Appeal Case Summaries

Lee v Toll Transport Pty Ltd [2023] NSWPICPD 54

WORKERS COMPENSATION – Whether events or conduct that did actually occur in the workplace were relevant to the assessment of whether the appellant sustained a compensable psychological injury; whether the appellant’s perceptions in relation to such events or conduct were relevant to and/or taken into account; whether errors found infected the ultimate conclusion or were operative errors as described in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 and Akora Holdings Pty Limited v Ljubicic [2008] NSWCA 339

Perry ADP

1 September 2023

Facts

The appellant had been employed by the respondent (Toll) as a full-time pick-up delivery driver between at least January 2015 and February 2021. On 24 November 2021, the appellant commenced proceedings in the Commission seeking weekly compensation and medical and treatment expenses.

The appellant alleged he suffered a “disease” psychological injury “from instances of bullying and harassment” with the deemed date of injury being 9 February 2021. The Member refused the appellant’s claim and made an award for the respondent. The worker appealed.

The issues on appeal were whether:

(a) there was a failure to find that the evidence established an injury under s 4, and that the employment was a substantial contributing factor to that injury by s 9A, of the 1987 Act (Ground 1);

(b) there was a failure to give sufficient weight to the evidence of Mr Lee and Mr Apulu and to find their evidence established a variety of workplace stressors which caused injury (Ground 2);

(c) there was an error in requiring “a variety of pre-requisites to be satisfied” to satisfy the burden of proof including contemporaneous complaints, records, corroboration and “specificity and detail … with regard to the timing and location of relevant events …” (Ground 3);

(d) the Member failed to find that the evidence did include the various “prerequisites” and other matters referred to in the third appeal ground (Ground 4);

(e) the Member failed to make specific findings, on the basis of credit and/or probability, in respect of the evidence of Mr Lee and Mr Apulu (Ground 5);

(f) there was an error in failing to find Mr Lee experienced a variety of work-related stressors which were not disputed (Ground 6);

(g) there was error in failing to find Dr Khan’s opinion was “reliably founded on a history … supported by evidence of work-related stressors” (Ground 7);

(h) there was error in failing to note and find that all practitioners who examined Mr Lee diagnosed a work-related psychological condition (Ground 8);

(i) there was error in failing to find that Dr Kaplan, in opining that Mr Lee “had an aggravation of a psychological injury due to reasonable actions by his employer”, confirmed he received an injury in the course of his employment and such employment was a substantial contributing factor to that injury (Ground 9);

(j) the Member erred in treating what she considered to be reasonable action by the respondent as relevant to the issues she was required to determine under ss 4 and 9A of the 1987 Act (Ground 10), and

(k) there was error in failing to acknowledge the relevance of Ms Khan’s evidence (that the onset of the psychological condition noted at her in initial consultation with the appellant on 18 September 2020, was “caused by a combination of personal stressors related to the custody of his children and bulling [sic] and harassed [sic] by his manager at work” (Ground 11).

Held: The Certificate of Determination dated 2 May 2022 was revoked and the matter was remitted for re-determination afresh by a different member.

Discussion

1. Acting Deputy President Perry did not accept Toll’s submission that the reference to the principles in Attorney General’s Department v K [2010] NSWWCCPD 76 (K) (even in the context of “having considered the totality of the evidence”) showed the correct test was considered, and that such was “put beyond doubt” with the statement that although Mr Lee sustained a “psychological condition”, the evidence diverged on the question of the contributing factors to that condition. While the K principles may have been considered in the context of their recitation and existence, there appeared to be no consideration in the context of their application to the facts of this case. Also, the reference to the evidence diverging on the question of contributing factors to the condition did not itself show, let alone “put beyond doubt”, that K was applied to the injury causation analysis. ([77])
2. The Acting Deputy President’s concern was about whether the K principles were taken into account when the Member undertook this analysis and in resolving the “factual dichotomy” – or whether adequate reasoning is shown in that regard. While the reasons also noted it was necessary for Mr Lee to demonstrate “that real events occurred in the workplace which were perceived by him as offensive or hostile, giving rise to psychological injury”, there was no mention in the analysis following and/or findings, about whether or not Mr Lee perceived any events which actually occurred in the workplace as being offensive or hostile – and in that context, amongst other things, whether causation was established. This was in circumstances where the Member essentially accepted that there were real events that did actually occur in the workplace. ([78]–[79])
3. Perry ADP noted that Toll raised a “credit” issue before the Member, at least in relation to the surveillance and the bank records. But there was no analysis or finding in that respect. In the Acting Deputy President’s opinion, the issue in this respect was not so much whether or not Mr Lee’s evidence lacked credit, it was rather about the existence or content of any credit or reliability findings made. The Member said of Mr Lee’s evidence “that with few exceptions”, it “lacked specificity and detail” and that she did “not feel a sense of actual persuasion that the majority of the events complained of … actually occurred”. ([81])
4. Mr Lee’s credit, in the sense of whether he was telling the truth or not, and the reliability of his evidence, was an issue in this case. At one level, the Member’s approach in assessing it followed established general principle. But each case of course is to be determined on its own facts. This was a case of alleged psychological injury where Mr Lee clearly placed reliance on, amongst other things, his perceptions of events that actually occurred. ([84])
5. This was not to say it was necessary for the Member to find Mr Lee’s evidence was lacking credit in the sense of honesty or truthfulness. But given the evidentiary landscape, which the Member described as “a factual dichotomy between almost all of [Mr Lee’s] claims and the respondent’s evidence”, there at least needed to be some reasoning allowing for a likely inference that the rejection of his evidence by reference to the documentary information took into account his perceptions. Acting Deputy President Perry did not see any such reasoning. ([85])

(CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 and Onassis v Vergottis [1968] 2 Lloyds Rep 403 referred to)

6. The Acting Deputy President found that the Member had erred at [293] of the reasons by not considering Mr Lee’s alleged subjective perceptions in relation to the disciplinary action, including whether, and if so how, those perceptions influenced the injury causation assessment. If that was wrong, he found there was at least no adequate reasoning to show otherwise. ([92])
7. Mr Lee’s perceptions about real events were clearly part of his case and were also raised in other parts of the submissions – in relation to Grounds 10 and 11. However, this error came within the scope of, and was sufficiently covered by, Ground 10 and paragraph [122] of Mr Lee’s submissions. Perry ADP did not think it necessary or appropriate to stray into Ground 11 given that it was formulated in such a way that conflated questions arising in relation to the evidence of both Mr Lee and Ms Khan. ([93])
8. Acting Deputy President Perry also found a further error at [293] of the reasons. After having accepted Mr Lee was “subjected” to the disciplinary action, the reasoning immediately following was that the Member was:

“... not satisfied that this was unfounded, unwarranted or constituted a form of bullying or harassment. Nothing in the contemporaneous text message and email correspondence or the employer’s records ... appears unreasonable. [Mr Lee’s] own evidence does not suggest that such action was unreasonable, because it is not addressed in his own evidence”.

9. The Acting Deputy President held that the reasonable actions of Toll were not relevant to the injury causation analysis. They were relevant to issues under s 11A of the 1987 Act and that issue was not dealt with. In Perry ADP’s opinion, this constituted an error of fact and law and again fell within Ground 10. Again, it was important, in a case where psychological injury is alleged, there be consideration of the worker’s perceptions in relation to events or conduct that actually occurred in the workplace. ([95]–[97])

   (Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 and Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 applied)

10. The Acting Deputy President ultimately upheld Ground 10. He held that because the operative error infected the Member’s ultimate conclusion in a systemic way, the whole of the Certificate of Determination needed to be revoked and it was necessary to remit the matter for re-determination afresh by a different member. ([107]–[112])

Blacktown City Council v Brassington [2023] NSWPICPD 55

WORKERS COMPENSATION – injury pursuant to s 4(b)(ii) of the 1987 Act – injury can have multiple causes – Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 applied – adequacy of reasons – reasons must be read as a whole – Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied

Wood DP

6 September 2023

Facts

The respondent worker was employed by the appellant as a maintenance worker, having commenced work in 1999. His employment was terminated in 2018 as he was no longer fit to perform his duties, which included driving, mowing, garden maintenance, climbing in and out of trucks, sawing trees, moving branches and cleaning. He was required to use equipment such as a mower, an edger, a back-pack, a whipper-snipper and a brush-cutter.

The respondent was involved in a motor vehicle accident on 12 October 2000 when he was a passenger in the appellant’s truck and the truck crashed into an electricity pole. The respondent suffered an injury to his right knee when it hit the dashboard with force. He also suffered an injury to his lumbar spine. The respondent made a claim in respect of the injury to the right knee, which was accepted. In 2008, the respondent made a claim in respect of an injury to his left shoulder caused by the nature of the work he was performing for the appellant. That claim was accepted.

