Appeal Case Summaries

Hernandez v State Rail Authority of NSW [2023] NSWPICPD 61

WORKERS COMPENSATION – scope of remitter to a non-presidential Member for re-determination from a decision of a Presidential Member – whether renal and cardiac conditions related to ingestion of medication prescribed to treat back injury

Parker SC ADP

3 October 2023

Facts

This matter had a very long history in the Workers Compensation Commission and, subsequently, the Personal Injury Commission. For the purposes of the appeal, it was only necessary to note two prior Certificates of Determination.

On 2 June 2021, Member Sweeney issued a Certificate of Determination (Hernandez No. 1) finding the appellant worker suffered injuries to his back arising out of employment with the first respondent in 1973, 1976, 1987 in the employ of the first respondent (State Rail Authority of NSW), and in 1992 in the employ of the second respondent (Adstock Pty Ltd formerly known as GL Cooper Sales Pty Ltd). Member Sweeney also found that as a result of these injuries, the appellant aggravated a pre-existing condition of hypertension. These two findings were confirmed on appeal by Deputy President Wood (Hernandez No. 2).

However, in the appeal before Deputy President Wood, she went onto revoke orders [3] and [4] of Member Sweeney’s Certificate of Determination. In order [3], Member Sweeney stated that the appellant had not established that he suffered a consequential medical condition of his shoulders or consequential cardiac or renal conditions as a result of the injuries to his back or that the need for treatment of these conditions resulted from those injuries. In order [4], Member Sweeney granted liberty to apply if necessary in respect of quantification of the appellant’s entitlement to compensation pursuant to s 60 of the 1987 Act.

In the place of orders [3] and [4], in Hernandez No. 2, Deputy President Wood made the following orders:

"(a)    Award for the respondents in relation to the allegation that the applicant’s bilateral shoulder conditions resulted from the injury;

(b)     Award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension;

(c)     The matter is remitted to another member for determination of whether the applicant’s

(i)      renal condition, and

(ii)      cardiac condition

resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.”

Although the order for remittal was simply expressed, the parties were unable to agree on the precise issue for determination by the Member pursuant to that order.

Member Batchelor (the Member) dealt with the remitter. He did not explicitly resolve the conflict as to the precise issues to be determined. He did explicitly rule that the “applicant may not argue that medication for his hypertension had contributed to the renal and cardiac conditions” because that matter had previously been determined by the Commission. Otherwise implicit in the outcome was that the Member preferred the contention of the respondents as to the issue to be determined on the remitter.

Member Batchelor held that it was not open to the appellant to argue that medication for his hypertension had contributed to the renal and cardiac conditions. He found the appellant had not produced evidence to demonstrate, on the balance of probabilities, that as a result of ingestion of medication for his undisputed back injuries, he suffered a renal condition or a cardiac condition consequent upon those back injuries.

On the issue of the relationship between the treatment for the back injury and the aggravation of the pre-existing condition of hypertension which became labile in 2001 and 2005, the Member said there was no evidence he had been directed to that indicated what treatment, if any, the appellant had undergone in respect of aggravation of the pre-existing condition of hypertension which became labile in 2001 and 2005. The Member continued, saying that if there is any such treatment, the appellant would have liberty to apply to the Commission in the absence of agreement for the payment of the cost of such treatment pursuant to s 60 of the 1987 Act.

The worker appealed.

The issues on appeal were whether:

(a) the Member committed errors of law by misinterpreting/misconstruing Wood DP’s decision in Hernandez No. 2 and the scope of the remitter (Ground 1);

(b) the Member committed errors of law by confining the issue for determination in respect of the appellant’s renal and cardiac conditions to whether they were related to the ingestion of medication prescribed to treat the appellant’s back injuries only (Ground 2);

(c) the Member committed errors of law by making findings/determinations which the appellant was not on notice of (Ground 3);

(d) the Member committed errors of law by failing to respond to substantial, clearly articulated arguments (Ground 4);

(e) the Member committed errors of law by treating the findings of Member Sweeney that an aclasta infusion or a Reandron treatment as being binding (Ground 5);

(f) the Member committed errors of fact by determining the appellant “has not established on the balance of probabilities that the renal condition and his cardiac condition from which he suffers results from injuries to the back” (Ground 6);

(g) the Member’s decision that he could not have regard to the appellant’s inability to exercise as a possible material contribution to the renal and cardiac conditions and he could only have regard to whether the ingestion of medication to treat the accepted back injuries materially contributed to the renal and cardiac conditions was a decision that was so unreasonable that no reasonable body could have come to (Ground 7), and

(h) the Member committed errors of law by failing to provide adequate reasons for his determination that the renal and cardiac conditions did not result from the accepted back injuries (Ground 8).

Held: The Member’s Certificate of Determination dated 20 July 2022 was confirmed.

Ground 1

1. The appellant submitted that Deputy President Wood, at [192]–[193] of her decision, indicated that Member Sweeney did not address the question of whether the treatment of the appellant’s lumbar spine injury materially contributed to his renal and cardiac conditions. The appellant submitted that Wood DP did not limit the remitter and that the matters to be considered were not confined. The appellant submitted that the Member should have had regard to the totality of the submissions as to whether the lumbar spine injury at large materially contributed to the worker’s renal and cardiac conditions. ([31]–[35])
2. Acting Deputy President Parker SC stated the appellant correctly pointed out that the jurisdiction exercised by Wood DP in remitting the matter for further determination by another member of the Commission is provided for in s 352(7) of the 1998 Act. That provision, which is expressed to be an alternative to s 352(6A) provides: “Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).” The Acting Deputy President stated that it was important to have regard to the decision and statement of reasons for decision given by Deputy President Wood. ([41]–[43])
3. The appellant’s submission that subs 352(7) confined the Member’s statutory duty to the terms of the remitter was correct. However, the subsection provides that the Member is to determine the issue remitted “in accordance with” the Deputy President’s decision. After setting out the relevant parts of [192]–[193] of Wood DP’s decision, Parker SC ADP was of the view that the Member’s conclusion at [97] of the reasons was a correct understanding of the matter remitted for determination from Deputy President Wood. It followed that the appellant’s primary submission in respect of Ground 1, that the Member misinterpreted/misconstrued Wood DP’s decision and the scope of the remitter, was rejected. It followed the Member was correct to limit the scope of the enquiry in the manner in which he did at paragraph [97]. Ground 1 of the appeal was dismissed. ([44]–[48])

Ground 2

4. The appellant submitted that the confining of the issue for determination in respect of the appellant’s renal and cardiac conditions to whether they were related to the ingestion of medication prescribed to treat the appellant’s back injury only was a constructive failure by the Member to exercise jurisdiction. The appellant submitted that the Member erred by not having regard to the lumbar spine injuries as a whole and only considering the effects created by the appellant’s ingesting medication for treatment of his lumbar spine injuries and therefore did not have proper regard to the terms of Wood DP’s remitter. ([49]–[51])
5. Acting Deputy President Parker SC held that for the reasons in Ground 1, the Member did not commit error in confining the issues for determination in the manner in which he did. The remitter was not as wide as the appellant submitted and the Member was correct to limit the enquiry to whether the ingestion of medication for the purpose of the back injury materially contributed to the renal and cardiac conditions. Ground 2 was dismissed. ([59]–[60])

