Appeal Case Summaries

Hinde v Tarago Operations Pty Ltd [2023] NSWPICPD 66

WORKERS COMPENSATION – section 4 of the 1987 Act – whether the appellant sustained an injury to the cervical spine – credit and cross-examination – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 applied – whether Member failed to engage with the evidence and submissions made – fact finding – Nguyen v Cosmopolitan Homes [2008] NSWCA 246 applied – approach to expert evidence – Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505

Parker SC ADP

2 November 2023

Facts

The appellant worker was a process operator employed by the respondent at the Woodlawn Mine. He fell and suffered injury on 12 November 2019. The employer paid compensation to 9 December 2021 with respect to the right shoulder claim but disputed the entitlement to the cost of a C6/7 anterior discectomy and fusion proposed by Dr Suttor, orthopaedic surgeon.

The respondent employer did not dispute that the appellant suffered an injury to the right shoulder, or the proposed cervical spine surgery was reasonably necessary treatment for the underlying pathology. The claim to be determined was whether, in addition to the injury to the right shoulder on 12 November 2019, the appellant sustained injury to the neck.

The appellant’s case was that he suffered a frank injury on 12 November 2019 which aggravated an underlying disease process. The appellant did not allege that he suffered a consequential injury of the cervical spine as a result of the injury to the right shoulder.

The Member determined that the appellant had not suffered an injury to his cervical spine on 12 November 2019. The worker appealed.

The issues on appeal were whether the:

(a) Member committed errors of law by determining the appellant did not need to be cross-examined and impugned his credit (Ground 1);

(b) Member committed errors of fact and law by determining the appellant was “under active investigation and treatment” to the cervical spine as at the date of the injury (Ground 2);

(c) Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine on the balance of probabilities and on the basis of the whole of the evidence (Ground 3);

(d) Member committed errors of fact and/or law by effectively placing no weight upon the medical evidence which the appellant relied upon (Ground 4);

(e) Member committed errors of law by failing to respond to substantial, clearly articulated arguments (Ground 5);

(f) Member committed errors of law by making findings and determinations which the appellant was not on notice of (Ground 6);

(g) Member’s decision with respect to the interpretation of Dr Dubey’s (General Practitioner) records was a decision so unreasonable that no reasonable body could have [reached] it (Ground 7);

(h) Member committed errors of law by failing to acknowledge [an] injury can have multiple causes (Ground 8), and

(i) Member committed errors of fact and law by indicating she did not accept his evidence on the issue of whether or not he suffered a neck injury (Ground 9).

Held: The Certificate of Determination dated 7 October 2022 was confirmed.

Ground 1

1. The appellant submitted that the Member made adverse findings about the appellant’s credit. ([41])
2. Acting Deputy President Parker SC stated that the Member pointed out that it was necessary for the respondent to persuade her on the balance of probabilities that he had suffered a neck injury on 12 November 2019. She quoted from Nguyen v Cosmopolitan Homes (NSW) Limited [2008] NSWCA 246 (Nguyen) that a “finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist.” The Member plainly was not persuaded by the totality of the evidence, including the respondent’s statement, that the onus of proving that he suffered a neck injury when he fell on 12 November 2019 had been satisfied. There is a difference between a conclusion that the tribunal was not persuaded by the evidence and a finding that a witness’s evidence is dishonest or is otherwise impugned. ([57]–[59])
3. The Acting Deputy President found that the Member addressed the requirement for procedural fairness. She identified leading cases and directed herself accordingly. The Commission is required to afford procedural fairness by giving the parties notice of the case to be put against them, and a reasonable opportunity to put evidence and submissions before the tribunal on that case, but it does not follow that in circumstances where cross-examination has not occurred either that evidence is uncontested or that there has been a denial of procedural fairness. ([60])

(Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 applied)

4. Parker SC ADP did not accept that the appellant was denied procedural fairness in the running of the trial or because there was no cross examination. The appellant’s submission that the Member should not accept the respondent’s submission in the absence of cross examination was made late in circumstances where the issue of injury to the neck was “live”, and indeed the only issue from the outset. The Member expressly concluded that cross examination was not required. That conclusion was open to the Member. Ground 1 was dismissed. ([62]–[70])

Ground 2

5. The appellant submitted that the Member determined that the appellant was experiencing cervical spine issues at the time of injury. ([71])
6. Acting Deputy President Parker SC was of the view that the Member was justified in drawing the inference she did with respect to the pre-12 November 2019 cervical symptomatology. The respondent was correct in that the appellant gave no evidence about his pre-12 November 2019 neck symptoms. So far as the appellant’s statement evidence was concerned, he did not refer to any complaint or investigations with respect to the cervical spine before 12 November 2019. ([82]–[83])
7. There were multiple investigations and, at least as at the date of referral to Mr Gillham (physiotherapist) in July 2019, the appellant was under active investigation and treatment for neck symptoms. The Member’s concern with the complaint history prior to 12 November 2019 provided by the appellant was explained in paragraph [97] of the reasons, which should be read with the conclusion at paragraph [120]. The Member said, in reference to the complaint history provided in the appellant’s statement, “given the significant history disclosed in Dr Dubey’s notes, that was an inadequate description of [the] past medical history”. The Acting Deputy President was not persuaded that the substance of the inference drawn by the Member at [120] of the reasons was not available. Ground 2 of the appeal was dismissed. ([87]–[90])

Ground 3

8. Referring to the Member’s reasons at [100], [104], [113] and [118], the appellant submitted that, although the Member referred to Nguyen, she did not determine the matter on that basis. The appellant submitted that the Member placed undue emphasis on the lack of contemporaneous evidence in respect of the cervical spine injury. The appellant submitted that the effect of the Member’s decision and emphasis upon contemporaneousness was that she required the appellant to have corroboration before he could succeed. ([91]–[93])
9. The errors purportedly identified by the terms of this ground were more aptly addressed in the determination of Ground 1. The appellant’s challenge that the Member in effect required the appellant to provide corroboration was without merit. The Member did not fail to apply the standard of proof she directed herself to by the reference to the decision in Nguyen. The issue of whether a contemporaneous complaint of neck injury or even neck pain was made at or about 12 November 2019 was against the appellant. He did not make any complaint of neck injury at or about the time of its alleged occurrence. The Member did not require corroboration. Ground 3 was dismissed. ([96]–[104])