In 2008, the respondent made a claim in respect of an injury to his left shoulder caused by the nature of the work he was performing for the appellant. That claim was accepted.

In 2019, the respondent brought proceedings in the former Workers Compensation Commission, seeking an order that the need for a total right knee replacement recommended by his treating orthopaedic surgeon, Dr Rizkallah, was reasonably necessary as a result of both the frank injury on 12 October 2000 and the ‘nature and conditions’ of his employment. Arbitrator Homan (as she then was) determined that the surgery was reasonably necessary as a result of the injury that occurred on 12 October 2000. She was of the view that it was unnecessary for her to determine whether the ‘nature and conditions’ of the respondent’s employment also materially contributed to the need for the surgery.

In 2020, the respondent lodged a claim for the cost of a left hip replacement as a consequence of the ‘nature and conditions’ of his employment. The claim was denied, and the respondent commenced proceedings in the Workers Compensation Commission, which were transferred to the Personal Injury Commission on its establishment. Member Snell found that the respondent suffered an injury to his left hip with a deemed date of injury “in or about August 2016”, which was the last date the respondent physically worked for the appellant, the respondent’s employment was the main contributing factor to the injury, and the proposed surgery was reasonably necessary as a result of the injury.

The dispute the subject of these proceedings was in respect of a claim made by the respondent for the costs associated with a right hip replacement proposed by Dr Rizkallah. The respondent alleged that his right hip condition was caused by the injury on 12 October 2000, and as a result of the heavy and repetitive nature of the work he performed in the course of his employment between 1999 and 2018. Member Beilby determined that the respondent had suffered an injury to his right hip within the meaning of s 4(b)(ii) of the 1987 Act and that the surgery was reasonably necessary as a result of the injury. The employer appealed.

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

(a) in failing to make any proper findings as to the specific work that the respondent was performing over the course of his employment with the appellant in order to support the conclusion that the respondent suffered an injury in accordance with s 4(b)(ii) of the 1987 Act (Ground A);

(b) by misdirecting herself as to the weight to be given to the respondent’s evidence about his work activities in the absence of specific evidence from the appellant about the nature of the work the respondent was performing in his work with the appellant (Ground B);

(c) in giving any weight to the evidence in the clinical records of Dr Azar (general practitioner) on the issue of causation in the absence of any reference in those records to any injury to the right hip at work or to any work cause for the respondent’s right hip symptoms (Ground C);

(d) in rejecting the opinion of Dr Stephen (orthopaedic surgeon qualified by the appellant) (Ground D);

(e) in failing to provide any, or any proper reasons for preferring and giving weight to the medical opinion of Dr Azar, Dr Rizkallah and A/Prof Hope (orthopaedic surgeon) on the issue of causation (Ground E), and

(f) in treating the medical evidence of Dr Azar as supportive of the opinion of Dr Rizkallah when in fact it was inconsistent with it as to the issue of causation (Ground F).

Held: The Member’s Certificate of Determination dated 19 September 2022 was confirmed.

Ground A

1. The appellant asserted that the Member failed to make a finding as to what specific work the respondent was doing that caused him injury. The first submission was that the Member accepted that the respondent performed heavy work which, the appellant said, was not a sufficient basis for accepting the medical opinions relied upon by the respondent because the medical experts’ opinions differed in respect of the cause of the respondent’s condition. Deputy President Wood stated that it was clearly open to the Member to accept that the nature of the work performed by the respondent could be described as “heavy”. She also held that the Member’s observation that both medical experts supported the respondent’s claim that his injury fell within the meaning of injury provided for in s 4(b)(ii) of the 1987 Act and was work related was correct. ([98]–[100])
2. Deputy President Wood held that the Member’s conclusion that she should afford more weight to the treating doctors’ evidence was reasonable. She stated that while the various opinions were not identical as to the cause of injury, the common thread was that the work performed by the respondent over many years of his employment caused injury to his right hip. As the Member observed, an injury can have multiple causes and the respondent was not expected to present a perfect case. That was a sufficient foundation for the Member’s conclusion that the respondent was injured as a result of the heavy work he performed for the appellant. The Member was not required to find with specificity the particular duties that were causative, particularly when there was extensive unchallenged evidence of the respondent’s work activities and the respondent’s doctors considered that those duties cause injury. ([102]–[107])
3. In any event, regardless of any disparity in the opinion evidence, it was sufficient in itself that the Member was satisfied that Dr Rizkallah, the respondent’s treating surgeon, was of the view that the nature of the work the respondent performed was causative of injury. It followed that this ground of appeal failed. ([108]–[109])

Ground B

4. The appellant submitted that the Member could have inferred that some of the respondent’s duties would have involved less strenuous work. It said that such an inference could be drawn from the Member’s own knowledge of how council workers work. Such a notion could not be accepted. Any such observation would be irrelevant. Observations of other workers’ work practices was not a matter for the Member to consider. The Member was required to determine on the basis of the evidence before her the nature of the work performed by this respondent in accordance with his obligations to the appellant. Further, there was no indication as to what “common knowledge” the Member had acquired over time in respect of how council workers conduct themselves. ([110])
5. The appellant submitted that the history recorded by A/Prof Hope was not supported by the respondent’s evidence. The Deputy President stated that the Member considered that, even if the opinion of A/Prof Hope was not taken into account, Dr Rizkallah’s evidence of itself was sufficient to discharge the respondent’s burden of proving his case. ([111]–[112])
6. The appellant asserted that the Member was required to make findings about the specific work undertaken and the period over which that work was undertaken before determining whether the evidence supported those factual assumptions relied on by the medical experts. The Deputy President held that the Member was not required to find with any specificity as to what particular tasks were causative before she could accept the opinions of the medical experts relied upon by the respondent in his case. It followed that this ground of appeal failed. ([114]–[115])

Ground C

7. The appellant asserted that the Member erred by relying on the clinical notes of Dr Azar as evidence of injury when those entries did not refer to any work-related injury to the right hip. The appellant further asserted that the Member failed to reconcile the absence of any record in the notes to the causation of the right hip symptoms with the opinion of Dr Stephen as to causation. ([116])
8. Deputy President Wood found that the Member was not in error by taking the clinical records of Dr Azar into account. It was very relevant that the respondent attended Dr Azar, complaining of symptoms in his right hip over the years during which the respondent was performing heavy work for the appellant. In assessing all of the evidence as to causation, the Member afforded weight to that evidence as a step in the process of resolving whether the respondent had proved the occurrence of injury. It was not incumbent upon the Member to reconcile that objective evidence with the opinion of Dr Stephen. The appellant’s assertion of error on the part of the Member by affording weight to the evidence of Dr Azar was not made out and this ground of appeal failed. ([117]–[120])

Ground D

9. The sole criticism of the Member’s rejection of the opinion of Dr Stephen was that the Member considered that Dr Stephen’s plural reference to “trochanter regions” in his report dated 21 January 2010 must have been a reference to pain in both hips. The appellant submitted that the Member took that observation into account when reaching her conclusion that the respondent suffered a right hip injury. The Member made that observation when she was summarising the evidence of Dr Stephen. ([121])
10. Deputy President Wood stated that the Member rejected the opinion of Dr Stephen on the basis that Dr Stephen:

(a)     relied upon the understanding that there was an absence of right hip complaints over the years, which was incorrect;

(b)     took into account that the respondent was overweight and diabetic, however the respondent’s long term treating surgeon did not attribute the symptoms to those conditions, and

(c)     did not appear to take into consideration the respondent’s work duties. ([118], [122])

11. The Member did not include the observation about the reference to “trochanteric regions” in her ultimate determination to reject the opinion of Dr Stephen. The appellant put forward no other basis as to how the Member erred in rejecting the opinion of Dr Stephen and this ground of appeal failed. ([123]–[124])

Ground E

12. The appellant asserted that the Member failed to give reasons for accepting the opinion of Dr Rizkallah, Dr Azar and A/Prof Hope, or otherwise, her reasons were deficient. The appellant submitted that the Member failed to deal with an absence of factual evidence to support the notion that the respondent had injured his hips on multiple occasions. ([125]–[130])
13. The Deputy President was of the view that a reference to multiple right hip injuries at work was not inconsistent with the notion of the respondent having suffered an aggravation of an underlying right hip condition as a consequence of the “nature and conditions” of the respondent’s employment. That is, his heavy or strenuous work activities caused injury. It could not be said that the factual basis upon which Dr Rizkallah expressed his opinion was wrong, and in those circumstances the Member was not required to reconcile that factual basis with any other evidence in these proceedings. ([131]–[133])
14. Deputy President Wood noted her earlier conclusion that although the opinions of Dr Rizkallah, Dr Azar and A/Prof Hope were not precisely the same, they were sufficiently aligned so that it was open to the Member to conclude that they were supportive of the respondent’s case. This ground of appeal failed. ([135]–[136])