Ground 3

6. The Acting Deputy President stated that a constructive failure to exercise jurisdiction is more than a failure to consider evidence or address an argument or submission. The question is whether the failure to consider and address certain issues or arguments involves a failure to address central or critical elements of the case. However, as the passage cited by the appellant at [72] from Re Refugee Review Tribunal; Ex parte AALA [2000] HCA 57; 204 CLR 82, at [100] makes clear a decision maker is not required to warn the person the subject of the adverse finding where “the risk necessarily inheres in the issues to be decided.” A similar proposition is advanced in the passage from Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 , at [9], cited by the appellant. ([77])
7. In this matter, the appellant’s complaint was that he was denied procedural fairness by the Member “confining the enquiry with respect to the cause of the consequential conditions to the ingestion of medication to treat his back injuries only”. That limiting of the enquiry however, in the Acting Deputy President’s view, was inherent in a proper understanding of the remitter. The remitter was limited to an enquiry into whether the ingestion of medication for the treatment of the back injury materially contributed to the development of the renal and cardiac conditions. It did not extend to the effects of the appellant’s inability to exercise or weight gain. The Member noted in the reasons at [99(d)] that in Hernandez No. 1 Member Sweeney had excluded exercise as a possible factor to be considered. ([78]–[79])
8. The appellant did not complain that if the issue was correctly confined to the ingestion of medication that he was denied procedural fairness. It is only if the remitter demanded a general enquiry as to the relationship between the cause of the cardiac and renal conditions and the back injury that arguments about inability to exercise and weight gain become relevant. However, as the matter before the Member was not a general enquiry into the causation of the renal and cardiac conditions with respect to the back injury, in Parker SC ADP’s view, the Member did not deny the appellant procedural fairness. Ground 3 of the appeal was rejected. ([80]–[81])

Ground 4

9. The appellant submitted that in his written and oral submissions he framed his case on the basis that the accepted back injuries materially contributed to the renal and cardiac conditions. For the reasons he gave with respect to Ground 3, the Acting Deputy President was of the view the Member was not required to address arguments, evidence or submissions wider than an enquiry into whether the ingestion of medication for the purpose of the back injury materially contributed to the renal and cardiac conditions. The appellant sought to widen the enquiry beyond that defined by a proper understanding of the issue remitted by Deputy President Wood. The Member was not required to do more than determine the issue which had been remitted to him. ([82], [88]–[89])
10. There was no failure, constructive or otherwise, to exercise the jurisdiction to make a determination of the issue remitted. The fact that the Member heard submissions which were much wider than the issue to be determined did not mean that the decision-making process engaged upon by the Member, which did not respond to those irrelevant arguments, was a failure to exercise jurisdiction. The jurisdiction was limited to the matter to be determined. Arguments not relevant to that issue were not required to be responded to. Ground 4 was rejected and dismissed. ([90]–[92])

Ground 5

11. The appellant submitted that upon Member Sweeney’s determination with respect to the renal and cardiac conditions not being causally related to the accepted back injuries being set aside, the foundational facts that made up Member Sweeney’s determination in respect of the lumbar spine injuries were also set aside. Acting Deputy President Parker SC was of the view that this was not correct. ([106])
12. It was significant that the appellant did not identify where it was said Deputy President Wood set aside Member Sweeney’s determination with respect to renal and cardiac conditions. On Parker SC ADP’s reading of Wood DP’s decision, she did not set aside any of the findings of Member Sweeney, rather she determined that Member Sweeney should have but did not consider and make additional findings with respect to the appellant’s consumption of medication for his back and the effect this may have had on the renal and cardiac conditions. ([107])
13. Apart from a determination as to whether the appellant’s renal and cardiac conditions resulted from medication ingested for the purpose of the injuries to the back, the findings of Member Sweeney remained intact. This included the finding by Member Sweeney at [86] that there was no evidence that an aclasta infusion or Reandron treatment resulted from the injuries. Deputy President Wood’s determination did not reverse that finding by Member Sweeney. Ground 5 was dismissed. ([108]–[110])

Ground 6

14. The appellant submitted that the Member failed to have regard to the complete basis upon which causation was sought to be established by the appellant and this meant that the Member overlooked and gave no weight to the submissions and evidence that he had been referred to. The appellant submitted that the Member did not have regard to the evidence that the appellant submitted demonstrated causation was established because the evidence was related to the appellant’s weight gain and inability to exercise. ([111])
15. Acting Deputy President Parker SC held that the appellant’s reference to submissions made on his behalf to the Member asserting the relevance of the inability to exercise and of weight gain did not overcome the unchallenged finding on the part of both Member Sweeney and Member Batchelor that there was a deficiency in the evidence such that neither was persuaded. The Member made clear that there was very little relevant evidence in the reasons at paragraph [102]. Apart from the reference to Vioxx, there was no evidence “as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions.” The Member reasserted that position at [109] of the reasons. Furthermore this ground of appeal seemed to rely to an extent on the matters discussed in Ground 5. Ground 6 was rejected. ([117]–[119])

Ground 7

16. The appellant relied upon Lord Green’s remarks in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223. It submitted that no reasonable Member would have come to his decision because coming to this decision meant the Member ignored the specific terms of Wood DP’s remitter and the matters addressed by her under the headings “Conclusion” and “Decisions”. ([120]–[122])
17. The gravamen of the appellant’s complaint and this ground of appeal was the assertion that the Member “ignored the specific terms of Wood DP’s remitter and the matters addressed by the Deputy President under the subheadings ‘Conclusion’ and ‘Decision’.” The Acting Deputy President did not agree with that submission and was of the view the Member’s interpretation of the matters remitted by Deputy President Wood was correct. Ground 7 was dismissed. ([126]–[127])

Ground 8

18. The appellant submitted that the Member did not reveal his reasoning as to why Dr Pope’s evidence pertaining to the ingestion of Vioxx was not accepted as demonstrating the back injuries were materially contributing factors to the disputed conditions. It was said the effect of this was that the appellant did not know why this evidence was rejected and why he was unsuccessful. ([128]–[130])
19. The Acting Deputy President stated that it was difficult to see what additional reasons the Member should have given in respect of Dr Pope’s entries in relation to the ingestion of Vioxx. The appellant did not complain that the Member inaccurately recorded Dr Pope’s entry nor did the appellant complain that the Member overlooked some opinion evidence from Dr Pope linking on the balance of probabilities the renal condition causally to the ingestion of Vioxx. ([136])
20. A prophylactic withdrawal of the Vioxx prescription “because it may be affecting his kidney (that is, his renal condition)” and a subsequent further prescription for a short period of approximately one month hardly established on the balance of probabilities that the renal condition was causally related to the ingestion of Vioxx. Indeed, Dr Pope’s entries gave rise to an inference to the contrary because the withdrawal of the prescription for Vioxx and the limited re-prescribing of the medication was presumably intended by her to avoid exacerbating the renal condition. That is what the doctor said that her concern was. Ground 8 of the appeal was dismissed. ([137]–[138])

Inner West Council v BFZ [2023] NSWPICPD 62

WORKERS COMPENSATION – issue estoppel – whether employer estopped from denying injury as a result of previous Certificate of Determination which entered consent orders – whether Member erred in finding the injury the subject of the present proceedings was the same injury the subject of the prior consent orders

Nomchong SC ADP

6 October 2023

Facts

The respondent worker was employed by the appellant as a parking officer between 3 April 2018 and 26 May 2020. On 5 January 2020, the respondent lodged a claim for workers compensation alleging that she had suffered a psychological injury during the course of her employment. On 27 May 2020, a Certificate of Determination (2020 Determination) was issued by the Commission. In that Determination, by and with the consent of the parties, the Commission determined that the employer was to pay the worker weekly compensation from 18 March 2020 to 26 May 2020; there was an award for the employer on the claim for weekly compensation after 27 May 2020, and the employer was to pay the worker’s s 60 expenses not exceeding $2,000 on production of accounts, receipts and/or valid Medicare Notice of Charge; otherwise there was an award for the employer on the claim for s 60 expenses.