Ground 4

10. The submissions in support of this ground were expressed by reference to a number of component parts. In effect there were multiple alleged errors emanating from the Member’s treatment of Dr Bodel’s report under a single ground of appeal. This was unsatisfactory and contrary to the Rules relating to specificity with respect to the grounds of appeal. ([131])
11. Contrary to the appellant’s submission, the Member gave cogent reasons for the significance she attached to the absence of the letter of instructions to Drs Bodel (qualified by the appellant) and Suttor. The absence of the letter of instructions where there is dispute as to injury was relevant for the purpose of assessing the history the doctor was asked to assume, both as to the circumstances of the occurrence of injury and as to treatment. The Acting Deputy President held the Member regarded the absence of the letter of instructions as important for what insight it might show on the premise of the medical reports with respect to the fact of injury and with respect to the treatment for radicular complaints. He detected no error on the part of the Member. ([132]–[135])
12. The Member said at [109] of the reasons that Dr Bodel did not seem to have detected or commented upon the impact of radicular complaints before the injury and the delay in the onset of those symptoms after the injury. That was the fact. The Member regarded the absence of commentary as weakening the utility of Dr Bodel’s report. That, in Parker SC ADP’s view, was an inference reasonably available to the Member. It was to be appreciated that such matters contribute to the overall impression of the evidence. The fact that Dr Bodel chose to express multiple opinions in the report left the report ambiguous to say the least. Dr Bodel’s report contained an equivocation making it ambiguous, and that was its weakness. The first hypothesis supported the appellant’s case theory. The alternative did not. The neck component as an injury consequential on the injury to the right shoulder was contrary to the appellant’s case. It was for this reason that the Member said the report “provides no assistance in determining the claim.” Ground 4 was dismissed. ([137]–[142])

Ground 5

13. The appellant submitted that the Member failed to deal with the appellant’s case which was that the injury sustained consisted of an aggravation to the underlying disease of the cervical spine, and the Member did not have regard to the submission as to why the contemporaneous evidence did not disclose complaints in respect of the appellant’s cervical spine. The appellant’s ultimate submission under this ground was that the difference would have been that the Member would not have considered the contemporaneous evidence as being of paramount importance. ([143]–[144])
14. A constructive failure to exercise jurisdiction is not a mere failure to address an argument or a submission but a failure to understand and determine the case. The Member identified the appellant’s case at [6] of the reasons where she referred to the appellant’s counsel’s submission based on Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited [2014] NSWCA 264 at [65] of the reasons. Whatever form the appellant’s injury may have taken, the relevant inquiry was whether the appellant sustained injury to the neck on 12 November 2019. The issue was whether or not the symptoms complained of by the appellant were the result of the injury on 12 November 2019. The Acting Deputy President found the Member addressed the evidence and disposed of the case. ([146]–[148])

(Day v SAS Trustee Corporation [2021] NSWCA 71 applied)

15. The appellant had symptoms in the neck before 12 November 2019. The Member was aware the appellant had submitted that the reason the medical notes did not make reference to the injury to the neck was because of his concern with the injury to the right shoulder. The Member’s reasons addressed that very point and reached a conclusion adverse to the appellant. ([149])
16. It was simply not correct that, as the appellant submitted, the Member failed to address the arguments that the injury consisted of an aggravation to an underlying disease of the cervical spine or that she failed to address the submission that the appellant had not complained about the neck injury at an earlier point of time because of his and his doctors’ concern with the right shoulder injury. Ground 5 was dismissed. ([150]–[151])

Ground 6

17. The appellant complained that he was not on notice of the finding “that he was ‘under active investigation and treatment as at the date of injury’ and that, although his GP’s records did not make mention of cervical spine issues in respect of the period from the time of Dr Ow-Yang’s report (27 June 2019) to the date of the incident, she would nonetheless, determine he did have cervical spine issues and explain the absence of cervical spine complaints in the documents on the basis of what Santow JA stated in  Nominal Defendant v Clancy [2007] NSWCA 349 (Clancy). The appellant submitted that these findings were not based on submissions made by the respondent and that he was not put on notice of such findings, that he was caught by surprise and that as a result he suffered practical injustice. ([152]–[153])
18. Acting Deputy President Parker SC held that the Member directed the appellant’s counsel to the concern she had with the GP’s notes concerning treatment being provided to the appellant before 12 November 2019. With respect, it could not have been a surprise when she relied on those notes to make the finding she did. Ground 6 of the appeal was dismissed. ([160]–[161])

Ground 7

19. The appellant submitted, that the Member had interpreted the clinical records of Dr Dubey, as there had been multiple attendances by the appellant from 27 June 2019 to the date of injury, pursuant to Clancy, and that complaints related to the cervical spine would have been made but were not recorded. The appellant submitted such a conclusion was so unreasonable that no Commission Member could have reached it. The respondent submitted that the Member did not make the factual finding complained of and that the ground was without substance. ([162]–[164])
20. Parker SC ADP held that the respondent was correct. The appellant did not identify where the alleged finding was made. The Member did not find that the appellant made complaints related to the cervical spine which were not recorded by the treating general practitioner. This ground of appeal was dismissed. ([165]–[167])

Ground 8

21. The Acting Deputy President stated that Ground 8 of the appeal simply did not grapple with the finding the Member made. The Member did not deny or rebut the prospect that an injury might result from multiple causes. The appellant’s problem derived from the report of Dr Bodel was that the doctor provided more than one explanation for his conclusion. Because the explanations were offered with equal force, they provided the Member with no assistance in determining the claim. This was made clear by what the Member said at [112] of the reasons. Ground 8 of the appeal was dismissed. ([171]–[175])

Ground 9

22. The appellant said his evidence “as to recovery from his prior conditions was not inconsistent with the medical evidence”. He said the Member took issue with the one full page of the appellant’s statement addressing whether the surgery was reasonably necessary on the ground that there was no dispute that the surgery was reasonably necessary. However, the appellant submitted that there was no concession in that regard prior to the appellant’s statement being finalised. The appellant argued against the Member’s conclusion that the appellant’s opinion contravened r 73 of the 2021 Rules. The appellant did not purport to be a doctor or suggest his opinion was based on scientific knowledge. ([177])
23. The Acting Deputy President assumed that the respondent intended to refer to clause 24 or 25 of Procedural Direction WC3, not Procedural Direction PIC6 which refers to Medical Assessments. He stated that the thrust of the Member’s conclusion was that the appellant’s statement was inconsistent with the contemporaneous medical evidence and that, to the extent of the inconsistency, she was not prepared to accept his evidence on the issue of whether or not he suffered a neck injury. ([181])
24. Parker SC ADP regarded the Member’s observation at [99] of the reasons as being a terse reminder that lay witness statements when prepared by professional advisers ought to avoid providing medical opinion. Such material ought not be included in a professionally prepared statement even in a jurisdiction such as the Commission which is not dependent on strict rules of evidence. It may well be that the appellant did not purport to be a medical adviser and that the intention was to convey the effect of these conditions on him. However, it was of no assistance for the appellant to express what were essentially medical opinions. There was no suggestion in the material that the appellant did not have genuine symptoms or that the surgical therapy was not proposed with the expectation that his symptomatic circumstances would be improved. ([182]–[184])