Ground F

15. The appellant referred to [39] of the Member’s reasons, in which she observed that the evidence of both Dr Rizkallah and Dr Azar supported the respondent’s allegation that he suffered an injury in the form of an underlying condition, in accordance with s 4(b)(ii) of the 1987 Act. The appellant submitted that the Member erred in making that observation because there was a disparity between those doctors in respect of their opinions as to causation. The appellant explained that Dr Azar’s view was that the respondent’s hip condition was a consequence of altered loading because of the right knee injury and not an injury within the meaning of s 4(b)(ii). ([137])
16. The Deputy President held that the Member did not find that the respondent’s right hip condition was consequential to the right knee injury because of overload. In respect of the evidence of Dr Azar, the Member not only considered the opinion on causation contained in Dr Azar’s report dated 22 October 2021, but also his clinical records, which she noted recorded histories related to bilateral hip injuries. She noted that the respondent had undergone a right hip x-ray in 2006 and had consulted Dr Azar on a number of occasions in relation to right hip complaints. The Member’s ultimate determination was that the respondent had suffered an injury to his right hip in accordance with s 4(b)(ii) of the 1987 Act. ([138]–[139])
17. Deputy President Wood held that Dr Azar did opine that the respondent’s employment was a substantial contributing factor to the acceleration and deterioration of his right hip disease. That diagnosis was consistent with that of Dr Rizkallah and the diagnosis fell within the meaning of s 4(b)(ii) of the 1987 Act. This ground of appeal failed. ([140]–[141])

State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 5) [2023] NSWPICPD 56

WORKERS COMPENSATION – section 11A of the 1987 Act – whether error in determining the question of reasonableness – Irwin v Director-General of Education, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997 (unreported) discussed; principles applicable to disturbing findings of fact on appeal – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 discussed and applied

Wood DP

7 September 2023

Facts

The respondent worker was employed by the appellant at Dubbo Base Hospital from 29 April 2019 as an Unaccredited Trainee in Paediatrics and Child Health, under a contract for 12 months arranged through the Australian Health Practitioner Regulation Agency (AHPRA). He ceased work on 11 June 2019 and resigned from his employment on 12 June 2019. The respondent notified the appellant that he had suffered a psychological injury, described in the Injury Notification form as “burnout” and “depression.” He sought weekly payments, treatment expenses and lump sum compensation.

The issue before the Member was whether the respondent’s injury was caused by reasonable action taken by the employer in respect of performance appraisal or discipline, in accordance with s 11A of the 1987 Act. The Member determined that the respondent’s injury was not caused by reasonable action taken by the appellant in respect of performance appraisal or discipline. The appellant appealed.

The appeal came before Deputy President Wood who initially opined that the Commission could not determine the matter as the respondent was a resident of Queensland. The Court of Appeal overturned that opinion in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202 and remitted the matter back to the Commission for determination of the appeal. This summary is of that determination.

The issues were raised in the following grounds of appeal:

(a) the Member misdirected himself as to the matters to be weighed in assessing whether or not the appellant’s actions were reasonable (Ground 1);

(b) the Member significantly mischaracterised the status of the respondent by concluding that the appellant’s action was unreasonable because the respondent was a Trainee (Ground 2);

(c) in preferring the evidence of Ms Keller (the Medical Administration Manager), the Member overlooked or did not advert to the fact that Ms Keller’s evidence provided only support for the necessity of the appellant’s actions (Ground 3);

(d) the Member failed to conduct the essential task of weighing the interests of the worker against the objective of the appellant (Ground 4), and

(e) the Member erred in fact in stating that the appellant had not placed into evidence its own policies and procedures for dealing with the issues relating to the performance of trainee doctors (Ground 5).

Held: The Member’s Certificate of Determination dated 10 January 2022 was confirmed.

Consideration

1. The Member noted the absence of medical evidence to support the respondent’s allegations that his injury was caused by being ridiculed, demeaned and humiliated. The Member determined that, in the absence of such evidence, the admitted injury was wholly or predominantly caused by the appellant’s actions in respect of performance appraisal and/or discipline. The Member’s conclusion was consistent with the appellant’s submissions to the Member at arbitration. The appellant had not raised any issue in the appeal in relation to that finding and the respondent had not lodged a notice of contention in respect of the Member’s determination. It was also apparent that there was no challenge to the categorisation of the appellant’s actions as performance appraisal and/or discipline. The remaining issue raised in the appeal was whether the Member erred in determining whether the actions taken with respect to performance appraisal and/or discipline by the appellant were reasonable. ([139]–[141])

Ground 1

2. The appellant referred to the extracts from Irwin v Director-General of Education,Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997 (unreported) (Irwin), which was misquoted by the Member as requiring an assessment of the rights of employees against the “object of the employment”, rather than the “objective of the employer”. The appellant asserted that the objective of the employment is a very different consideration to that of the objective of the employer, which was to address the very real threat of danger to the life of the patients. The appellant contended that the Member must have taken the view that the Court of Appeal decision in Commissioner of Police v Minahan [2003] NSWCA 239 (Minahan) endorsed the erroneous version of the quote from Irwin, and that notion had led the Member into error. ([143])
3. Deputy President Wood observed that the Member referred to other relevant Compensation Court authorities of Ivanisevic v Laudet Pty Ltd, Compensation Court of NSW, Truss J 24 November 1998 (unreported) and that of Armitage J in Ritchie v Department of Community Services [1998] NSWCC 40 in which their Honours adopted the same approach as Geraghty CCJ in Irwin. He quoted a relevant passage from Minahan, in which Foster AJA (with Sheller and Santow JJA agreeing) cited those cases with approval. It was apparent that the Member had the correct approach in mind. The Deputy President found that the Member did not apply the incorrect test, as asserted by the appellant, and did not fall into error. Ground 1 failed. ([144]–[146])

Ground 2

4. The appellant disputed that the respondent was a “Trainee” and such, required significant supervision. The appellant asserted that the respondent had many years of experience as a Paediatric Registrar and that was the basis upon which the appellant employed the respondent. ([147])
5. The Deputy President held that the appellant’s assertion that the respondent was not a Trainee was clearly wrong. In that context, the appellant’s assertion that the Member erred by observing that the respondent, as a Trainee, was an employee who required “significant supervision” could not be accepted. Both the findings of fact that the respondent was a “Trainee” and required “significant supervision” were available to the Member on the basis of the evidence before him. ([155])
6. It is well accepted that an appeal from a factual determination of a Member of the Commission under s 352(5) of the 1998 Act can only succeed in the circumstances distilled by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 . That is, if:

(a)     “other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong”, or

(b)     by establishing that “material facts have been overlooked, or given undue or too little weight” in determining the inference to be drawn, or

(c)     the available opposite inference to that drawn by the Member was so preponderant that the decision must be wrong. ([156])

7. Deputy President Wood concluded that the appellant’s submissions did not disclose error on the part of the Member. The appellant had failed to establish that the Member erred in the manner required and this ground of appeal failed. ([157])

Ground 3

8. The appellant referred to Ms Keller’s evidence of her involvement in the actions taken by the appellant in respect of the respondent’s performance. The appellant said that the Member’s conclusion that he accepted the evidence of Ms Keller was surprising, given that her evidence was wholly supportive of the appellant’s case. The Deputy President did not accept that the evidence of Ms Keller was “wholly supportive” of the appellant’s case. ([158]–[160])
9. The appellant submitted that Ms Keller’s evidence showed that the appellant had done all it could in order to address the issue. Wood DP observed there was an absence of detail of the nature and extent of the complaints made, particularly between the implementation of the Improving Performance Action Plan (IPAP) on 3 June 2019 and the abandonment of the IPAP on 11 June 2019. In those circumstances, Ms Keller’s evidence did not show that the appellant had done all it could do in the situation in which it found itself. ([161])
10. The Deputy President held that the Member determined the appellant’s conduct was not reasonable because:

(a)     the respondent was a Trainee;

(b)     there was no evidence of the procedures required in dealing with the performance of a Trainee, so that it could not be said that the appellant complied with those procedures;

(c)     the respondent commenced his employment at the end of April 2019, an IPAP was initiated by 3 June 2019 and on 11 June 2019, eight days later, he was told he should resign or his employment would be terminated just six weeks into his employment;

(d)     it was unclear how the respondent could have shown improvement within the eight days when the plan was in place;