On 9 March 2021, the respondent made a claim for a lump sum for permanent impairment. At a preliminary conference, the respondent argued that the appellant was estopped from denying liability under ss 4(a), 4(b), 9A and 11A of the 1987 Act by reason of the consent orders in the 2020 Determination. The Principal Member ordered the parties file written submissions and the matter was determined on the papers. The Principal Member determined that the employer was estopped from relying on ss 4, 4(b), 9A, 11A(3) and 11A of the 1987 Act, and remitted the matter to the President for referral to a Medical Assessor to assess permanent impairment. The employer appealed.

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

(a) determining that the appellant was estopped from disputing liability for the injury alleged by the worker (Ground 1), and

(b) referring the assessment of permanent impairment to a medical assessor in the terms set out in paragraph [50] of the Certificate of Determination (Ground 2).

Held: The Certificate of Determination dated 2 December 2021 was revoked and the matter was remitted to a different member for re-determination.

Ground 1

1. In respect of Ground 1 of the appeal, the appellant referred to the written submissions it made below in relation to the principles applicable to issue estoppel. In particular, that there must be certainty that the issue previously determined is the same as the issue newly raised for consideration, for issue estoppel to apply. The appellant argued that the Principal Member failed to grapple with that need for certainty as to the findings she made about the nature and substance of the injury in both proceedings. ([108])
2. Acting Deputy President Nomchong SC stated the doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties. It was noted that in the recent decision of the Court of Appeal in Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 it was held that estoppel, in the form of Anshun estoppel, was applicable to the workers compensation statutory scheme. Nomchong SC ADP found that issue estoppel applies in the statutory scheme. ([128])
3. Issue estoppel arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, and in subsequent proceedings, between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue. ([129])
4. The necessary ingredients said to have been decided in the 2020 Determination were:

(a) that the respondent suffered an injury;

(b) that the said injury occurred during the course of her employment with the appellant;

(c) that the employment was a substantial contributing factor to the development of that injury, and

(d) being a psychological injury, it was not caused by the reasonable actions of the employer. ([130])

5. It is well settled that for issue estoppel to apply there must be the requisite level of identity between the issues in the prior decision and the issues for determination in the current litigation. The issues under consideration must be the same. This is because issue estoppel (and res judicata) are predicated on the desirability of finality in decision-making. However, estoppel is to be applied strictly. Issue estoppel will apply only to prevent the assertion in later proceedings of the precise matter of fact or law that has already been necessarily and directly decided in the earlier decision. Issue estoppel will only arise if the determination of the issue was indispensable in the sense that it was so fundamental that the decision cannot stand without it. ([131]–[133])

   (Ramsay v Pigram [1968] HCA 34; Murphy v Abi‑Saab (1995) 37 NSWLR 280, and Kuligowski v Metrobus [2004] HCA 34 applied)

6. There are three conditions which must exist for issue estoppel to apply:

   (a) the first decision was final;

   (b) the same question has been decided, and

   (c) the same parties, or at least parties with the same legal interest, are the same. ([134])

7. In this matter, there was no doubt of conditions (a) and (c). Accordingly, the issue that the Principal Member was required to determine was whether the same question or questions were decided in the 2020 Determination. In the Acting Deputy President’s view, it was a necessary step in the Principal Member’s determination for her to identify precisely the issues that were determined by the 2020 Determination. ([135]–[136])
8. The 2020 Determination made no reference to the nature or extent of the respondent’s injury. There had been no arbitration on the issues of liability and the orders were made by consent to resolve the dispute. In terms of identification of injury in the 2020 Proceedings, the Principal Member referred to the fact that the appellant contended that the respondent’s allegation of injury was that bullying and harassment during her employment led to the development of symptoms consistent with an adjustment disorder with depressed and anxious mood and that the appellant had contended that the respondent had suffered no psychological disorder at all. However, when determining the nature of the injury the subject of the 2020 Determination, the only factual finding made by the Principal Member was that the substance of the injury “was a psychological injury that [the respondent] alleged was work related.” ([138]–[140])
9. Later in the reasons, the Principal Member went on to analyse the arguments put by the appellant that the change in diagnosis by Dr Allan (medico-legal specialist qualified by the respondent) to one of a schizoaffective disorder meant that the injury the subject of the current claim was different to the injury for which the 2020 Determination was made. However, the Principal Member reached the conclusion that the only relevant characteristic for determining the nature of the injury was whether it was work-related. ([141])
10. In the Acting Deputy President’s view, this constituted an error of law. As the appellant submitted, the term “injury” refers to both the event that caused the injury and the pathology arising from it. Roche DP in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 also held that for the purposes of a determination of a lump sum entitlement, it is the pathology which must be determined. It was insufficient for the Principal Member to simply describe the injury the subject of the 2020 Determination as a psychological injury that was alleged to be work related. Specificity is required for the application of estoppel. In Nomchong SC ADP’s opinion, the materials available in the 2020 Proceedings made it clear that the pathological injury that was claimed by the respondent and resolved by the 2020 Determination was an adjustment disorder with depressed and anxious mood and/or its constituent symptoms of anxiety, depression, stress, and/or PTSD. The Principal Member was in error in not making that finding. ([142]–[144], [150]–[151])
11. Further, the Principal Member was in error because she was required, under the principles in Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 and Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, to conduct an analysis of the available material in the 2020 Proceedings to confirm the nature of the injury. From the reasons, the Principal Member’s Determination appeared to have been based only on a small proportion of those materials. ([145])
12. Acting Deputy President Nomchong SC held that the very fact that the Principal Member found that there was an evolution over time into a different type of psychopathology necessarily meant that there could be no issue estoppel. It could not be eked out by a further fact-finding exercise into the aetiology of the respondent’s current condition or an acceptance of the respondent’s submissions that “there have been no additional workplace incidents or events”. It was clear that the injury for which the respondent now claims lump sum compensation is different in kind to the injury which was the subject of the 2020 Determination. Further, it was a matter for a merits consideration as to whether there had been other incidents or events (workplace or otherwise) in the respondent’s life since the 2020 Determination. ([155]–[156])

(Marr (Contracting) Pty Limited v White Constructions (ACT) Pty Limited [1991] FCA 694 applied)

13. The Acting Deputy President accepted the appellant’s submissions that the change in the nature of the pathology of the injury cannot be ignored because Dr Allan considered the current claim to also be related to the respondent’s prior workplace issues. Whether or not the respondent’s employment with the appellant was a substantial contributing factor to her current condition is a matter for consideration on the merits. Similarly, whether a defence is available under s 11A is also a matter for consideration on the merits in the context of this different psychopathology. Ground 1 of the appeal was upheld. ([157]–[159])

