ABN did not relate to the appellant was not made out and her reasoning about the name on the tax invoice was that there could be an explanation in relation to misspelling of the appellant’s first name on that document. The Member clearly dealt with the appellant’s submissions. ([119])
5. The appellant submitted that he made submissions to the Member that the information on the time sheet should also not be accepted because of the issues with the respondent’s evidence as a whole. That is, the issues with the tax invoices and the allegedly unrelated ABN. The evidence provided by Mr Doali (the appellant’s tax agent) was, on the face of it, unsatisfactory. The documents attached to Mr Doali’s letters (that is, both the ABN searches and the taxation documents) did not support Mr Doali’s assertion that they were proof that ABN xx xxx xxx 641 did not belong to the appellant. It was therefore not necessary to test the evidence of Mr Doali by cross-examination in order for the Member to reject it. ([120]–[122])
6. It appeared that the respondent did not make an application to cross-examine the appellant. Nor did the appellant seek to cross-examine the respondent about the purported inconsistencies in its case. In this case, where there was a direct conflict between the appellant and the respondent in relation to the calculation of the appellant’s pre-injury average weekly earnings and little documentary evidence to assist the Member, the Member may well have benefitted from the oral testimony of the parties. However, the Member was not bound to accept evidence unchallenged by cross-examination. The fact that evidence was untested does not mean the tribunal of fact is obliged to accept it. It may be rejected if it is inconsistent with other evidence which the tribunal accepts. ([123])

(Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101, and Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 applied)

7. The Member referred to the inconsistency between Mr Sobeih’s evidence that he did not attend the general practitioner with the appellant and an entry in the clinical notes that recorded “attendd [sic] with Ahmad his supervisor”. Deputy President Wood held that it was open to the Member to accept Mr Sobeih’s evidence despite that inconsistency. The decision-maker is not required to accept the whole of the evidence of any one witness. ([124]–[125])

   (Chanaa v Zarour [2011] NSWCA 199 applied)

8. The appellant asserted that the Member accepted the respondent’s time sheet over the appellant’s evidence of the hours he worked without addressing his submissions that the time sheet was fraudulent. In his statement dated 17 December 2021, the appellant said that he was paid in accordance with a time sheet, which he signed at the beginning and end of each day’s work. He conceded that he sometimes missed work due to illness. The time sheet was not inconsistent with that evidence from the appellant. The Deputy President held that it was open for the Member to prefer the evidence recorded in the respondent’s time sheet. ([126]–[127])
9. The appellant’s assertion that the Member failed to address his submissions about the time sheet was not made out and there was no error on the part of the Member in preferring the respondent’s time sheet over the appellant’s later recollection of the hours and days that he worked. It followed that this ground of appeal failed. ([128])

Ground 3

10. The appellant asserted that the Member denied him procedural fairness by making adverse findings about his evidence in relation to his pre-injury average weekly earnings and accepting the respondent’s evidence. The appellant asserted that the Member dealt with his evidence in a manner that was not the subject of submissions and thus the appellant was not put on notice that she intended to make those findings. ([129])
11. Deputy President Wood noted the respondent raised a clear challenge to the reliability of the appellant’s evidence and pointed to the inconsistencies in that evidence. The appellant had the opportunity to respond to the respondent’s submissions and lodged submissions in reply to those submissions. It was inherent in the issues for determination that the Member consider the reliability of the appellant’s evidence in the light of the respondent’s clear challenge to that evidence. A tribunal member is not required to give a “running commentary upon what it thinks about the evidence” and it does not have to disclose what it is minded to decide. ([132]–[133])

(Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, and Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 applied)

12. The Deputy President observed that the appellant could not say that the Member’s findings about the reliability of the appellant’s evidence were not the subject of submissions made, perhaps apart from the Member’s observation that, in the evidence, on occasion the spelling of Arabic names differed. The ultimate findings made by the Member resulted from an analysis of the submissions made and an assessment of the available evidence. The appellant’s assertion that the Member determined the matter on a basis that was not the subject of submissions and that he was denied the opportunity to make submissions addressing the issues canvassed by the Member was not made out. The appellant had not established error on the part of the Member in the manner alleged and Ground 3 failed. ([134]–[136])