(e)     on the basis of Ms Keller’s evidence, the outcome of the risk assessment was pre-determined, and

(f)      “to deliver a judgment of that plan within so short a timeframe can in no way be said to be reasonable conduct by an employer.” ([163])

11. While the timeline of events and the matters discussed at the meetings set out in Ms Keller’s evidence were instructive, it could not be said that her evidence was “wholly supportive” of the appellant’s actions being reasonable in circumstances where the Member considered that the actions were not reasonable for the reasons set out above. The appellant’s assertion of error was not made out and this ground of appeal failed. ([164]–[165])

Ground 4

12. The appellant submitted that the Member, when weighing the rights of the employee against the objective of the employer, was required to take into account that the appellant needed to take urgent action in order to save the lives of its patients. The appellant said that the Member failed to do so. The appellant submitted that the Member merely referred to the requirement for the appellant to have “stringent standards” but did not take into account that the appellant had to act quickly in order to save lives. ([166])
13. Deputy President Wood did not believe that the Member erred by describing the appellant’s objective as maintaining “stringent standards.” ([167]–[169])
14. The appellant did not offer any objective of the employer other than the very real proposition that the appellant was required to keep its patients safe. There was no explanation as to why that objective could not have been achieved by proceeding with the IPAP in circumstances where the appellant was required to comply with the supervision requirements of the AHPRA agreement and the Supervised Practice Plan Guidelines for Unaccredited Trainees. ([170])
15. The Deputy President concluded that in the context of the evidence and in applying the various relevant authorities, the Member gave sufficient consideration to the objective of the employer and to the rights of the respondent. He drew a conclusion that the appellant’s actions were not fair, particularly in relation to withdrawing the IPAP so quickly and suggesting the two remaining options available to the respondent. It was open to the Member to arrive at that conclusion after considering the evidence and applying the relevant authorities. His reasoning disclosed no error and this ground of appeal failed. ([171]–[172])

Ground 5

16. The appellant pointed to the NSW Health Code of Conduct and the IPAP as evidence of its own procedures. The appellant submitted that the Member made no finding as to whether Ms Keller or Dr Fitzgerald (Senior Staff Specialist) breached the code which was applicable to the respondent. The appellant did not submit to the Member that the NSW Health Code of Conduct was relevant in terms of the reasonableness of the appellant’s actions with respect to performance appraisal and/or discipline. In any event, while the document was applicable to the respondent, it set out the policy and procedure in respect of ethical conduct in the workplace. ([173]–[176])

    (Mamo v Surace [2014] NSWCA 58 applied)

17. As the respondent submitted, there was no suggestion that the respondent had acted in an unethical manner, or that the Code of Conduct was relevant to managing the performance of a doctor in the employ of the appellant in respect of issues relating to skills and knowledge. It was difficult to see how that document constitutes a policy or procedure for “dealing with the issues relating to the performance of trainee doctors.” The IPAP document was not a document that listed the policy of the appellant or set out the procedures to be followed by the appellant in implementing a plan to improve the performance of its Trainees. Once again, no such submission was made to the Member at arbitration. The pro forma document which the appellant completed listed the issues to be addressed, the actions taken, the proposed action to be taken, and the timeframe within which the action would be instigated and reviewed. In many of the proposed actions, the timeframe for commencing the action was “immediately” and the timeframe for completion was “ongoing.” There was no set end date for the IPAP and in most cases no date for review of the respondent’s performance. The document could not be considered evidence of the appellant’s policies and procedures to be adopted or evidence that the appellant had complied with its policy or procedural obligations. ([177]–[178])
18. There was no evidence adduced in the form of “Managing for Performance” and “Managing Complaints or Concerns about Clinicians”, which Ms Boyle (the Human Resources Partner) said were documents handed to the respondent at the first meeting, and potentially would have been on point. The Deputy President found that it could not be said that the Member erred by observing that the appellant had not placed into evidence its own policies and procedures in relation to the performance of trainee doctors. Ground 5 of the appeal failed. ([179]–[180])

Hallmann v Southern Cross University [2023] NSWPICPD 57

WORKERS COMPENSATION – Section 60 of the 1987 Act, ‘reasonably necessary’, application of Diab v NRMA Ltd [2014] NSWWCCPD 72, Rose v Health Commission (NSW) [1986] NSWCC 2, 2 NSWCCR 32; fresh or additional evidence, application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; ‘consequential condition’ – unnecessary that the specific term be used as a descriptor; error within the meaning of s 352(5) of the 1998 Act – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156

Snell AP

18 September 2023

Facts

The appellant worker stated that he contracted glandular fever in about December 1992 at work with a former employer. He stated that the condition was “pushed into” Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (“ME/CFS”) by long hours, work stressors and other factors. There were lengthy absences from the workforce subsequent to November 1996. The appellant stated that there was a previous workers compensation claim with a deemed date of injury of 29 November 1996, and that matter was “still ongoing”. In August 2008, he started working with the respondent as an ITAS tutor (study assist officer). He worked on “revolving contracts” from 2008. His employment was casual.

The appellant, in the proceedings before Acting President Snell, relied on injury in the employ of the respondent involving the “aggravation of a back injury and aggravation of myalgic encephalomyeltits/chronic fatigue syndrome (ME/CFS)”. The injury was pleaded as resulting from his use of an inappropriate chair while working from home as an ITAS tutor, during the COVID pandemic. The claim was initially accepted. The respondent denied liability from 20 July 2021 (when it disputed certain claims for medical and related treatment) and from 30 November 2021 (when it disputed whether the effects of any aggravation continued). It issued a notice dated 7 October 2021, in which it disputed there was any entitlement to ongoing weekly payments or to medical or related treatment expenses.

The Member issued a Certificate of Determination in which he made determinations with respect to the sought medical treatment that also included costs for various items including, amongst other things, a mattress, a curved computer monitor and ottoman. He found that some treatment and items sought were reasonably necessary and some were not. He made orders with respect to the length of some of the treatment, including an Isagenix diet (for 6 months), IV saline solution (for one year). The Member also made a determination with respect to the worker’s predictable work capacity, and the claimed consequential condition of the injury in relation to diabetes. The worker appealed against various findings of the Member.

The issues on appeal were whether the Member:

(a) failed [to] expressly state his finding that the condition of diabetes was a consequential condition of the injury when finding the medication for diabetes, diabetes monitor and weight loss treatment was reasonably necessary to treat diabetes (Ground 1);

(b) failed to expressly state his finding that the condition, orthostatic intolerance (also known as Postural Orthostatic Intolerance) had been aggravated by the injury when making his finding that the treatments for orthostatic intolerance, being IV saline and AirRelax and the Ottoman for elevation of legs, were all reasonably necessary (Ground 2);

(c) erred in his finding that the Curved 49” Monitor was not reasonably necessary (Ground 3);

(d) erred in his decision to limit the IV saline solution to 12 months (Ground 4);

(e) erred in his finding that the claimed total set out in the Form 2 – Application to Resolve Dispute was reasonably necessary with respect to the sit-stand desk whilst failing to stipulate that the accessories that were included in this total in the quote submitted in evidence, were also reasonably necessary (Ground 5);

(f) erred in his finding that the ‘Sealy Vienna Plush King Mattress’ from Harvey Norman valued at $8,099 was an appropriate mattress (Ground 6);

(g) erred in his finding that the claimed total set out in the Form 2 – Application to Resolve Dispute was reasonably necessary with respect to the King Sized Orthopaedic Mattress whilst failing to stipulate that the woollen underlay that was included in this total in the quote submitted in evidence, were also reasonably necessary (Ground 7);

(h) erred in fact when exercising his discretion to limit the Isagenix diet to a period of 6 months (Ground 8);

(i) erred in failing to clearly express his finding that the medications claimed for Diabetes was [sic] due to his apparent finding that diabetes was a consequential condition arising out of the injury (Ground 9);

(j) erred in finding the appellant had a predictable work capacity of 5 hours per week (Ground 10), and

(k) erred in failing to make express findings with respect to the consequential conditions arising from the injury (Ground 11).

Held: The Certificate of Determination dated 15 June 2022 was revoked in part.