Ground 2

14. The appellant alleged that the Principal Member was in error in referring the assessment of permanent impairment to a Medical Assessor because there was an underlying failure to determine the nature of the injury the subject of the claim. The appellant contended that before any referral for medical assessment is made, the preliminary issue of the nature of the injury and of liability should have been determined on its merits. ([114])
15. In reliance upon Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, the Principal Member found that there was a difference between incapacity and permanent impairment and then determined that it was necessary to refer the issue of permanent impairment for an assessment by a medical assessor. However, as noted by the appellant, when the Court of Appeal considered the issue in Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 it endorsed the principle that “the Senior Arbitrator was obliged to determine what was the nature of the work-related injury suffered by Mr Jaffarie”. ([160]–[161])
16. In view of her findings in relation to Ground 1 of the appeal that no estoppel arose in these proceedings by reason of the 2020 Determination, Acting Deputy President Nomchong SC found that the Principal Member was in error in referring the matter for assessment prior to the issues of injury and liability being determined. Ground 2 was upheld. ([162], [164])

State of New South Wales (Western NSW Local Health District) v Knight [2023] NSWPICPD 63

WORKERS COMPENSATION – injury sustained in dog attack while working from home – whether the injury in the course of employment – s 4 of the 1987 Act – whether employment was a substantial contributing factor to the injury – s 9A of the 1987 Act

Phillips P

10 October 2023

Facts

The respondent worker was employed as a case worker for the State of New South Wales (Western NSW Local Health District) (the appellant) in a court diversion program. Her role involved counselling persons prior to sentencing and was based in Orange NSW, with outreach to Parkes and Forbes.

During the COVID-19 pandemic, the respondent worked from home as a result of the stay-at-home orders issued by the NSW Government between July 2021 to October 2021 and as she was immunocompromised. The respondent therefore conducted her duties, at home, through phone calls and video calls. This was with the knowledge and consent of the appellant.

While working from home on the morning of 8 October 2021, the respondent was bitten by a dog on her right hand as she attempted to intervene in a dog attack on her daughter’s puppy outside her front door. The respondent suffered severe lacerations on her right hand and was treated at Orange Hospital for her wounds. She had not worked since the incident and had sought treatment from various medical providers, not only for her right hand, but also for post-traumatic stress disorder.

The respondent made a claim for workers compensation shortly after the incident. Liability was disputed on the basis that the injury did not arise out of, or in the course of, employment and that employment was not a substantial contributing factor to the injury, pursuant to ss 4 and 9A of the 1987 Act.

The Member awarded the respondent compensation for weekly payments and medical expenses, finding that the physical and psychological injuries sustained by the respondent on 8 October 2021 arose in the course of employment as defined by s 4 of the 1987 Act, and being satisfied that employment was a substantial contributing factor to her injuries pursuant to s 9A of the 1987 Act. The employer appealed.

The issues on appeal were whether the Member:

(a) erred in concluding that the respondent sustained injury in the course of employment (Ground 1);

(b) failed to make a comparative assessment of competing factors (Ground 2); <

(c) failed to consider “of substance” (Ground 3), and

(d) failed to take into account relevant matters, as mandated by the legislation (Ground 4).

Held: The Certificate of Determination dated 24 October 2022 was confirmed.

Ground 1

1. In relation to the appellant’s submission that the Member was in error when she found that the injury took place on the respondent’s property, the appellant argued that this finding was factually incorrect and was nowhere supported in the evidence. The President held that this submission was without merit. The appellant’s assertion that the attack occurred away from the respondent’s home, being her place of work, was based upon a number of entries in medical records which record the attack as taking place in the “street”. The Member quite appropriately directed herself to view such records with caution. This was consistent with settled authority. ([55]–[61])

   (Mason v Demasi [2009] NSWCA 227 applied)

2. His Honour found that contrary to the appellant’s submission, there was evidence within the material that supported the Member’s finding that the injury occurred on the respondent’s property. The finding made by the Member at [89] of the reasons to the effect that the injury took place on the respondent’s property was comfortably made within the Member’s fact-finding discretion and was made without error. Indeed, it was made in conformity with the submission put to the Member that the puppy was not in the street. The President rejected the appellant’s assertion that the error of fact, as alleged, was made. ([62]–[64])
3. Apart from the assertion that the attack did not take place on the respondent’s property, which his Honour had rejected, and the submission that the Member was not entitled to assert the appellant’s expectation described in [90] of the reasons, which was also rejected, the appellant had not asserted in terms precisely what the Member’s error was in reaching the conclusion at [90] and [91] of the reasons. The Member described the relevant facts before dealing with what the appellant described as “inconsistencies” in the evidence. The Member found these inconsistencies were “ultimately immaterial” and no issue was taken with this finding on appeal. This finding was plainly available to the Member to make on the evidence. From [81] onwards of the reasons, the Member reviewed the relevant authorities, before applying them to the circumstances of this case at [89] of the reasons onwards. ([72])
4. The President did not accept the submission made by the appellant that the Member failed to note the phrase “in the course of employment” is a temporal concept. His Honour stated that the Member was clearly aware of this and applied this concept at [89] and [90] of the reasons. The asserted error of law had not been established. The President was fortified in this view by the manner in which the application was argued before the Member by the appellant, which had the result that the Member was able to make the findings she did on this issue without error. Ground 1 was dismissed. ([73]–[75])

Ground 2

5. The appellant’s first argument in this ground relied upon acceptance that the Member’s finding that injury occurred in the course of employment was flawed. In dismissing Ground 1, the President found that no such flaw was identified and, as a consequence, this argument could not be sustained. This aspect of Ground 2 was dismissed. ([80])
6. The appellant’s second argument involved four factors it said that the Member failed to have regard to. The appellant submitted: “In this case, the primary cause, in the employer’s submission to the [M]ember ..., was the purchase by the worker of a puppy for her daughter. A further cause was the daughter’s illness. A further cause was the worker’s undertaking to care for the puppy. A further cause again was the presence in the vicinity of the worker’s home of a dog which the worker knew to be aggressive.” After reviewing the transcript of proceedings, the President stated that nowhere in the proceedings before the Member did the appellant draw the Member’s attention, in terms, to the four factors. The President accepted the respondent’s submission that these matters were not argued. His Honour did not accept that it was an error for the Member not to deal with those four specific matters. ([81])
7. The President concluded that the Member undertook precisely the assessment that Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 (Kelly) and Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) require of the various factors existent in the particular matter. No error in this particular assessment that was undertaken has been identified by the appellant. In any event, the President was satisfied that the Member had assessed the various work and non-work related factors in undertaking the evaluative exercise required of her by these authorities. This evaluative exercise, as Kelly says, involves “a broad area for the personal judgement of the fact finder”. This was the task the Member had undertaken. No error had been established and Ground 2 was dismissed. ([85]–[86])

Ground 3

8. Unhelpfully, the appellant had made a broad allegation of error without specifying the sections of the Member’s decision said to be infected with the alleged error, specifically how they fail to address whether the connection to employment was of “substance”. ([90])
9. The appellant had argued before the Member that having a dog or indeed anything to do with the dog was completely unrelated to the respondent’s employment. The appellant said that any connection between the dog bite injury and employment was “tenuous”. The Member found that due to the COVID-19 pandemic the respondent had to work from home. The President noted that no issue was taken with the explanation that the dog was placed outside so as not to disturb the respondent’s work. Critically, at [104] of the reasons, the Member remarked that there was no evidence that had the respondent not been working at home, the dog would have been placed outside the house, making it susceptible to attack. The Member then tied this together in [105] where she said: “The probability of the injury was substantially or materially increased, however, by the unsupervised presence of the puppy tied up at the front of the [respondent’s] home. I accept that this circumstance arose due to the [respondent] being at work and the nature of her employment.” The President noted that this critical finding at [105] also had not been challenged. This finding was the basis of how the Member made her finding that “substantial contributing factor” had been established. No error had been established in this process; the relevant authorities central to deciding this question had been applied to the facts of the case. This finding also had the effect of disposing of the appellant’s argument that the Member failed to address the concept “of substance”. Ground 3 was not made out and was dismissed. ([92]–[93])