The point of the Member’s observation at [100] was that the irrelevant unqualified opinion evidence from the appellant could not assist in the determination of the issue, namely, whether or not the appellant had suffered an injury to the neck on 12 November 2019. The thrust of the Member’s remarks was that the inconsistencies between the appellant’s lay evidence contained in the statement and the contemporaneous medical evidence were such that, where there was an inconsistency, she preferred the contemporaneous medical evidence to the statement evidence. In the Acting Deputy President’s view, that was open to the Member. Ground 9 of the appeal was dismissed. ([185]–[187])

Fletcher International Exports Pty Ltd v Lee [2023] NSWPICPD 67

WORKERS COMPENSATION – jurisdiction to determine a claim involving section 38 of the 1987 Act – Lee v Bunnings Group Pty Ltd [2013] NSWWCCPD 54 and Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4 distinguished – Roberts v University of Sydney [2021] NSWWCC 25 considered

Phillips P

3 November 2023

Facts

The respondent worker was employed by the appellant as a process worker. The respondent suffered an injury in the course of her employment with the appellant on 27 October 2020 for which liability to pay weekly compensation and medical expenses was accepted by the appellant. Payments continued until 8 June 2021. On 27 October 2021, further liability was declined by the appellant. This led to proceedings being commenced in the Commission.

There were several intervening matters as the appellant unsuccessfully asserted that the matter was impacted by the federal diversity jurisdiction as the respondent was a resident of another state. This involved a decision by another member, an appeal to a Presidential member and an application to the District Court of New South Wales under s 26 of the 2020 Act which was determined by Andronos SC DCJ on 24 March 2023. The President made orders on remitter from the District Court on 29 March 2023 as well as determining a Reconsideration Application on 6 April 2023. The matter was then referred to the Member. On 9 August 2023, the Member issued a Certificate of Determination, in which the Member ordered that from 9 June 2021 until the end of the second entitlement period, the appellant pay the respondent weekly compensation pursuant to s 37(1) of the 1987 Act; after the second entitlement period to date and continuing, the appellant pay the respondent weekly compensation in accordance with s 38(6) of the 1987 Act, and that the appellant pay the respondent’s s 60 expenses. It was from this decision that the appellant appealed against.

The appellant relied on a single ground of appeal, being “… an error of law in the determination of the jurisdiction of the Commission Member in regard to weekly payments of compensation in the period provided for in section 38 of the [1987 Act].”

Held: The appeal was dismissed. The Certificate of Determination dated 9 August 2023 was confirmed.

Ground 1

1. The appellant submitted that the Member was in error in considering that the Member had jurisdiction to determine any entitlement to weekly payments of compensation in respect of the period provided for in s 38. It said that the issue of the Commission’s jurisdiction in respect of the s 38 period was firstly dealt with by Keating P in Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee v Bunnings). It said this issue was considered by Acting Deputy President Parker SC in Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4 (Ferro). The appellant relied, in particular, on paragraph [38] of the decision in Ferro, and submitted that the Member in the present case was obliged to follow the decision of Parker SC ADP and did not do so. This, it said, was an error of law. ([13])
2. The appellant maintained that the Member was bound by two Presidential decisions, Lee v Bunnings in 2013 and Ferro in 2023 and failed to follow them and was thus in error. The President noted that the Member dealt with the Workers Compensation Legislation Amendment Act 2018 (2018 Amendments) in the decision at [281]–[283] and that no issue had been taken on appeal with those paragraphs. Indeed, the appellant had made no submission at all on the appeal about the effect of the 2018 Amendments. His Honour noted that in the hearing before the Member, counsel for the appellant, whilst still placing reliance on Lee v Bunnings, acknowledged that since Lee v Bunnings, the Commission did have jurisdiction to review a work capacity decision. However no specific submission on the effect of the 2018 Amendments was made by the appellant. ([19])
3. At the time Lee v Bunnings was decided a different regime applied to work capacity decisions. A different entity, the former Workers Compensation Independent Review Office, had responsibility for reviewing work capacity decisions. This changed with the 2018 Amendments which the Member has set out in her reasons. The circumstances that were decided in Lee v Bunnings were clearly superseded by the 2018 Amendments and it is no longer to be followed. This was the effect of the Member’s reasoning at [281] of the Member’s reasons. No issue had been taken on appeal with this reasoning. ([20])
4. In so far as the appellant’s submissions rest on the authority of Lee v Bunnings, such a submission could not be accepted. The appellant had failed to grapple with the effects of the 2018 Amendments and more importantly the Member’s construction of them. Intervention on appeal depends upon the identification and correction of error. This aspect of the appeal ground was rejected. ([21])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

5. The President remarked for the sake of completeness, given the manner in which the appellant has attempted to circumscribe the Commission’s power with respect to work capacity decisions since the 2018 Amendments, that the respondent made reference to the decision of Roberts v University of Sydney [2021] NSWWCC 25 (Roberts), dated 21 January 2021. The appellant made no submission in response to the respondent’s reliance on this decision. The President endorsed Arbitrator Harris’ (as he then was) comments at [58]–[60] of Roberts as constituting the proper approach to s 38 disputes and the Commission’s power to deal with them. This was effectively the approach taken by the Member in this matter. To this point, the President referred to the Member’s factual finding at [282] of the reasons that the “letter dated 27 October 2021 notified the [respondent] of a work capacity decision within the meaning of s 43 of the 1987 Act.” This finding had not been challenged in this appeal. Consequently, it was this work capacity decision that the Commission was appropriately seized of power to determine. ([22]–[24])
6. In relation to the decision of Ferro, the appellant asserted that it stood for the proposition that the Commission lacks jurisdiction to hear a work capacity dispute. The Member dealt with the appellant’s submissions about Ferro at [284] of the reasons and no issue was taken with those remarks on this appeal. The Member distinguished the circumstances in Ferro from those which the Member was confronting in this matter. The appellant had not said how this approach was wrong. ([25])
7. In the passages referred to from Ferro by the appellant, the Acting Deputy President was grappling with an appeal ground which alleged the Member below erred in the inadequacy of reasoning in making a s 38 order. The issue was not whether the Member in Ferro was possessed of the jurisdiction to entertain the s 38 application, although the President accepted that Acting Deputy President Parker’s reasons at [34] of Ferro may have this colour. His Honour noted though, that no submissions regarding the effect of 2018 Amendments and the matters at [58]–[60] of Roberts were made to the Acting Deputy President. Ferro is not authority for the proposition advanced by the appellant in this matter that the Commission lacks jurisdiction to determine a s 38 application. This point advanced by the appellant was simply not decided in Ferro and that case is therefore not authority for this proposition. There was therefore no inconsistency between the Member’s decision in this matter and Ferro. This aspect of the ground of appeal, based on Ferro, failed. The appeal was dismissed. ([26]–[28])

Australian Nursing Home Foundation Ltd v Xu [2023] NSWPICPD 68

WORKERS COMPENSATION – assessment of the evidence – consideration of the entirety of the evidence – credibility – whether the Member considered all of the relevant evidence – Raulston v Toll Pty Limited [2011] NSWWCCPD 25 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 applied

Perry ADP

3 November 2023

Facts

The respondent worker lodged an Application to Resolve a Dispute in the Commission, claiming medical, hospital and like expenses pursuant to s 60 of the 1987 Act. He based the claim on an allegation of injury to his left shoulder, cervical spine and lumbar spine in the course of his employment with the appellant, who operates an aged care business. The respondent worked as a disability carer between February 2019 and 25 February 2021.