Grounds 1 and 9

1. The appellant submitted the Member’s failure to expressly state that diabetes was a consequential injury has emboldened the respondent to assert that diabetes was not work-related. He submitted the weight of the evidence supported the argument that diabetes was a consequential condition resulting from the work injury. He referred to Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni). ([75])
2. The Acting President stated that in Bouchmouni Roche DP explained the difference between “an ‘injury’ and a condition that has resulted from an ‘injury’”. The term ‘consequential condition’ has become a convenient shorthand way of describing the latter of these. The difference is important as there are multiple statutory provisions (s 9A of the 1987 Act for example) that require consideration in the proof of ‘injury’. The phrase ‘consequential condition’ is not a term of art and is not to be found in the relevant legislation. State of New South Wales v Bishop [2014] NSWCA 354 involved a worker who, following a work injury to her back, periodically suffered leg symptoms that would cause her to collapse. In one such episode she fell, injuring her left ankle and foot. In the Court of Appeal, Basten JA described the issue of the causal link between the back injury and the later events in which the ankle and foot were hurt, as “pre-eminently a question of fact”. Emmett JA (Gleeson JA agreeing) described the “essential fact in issue” as “whether there was a causal connection between the 2004 Injury and the 2011 Injury”. Their Honours did not describe the situation as one involving an alleged ‘consequential condition’. ([83])
3. Snell AP found that when the Member’s reasons were read as a whole, it was clear that the Member accepted the causal chain as spelled out by Dr Bird, the treating doctor. This involved acceptance that the necessary causal link was established, between the employment injury on which the appellant relied and the acceleration of diabetes identified by Dr Bird. It made it clear that the effects of this acceleration were “ongoing”. It was not necessary that the Member use the terminology of finding a ‘consequential condition’. He did not err in dealing with the causation issue in the way that he did. The Member made an appropriate causation finding together with a general order for medical and related expenses. There could be no valid doubt of this on the respondent’s part, having regard to the Member’s findings and orders. ([84])
4. Reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”. The Member’s reasons in the Acting President’s view satisfied the requirements discussed in decisions such as Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. ([87])

(Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259 applied)

5. It followed that Grounds 1 and 9 failed. The Member’s finding on the condition of diabetes was made clear to the parties, including the respondent’s insurer. ([88])

Ground 2

6. Acting President Snell noted that the respondent did not argue against the appellant’s position, that the Member made findings supporting the causal link between the injury and aggravation of orthostatic intolerance. As with Ground 1, this finding on causation was sufficient to entitle the appellant to the payment of expenses pursuant to s 60 of the 1987 Act in respect of that aggravation. As with Ground 1, there was no requirement that the Member make a finding employing the language of a ‘consequential condition’. The Member’s finding dealt with the causation issue regarding orthostatic intolerance and decided that issue in the appellant’s favour. To the extent to which the insurer may have misunderstood the effect of the Member’s finding, this did not indicate there was appealable error on the part of the Member. The Member had not erred in how he dealt with this aspect of the matter. It followed that Ground 2 failed. ([93]–[94])

Ground 3

7. The Acting President observed that both parties accepted the need for provision of a monitor for use in the appellant’s home office. The Member dealt with conflicting expert evidence from Dr Bird (who suggested a large, curved monitor) and occupational therapist Ms Smith (who suggested twin screens, preferably 27 inch). He preferred Ms Smith’s opinion on this topic and gave reasons for doing so. Snell AP stated that it is insufficient that a different outcome is regarded as preferable. It is necessary that the appellant establish that the Member’s decision was wrong. The Member’s factual finding was open to him and error within the meaning of s 352(5) of the 1998 Act was not established. It followed that Ground 3 failed. ([110]–[111])

   (Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

Ground 4

8. The Member said the costs of the IV saline solution were to be met for a period of one year from the date of the determination. This was to allow “a reasonable time to gauge the benefit of this particular treatment”. The appellant submitted the effect of the Member’s order, dealing with the IV saline solution, was to “finalise the treatment in 12 months, with no possibility of reinstatement”. He submitted this was contrary to the Member’s intention. ([112]–[113])
9. Acting President Snell stated that the appellant’s submissions on this ground did not make any real attempt to identify an error of fact, law or discretion within the meaning of s 352(5) of the 1998 Act. The assertion that the treatment was limited to “12 months with no possibility of reinstatement” was simply wrong. This ground was based on a misapprehension of the Member’s order. The Member’s reasons should be read as a whole. In the reasons at [189] the Member referred to a question regarding whether this treatment will “once again [become] intermittent or whether this treatment will have to be used on a regular basis in an effort to stop any further deterioration in symptoms”. The Member said “[p]erhaps that answer will only be known when the [appellant] commences regular treatment with the saline solution.” At [190] the Member referred to allowing “a reasonable period of time to gauge the benefit of this particular treatment”. He referred to this as providing “certainty to the respondent as to the financial burden it will be required to meet for this treatment, at least until the potential benefits of this treatment can be measured” (emphasis added). The Acting President held that the intention of the order is clear, it gave a period of one year for the treatment to be trialled. There was no basis for reading the order set out at [191] of the reasons as being restricted to “12 months with no possibility of reinstatement”. Clearly the need for this treatment could be revisited at the conclusion of the one year period, when the success or otherwise of the trial is known. It would be possible to revisit the order before that if the parties sought to vary it. Ground 4 was misconceived and it failed. ([118])

Ground 8

10. This ground, like Ground 4, went to the period during which an order relating to future expenses is expressed to operate. The Isagenix diet was to assist in weight control. Snell AP stated the Member accepted the causal chain between the injury involving the aggravation of spinal pain due to unsuitable work conditions, and increased weight. He accepted Dr Bird’s opinion that the diet was an effective form of treatment. He said Dr Bird did not set parameters for how long the diet should be used. The Member referred to earlier periods where the diet resulted in weight loss. He said six months should be sufficient “to determine if the Isagenix diet is likely to now benefit the [appellant]”. ([119])
11. Acting President Snell rejected the appellant’s submission that Dr Bird was the only medical practitioner who was appropriately qualified to offer an opinion on the topic of weight loss, as only he was qualified in nutritional medicine. The topic was one that, of its nature, could properly be commented on by a medical practitioner. Arguably Dr Bird’s views may have been entitled to greater weight on the topic given his training. The Member, in any event, accepted Dr Bird’s views on this topic. ([124])
12. Again, it was necessary to read the reasons as a whole. The appellant submitted the effect of the relevant order was that this treatment is finalised in six months, “with no possibility of reinstatement”. Again, this involved a clear misreading of the Member’s reasons. The Member said there should be “a reasonable amount of time to allow for the potential benefit of this diet.” He said that “six months should be sufficient time from past experience to determine if the Isagenix diet is likely to now benefit the [appellant]” (emphasis added). The trial referred to by the Member went to the period during which the specific Isagenix diet would be trialled. Clearly it was possible, at the end of the period, to seek continuation of the treatment, depending on the outcome of the trial. If agreement could not be reached there was nothing in the Member’s orders to prevent any appropriate further claim being pursued in the Commission. Like Ground No. 4, this ground was misconceived. Ground 8 failed. ([125])

Ground 5

13. The appellant submitted the claim was for the desk and accessories but the Member’s order dealt only with the desk. The appellant submitted the Member expressed no concern with the total cost of the desk and accessories claimed in the Application to Resolve a Dispute, $2,370. Acting President Snell noted that the heading above the Member’s discussion of these matters read “Sit/stand desk and accessories”. Both parties on the appeal proceeded on the basis it was self-evident that the order was intended to include the “accessories”. The Member specifically included the “accessories” in his heading, and the formal order related to the broader description of the “work station”, not only to the desk. It followed that the alleged error was not made out and Ground 5 failed. There could not be any doubt on the insurer’s part that the order was for the work station, including the accessories. ([126]–[129])

Ground 6

14. The Member noted that the mattress he awarded, the Sealy Vienna Plush King Mattress, was recommended by Ms Smith. Dr Bird commented on the appellant’s need for a new mattress but did not recommend any specific mattress, saying “no health care professional can determine the precise mattress that suits Mr Hallman[n]”. The Member said the provision of ‘medical or related treatment’ set out in s 59 of the 1987 Act was contingent on the medical treatment being directed by a medical practitioner. Although it was not completely clear, this appeared to be the basis for the preference for the mattress recommended by Ms Smith. The Member said “it is not for a worker to pick what he or she would prefer”. The Member in other parts of the reasons accepted the evidence of Dr Bird. ([138])
15. Acting President Snell accepted that the need for an appropriate mattress, in the circumstances, involved a ‘curative apparatus’ within the definition in cl (e) of ‘medical or related treatment’ in s 59 of the 1987 Act. The Member made a finding to this effect, with which the Acting President agreed, relying on Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216 . That finding was not challenged on the appeal. The Acting President found that the reasons did not identify a specific basis for the rejection of the claim as brought relating to the mattress, and the corresponding acceptance of Ms Smith’s recommendation. Ms Smith’s recommendation was of a mattress like the current one, which the appellant complained was unsuitable. This complaint was supported by Dr Bird, who said the requirements of a mattress were different now compared with those applying in 2011 when a similar mattress was previously selected. In Snell AP’s view, the Member failed to engage appropriately with the expert evidence (essentially Dr Bird and Ms Smith) on this issue. The Member did not specifically prefer the evidence of Ms Smith over that of Dr Bird, yet the finding on a suitable mattress was consistent with him having done so. The expert evidence dealing with the claim for a King Sized Maison UFM King Orthopaedic Mattress should have been appropriately considered consistent with the above authorities. This constituted error. ([139]–[143])