Ground 4

10. The appellant’s essential argument under this ground was that the Member failed to consider the mandatory provisions of s 9A(2). The President stated that the matters raised in this appeal ground were a derivation of those raised in Ground 2. As his Honour found in Ground 2, the particular matters relied on by the appellant as having not been considered by the Member were not put to the Member. The President accepted that the complaint in this ground was wider than the four factual assertions that were not put to the Member. In this ground the appellant complained that the Member failed to undertake the mandatory task set by s 9A(2) of the 1987 Act. ([97])
11. In relation to s 9A(2), the President found the following. Section 9A(2)(a), the time and place of injury, was not in dispute (although his Honour accepted that it was hotly disputed that the injury was not work related) and was non-controversially stated at [16], [73], [74], [79] and [89] of the reasons. There was no issue argued about the time and place of injury other than the appellant’s assertion that the injury took place outside the respondent’s property. The Member found that the injury did take place on the respondent’s property. This sub-paragraph had been dealt with by the Member. ([98]–[99])
12. Section 9A(2)(b), the nature of the work and the particular tasks of that work, was covered by the Member at [97] and [99] of the reasons. Section 9A(2)(c), the duration of the employment, was dealt with at [106] of the reasons. The President noted that no issue had been taken with the sufficiency of the Member’s reasons in this paragraph and no allegation made that the conclusions reached at [106] of the reasons were wrong. This applied to all matters covered by the Member at [106]. ([100]–[101])
13. Section 9A(2)(d), the probability that the injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if she had not been at work or had not worked in that employment, was dealt with by the Member at [105] of the reasons. No issue was taken on appeal with the Member’s finding in this paragraph. Section 9A(2)(e), the worker’s state of health before the injury and the existence of any hereditary risks, was dealt with at [106]. Section 9A(2)(f), the worker’s lifestyle and her activities outside the workplace, was also dealt with at [106] of the reasons. ([102]–[104])
14. The President considered that a fair reading of the Member’s decision in these paragraphs revealed the Member undertaking precisely the tasks that s 9A(2) of the 1987 Act required and as stated in the authorities (and in particular Badawi). Ground 4 had not been established and was dismissed. ([105]–[106])

Toll Transport Pty Ltd v Nand [2023] NSWPICPD 64

WORKERS COMPENSATION – consideration of objective evidence when witness evidence unreliable – Devries v Australian National Railways Commission [1993] HCA 78 applied; histories recorded by the medical experts are not required to be precisely in accord with the proven facts – Ramsay v Watson [1961] HCA 65; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 applied – requirement to show error – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – failure to raise an argument before the primary decision maker –Mamo v Surace [2014] NSWCA 58; Brambles Industries Limited v Bell [2010] NSWCA 162 applied – referral of a claim pursuant to s 66 of the 1987 Act to a medical assessor after liability for injury was determined – Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 applied – failure to consider a submission does not amount to error where the submission would not change the outcome – Walshe v Prest [2005] NSWCA 333; Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 applied

Wood DP

19 October 2023

Facts

Mr Nand, the respondent, was employed by the appellant as a truck driver, having commenced that employment in or about 2015.

The respondent alleged that from about December 2019, he received verbally threatening treatment from the general manager Mr Innes, was targeted by management and was ridiculed and humiliated by Mr Innes and his manager Mr Varnam, because he wore a mask and gloves due to the COVID-19 pandemic. He also alleged that, on 3 April 2020, he was grabbed, shoved and repeatedly spoken to in an aggressive manner by Mr Innes. The respondent complained that swearing, racist comments and inappropriate conversations about women were common in the workplace and that all of the workplace behaviour caused him psychological injury. He lodged a claim for weekly compensation which was denied by the appellant. In January 2021, the claim for weekly payments was resolved at conciliation on the basis that the proceedings were discontinued, with an agreement that the appellant pay the respondent voluntary weekly payments.

The respondent made a claim on 24 September 2021, for 17% whole person impairment in respect of his psychological injury. The employer denied liability on the basis that the respondent had not suffered an injury as alleged, the respondent’s employment was not a substantial contributing factor to his employment, and in the alternative, the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant in respect of performance appraisal, discipline and/or dismissal.

The Member issued a Certificate of Determination in favour of the respondent. The appellant appealed that decision.

The appellant relied on the following grounds of appeal:

(a) an error of mixed fact and law in that the Member failed to find that the evidence did not establish that the respondent received an injury, as contemplated by s 4 of the 1987 Act, and that his employment with the appellant was not a substantial contributing factor to that injury, as contemplated by s 9A of the 1987 Act (Ground 1);

(b) in the alternative, an error of mixed fact and law in that the Member failed to find that the evidence did establish that any psychological injury, as contemplated by s 4 of the 1987 Act, had resolved (Ground 2);

(c) an error of mixed fact and law in failing to give sufficient weight to the evidence which reliably established that, absent the assault which was found to have not occurred by the Member, the medical opinions relied on by the respondent had no basis for finding that the incident on 3 April 2020 “triggered” the respondent’s psychological condition, need for treatment, and lack of capacity for employment, i.e. the subject injury. The Member did not deal with a clearly articulated argument raised by the appellant (Ground 3);

(d) an error of law in that the Member did not identify how the respondent had satisfied the burden of proof in light of the lack of contemporaneous complaints, lack of documentary records supporting the worker’s version of events, lack of corroboration of the worker’s version by others, and ultimately an inadequate level of detail and specificity with regard to the timing and location of relevant events and what took place (Ground 4);

(e) an error of mixed fact and law in failing to acknowledge the relevance of the evidence of the respondent’s treating doctors, and that the onset of the respondent’s psychological condition, as noted at throughout the consultations with the respondent was caused by being grabbed and shoved on 3 April 2020 [which was found by the Member to have not occurred]. The Member does not explain, having rejected that allegation, on what basis he was satisfied an injury was sustained on the deemed date of 3 April 2020 (Ground 5), and

(f) an error of mixed fact and law in failing to make specific findings, on the basis of credit and/or probability, in respect of the evidence of the respondent and regarding the respective stressors relied upon by the respondent as causative of the subject injury (Ground 6).

Held: Leave to appeal against an interlocutory decision was granted. The Member’s Certificate of Determination dated 26 October 2022 was confirmed.