The main issue before the Member was whether the respondent suffered the above injuries in the manner alleged (the injury issue). There was a further issue as to whether proposed left shoulder surgery was reasonably necessary (the surgery issue).

The Member found in favour of the respondent worker with respect to both issues. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) fact in finding the worker’s injury occurred during the afternoon shift, and an error of law by failing to adequately consider the available evidence to the contrary (Ground 1);

(b) disregarding the evidence of Ms Zhao as being irrelevant (Ground 2), and

(c) fact and law by finding the worker sustained injury pursuant to ss 4(a) and/or 4(b)(ii) of the 1987 Act (Ground 3).

Held: The Certificate of Determination dated 9 August 2022 was revoked and the matter was remitted to another non-presidential member for determination.

Discussion and findings

1. Acting Deputy President Perry stated that the Member had the advantage of seeing and hearing the respondent’s evidence, including under cross-examination, and found he “did his best to assist while giving evidence”. The Member said there were “language difficulties”, including the way in which the respondent drafted his first statement (through the use of a translating app on his mobile phone), and that it was “understandable there was some confusion regarding the history of the alleged injury”. In this context, he emphasised that the respondent did maintain “the injury ... occurred while he was assisting a client located in the Waterloo area on 25 February 2021”. ([61])
2. The advantage the Member had of seeing and hearing the respondent’s evidence, in a case where the analysis of his credit was important, should be taken into account and respected. However, this advantage, including the assessment of demeanour, is only one aspect of the assessment of credit, which also includes assessing the reliability of the evidence. ([62])

(CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow [2023] NSWCA 135 applied)

3. Ground 1 of the appeal was the essential ground, and it informed the analysis of the remaining two grounds. It conflated two points: asserting an error of fact in finding the injury occurred during the afternoon shift and an error of law in failing to adequately consider the available evidence to the contrary. In the Acting Deputy President’s opinion, the appellant was plainly correct with respect to the said error of law. However, the failure to adequately consider “the available evidence to the contrary” meant, in the circumstances – including the Member’s favourable impression of the respondent’s oral evidence and the unresolved “confusion regarding the history of the alleged injury” – there must be a further analysis of the injury issue taking into account all relevant evidence. Until that was done, it was not appropriate for findings of fact to be made about whether or not the respondent was able to prove he suffered a compensable injury, except to the extent necessary to support findings in relation to the said error of law. ([63])
4. Perry ADP held that there was no, at least adequate, consideration of “other statements and with the surrounding circumstances” before the Member found the respondent suffered injury to his cervical/lumbar spine and left shoulder on 25 February 2021. He accepted the Member did take various aspects of the injury issue into account, firstly, including consideration of lay evidence of what happened on 25 February 2021, and secondly, the later expert medical or treating evidence including in terms of its consistency with the respondent’s case. While most of those reasons dealt with the second category, the grounds of appeal essentially attacked the first category. ([64])
5. In response to the appellant’s suggestion that the respondent “was in fact working with [Ms Zhao] on the alleged date of injury and [she] was responsible for removing and replacing the client’s walker which [the respondent] alleged he was manoeuvring when he suffered his injury”, the Member said the Worker Visit Sheet revealed Ms Zhao was only with the respondent in the morning, not the afternoon, at Waterloo “which was where [the respondent] insisted his injury had taken place”. The Member made a similar comment in not accepting the submission that the respondent’s evidence should not be accepted as it was “so confusing”. The problem with this reasoning was the rejection of the appellant’s submission without considering or taking into account those aspects of the respondent’s statements which did not support (and may have militated against) a finding that the alleged injury occurred in the afternoon shift. This was also relevant given the evidence of Ms Zhao. The fact that she “was only with [the respondent] in the morning” and “not in the afternoon at Waterloo” did not fully deal with the appellant’s argument that the respondent did not prove his case and “may well be confused about” when and where he injured himself. It also did not necessarily follow, given other evidence, that a compensable injury did occur during the afternoon shift. ([65]–[66])
6. The statement from the respondent fed into a statement by Ms Lo, the appellant’s “home care team leader” dated 15 April 2021. She stated that Ms Wong came into her office in the late afternoon on 25 February 2021 and told her that the respondent had informed Ms Wong that he had been hurt while working that day and had pain in his back, and that Ms Wong forwarded an email from the respondent to her. Ms Lo stated that she sent a form to the respondent to fill out and return, and the next day she received the incident report from the respondent by email. ([68]–[69])
7. There was no issue or complaint about the submissions accurately summarising the email or the incident report and Perry ADP accepted that both were properly before the Member. They were both important in the injury issue analysis. As the appellant submitted on appeal, there were multiple references to the injury occurring during the morning shift. The reasons did not meaningfully mention either piece of evidence let alone expose how, if at all, either of them were taken into account. ([70])
8. The respondent submitted that while statements and some of the correspondence suggested the injury was during the morning shift, this could be explained by him being a poor historian and he clearly maintained he sustained injury while assisting Ms Zhang in Waterloo. The Acting Deputy President stated that this did not assist on the question of whether the Member’s determination was erroneous. Whilst he formed no opinion on the evidence about this, Perry ADP said that it was sufficient for the purposes of identifying that the error was an operative one, that the respondent appeared to have attended the address in Waterloo during both the morning and afternoon shifts. The appellant said the morning shift was completed at 1:15 pm. That appeared undisputed. While the email referred to the respondent having “sprained” his back “this morning”, the incident report placed the time of this incident “at around 12:45 am [sic, pm]”. ([71]–[72])
9. Acting Deputy President Perry agreed with the appellant’s submission as to the respondent’s 31 March 2021 statement, only to the extent to find an error of law because the decision did not adequately take the evidence in this statement into account. Perry ADP did not need to pick through the whole of it to identify what parts were or were not considered. It was sufficient to accept the submission that, contrary to the Member’s implicit finding, it contained detail pointing away from the respondent being injured during the afternoon shift. ([74])
10. The Acting Deputy President found that these pieces of evidence had the capacity to make a difference to the Member’s decision if they had been adequately taken into account, and supported the findings of the error alleged in Ground 1. In Perry ADP’s view, the error did, in the circumstances, amount to “ignoring relevant material” in the sense discussed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, at [82] and thus constituted an error of law. As noted in Raulston v Toll Pty Limited [2011] NSWWCCPD 25, it may be shown that a Member was wrong by, amongst other things, “showing that material facts have been overlooked … in deciding the inference to be drawn”. ([76]–[86])
11. Perry ADP was of the view that the error identified was an operative one in the sense described in Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 and Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339; that is, if the error was removed from the Member’s conclusions, it is not at all clear that his ultimate conclusion would be the same – or the operative error(s) could reasonably be supposed to have affected the result of the hearing. The Acting Deputy President concluded so because there was a substantial body of evidence which was not adequately taken into account. ([87])