(Newcastle Regional Public Tenants Council Incorporated v Grant [2005] NSWWCCPD 2; Honarvar v Professional Paining AU Pty Ltd [2022] NSWPICPD 12; Hume v Walton [2005] NSWCA 148 , and Waterways Authority v Fitzgibbon [2005] HCA 57 applied)

16. Acting President Snell re-determined this issue and accepted the evidence of Dr Bird. Ground 6 succeeded and the orders at paragraph 3(a) of the Certificate of Determination were amended to substitute Maison UFM King Orthopaedic Mattress and overlay and delivery ($12,328.95 or current market cost). ([144]–[149])

Ground 7

17. The appellant submitted the Member failed to deal with the claim for a woollen underlay, that formed part of the quotation that related to the mattress. Grounds 1 and 2 related to circumstances where the Member made formal findings on causation that decided the relevant issue. Grounds 1 and 2 were then critical of the Member for not making formal findings that simply confirmed those causation findings. The respondent, dealing with Ground 7, submitted that the formal finding regarding the entitlement to a mattress was sufficient to also dispose of the claim for the overlay and delivery costs. That entitlement was inherent in the finding that there was an entitlement to a mattress. Snell AP took the appellant to be conceding that error was not demonstrated in those circumstances. Ground 7 failed. ([150]–[153])

Ground 10

18. The respondent conceded the Member erred in the statutory maximums he applied. It conceded the figures in the appellant’s submissions at [207] were correct. After deducting the figure of $340 per week, the weekly award should have been $1,942.90 from 1 December 2021 to 31 March 2022, and $1,978.10 from 1 April 2022 to date and continuing. It submitted this error could have been corrected as an ‘obvious error’ pursuant to s 294(3) of the 1998 Act and Practice Direction No. 4. It submitted an appeal was an inappropriate way of addressing the issue and the appeal on this ground should be dismissed. ([179])
19. The Acting President stated that the Member’s failure to award weekly compensation from 18 May 2020 to 30 June 2020 was not simply based on a lack of certification. The Member referred to the absence of “medical evidence which sets out the extent of any incapacity for work during the period”. The Member considered that the earnings in the wages schedule around that time were consistent with a substantial earning capacity. This view was consistent with the appellant’s statements, Dr Bird’s certificate dated 1 July 2020 and Dr Bird’s report dated 31 October 2021. The appellant carried the onus of establishing what his entitlement was. The Member’s decision dealing with the period from 18 May 2020 to 30 June 2020 was open on the evidence and did not involve error within the meaning of s 352(5) of the 1998 Act. ([181]–[185])

(Commonwealth v Muratore [1978] HCA 47 applied)

20. Snell AP concluded that the various substantive challenges in Ground 10 were not made out. Ground 10 was upheld to the extent of the conceded error regarding the rates of weekly compensation payable by the respondent. Paragraph [1] of the Orders in the Certificate of Determination dated 15 June 2022 was amended by substituting the figure of “$1,942.90” for the figure of “$1,855.70” in subp (a) and the figure of “$1,978.10” for the figure of “$1,884” in subp (b). ([185]–[198])

The proposed Ground 11

21. The appellant lodged a document headed “Further Submissions” dated 24 August 2022. This was in addition to the submissions lodged in (or shortly after) its Appeal Application, and predated the respondent’s submissions, which were lodged on 12 September 2022. The additional ground of appeal was not dealt with in the respondent’s Notice of Opposition. Acting President Snell noted it raised whether express findings of ‘consequential conditions’ should have been made by the Member. This subject matter was also raised in Grounds 1, 2 and 9 of the existing grounds. The proposed further ground did not have reasonable prospects of success. Even if there were an application for leave to add the ground (which there was not) it would not be appropriate to grant leave, as the proposed ground did not have reasonable prospects of success. It was appropriate to note that the proposed Ground 11 was raised without leave, was not the subject of any application for leave, and was not considered. ([199]–[200])

Tozlok v Youssef [2023] NSWPICPD 58

WORKERS COMPENSATION – Application to extend time to appeal, presence of ‘exceptional circumstances’ – Bryce v Department of Corrective Services [2009] NSWCA 188; alleged factual error – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; inferences pursuant to Jones v Dunkel – discussion of Payne v Parker [1976] 1 NSWLR 191

Snell AP

27 September 2023

Facts

Mr Youssef, the respondent, was carrying out tiling work at premises in Oatley on 6 November 2018. As he was cutting a large tile it shattered and lacerated his left elbow. He stated that he had not worked since. Mr Youssef alleged he was employed by Mr Tozlok, the appellant, at the time. Mr Tozlok conceded he was uninsured for the purposes of the workers compensation legislation. Mr Youssef made a claim on the Nominal Insurer under the ‘Uninsured Liabilities’ provisions of the legislation. The Nominal Insurer denied liability on the basis that Mr Youssef was not a worker or a deemed worker (pursuant to cl 2 of Sch 1 to the 1998 Act.

The respondent made a claim for lump sum compensation. He then made a claim for lump sum compensation against Adelson’s Building and Bathroom Renovation Pty Ltd (Adelson’s). This was on the basis of s 20 of the 1987 Act.

The Member found that Mr Youssef was not a worker within the meaning of s 4 of the 1987 Act, but was a deemed worker as defined in cl 2 of Sch 1 to the 1998 Act, when he suffered injury on 6 November 2018. The Member found Mr Tozlok was uninsured for the purposes of the legislation. The Member found there was a contract between Mr Tozlok and Adelson’s that satisfied s 20 of the 1987 Act and Adelson’s was liable to pay compensation as if Mr Youssef were immediately employed by Adelson’s. The Member remitted the matter to the President for referral to a Medical Assessor to assess whole person impairment in respect of the left upper extremity and scarring. Mr Tozlok appealed.

The issues on appeal were whether the Member erred in finding that the first respondent [Mr Youssef] was a ‘deemed worker’ within the meaning of cl 2 of Sch 1 of the 1998 Act.

Held: The appellant’s application to extend time for the bringing of the appeal in this matter was refused. The orders in the Certificate of Determination dated 8 August 2022 were confirmed.

The position of the Nominal Insurer and Adelson’s

1. Messrs HWL Ebsworth wrote to the Commission by email dated 20 October 2022 advising that they acted for both the Nominal Insurer and Adelson’s. Those parties neither opposed nor joined with the appeal and agreed to be bound by the decision. ([39])

Threshold matters

2. The appeal was out of time and the appellant sought to extend time pursuant to s 352(4)(b) of the 1998 Act. The appeal was not lodged in time due to procedural irregularities that led to it being rejected. It has been frequently held that where an appeal is out of time due to inadvertence or legal error this does not constitute ‘exceptional circumstances’. Acting President Snell could not see anything in the circumstances of the current matter that would constitute ‘special circumstances’. This did not preclude an extension of time but the absence of ‘exceptional circumstances’ was a matter he was required to consider in exercising the discretion. It was necessary for him to consider the merits of the appeal. ([44]–[58])

   (Department of Education & Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55; Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now deregistered) [2009] NSWWCCPD 64 ; Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, and Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1 applied)

3. The appellant described the Member’s finding, that Mr Youssef worked exclusively for Mr Tozlok, as central to the finding that the evidence did not support a conclusion that Mr Youssef was an independent contractor. The appellant submitted this evidence should have been considered more sceptically. The fundamental submission was that there was insufficient evidence to support exclusivity of employment between June and November 2018. There was direct evidence from Mr Youssef that proved this matter. There was no direct evidence to the contrary. The appellant attacked the fact finding on the basis of the weight that the Member gave to various aspects of the evidence. It was submitted that the evidence of the lay witness Mr Hello was given too much weight and that of Mr Breis, another witness, was given insufficient weight. ([61])

   (Shellharbour City Council v Rigby [2006] NSWCA 308 applied)