Threshold matters

1. Both parties asserted that the decision was not interlocutory in nature, so that leave to appeal in accordance with s 352(3A) of the 1998 Act was not required. The Member determined that the respondent suffered a psychological injury, the respondent’s employment was the main contributing factor to the injury and the appellant’s defence pursuant to s 11A of the 1987 Act was not made out. The Member then remitted the matter to the President for referral to a medical assessor to determine the whole person impairment that resulted from the injury. Deputy President Wood stated that in determining whether a decision is interlocutory in nature, the question to be posed is whether the judgment or order finally disposes of the rights of the parties. ([9]–[12])

   (Licul v Corney [1976] HCA 6 applied)

2. Deputy President Wood held that the authorities applicable to the former Workers Compensation Commission are equally applicable to appeals from members of the Personal Injury Commission. She was satisfied that the decision the subject of this appeal was an interlocutory decision and the appellant required leave to bring the appeal at this stage. ([13]–[18])

   (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48, and Moore v Greater Taree City Council [2009] NSWWCCPD 17 applied)

3. Section 352(3A) provides that the Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. If the appeal did not proceed at this interlocutory stage, the assessment of the respondent’s permanent impairment would take place and a Medical Assessment Certificate would be issued. If the appeal was then lodged and succeeded, the whole process of the respondent being assessed and a Medical Assessment Certificate being issued would involve an unnecessary use of the Commission’s resources and incur undue delay in the efficient resolution of the issues, contrary to the Commission’s guiding principle to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. ([19])
4. Deputy President Wood was of the view that it was desirable to grant leave to appeal as it was the more efficient and effective manner in which the dispute could be determined. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act was granted. ([20])

Ground 1

5. The appellant asserted that there was insufficient evidence before the Member for the Member to determine that the respondent suffered an injury pursuant to s 4 of the 1987 Act and that the respondent’s employment was a substantial contributing factor to the injury. ([153])
6. The case presented by the respondent was that he suffered a psychological injury, which was a disease injury pursuant to s 4(b)(i) of the 1987 Act, that was deemed to have occurred on 3 April 2020. In accordance with s 4(b)(i), the respondent was required to satisfy the test of whether his employment was the main contributing factor to the injury, which is a stricter test than that of a substantial contributing factor. ([154])
7. The Deputy President stated that in addressing the question of whether the events complained of by the respondent were actual events, the Member firstly referred to the various authorities providing guidance in respect of what is sufficient to establish that a psychological injury occurred, in circumstances where the respondent perceived that the events were hostile. He correctly observed that the authorities permitted a finding that an injury occurred where the worker perceives those real events to be hostile. The Member did not accept that the alleged assault on 3 April 2020 occurred but considered that that finding was not, of itself, determinative of the case. ([156])
8. Deputy President Wood found the Member analysed the factual evidence recorded in the various statements provided by the appellant. He determined that that evidence supported the respondent’s assertion that various incidents did in fact occur in the workplace and that there existed some tension and conflict in the workplace. He provided an extensive evaluation of that factual evidence in support of his conclusion. Wood DP held that the conclusion reached by the Member in respect of that factual evidence was open to the Member on that objective evaluation of the evidence. ([158])
9. The Member correctly found corroboration from the appellant’s own witnesses that many of the events did actually occur, however they were perceived by the various witnesses. ([161])
10. The appellant submitted that the respondent’s credibility was seriously in issue. It was clear from the Member’s reasons that he was alive to the fact that the respondent’s evidence was unreliable, which prompted him to consider the appellant’s evidence as to what did and did not occur. It was open to the Member to take that path. ([162])
11. The appellant further submitted that the respondent’s medical evidence was not based upon a “fair climate”. That is, the histories recorded by the respondent’s medical experts were wrong. The Deputy President was of the view that the evidence when read as a whole, indicated that on 3 April 2020, Mr Innes did approach the group of drivers in a forthright manner and enforced social distancing rules and Mr Varnam did take issue with the respondent for taking photographs on his mobile telephone. In that context, the appellant could not say that there was no basis upon which the Member could accept the opinions of the experts that the respondent’s employment was causative of the injury. ([163])
12. The histories recorded by the medical experts are not required to be precisely in accord with the proven facts. Ultimately, the acceptance or rejection of evidence is generally a matter within the province of the primary decision maker. Having found the primary facts, Deputy President Wood found that it was open to the Member to draw a particular inference from those facts, which involves an evaluative judgment. It is not enough that the Presidential Member may have drawn a different inference, the fact of the Member’s decision must be displaced. It must be shown that the Member was wrong. ([164]–[165])

(Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied)

13. The Deputy President did not consider that the Member erred in his evaluation of the primary facts or in drawing those inferences from those facts. In those circumstances, the appellant had failed to establish error on the part of the Member sufficient to disturb the Member’s ultimate conclusion and this ground of appeal failed. ([166])

Ground 2

14. The appellant submitted that, if the respondent was injured as alleged, the Member erred by failing to determine that the respondent had recovered from the effects of his injury. After reviewing the transcript of proceedings before the Member, Deputy President Wood stated that it was not readily apparent that a submission that the respondent had recovered from the effects of any injury was made to the Member. She found that none of the submissions squarely raised an argument that if the respondent did suffer a psychiatric injury, he had at some stage recovered from the effects of the injury. ([167]–[169])

    (Mamo v Surace [2014] NSWCA 58 applied)

15. Wood DP held that the Member could not be seen to have fallen into error in circumstances where the argument that the respondent had recovered from the effects of the injury put forward by the appellant was not the subject of submissions at arbitration. In any event, the respondent’s claim was limited to a claim in respect of his whole person impairment. In those circumstances, the Member’s task was to determine the questions of whether the respondent suffered the injury, whether the respondent’s employment was the main contributing factor to the injury (s 4(b) and whether the respondent was precluded from recovering compensation because of the application of s 11A of the 1987 Act. Once those “liability” issues were determined, the Member was required to refer the dispute in respect of the respondent’s whole person impairment to the medical assessor. It followed that Ground 2 of the appeal failed.

Ground 3

16. In this ground, the appellant relied on its submissions made in respect of Ground 1 of the appeal. The Deputy President had not accepted those submissions and Ground 1 of the appeal failed. ([171])
17. The appellant further submitted that in the absence of proof that the assault on 3 April 2020 occurred and of proof that the threat was made by Mr Innes that he had a gun, there was no cause established for the respondent to go off work after 3 April 2020. The appellant asserted that the other allegations were made later, after those allegations were found to be false, and that all of the treating doctors, as well as Dr George (psychiatrist qualified by the appellant), attributed the onset of the respondent’s condition to those false allegations. ([172])
18. Deputy President Wood did not accept the appellant’s submissions which had no foundation in the evidence. All of the medical experts, apart from Dr Lee, psychiatrist, took a history of a culture of bullying, aggressive management styles, the respondent feeling targeted in his role as a Health and Safety representative, and perceived unsafe practices relating to COVID-19. As found in Ground 1, there was no error in the Member’s preference for the evidence provided, and his acceptance of that evidence was open to him. ([173]–[175])
19. The appellant asserted that the Member did not deal with its clearly articulated submission that there was no basis for the conclusion reached by the medical experts that the incident on 3 April 2020 “triggered” the respondent’s injury. None of the medical experts attributed the injury solely to the alleged physical assault on 3 April 2020 and the Member did not reach such a conclusion. Even if the appellant made a clear submission to that effect, it was irrelevant in the light of the medical opinions expressed and was not a fair representation of those opinions. Thus, any failure to consider the submission could not affect the outcome in this case and did not constitute an appealable error. As the respondent submitted in Ground 5, the deemed date of injury, as provided for in ss 15 and 16 of the 1987 Act, is a method for fixing a date of injury in respect of a disease injury occurring over a period of time pursuant to s 4(b) of the 1987 Act, not an indicator that an injury occurred on that date. This ground of appeal failed. ([176]–[177])

(Walshe v Prest [2005] NSWCA 333, and Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478 applied)