(Conway v The Queen [2002] HCA 2 applied)

12. Ground 1 succeeded to the extent that the Member erred in law by failing – before he made the factual finding that the worker’s injury occurred during the afternoon shift – to adequately consider the available evidence which was contrary to such finding. Again, it was noted that Ground 1 contained two limbs. The error Perry ADP found related to the error of law limb. That finding was dispositive because it related to an error which undermined a critical aspect of the finding on the injury issue, with this issue being a substantial underpinning foundation of the decision. This made it unnecessary for the Acting Deputy President to make findings in relation to the error of fact limb of Ground 1, and also the complaints in Grounds 2 and 3. ([88])

A1 Granny Flats v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 69

WORKERS COMPENSATION – proceedings concerning the Commission’s determination of an uninsured employer’s liability for reimbursement pursuant to section 145 of the 1987 Act – employer bears the onus of proof in challenging a section 145 notice – Raniere Nominees Pty Limited v Daley [2005] NSWCA 121 applied – nature of s 145 proceedings is not “inquisitorial”– South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied – deemed date of injury affixed by s 15(1)(a) of 1987 Act – Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 – previously unnotified matters to be considered in context of guiding principle, s 42 of the 2020 Act – elements of section 11A of the 1987 Act to be broadly approached – provision of employment benefits – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 applied – practitioner’s obligation to clearly identify error in grounds of appeal – Kowalski v Repatriation Commission [2011] FCAFC 43 and Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 considered

Phillips P

6 November 2023

Facts

The appellant, A1 Granny Flats employed Mr Martin (the second respondent) as a salesman. Mr Martin claimed to sustain a psychological injury during the course of this employment with a deemed date of injury of 13 August 2020. A claim for compensation was made on 2 September 2020. At the relevant time for the purposes of this application, the appellant did not hold a policy of workers compensation insurance. Accordingly, icare NSW, on behalf of the Workers Compensation Nominal Insurer (the Nominal Insurer) responded to Mr Martin’s claim and made payments to him for weekly compensation and medical treatment relating to his psychological injury.

The Nominal Insurer subsequently sought reimbursement from the appellant for payments made to Mr Martin totalling $110,766.81 by way of notice issued pursuant to s 145(1) of the 1987 Act on the basis the appellant was the employer liable at the time to pay Mr Martin workers compensation. The appellant disputed  liability to reimburse the Nominal Insurer and made an application under s 145 of the 1987 Act, seeking orders that the amount sought by the Nominal Insurer was not recoverable, or in the alternative, that the amount be reduced. The Application was heard and dismissed by the Senior Member, who ordered the appellant to reimburse the Nominal Insurer in the sum claimed. The appellant appealed.

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

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

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

(c) law and fact in the determination of capacity (Ground C);

(d) discretion in declining the appellant the opportunity to rely on ‘promotion’ (Ground D);

(e) fact and law regarding the section 11A defence relating to the provision of employment benefits (Ground E);

(f) failing to give adequate reasons (Ground F), and

(g) law and discretion in the decision to join the second respondent as a party (Ground G).

Held: The Certificate of Determination dated 9 December 2022 was confirmed.

Principles on appeal

1. The practice and procedure for appeals in the Commission is governed by Procedural Direction WC3 – Presidential appeals and questions of law. Paragraph [24] of this Procedural Direction requires that the grounds of appeal identify the respects in which an error of fact, law or discretion is alleged to have occurred. Paragraph [25] continues: “It is not acceptable to merely allege that the member erred in law, fact, or discretion, or that the decision is against the evidence or the weight of the evidence.” ([40])
2. In Kowalski v Repatriation Commission [2011] FCAFC 43 (Kowalski), at [21], the Full Federal Court said this about appeals:

“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be”. ([41])

Ground A

3. The President stated that the appellant’s proposition based on Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 (Thoroughgood) was put to the Senior Member in the appellant’s reply submissions dated 8 November 2022. This argument was accurately recounted by the Senior Member at [289] of the reasons. In short, it was the appellant’s submission, based on Deputy President Roche’s decision in Thoroughgood, that “[i]f date of injury is deemed by reference to incapacity, it is only by reference to incapacity for which compensation is claimed.” The appellant submitted that this date was 18 September 2020. The Senior Member dealt with the whole question of “injury” at [372] to [387] of the reasons. ([48])
4. His Honour remarked that Deputy President Roche’s decision in Thoroughgood was appealed to the Court of Appeal (Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 (Thoroughgood No. 2)). The appellant had made no reference to this Court of Appeal decision either at first instance or on this appeal. It is the duty of practitioners to provide assistance to Commission members, both at first instance and on appeal, when citing authorities. At best it is a failure to comply with this duty to make reference to a decision and not to its subsequent appellate consideration. Needless to say, to the extent that the Court of Appeal decision deals with the matters raised by the appellant, that determination is binding on a Presidential member. ([49])
5. The President found that the Senior Member was not in error in determining the deemed date of injury as being the first date the second respondent’s incapacity arose, being 13 August 2020. An incapacity arose on this date for which compensation could be claimed. This date was consistent with the factual findings made. His Honour also remarked that the factual finding fixing 13 August 2020 as the date that incapacity arose had not been challenged on the appeal. This date was also consistent with the approach set out in Thoroughgood No 2, Stone v Stannard Brothers Launch Services Pty Limited [2004] NSWCA 277 and Alto Ford Pty Ltd v Antaw [1999] NSWCA 234. As was said in Thoroughgood No 2, the approach to incapacity in s 15 and s 16 is the same. No error had been established. Ground A was dismissed. ([53]–[55])

Ground B

6. The President stated that the manner in which this ground of appeal had been drafted was unsatisfactory. It is unsatisfactory for the appellant to point to several paragraphs of the Senior Member’s decision and make a broad assertion of error without identifying the error with precision. ([59])

   (Kowalski applied)