Ground 4

13. The appellant referred to the Member’s reasoning that there was no corroborative evidence and submitted that the Member erred in law by applying a higher standard of proof than the civil standard. The appellant asserted that the Member did not determine whether she accepted or rejected the appellant’s contentions on the basis of the whole of the evidence but made her determination on the basis of corroboration. Deputy President Wood held, however, that given the inconsistencies in the appellant’s evidence noted by the Member, it was open to the Member to find his evidence unreliable and look to other evidence to assist her in her determination of the appellant’s pre-injury average weekly earnings. ([137]–[141])

    (Devries v Australian National Railways Commission [1993] HCA 78 applied)

14. The Deputy President concluded that the Member did not apply a higher standard of proof than that of the balance of probabilities. The Member’s task was to consider the evidence and weigh up that evidence in an objective manner, which she did. She accepted the respondent’s submissions that the evidence provided by the appellant was inconsistent and looked to the only other material before her that went to the calculation of the appellant’s pre-injury average weekly earnings. The Member’s approach disclosed no error. This ground of appeal was not made out and failed. ([142]–[143])

Ground 5

15. The appellant asserted that the Member erred in fact by ignoring material facts, demonstrably misunderstanding Mr Doali’s evidence and failing to consider the appellant’s statement evidence. The appellant submitted that, had those errors not occurred, and the correct standard of proof was applied, the outcome would have been different. ([144])
16. The Deputy President said that as discussed in Ground 4, the Member did not apply a higher standard of proof than determining the matter on the balance of probabilities. The appeal ground otherwise asserted errors of fact in the decision-making process. In order to disturb a Member’s factual decision, the appellant must show the kind of error consistent with the principles distilled from relevant authorities by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. Thus, in order to disturb the Member’s factual determination in respect of the calculation of the appellant’s pre-injury average weekly earnings, which is the only determination disputed in this appeal, the appellant must establish that the Member:

(a) ignored material facts;

(b) made a critical finding of fact which has no basis in the evidence;

(c) showed a demonstrable misunderstanding of relevant evidence, or

(d) demonstrably failed to consider relevant evidence. ([145]–[147])

17. Deputy President Wood held that it could not be said that the Member ignored the evidence about the tax invoices or the ABN. She clearly gave regard to and dealt with that evidence. The Deputy President further held that the Member did not ignore material facts, did not misunderstand the evidence and did not fail to consider the appellant’s lay evidence. Ground 5 of the appeal failed. ([148]–[158])

Racing NSW v Goode [2023] NSWPICPD 43

WORKERS COMPENSATION – section 289A of the 1998 Act – whether the Commission may deal with a previously unnotified Anshun estoppel argument – principles in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 considered and applied – whether claims for medical or related treatment expenses pursuant to section 60 of the 1987 Act are estopped by failure to claim in earlier proceedings – Geary v UPS Pty Ltd [2021] NSWPICPD 47; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 and Miller v Secretary, Department of Communities and Justice (No 10) [2022] NSWCA 190 applied and considered

Phillips P

28 July 2023

Facts

The respondent worker was born in the United Kingdom. He had worked as a jockey for 20 years. In 2003, the respondent migrated to Australia where he continued to work as a jockey.

On 29 June 2009, the respondent suffered a serious accident in a horse race. In the accident, the respondent suffered a complete spinal cord injury and as a consequence of this injury became a paraplegic. The respondent’s diagnosis was paraplegia at the T4 level. The respondent also suffered a number of other injuries in this accident including a fracture of his C2 vertebrae, multiple fractures of his discs from T4 to T7, fractured ribs, a left rotator cuff injury and pulmonary contusions to his lungs. The respondent is permanently confined to a wheelchair and requires assistance in daily living as well as ongoing medical care.

The appellant had accepted liability for the injuries and a complying agreement was entered on 21 October 2010, in which the appellant agreed to pay the respondent s 66 benefits in the sum of $220,000 (85% WPI) and s 67 benefits in the sum of $50,000.

On 16 June 2012, the respondent and his wife returned to live in the United Kingdom. This was because of a desire and need for the respondent to be close to family and friends who assist in his care.

Over the years since the accident, the respondent has submitted various claims to the appellant for the payment or refund of various expenses to do with his treatment including medication, rehabilitation, housing amendments and maintenance. Some of these expenses had been paid by the appellant and others disputed.

In 2020, the respondent made a claim for expenses pursuant to s 60 of the 1987 Act for house repairs and hotel expenses (the 2020 claim). A Certificate of Determination by Arbitrator Scarcella in the then Workers Compensation Commission, reflecting the consent of the parties, was issued on 22 April 2020.