4. Acting President Snell found that the Member’s fact finding did not indicate that some error must have been involved. The Member set out a detailed summary of the evidence from Mr Youssef, Mr Hello, Mr Breis, Mr Badra, Mr Tozlok and Mr Haider. He summarised the parties’ submissions. The appellant had not established error in how the Member dealt with the evidence before him. More specifically, he had not established error within the meaning of s 352(5) of the 1998 Act. ([62]–[64])
5. The appellant submitted that the Member should not have drawn “an adverse inference” against Mr Tozlok for failing to provide statements from fellow tilers, as it was Mr Youssef who carried the onus. The appellant submitted it was inappropriate for the Member to draw such an inference in circumstances where the appellant carried the relevant onus. Whilst the inference might be more readily drawn against a party in circumstances where he or she carried the relevant onus (see Ho v Powell [2001] NSWCA 168) it was apparent that there are many circumstances where such an inference may be properly available. The Member’s finding that the appellant had proved the necessary elements of Sch 1, cl 2 was open on the evidence. It did not depend on the drawing of an inference pursuant to Jones v Dunkel. ([67]–[69])

(RHG Mortgage Ltd v Ianni [2015] NSWCA 56 and Payne v Parker [1976] 1 NSWLR 191 referred to)

6. Acting President Snell found that the appellant could not succeed in establishing error within the meaning of s 352(5) of the 1998 Act. The appellant could not demonstrate the presence of ‘exceptional circumstances’. More critically, the appeal did not have reasonable prospects of success. If time were extended the appeal would in any event fail on its merits. The appropriate order was that the application to extend time for the bringing of the appeal was refused. ([70]–[71])

Workers Compensation Nominal Insurer v Chester [2023] NSWPICPD 59

WORKERS COMPENSATION – failure to accord procedural fairness – Twist v Randwick Municipal Council [1976] HCA 58; New South Wales Police Force v Winter [2011] NSWCA 330 applied

Wood DP

28 September 2023

Facts

The first respondent was employed as a hairdresser by Kristie Maree Ferris trading as Rhonda’s Hair Boutique (the employer). The first respondent claimed that on 1 September 2011, while cleaning a wash basin in the course of her employment, she injured her right wrist. She also alleged that she developed right elbow symptoms as a result of the right wrist injury. The first respondent underwent surgery in the form of right carpal tunnel release and right cubital tunnel release on 20 December 2018 and revision surgery on 10 September 2020. The first respondent had brief periods off work following the injury and the two surgeries.

The employer did not hold a workers compensation policy of insurance at the time of the injury. The claim was therefore dealt with by the Workers Compensation Nominal Insurer (the appellant), who declined the claim on the basis that the right wrist carpal tunnel syndrome was not caused by the injury, and the right cubital tunnel syndrome did not result from the injury. The appellant also disputed that the surgeries performed were reasonably necessary as a result of the injury.

The dispute proceeded to arbitration before the Member. The employer did not appear in the proceedings, however, the Member proceeded with the matter on the basis that the steps taken by the appellant to notify the employer of the proceedings were unsuccessful. The Member determined the dispute in favour of the first respondent. The Nominal Insurer appealed.

A preliminary issue arising on appeal was whether there was an error of law and denial of procedural fairness in view of the employer not having an opportunity to defend the case before the Member.

Held: The Member’s Certificate of Determination dated 16 May 2022 was revoked and the matter was remitted for re-determination by another non-presidential member.

Procedural matters

1. Although the employer was nominated as a respondent in these proceedings, the arbitration proceeded without the involvement of the employer because the appellant’s attempts to serve the employer had been unsuccessful. The Member determined the dispute and issued a Certificate of Determination making orders that included orders for payment of compensation by the appellant to the first respondent and an order that the employer reimburse the appellant for the compensation paid. In the appeal documents, there was nothing to indicate that the employer had been served with the appeal. The Certificate of Service lodged by the appellant only referred to the appeal having been served on the first respondent’s legal representatives and the employer did not file a Notice of Opposition to the appeal. ([7]–[8])
2. On reviewing the documentation upon allocation, Deputy President Wood noted that the employer’s email address and mobile telephone number had been recorded in the document “Employer Injury Claim Form” signed by the employer and dated 5 June 2012. She directed that the appellant provide to the Commission details of all attempts to serve the appeal application on the employer. The appellant advised that the appeal application was not served on the employer as previous attempts to serve documents on the employer were unsuccessful. Contact was then made with the employer by way of the email address located in the “Employer Injury Claim Form”, and the Deputy President directed the appellant to serve on the employer all documents relied upon in both the proceedings before the Member and the appeal. The Deputy President convened a virtual conference during which the employer indicated that had she been aware of the proceedings, she would have defended the claim made by the first respondent. The Deputy President issued further directions and written submissions were subsequently lodged by the appellant and first respondent. The employer did not respond to the direction. ([9]–[27])

Consideration

3. Deputy President Wood set out the Member’s detailed summary of the procedural steps taken to advise the employer of the proceedings, as recorded in the Certificate of Determination. The Deputy President said that it was apparent that, while the employer was aware that the first respondent had made a claim in respect of her injury, she was not made aware of the fact that proceedings had commenced in which she was nominated as a respondent to the claim. It was noted that the first respondent made a one and only attempt to serve the initiating process (the Application to Resolve a Dispute), which was unsuccessful. The appellant also made some unsuccessful attempts at service, however given the appellant’s role in respect of proceedings of this nature and the resources to which the appellant had access, its attempts, in the Deputy President’s view, were not satisfactory. ([28]–[29])
4. The appellant also made no attempt to serve the appeal. Both the appellant and the first respondent had access to the employer’s email address and mobile telephone number. The appellant and the first respondent both asserted that the email address recorded in the “Employer Injury Claim Form” was illegible. The document headed “Employer Injury Claim Form” signed by the employer on 5 June 2012 was annexed to the Application to Resolve a Dispute, which was lodged electronically with the Commission. While the address was hard to read, it was sufficiently legible for the Commission to utilise that address in order to notify the employer of the proposed virtual conference. The employer responded to the Commission’s email contact. ([30]–[32])
5. The outcome was that the employer did not have the opportunity to participate in the proceedings before the Member and would have had no opportunity to take part in the appeal proceedings had it not been for the Commission’s intervention. ([33])
6. While s 43(1) of the 2020 Act provides that proceedings in the Commission are “to be conducted with as little formality and technicality as the proper consideration of the matter permits”, the common law rule of procedural fairness, in this case the ‘hearing rule’, still applies. A party to a dispute is entitled to be heard in relation to the case against it before a decision-maker determines a dispute adverse to the party’s interests. The obligation to afford procedural fairness requires that the party be given notice of the case brought against him or her and that the party be given the opportunity to adduce evidence and make submissions about the case before the tribunal. ([34])

(Twist v Randwick Municipal Council [1976] HCA 58, and New South Wales Police Force v Winter [2011] NSWCA 330 applied)

7. The employer in this case had not had the opportunity to defend the case brought against her and thus had been denied been procedural fairness. The matter was determined adverse to her interests. The Member’s decision was therefore affected by an error of law and had to be revoked and remitted to another non-presidential member for re-determination. ([35])

BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60

WORKERS COMPENSATION – the opportunity to make submissions is not an invitation to raise a new ground of appeal and leave to do so is required – University of New South Wales v Lee [2021] NSWPICPD 4 applied – s 15(1)(a) of the 1987 Act – ascertainment of the deemed date of injury – Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 discussed and applied – whether error in the exercise of discretion to admit late evidence – Hamod v State of New South Wales [2011] NSWCA 375; Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135 applied

Wood DP

28 September 2023

Facts

The appellant worker was employed by the respondent as an immigration detention officer from 1998 to 2001. The appellant commenced proceedings in the Administrative Appeals Tribunal (AAT) under the Comcare scheme for psychological injury against the Department of Immigration and Border Protection which he nominated as his employer. He subsequently discontinued proceedings against the Department of Immigration and Border Protection on the advice that he was in fact employed by a different, non-government entity that had contracted to the Department of Immigration and Border Protection to perform the work. The appellant concurrently lodged a claim for psychological injury against a subsequent Commonwealth employer. The Senior Member of the AAT determined that the appellant’s work with the non-government GEO Group (the respondent in these proceedings) contributed to the appellant’s psychological condition, and not that of the Commonwealth employer. The appellant then commenced proceedings against GEO Group in the Personal Injury Commission seeking weekly payments of compensation from 20 January 2017, as well as treatment expenses.

The dispute was listed for conciliation and arbitration on 2 November 2021 before a non-presidential member of the Commission, during which the appellant sought to amend the particulars of injury from “personal injury” (s 4(a) of the 1987 Act) to “disease” (s 4(b)(i) of the 1987 Act). The Member declined to grant the appellant’s application. The appellant sought an adjournment to appeal the Member’s decision, following which the appellant withdrew his claim for weekly compensation and proceeded only with a claim for treatment expenses pursuant to s 60 of the 1987 Act.