7. The President noted that this ground took issue with the Senior Member’s reasoning on two issues. The first being notice of injury and the second being how the second respondent’s resignation was dealt with. The assertion was that these matters were not put “by or to the parties”, suggesting that the Senior Member had decided these two discrete issues without giving the parties an opportunity to be heard on them, hence the allegation of a denial of procedural fairness made by the appellant. ([62])
8. His Honour stated that the second respondent’s asserted failure to give notice was pursued as a complete defence to the recovery claim by the appellant. In short, it was quite an important point for the appellant to pursue. The first respondent responded to these submissions and the issue was clearly before the Senior Member for decision. It was factually incorrect for the appellant to state on this appeal that it was denied procedural fairness on this issue. It was an issue raised by the appellant fairly and squarely. The appellant was not inhibited in any way from putting any argument to advance its case on this point, either in chief or in reply, and the issue was on requiring a decision by the Senior Member. The President held that the allegation that this matter was “not put by or to the parties” was without basis. The allegation that the appellant was denied procedural fairness on this issue was without basis. This aspect of Ground B was dismissed. ([67]–[69])
9. The President stated that consideration of the resignation letter was an issue which was framed and pursued by the appellant. There was no basis for the suggestion that this was decided without the parties’ knowledge. As could be seen, the second respondent submitted that he was attempting to be “civil and courteous” in the resignation letter, an explanation that was accepted by the Senior Member at [414] of the reasons. ([75])
10. There was no basis for the appellant’s submission that this issue was decided in circumstances where it was “not put by or to the parties”. This was plainly incorrect. As a consequence, the allegation that there was a denial of procedural fairness fell away. This second aspect of Ground B also failed. Ground B was dismissed. ([76]–[77])

Ground C

11. This ground took issue with the Senior Member’s findings with respect to the second respondent’s capacity, and did so by pointing to various issues and asserted errors in the Senior Member’s reasoning. ([90])
12. The first issue the appellant relied on in support of this ground was its attack upon the second respondent’s credit in support of its submission about his work capacity. The appellant complained that the Senior Member did not engage with the “detailed Submissions made on behalf of the Appellant as to why his earning capacity should be considered to preclude him being paid weekly compensation at all” with reference to the Senior Member only having regard to “payslips and his PIAWE (paragraph 417)”. ([91]–[93])
13. This aspect of this ground had been advanced in an unsatisfactory manner. The appellant referred to “detailed submissions” apparently not engaged with by the Senior Member but did not say what these submissions were or where they appeared. Nowhere had the appellant identified with any precision the submission said to have been made by it and not engaged with by the Senior Member. Much of the oral submission was taken up in an assault upon the credit of the second respondent and did not assist this appeal ground. To the extent that this aspect of the ground of appeal related to the second respondent’s earning capacity, it was tolerably clear from the decision that the Senior Member was not assisted by the appellant’s failure to lead any evidence on this discrete issue. The Senior Member said that no “meaningful submissions [were made] on this matter.” The appellant took issue with this aspect of the reasons but, as the President recorded, failed to say what it was that the Senior Member did not engage with. This aspect of Ground C failed for want of appropriate articulation of the error said to have occurred. ([94]–[96])

(Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 applied)

14. The appellant complained about the Senior Member’s remark about a wages schedule and finding that the appellant bore the onus of proof. The President held that a fair reading of [418] of the reasons revealed that the Senior Member’s comment that the appellant “has not filed a wages schedule” was a simple statement of fact. The appellant had challenged the amount paid to the second respondent and led no evidence on the issue. His Honour remarked that the appellant had not made any submission as to why this remark was an error, it was a fact that no such document was filed, despite the requirement in the Rules and Procedural Direction. No error had been alleged, let alone established, on this point. In relation to the onus of proof, it was the employer who bore the onus of proof in such circumstances as in this matter. The appellant was the moving party in the proceedings. It was seeking to dispute a series of payments made by the first respondent to the second respondent in circumstances where there was no dispute between these two parties. In practical terms, the onus of proof, whether legal or tactical, resided with the appellant. Accordingly, the Senior Member was not in error to state that the appellant bore the onus of proof in this matter. It was tolerably clear from  reading the decision that the Senior Member was not satisfied that the burden was discharged. This appeal ground failed. ([97]–[111])

(South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied)

Ground D

15. The appellant had filed in this matter a Commission Form 20 which is known as a “Miscellaneous Application”. This application is made by the appellant, as an uninsured employer, seeking relief to a demand made under s 145 of the 1987 Act. That is, the appellant sought an order that the monies sought to be recovered from it by the first respondent are not recoverable, or in the alternative, that the amount sought be reduced. The President noted that the matter in issue in this appeal ground related to s 11A(1) of the 1987 Act. ([116]–[117])
16. At the hearing on 6 September 2022, the appellant sought to widen its s 11A claim to encompass the additional s 11A item pertaining to “promotion and demotion”. This came about as a result of the Senior Member inviting the appellant’s solicitor to read onto the record the issues in this matter. ([120])
17. The President accepted the appellant’s submission that applications made to the Commission under s 145(3) are different to the circumstances involving workers as applicants, as are the associated requirements under the current s 78 notice for proper particulars of the dispute to be notified to a worker before a dispute is referred to the Commission. In this case, the mechanism which may create a dispute is the receipt by the uninsured employer of the demand for payment by the insurer which then triggers the s 145 application if the uninsured employer then wishes to challenge the claim or its quantum. Under s 145(3) of the 1987 Act, a person whom this notice is served may apply to the Commission for a determination as to the person’s liability in respect of the payment concerned, while s 145(4) of the 1987 Act allows the Commission to determine the application and make orders as to the payment of compensation in respect of the injured worker concerned. However, there is no statutory notice provision which is analogous to the s 78 notice requiring notice of the particulars of the dispute in this circumstance. ([127])
18. His Honour also accepted the appellant’s submission to the Senior Member that the Commission is not a tribunal of strict pleading. Such is clear from a reading of s 3(c) and s 43 of the 2020 Act. It therefore seemed to the President that the Senior Member’s reference to the provisions of s 289A(4) of the 1998 Act, as construed in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 , was not apt for this situation. However, if the use of s 289A(4) of the 1998 Act was an error, this error did not affect the result. ([128]–[136])
19. No error in the exercise of the Senior Member’s discretion in a House v The King [1936] HCA 40 sense had been established. Certainly, the reference to s 289A(4) of the 1998 Act was not strictly correct but this did not affect the result. Ground D was dismissed. ([137])

Ground E

20. The appellant asserted that the Senior Member made two errors with respect to how she dealt with the s 11A question. The first error was the finding made by the Senior Member at [392] of the reasons which doubted that commissions could be classified as employment benefits: “I am not convinced that commissions, which comprised part of the second respondent’s remuneration, may be classified as employment benefits, in the same way as perhaps a discretionary bonus may be so classified.” The second asserted error in this ground related to the Senior Member’s construction of the medical evidence. ([138]–[140])
21. The President stated that the Senior Member’s reasoning on the s 11A question appeared in a discrete number of paragraphs entitled “Section 11A(1)” from [388]–[400] of the reasons. His Honour was of the view that the critical finding made by the Senior Member was at [393] of the reasons where it was said: “The difficulty the [appellant] has in establishing that the second respondent’s injury was wholly or predominantly caused by its action with respect to provision of employment benefits is the evidence, much of it unchallenged, that the injury was also caused by matters other than the late payment of his commissions ...” (emphasis added). ([144])
22. The President found that the appellant had been unable to disturb the Senior Member’s finding at [399] of the reasons that the Senior Member was not satisfied the second respondent’s injury was “wholly or predominantly caused by the [appellant’s] actions with respect to provision of employment benefits”. ([150])
23. In light of this decision, the Senior Member’s finding that commissions were not part of the second respondent’s employment benefits, in any event, was largely redundant. His Honour noted that the meaning of the phrase “employment benefits” is not strictly defined, nor had the parties pointed to any authority on this. ([151]–[152])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) and Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 (Gazi) applied)