The respondent subsequently commenced proceedings in 2021 (the 2021 claim) in which a number of claims for expenses under s 60 of the 1987 Act were made. The appellant disputed the entirety of the 2021 claim. The appellant disputed that the claims were allowable claims under the definition contained in s 59 of the 1987 Act and further disputed that they were reasonably necessary for the purposes of s 60 of the 1987 Act. At the hearing on 1 March 2022 the appellant, for the first time, indicated that the claim was also opposed on the basis that Anshun estoppel (as established in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; 147 CLR 589) applied. The appellant accepted that as it had not previously notified this ground to dispute the claim, leave was required under s 289A of the 1998 Act. The application made at the hearing on 1 March 2022 was the first notice the respondent received that Anshun estoppel was being relied on by the appellant.

Member Wynyard declined to grant leave under s 289A of the 1998 Act to rely on Anshun estoppel to defend the application, and further made orders in favour of the respondent for the claimed expenses under s 60 of the 1987 Act. The appellant appealed from the Member’s decision declining leave under s 289A of the 1998 Act to argue Anshun estoppel.

The issue on appeal was whether “the Member miscarried his discretion in refusing the appellant leave to argue that there was an estoppel being an Anshun estoppel from being argued and in so doing engaged in conduct constituting an error of legal principle, permitted extraneous or irrelevant material to affect him and failed to take into account a material consideration such that the discretion was carried [sic, miscarried] and the Personal Injury Commission at the Presidential level should intervene.”

Held: The Certificate of Determination dated 10 June 2022 was confirmed.

Consideration

1. The President set out several factual matters which were not in dispute that were relevant to a consideration of the appeal. They were:

   (a) at all relevant times during the 2020 claim and 2021 claim, both the appellant and respondent were legally represented;

   (b) at all relevant times the appellant had accepted liability for the respondent’s injuries;

   (c) the then Workers Compensation Commission and its successor, the Personal Injury Commission, are the tribunals of competent jurisdiction to hear and determine both applications, and

   (d) the parties to the 2020 claim and 2021 claim are the same. Both claims involved a dispute regarding expenses incurred by the respondent as a result of his injuries. Both claims involved various claims all pursued under s 60 of the 1987 Act. ([64])

2. The appellant, at no stage prior to the hearing of the matter on 1 March 2022 before the Member had given notice that Anshun estoppel was a ground relied upon by the appellant to dispute the respondent’s claims. As a result of this, the appellant could only be permitted to avail itself of this argument if leave was granted pursuant to s 289A of the 1998 Act. ([65])
3. The President observed that while both parties drew the Member’s attention to Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus), only the respondent submitted, in terms, how the Mateus factors ought be construed and applied in this matter. The President found that the Member had only had regard to two of the Mateus factors, namely when the insurer notified its intention to rely on the unnotified matter and prejudice to the worker. The interest of justice point was referred to, but not engaged with. None of the other non-exhaustive factors were considered. Nowhere did the Member grapple with the sole matter put forward by the appellant, which was to the effect that its failure to rely on the Anshun principle was an “oversight”. His Honour examined the papers and could not identify where the oversight explanation was given so this may be the reason why it was not dealt with in terms. By definition, there can be no error in failing to deal with a point not taken. Importantly, nowhere did the Member evaluate the merits of the proposed Anshun defence for which leave was sought. Whilst the Member only had to publish “brief reasons” this did not absolve the Member from engaging with the essential question he was called upon to decide, which was whether leave would be granted under s 289A of the 1998 Act. This required engaging with the parties’ arguments and the Mateus factors. ([67]–[68])
4. The President found that the Member had not dealt with the s 289A application in accordance with law in that the Member failed to take into account relevant matters, namely the factors referred to in Mateus, including assessing the merit or otherwise of the proposed Anshun defence. Error in the House v The King [1936] HCA 40; 55 CLR 499 sense in terms of the failure to exercise a discretion in accordance with law had been established. The ground of appeal was established. ([69]–[71])

Re-determination

5. The President said it was clear that Anshun as a defence applied to statutory compensation schemes. The application to rely upon the Anshun defence was made very late, namely, at the commencement of the hearing before the Member. Before then, there had been a telephone conference in the Commission before the Member, pleadings had been filed and before the proceedings commenced there had been numerous exchanges between the parties. ([78]–[83])

   (Miller v Secretary, Department of Communities and Justice (No 10) [2022] NSWCA 190 (Miller No 10) applied)