The appellant’s application was allowed on appeal, determined by Acting Deputy President Parker SC who remitted the matter for re-determination. On the re-determination, Member Read issued a Certificate of Determination on 11 October 2022 in which he found that the appellant’s date of injury was deemed to be 20 January 2017 and that the appellant’s claim was barred by operation of s 261(1) of the 1998 Act.

The appellant appealed the decision.

The issues on appeal were whether the Member erred in:

(a) law in his interpretation and application of section 15 of the 1987 Act by focusing upon a claim having been made for weekly compensation in the letter of claim (Ground 1);

(b) law by determining the claims for weekly compensation and medical expenses pursuant to section 60 of the 1987 Act were “inextricably linked” (Ground 2);

(c) law by determining the date of injury was 20 January 2017 (deemed) (Ground 3);

(d) law by making findings/determinations of which the appellant was not on notice (Ground 4);

(e) fact by determining the claim for weekly compensation was discontinued for the purpose of circumventing the limitation periods in ss 254 and 261 of the 1998 Act (Ground 5);

(f) law in his application and interpretation of section 261 of the 1998 Act (Ground 6);

(g) discretion by not allowing the appellant’s solicitor’s statement to be admitted into evidence (Ground 7), and

(h) providing inadequate reasons for his decision to not admit the solicitor’s statement (Ground 8).

Held: The Member’s Certificate of Determination dated 11 October 2022 was confirmed.

Whether leave should be granted to raise a late ground of appeal

1. Although the appellant was provided with the opportunity to make further submissions on receipt of the transcript, that opportunity was not one in which the appellant was given the liberty of raising a new ground of appeal. The appellant required leave to do so. Deputy President Wood ultimately granted the appellant leave to raise Ground Eight of the appeal. As indicated by Snell DP in University of New South Wales v Lee [2021] NSWPICPD 4, the granting of leave in these circumstances is not intended to provide a general basis upon which leave will be granted to add a new ground of appeal, without leave, after the receipt of the transcript. ([64], [71]–[72])

Ground 1

2. The appellant asserted that the Member erred in interpreting and applying section 15 of the 1987 Act, submitting that as the only claim on foot was for medical expenses, there was no “incapacity” within the meaning of s 15(1)(a)(i) of the 1987 Act. Deputy President Wood held that the appellant was in fact incapacitated as the treatment expenses were in respect of the disease injury from 20 January 2017. Deputy President Wood stated that while the decision in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 (Thoroughgood) also involved a claim for treatment expenses, the Court of Appeal determined that the date of injury was the date upon which the claim was made because the worker clearly had no economic incapacity flowing from the injury. In the present case, the appellant ceased work because of the injury, establishing an “incapacity” within the meaning of s 15(1)(a)(i). While the circumstances in Thoroughgood established that a claim for treatment expenses can have a deemed date of when the claim was made, that did not mean that that will always be the case. The first step is to enquire as to whether there is an incapacity flowing from the injury for which the compensation is claimed. If the answer is in the affirmative, then the date of the incapacity is the deemed date of injury. ([146]–[147])
3. The appellant’s submissions were contrary to Basten JA’s observations in Thoroughgood that to say that “incapacity" in ss 15 and 16 is only satisfied where there is a claim, or at least a proven entitlement to claim for weekly compensation, arguably involves a misreading of the relevant authorities. The authorities establish that there “could” be a different deemed date of injury, not that it will always be the case. The appellant made no compelling submission that established error on the part of the Member by determining the date of injury to be the date of incapacity. Thus, the deemed date of injury giving rise to the claim for treatment expenses is 20 January 2017 and the Member did not err in so concluding. It followed that this ground of appeal failed. ([148]–[149])

Ground 2

4. The appellant submitted that the Member erred in determining the claims for weekly compensation and medical expenses were “inextricably linked”. The appellant argued that his incapacity was not relevant in making a determination as to the date of injury for the present claim. Deputy President Wood rejected the appellant’s submissions noting that economic incapacity arose from the injury on 20 January 2017, which is the injury for which compensation is being claimed. It followed that this ground of appeal failed. ([150]–[151])

Ground 3

5. The appellant, relying on his submissions from the first two grounds, argued that the Member erred by considering the discontinued claim for weekly compensation and by determining the date of injury on the basis of incapacity. Deputy President Wood held that in applying s 15(1)(a)(i) of the 1987 Act the Member was required to consider incapacity resulting from an injury, which, in this case, was the same as the injury for which treatment expenses were claimed. ([152])
6. The appellant then asserted to the contrary that the Member failed to assess whether economic incapacity existed and the Member did not consider the terms of s 15 of the 1987 Act. Deputy President Wood found that the Member clearly turned his mind to the existence of an incapacity and embarked on a consideration of the requirements of s 15. The Member took into account that the AAT decision recorded that the appellant was incapacitated and that the appellant had suffered no prior incapacity. The appellant provided no basis upon which to intervene with the Member’s conclusion that the deemed date of injury was 20 January 2017 and this ground of appeal failed. ([153]–[154])

Grounds 4 and 5

7. The appellant argued that the Member committed errors of law by making findings of which the appellant was not on notice and errors of fact by determining the basis for which the claim for compensation was discontinued. The appellant assumed that the Member imputed that the appellant discontinued the compensation claim to circumvent the limitations imposed by ss 254 and 261 of the 1998 Act. Deputy President Wood found that the Member was merely pointing out that discontinuing a claim for this reason would be contrary to the purposes of the legislation, which speaks to the appellant’s argument that the compensation claim was irrelevant. It followed that both Grounds 4 and 5 of the appeal failed. ([155]–[159])

Ground 6

8. The appellant referred to the Member’s reasons at [73]–[83] and submitted that the Member erred in law by considering only the time-line of events and not the reasons for the delay in applying s 261 of the 1998 Act. Deputy President Wood referred to the Member’s reasons for rejecting the appellant’s submissions, noting that the appellant did not succeed in his claim for compensation against the subsequent employer in November 2019 yet failed to make a claim against the respondent for over a year. ([160]–[162])
9. Deputy President Wood held that the Member did not accept that the appellant was prevented by his psychological condition from making his claim, as it did not impede his ability to pursue a claim in the AAT. As the appellant was legally represented by practitioners who appear regularly in the Commission there was no reasonable cause to argue that the appellant was ignorant of his rights. The Deputy President found that the Member did not commit error in determining that the appellant failed to satisfy the exceptions contained in s 261(4) of the 1998 Act, and this ground of appeal failed. ([163]–[167])

Ground 7

10. The appellant submitted that the Member made an error of discretion by not allowing the appellant’s solicitor’s statement into evidence. Deputy President Wood relied on Hamod v State of New South Wales [2011] NSWCA 375 which allows the court discretion in matters of practice and procedure, subject to ensuring a fair trial to the parties, as well as the court’s statutory obligation to ensure the just, quick and cheap resolution of the issues in dispute. ([168]–[171])
11. The Deputy President also relied on the decision of Acting Deputy President Snell (as he then was) in Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135 (Morrison), in which he observed that “the unexplained failure to serve the documents at any time prior to the arbitration hearing, was a significant factor militating against the discretion being exercised in the Appellant Employer’s favour.” The appellant did not seek leave to have the document admitted on the appeal, however Deputy President Wood considered it appropriate to request a copy of the document to assess whether an injustice flowed from the decision to reject the document. The statement did not disclose any reasonable explanation as to the delay in lodging the claim following the outcome of the AAT matter, nor was it useful in establishing that the appellant was either ignorant of his obligations or had a reasonable excuse for failing to make his claim within a reasonable period. The Deputy President did not find that the Member would have made a different finding had the statement been before him. It followed that this ground of appeal failed. ([172]–[177])

Ground 8

12. The appellant argued that the Member did not provide adequate reasons when deciding not to admit the solicitor’s statement. Deputy President Wood noted that the statement was intended to address the reasons for the appellant’s delay in making a claim for compensation, an issue that the appellant was made aware of 13 months prior in a notice issued pursuant to s 78 of the 1998 Act. The Member in his reasons made reference to the nature of the proceedings, noting they “have been on foot for an awful long time”. The Member considered the factors in admitting the document in the interests of justice and any prejudice that would result from this decision and found that dealing with the issues and finalising the proceedings took precedence. ([178]–[184])
13. Deputy President Wood found that the Member did not simply consider the statement to be irrelevant but considered matters of prejudice and the reasons for the delay in seeking to have the documents admitted, which are a significant factor militating against the discretion being favourably exercised, per Snell ADP in Morrison. The Deputy President did not consider that the Member’s reasons fell short of his obligation to give reasons in accordance with s 294 of the 1998 Act and r 78 of the 2021 Rules and failed this ground of appeal. ([185]–[186])