Ground 4

20. The appellant referred to the evidence that by mid-June, the respondent’s condition was improving, which the appellant said was inconsistent with the history recorded by Dr Takyar (psychiatrist qualified by the respondent) that the respondent was “uncomfortable for months in a ‘toxic work environment’.” The appellant did not explain how the fact that the respondent’s condition was improving after being away from the reported stressors and following treatment from a general practitioner, a psychologist and a psychiatrist constituted an inconsistency with the history of how the injury occurred. ([178])
21. The appellant further referred to the absence of complaints of racism and sexist slurs in the evidence from the treatment providers and that of Dr George, which complaints were alluded to by Dr Takyar. Wood DP did not accept that the Member went so far as to include the allegation of racist remarks and sexist comments in the conclusion that there was tension in the workplace and a strained relationship between the respondent and the appellant’s management. The appellant appeared to be intimating that because those complaints were not made until sometime later, they could not be true. ([179])
22. The Deputy President concluded that the Member clearly and correctly identified the evidence in support of his conclusions. He included in his deliberations the corroborative statement evidence from the appellant’s witnesses, the complaints made to the various treatment providers at the initial consultations, the opinions of those treatment providers and the opinion of Dr George, the appellant’s own qualified expert. The evidence adequately discharged the respondent’s onus of proof. This ground of appeal failed. ([180])

Ground 5

23. This ground of appeal was in essence the same complaint as that asserted in Ground 3, which had not succeeded. It followed for the same reasons, that this ground of appeal was not made out and failed. ([181])

Ground 6

24. The appellant submitted that there was nothing in the respondent’s statement evidence about other stressors in his life, such as his mother’s illness and that of his brother. It was not clear what effect the appellant said that that evidence should have had or why it needed to be addressed in the respondent’s statement evidence when the medical evidence disclosed that the respondent was coping with his mother’s illness and his brother’s serious illness did not present until after the respondent had ceased work and was diagnosed with his psychological condition. ([182])
25. Deputy President Wood stated that the Member noted the presence of family issues, including the respondent’s mother’s illness, but said that the respondent continued to work until the work-related stressors came into play and the focus in the medical evidence was always on the work-related matters. The Member concluded that the respondent suffered a work-related injury caused by the respondent’s perception of real events and to which his employment was the main contributing factor. The Member considered other non-work-related potential causes and provided reasons as to why he did not consider those relevant to the question of injury and to the assessment of the main contributing factor to the injury. ([183])
26. The appellant raised issues of purported error on the part of the Member in assessing the respondent’s credibility, in failing to explain which evidence was accepted and which was rejected, and failing to explain why he was persuaded that the events relied upon (apart from the alleged assault) actually occurred. Those purported errors were dealt with in Ground 1 by the Deputy President. Appeal Ground 1 failed and it followed that this ground of appeal was not made out and failed. ([184])

Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 65

WORKERS COMPENSATION – ‘disease’ provisions, application of s 15(1)(a) of the 1987 Act to fix a date of injury – GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187, P&O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481, Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701, Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166; alleged determination of a matter outside the submissions – application of Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1, alleged error going to factual finding of ‘suitable employment’ – application of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, whether weekly payments during a period of notice are payments of compensation – section 80 of the 1998 Act

Snell DP

26 October 2023

Facts

The worker, Ms Weng, was employed at the Coco Cubano restaurant from 2013 as a barista. The entity that employed her became Husnain Pty Ltd (the employer) from about November 2019, when that company acquired the franchise to the business. Mr Ahmad was the principal of that company.

The worker developed right wrist and forearm pain from about 2017 or 2018, before the employer took over the business. The pain would go away during holidays and return during work times. The worker stated that, on re-opening after the COVID-19 shutdown, there was an unusually large number of customers, and they were short staffed. She said that a couple of days after re-opening she experienced right wrist and forearm pain. The worker stated her right forearm and wrist pain worsened and she wore a wrist brace from October 2020. She attended acupuncture. On 27 November 2020 she saw Dr Kwan, a general practitioner. Dr Kwan gave the worker a medical certificate, told her to rest the arm, referred her for physiotherapy, prescribed medication and told her to wear a brace. He told the worker to have her employer record the injury. The worker said she resumed work on 2 December 2020 and asked her manager, Ms Khan to record the injury. The worker said that a few days later Ms Khan said, “We can’t backdate”. The worker stated, “To my knowledge they did not make any record of my injury.” Dr Kwan gave the worker a claim form which she emailed to the employer. She stated she asked for a claim number so she could claim for her medical expenses.

The worker stated that she was on a waiting list for surgery for a matter unrelated to her employment. In December 2020, whilst at work, she needed to take a telephone call relating to an offer of a place on a surgical list and she went outside to do so. She stated this call took “about two minutes”. When she returned inside the restaurant Ms Khan spoke to her about taking the call at work and the two exchanged words. The worker said that thereafter Ms Khan bullied her at work. The worker said that Mr Ahmad left her a message in which he “basically abused me and accused me of being disrespectful to [Ms Khan]”. The worker attended work on 18 December 2020 and was told that she should go home until a meeting which was to be held later that day. There was a meeting on 18 December 2020 involving the worker, Mr Ahmad and Ms Khan. Accusations were made. The worker’s shifts were cancelled. She did not return to work thereafter. On 23 December 2020 Dr Kwan again suggested that the worker should make a workers compensation claim, and provided her with a Workcover certificate of capacity. She said she immediately provided this to Ms Khan, Mr Ahmad and “head office”.

The worker stated that on 22 December 2020 she received a formal warning letter. On 30 December 2020 she received a further formal warning letter for attending work on 18 December 2020 and allegedly refusing to leave. The worker lodged a claim form on the uninsured liabilities scheme dated 27 January 2021. On 15 February 2021 she received a letter of termination from Mr Ahmad, which also stated that a claim had been made on her behalf to icare. She stated that she was informed by icare that the employer arranged a workers compensation policy on that date.

The Workers Compensation Nominal Insurer (the Nominal Insurer) issued a letter to the employer accepting the worker’s claim for benefits. The date of injury was given as 27 November 2020. The Nominal Insurer decided the employer “should have held a policy of insurance for workers compensation at 27/11/2020” and that the employer was “an uninsured employer as at 27/11/2020”. The Nominal Insurer determined a weekly payment amount of $502.81.

The Nominal Insurer forwarded a notice to reimburse under s 145(1) of the 1987 Act to the employer (the Notice). The employer lodged a miscellaneous application in the Commission, seeking an order that reimbursement of the compensation referred to in the Notice was not required, or in the alternative, an order that the amount for reimbursement be reduced. The Senior Member held that the employer was liable to reimburse the Nominal Insurer the sum specified in the notice. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) law in determining the deemed date of injury (Ground 1); <

(b) law in determining the matter on a basis not put by or to the parties (Ground 2);

(c) fact in the determination of capacity (Ground 3), and

(d) law and fact in considering payments made during a notice period as being compensation (Ground 4).