6. His Honour held that the scheme of the workers compensation legislation is for matters in dispute to be notified so that applications can be prepared accordingly, focusing on the real issues in dispute. This then enables the Commission to meet its statutory objects and guiding principle. The legislative mandate is not enabled if issues are not identified by way of notice pursuant to s 78 of the 1998 Act. Section 79 sets out the way in which this notice must be given, and specifically requires “a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision” at s 79(2). Section 79(4) allows regulations to set out the form in which such a notice can be given. The appellant was a sophisticated litigator who was well capable of identifying this argument. But the President accepted the appellant’s submission that s 289A is an exception to this general approach, hence the requirement for leave to be sought. ([86])
7. The President did not consider that the appellant acted promptly in bringing the matter to the attention of the Commission or the respondent, nor did his Honour consider that the proffered explanation was sufficient. Apart from pleading “oversight” through its counsel, which statement the President accepted as far as it went, there was otherwise no explanation about how this situation came about. This explanation did not explain the whole period of the delay bringing this matter forward and this was a factor to be weighed in the balance. The timing of the raising of this issue gave the respondent no opportunity to consider what evidence may be required to answer the defence. It was no answer to this for the appellant to blithely assert that it was only relying upon material that was before the Commission. It was not for the appellant to dictate how the respondent is to contend with a previously unnotified matter. Further, the President remarked that in relation to the 2021 claim, the appellant had failed to comply with its statutory duty to issue a s 78 notice and the requirements set out in s 79 with respect to some matters claimed, notably the claim for heating oil. This claim was advanced on the basis of the respondent’s condition known as poikilothermia, which means that the respondent has trouble regulating his core body temperature. Nowhere did the appellant respond appropriately to the claim based upon this condition, nor was any issue taken with the need as expressed. ([87])
8. In terms of the Anshun argument though, the President did not consider that it had been articulated in a manner that was compelling. A fundamental precept in the establishment of an Anshun defence is that the later claim was so relevant to the subject matter of the earlier dispute, that it was unreasonable not to have advanced it in the earlier proceedings. In Miller No 10, Brereton JA remarked that Anshun “is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding.” ([91])
9. Other than the fact that both sets of proceedings were about claims for expenses under s 60 of the 1987 Act, the President did not accept that the claims were such that they all had to brought at once before the Commission. The dispute between the parties was about various expenses incurred by the respondent in the ongoing management of his paraplegia. Each expense may give rise to a different consideration, both legal and factual, from another expense. From an Anshun point of view, the mere fact that a claim could have been brought in earlier proceedings did not automatically mean that it should have been brought. What was required was the evaluative exercise spoken about by McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, particularly at [84]. In Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 the Court of Appeal said in deciding whether the matter in question was so relevant that it can be said to have been unreasonable not to rely upon it in the first proceedings involves a value judgment to be made referrable to the proper conduct of modern litigation. ([92])
10. Performing this evaluative exercise revealed that whilst both proceedings had a superficial resemblance to each other in terms of both being claims for expenses under s 60 of the 1987 Act, an examination of the substance of each claim advanced showed that they were different to each other. The President stated that the respondent is a paraplegic and both parties will have a long relationship into the future when it comes to dealing with the respondent’s needs from a s 60 point of view. His Honour did not consider that it was realistic in these circumstances to expect the respondent to bring each and every of his s 60 claims at once. The evidence revealed a course of dealing between the parties where claims are advanced, accepted or denied and then in the case of both claims, contested. The President expected, given all the circumstances, that this will be the course of dealing into the future. ([93]–[97])

Decision

11. Notwithstanding the error made by the Member in dealing with the s 289A leave application, the President decided on re-determination not to grant leave to the appellant to rely on an Anshun defence. As a result of evaluating the circumstances of this matter, weighing the factors identified in Mateus, including the merit of the proposed Anshun defence and the public interest in the efficient disposal of claims, his Honour found that it was not in the interests of justice to grant the appellant leave under s 289A of the 1998 Act. Whilst there could be circumstances where an Anshun estoppel could be established in relation to multiple claims for s 60 expenses, the appellant had not been able to show merit in the proposed Anshun defence in this case. The President found that the appellant had not been able to discharge the burden of having the discretion exercised in its favour. His Honour declined to grant the appellant leave under s 289A of the 1998 Act to rely upon an Anshun defence. In these circumstances there was therefore no need to revisit the terms of the Certificate of Determination dated 10 June 2022. ([106]–[108])