24. Consistent with what the President found in Gazi, the “broad approach” referred to by Sackville AJA in Heggie is to be taken with respect to each element in s 11A. In this case the Senior Member had not taken such an approach with respect to the construction of the phrase “employment benefits” and as a consequence was in error. The Senior Member had not explained why she was “not convinced” that a commission was an employment benefit. The President remarked that the respondent only became entitled to receive such commissions by virtue of his employment with the appellant, the payment of which was a benefit linked to his performance during employment. ([153])
25. However, the error must affect the result to justify appellate intervention. In light of the decision with respect to “wholly and predominantly” the Senior Member’s error with respect to the finding that a commission was not an employment benefit did not affect the result. Ground E failed and was dismissed. ([154]–[155])

(Walshe v Prest [2005] NSWCA 333, and Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 applied)

Ground F

26. The appellant submitted that the Senior Member failed to give adequate reasons, in particular in respect of the issue identified in Ground E and in respect of the question of capacity for work. ([156])
27. The President stated that it was unsatisfactory for the appellant to make a broad brush assertion that reasons were inadequate and merely refer to selected paragraphs in the decision. This is precisely the vice criticised in Kowalski. It is not the function of a Presidential member in deciding an appeal to search for error when none has been meaningfully identified by the appellant. This ground failed, in even the most rudimentary way, to identify how the error in terms of inadequacy of reasons was said to have occurred, let alone how any such error affected the ultimate result. The reader of this appeal ground is left to speculate what the error is or might be. ([162]–[163], [166])
28. After setting out the relevant passages of the Senior Member’s reasons, the President stated that the key question related to the second respondent’s commissions and his contract. The three paragraphs complained of were part of the overall reasoning on these issues. This was the difficulty with the appellant’s lack of particularity on this appeal ground. One simply could not divine the actual error complained of and whether it had been dealt with by the Senior Member in these sections or elsewhere in the decision. His Honour accepted that the appellant made “lengthy submissions” on s 11A before the Senior Member. But the appellant had not identified the argument that it put and which was not adequately dealt by the Senior Member. It was not appropriate, nor is it the Presidential member’s function, to attempt to find this argument from the submissions before the Senior Member, marry that up with the appeal submissions on this ground and then look for error on the part of the Senior Member. Ground F failed to engage with the principles required to establish error on appeal and did not articulate the error alleged in a meaningful way. Ground F was dismissed. ([169]–[170])

Ground G

29. The President stated that nowhere in the appellant’s submissions had it been identified how the error in joining the second respondent, if indeed it was an error, affected the result. For intervention on appeal, the error must have affected the result. ([178])

    (Walshe v Prest [2005] NSWCA 333 applied)

30. The President remarked that the appellant, through its solicitor at the hearing, made a significant attack on the second respondent’s credit, describing his story as a “litany of lies”. Given the manner in which the appellant conducted this application and its particularly savage assault upon the second respondent’s credit, it was not an error for the Senior Member to join the second respondent. Indeed, in light of the appellant’s approach, it would have been an error and failure to accord the second respondent procedural fairness had he not been joined. Whist the appellant argued that a s 145 application does not deal with the interests of the injured worker or could not adversely affect the injured worker’s rights, the Commission may in fact “make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned”, pursuant to s 145(4)(b) of the 1987 Act. The mere nature of the issues pleaded by the appellant for determination by the Senior Member may have necessitated such orders to be made in respect of the injured worker’s entitlement to compensation if the application succeeded. ([179]–[180])
31. In terms of the appellant’s submissions about the first respondent avoiding its obligation to give any notice of dispute to the second respondent under s 78, this submission was without merit. The first respondent had accepted and paid the second respondent’s claim. Axiomatically, there was no dispute between these two parties requiring the issuing of such a notice. This ground failed to establish discretionary error of the House v King type. This ground failed to establish how, even if error was proven, such error affected the result. Ground G was dismissed. ([181]–[182])

State of New South Wales (NSW Police Force) v Wakefield [2023] NSWPICPD 71

WORKERS COMPENSATION – psychological and physical injuries, whether the incapacity flowing from the injuries entitled two awards of weekly payments – Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40 , Stewart v State of NSW (NSW Police Force) [2021] NSWPIC 133, State of New South Wales v Stewart [2015] NSWWCCPD 1 discussed; Harrington v New South Wales Police Force [2015] NSWWCCPD 31, Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied; Kesen v Luke Singer Pty Ltd (1999) 5 NSWCCR 298 applied – principles applicable to disturbing a member’s discretionary decision – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied – adequacy of reasons section 294(2) of the 1998 Act; rules 73 and 78(2) of the 2021 Rules

Wood DP

7 November 2023

Facts

The respondent worker commenced employment with the appellant in 1996. From 2001, the respondent was stationed at the State Protection Dog Unit (the Dog Squad). The respondent suffered a number of physical injuries in the course of his employment, including: left leg injury on 27 March 1997; right wrist injury on 20 January 2004; left ankle injury on 17 June 2004; right knee and ankle injury on 21 February 2009, and lumbar spine injury in or about July 2010. The respondent also suffered a psychological injury in the course of his employment, diagnosed as a post-traumatic stress disorder, with a deemed date of injury of 22 October 2010.

The appellant accepted liability for the physical injuries as well as the psychological injury. The respondent received ongoing weekly payments of compensation since ceasing work with the appellant. Those payments continued on the basis that the respondent was partially incapacitated for work.

In September 2021, the respondent made a claim for an additional weekly payment on the premise that he was entitled to two awards of weekly compensation, one in respect of his psychological injury. The appellant disputed liability for the claim for the additional payments of weekly compensation on the basis that, in its view, the respondent’s incapacity was a single incapacity resulting from both his physical injuries and the psychological injury.

The Member determined that the respondent suffered two separate and distinct incapacities, one resulting from the physical injuries and the other from the psychological injury. The Member also made findings as to the respondent’s probable earnings but for the injuries, and in relation to the exercise of his discretion to reduce the award of weekly compensation in accordance with the former (pre-2012) s 40(1) of the 1987 Act, as it applied to the respondent. The appellant appealed.