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

Ground 1

1. The Senior Member’s finding of ‘injury’ was made pursuant to s 15 of the 1987 Act. There was no lump sum claim brought. The Senior Member’s finding regarding the occurrence of injury was not challenged on this appeal (although the correctness of the found date of injury was). It was uncontroversial that incapacity resulted from the injury. It followed, on the plain words of s 15(1)(a), that the injury is deemed to have happened at the time of the worker’s incapacity. ([43])
2. Deputy President Snell stated the Senior Member made relevant findings. The Senior Member’s reasons involved acceptance that s 15 of the 1987 Act provided “an objective and readily ascertainable basis for deeming a date of injury”. In a claim for weekly compensation the date would be the date of incapacity. In a claim for lump sum compensation it would be the date of claim for lump sum compensation. In the matter of Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 (Thoroughgood) there was no claim for weekly compensation and no economic incapacity resulting from the injury. The Senior Member accepted paragraphs [23] to [32] of the worker’s submissions on this point. In those circumstances, the worker had included her submissions at first instance in the material on appeal. ([44]–[48])
3. The worker submitted that in Thoroughgood there was no claim for weekly compensation and no basis for such a claim as there was no economic incapacity. Incapacity, not resulting in economic loss and not being the subject of a weekly claim, could have no bearing on the determination of a deemed date of injury in Thoroughgood. The only date that could conceivably be deemed on those facts was the date of claim for lump sum compensation, there was no competing alternative date. Thoroughgood is not authority that the deemed date of injury is subject to arbitrary vagaries as to when a certificate was served claiming weekly payments. The worker submitted s 15 provides an objective and readily ascertainable basis for deeming a date of injury. It is a date of incapacity (in a claim for weekly compensation) or the date of claim for lump sum compensation (if that is the claim). That the worker did not immediately enforce her entitlements in respect of her incapacity on 27 November 2020 did not affect the operation of s 15. ([49]–[50])
4. The Deputy President noted the worker’s submission that, for the employer’s submissions to have any plausibility, s 15(1)(a)(i) would need to be read as meaning that the injury is deemed to have happened “at the time of the claim for death or incapacity”. He said that in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 (Thoroughgood No. 2) Basten JA reviewed the Court of Appeal and High Court authorities that were discussed by Roche DP in Thoroughgood (the operative deeming provision in Thoroughgood was s 16 rather than s 15 – “incapacity had the same meaning in ss 15 and 16”). ([51]–[52])
5. Deputy President Snell held that the Senior Member did not err in accepting the worker’s submissions on this issue. In Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701, Hodgson JA said “GIO [Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 ] shows that one must relate the question of the time of death or incapacity under s 16(1)(a)(i) to what is being claimed”. In the same case, Hodgson JA said that “[P&O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation” (emphasis added). ([53])
6. The Senior Member’s findings in this matter established injury pursuant to the ‘disease’ provisions. They established an entitlement to the payment of weekly compensation and medical expenses from 27 November 2020. The date of injury which the Senior Member found was consistent with her factual findings and with the authorities. The Senior Member did not err in this regard. Ground 1 failed. ([54]–[55])

Ground 2

7. This ground raised a discrete point, that the Senior Member determined the matter on a basis not put. The appellant’s fundamental submission was that it was not suggested by any party (or the Senior Member) that further evidence was needed to the effect that the worker was able to perform the job of a customer service representative. ([65])
8. Deputy President Snell held that this ground of appeal was essentially inconsistent with the submissions made before the Senior Member by counsel for the worker. Those submissions plainly went to whether the occupations nominated in the vocational assessment report could be regarded as ‘suitable employment’ within the definition in s 32A of the 1987 Act. The vocational assessment report was material to be taken into account in compliance with cl (a) of the definition. The worker’s submissions made it clear that the worker disputed these occupations were ‘suitable employment’. The employer’s submission, that it was not suggested by any party that evidence was needed on the topic of whether the worker was able to perform the job of a customer service representative, was untenable. The acceptability of the evidence in the vocational assessment report, suggesting certain specified roles, was challenged in clear terms by the worker. ([66])
9. The Senior Member was obliged to have regard to the matters described in cl (a) of the definition of ‘suitable employment’. This included the worker’s age, education, skills, work experience and any occupational rehabilitation services provided for the worker. The employer submitted the Senior Member failed to indicate she had formed a view contrary to the employer’s argument on this point. The employer pointed to no authority in support of its argument. Deputy President Snell found that the Senior Member did not fail to afford the employer procedural fairness, in not informing the parties in advance of any view she had formed relating to the evidence going to ‘suitable employment’. ([67]–[73])

(F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 applied)

10. The Deputy President concluded that the employer had failed to prove error within the meaning of s 352(5) of the 1998 Act. He accepted the worker’s submission that Ground 2 was largely an attempt to re-argue the merits of the incapacity issue. The ground challenged a factual finding of the Senior Member. Such a challenge is subject to the principles governing appeals pursuant to s 352(5) of the 1998 Act. The finding made by the Senior Member was open to her. She adequately exposed her reasoning. The employer had not demonstrated relevant error within the meaning of s 352(5). Ground 2 failed. ([74])

Ground 3

11. Deputy President Snell held that the employer’s submission that the Senior Member sought to exclude the suggested roles of customer service representative and sales assistant, without having regard to any evidence of any kind, was wrong. The Senior Member summarised the medical evidence. She set out the roles suggested in the vocational assessment. She described the comments of Dr Jia, the worker’s general practitioner, regarding the suggestions. Dr Jia rejected the suitability of the roles of checkout operator and kitchen hand. Dr Jia approved the role of customer service representative and the role of sales assistant in a pharmacy. Dr Jia approved the role of sales assistant in a “food, drinks or general groceries position”, subject to a “need to avoid heavy lifting or repetitive tasks”. ([85])
12. The Senior Member was under no compulsion to simply accept that the suggested roles constituted ‘suitable employment’. Consistent with the passages from South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213, at [59] and Pikus Pty Ltd v Bradica [2009] NSWWCCPD 120, at [56], it was necessary that she, as the tribunal of fact, use her knowledge and experience to weigh up the whole of the evidence to determine this factual issue. ([86])
13. The employer’s challenge in this ground raised whether there was evidence to support the Senior Member’s findings. The Senior Member’s analysis was consistent with the reasoning in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, which is widely applied and accepted in the Commission. The Deputy President held that the Senior Member’s reasoning involved her considering the worker’s education, skills, work experience and the occupational rehabilitation services provided to the worker, all matters that she was specifically required to have regard to, in compliance with cl (a) of the definition in s 32A of the 1987 Act. The argument that the Senior Member somehow reversed the onus of proof on this issue was without substance and was rejected. ([87]–[96])
14. The vocational report, and the Member’s fact-finding regarding the lack of suitability of the occupations there identified, demonstrated that the worker did not, at that time, have ‘current work capacity’. It followed that a valid work capacity decision, on the basis there was “current work capacity” could not, at the relevant time, have been made. Ground 3 failed. ([100]–[101])

Ground 4

15. The employer submitted that recovery pursuant to a s 145 notice was restricted to payments of workers compensation benefits. It submitted the Senior Member erred in taking into account weekly payments during the period of notice. ([102])
16. Deputy President Snell set out s 37(3) of the 1987 Act and s 80 of the 1998 Act. He noted that Annexure A of the Particulars served by the Nominal Insurer, setting out its “Claim Under the Scheme”, indicated it made weekly payments from 22 January 2021. The Senior Member took the relevant period of notice to be three months, on the basis that subs (3) of s 80 applied. She also said an additional seven days was allowed to communicate the decision to the worker. This aspect of the decision was not challenged. The employer accepted that payments of weekly compensation were potentially recoverable. It challenged the characterisation of weekly payments, made during the notice period, on the basis such payments did not represent ‘workers compensation’ but rather were some form of administrative payment. The employer referred to no authority and engaged in no analysis of the statutory provisions, for the purpose of mounting this argument. It was inconsistent with the wording of s 80 of the 1998 Act. ([106]–[108])
17. Subsection (1) of s 80 prevents the discontinuance or reduction of weekly payments of compensation unless the required period of notice has expired (emphasis added). Weekly payments prior to the date of expiry are appropriately characterised as weekly payments of compensation. The insurer could not discontinue or reduce these payments, consistent with the clear words of the legislation, prior to that point in time. It followed that Ground 4 failed. ([109]–[110])