The issues on appeal were whether the Member made an error of:

(a) mixed fact and law in that, in finding that the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries, the Member failed to properly engage and give weight to the opinion of Ms Kim Hadley, the worker’s long-term treating psychologist (Ground 1);

(b) mixed fact and law in that, in finding the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries, the Member did not at any stage find the worker’s physical injuries did not impact on him psychologically (Ground 2);

(c) mixed fact and law in that the Member failed to properly consider and give adequate reasons for his finding that whilst the physical injuries impacted upon the respondent’s psychological wellbeing, it was not determinative as to whether it caused a single incapacity (Ground 3);

(d) mixed fact and law in that the Member, by incorrectly assessing his task, failed to find:

(i) that there was an intertwining or intermingling of the physical and psychiatric injuries so as to create a single incapacity, and

(ii) that the respondent was not entitled to separate awards or payments pursuant to s 40 in respect of his orthopaedic and psychiatric injuries (Ground 4);

(e) mixed fact and law in that the Member failed to engage with the question as to whether the physical constraints upon the respondent had impacted upon his psychological state so as to cause a single incapacity (Ground 5);

(f) mixed fact and law in that the Member failed to engage with Ms Hadley’s notes and reports and found that that material does not go so far as to indicate the respondent’s psychological and physical injuries have led to one impairment (Ground 6);

(g) fact and law in that the Member overlooked, and accordingly failed to consider and give weight to Ms Hadley’s evidence on the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries (Ground 7);

(h) mixed fact and law in that the Member reversed the onus of proof in respect of the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries (Ground 8);

(i) mixed fact and law in that the Member has “raised the bar” in terms of the competence or faculty of a treating practitioner such as Ms Hadley to be decisive on the determination of a medico-legal issue in treating reports or clinical notes (Ground 9);

(j) mixed fact and law in that the Member has drawn a Jones v Dunkel inference from the absence of a report from the orthopaedic surgeon, Dr Haig (Ground 10), and

(k) mixed fact and law in that the Member has failed to exercise his discretion to reduce the award pursuant to the former section 40(1) of the 1987 Act (Ground 11).

Held: The Member’s Certificate of Determination dated 3 November 2022 was amended in part.

Grounds 1, 2, 6, 7 and 9

1. Grounds 1, 2, 6, 7 and 9 complained of error on the part of the Member in relation to the evidence of Ms Hadley. The errors were said to be that the Member either overlooked or failed to properly engage with and give weight to her evidence (Grounds 1, 2, 6 and 7), and that the Member ought to have been satisfied that her evidence was sufficient to establish that the respondent had only a single incapacity (Ground 9). The appellant submitted that the Member was required to explain why he did not consider that the physical injury impacted the psychological condition (Ground 2). The submissions made in respect of Grounds 2 and 7 in part also appeared to assert that the Member failed to give adequate reasons for not accepting that evidence. ([106])
2. Deputy President Wood found that the Member was alive to the point raised in the appellant’s submissions, the Member reviewed the evidence from Ms Hadley, referred to by the appellant, considered that evidence and reached a factual conclusion about that evidence. It could not be said that the Member overlooked the evidence or failed to properly engage with it. ([110])
3. The appellant asserted that the Member ought to have afforded weight to Ms Hadley’s evidence and that her evidence was sufficient to satisfy the Member that there was only a single incapacity. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker. ([111])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 applied)

4. The Deputy President stated that the Member gave cogent reasons for considering that the evidence of Ms Hadley fell short of establishing a single incapacity. That is, he considered that, while the evidence indicated that the respondent’s physical injuries may have impacted the respondent’s psychological condition, that did not extend so far as to say that it impacted the respondent’s incapacity in relation to his accepted psychological condition of post-traumatic stress disorder. The Member was required to determine, on the basis of the medical and other evidence, what the restrictions were in respect of the respondent’s ability to work because of his physical injury by looking at “the labour market in which the worker is working or may reasonably be expected to work or to look for work.” Wood DP held that the manner in which the Member dealt with the evidence was consistent with the relevant authorities and discloses no error. The appellant’s assertion that the Member gave “meagre scrutiny” of Ms Hadley’s evidence was not borne out. ([112])

   (Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied)

5. Although none of these grounds of appeal expressly complained of error on the Member’s part for not giving adequate reasons for failing to accept that Ms Hadley’s evidence was sufficient to establish there was a single incapacity, the submissions made in respect of Grounds 2 and 7 appeared to suggest such error. ([113])
6. The minimum standard that a decision of a Member of the Commission must reach in providing adequate reasons is defined by the duty imposed in the Commission’s statutory framework. Section 294(2) of the 1998 Act provides that a Member is to provide a brief statement setting out the Commission’s reasons for the determination. Rule 78(2) of the 2021 Rules requires the Member’s reasons to set out his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Member’s understanding of the applicable law, and the reasoning processes that led to the Member’s conclusions. Deputy President Wood held that the Member’s reasons satisfied these statutory provisions. Any assertion that the Member’s reasons were inadequate was not made out. It followed that Grounds 1, 2, 6, 7 and 9 did not disclose error on the Member’s part and failed. ([114]–[116])

Grounds 3, 4 and 5

7. Grounds 3, 4 and 5 concerned asserted errors on the part of the Member in relation to the Member’s finding that the respondent suffered from two separate incapacities, in that the Member failed to:

   (a)     engage with the question of whether the impact of the physical injuries on the respondent’s psychological condition caused a single incapacity (Ground 5);

   (b)     make a finding that the two injuries were intertwined or intermingled (Ground 4(i));

   (c)     make a finding that the respondent’s physical injuries did not impact upon the respondent psychologically (Ground 4(ii)), and

   (d)     consider and give adequate reasons as to why the impact of the physical injuries on the psychological condition was not sufficient to result in a single incapacity (Ground 3). ([117])

8. The appellant asserted that the Member ignored its submissions in relation to the application of Harrington v New South Wales Police Force [2015] NSWWCCPD 31 (Harrington). Deputy President Wood stated that the Member noted the submission in relation to Harrington and pointed to O’Grady DP’s observation that the causal nexus between an incapacity and a particular injury is a question of fact to be determined having regard to all the circumstances of the case. The Member proceeded to consider the facts and the evidence relied upon by the appellant in the case before him and drew a conclusion from that evidence. He was not required to arrive at the same finding as that made in Harrington, a decision which was decided on the basis of its own facts and circumstances. Although the Member did not adopt the expressions “intertwined” or “intermingled” (words adopted in various cases on this point), he clearly took into account the evidence from Ms Hadley as to the impact of the physical injury on the respondent’s psychological condition and the assessment of the respondent’s capacity to work. The Member identified that the respondent’s post-traumatic stress disorder prevented the respondent from working for the appellant, then proceeded to identify the evidence of the respondent’s physical incapacity. ([119])
9. The appellant contended that the Member did not provide adequate reasons for failing to deal with the “co-existence of the physical and psychological impairments”. The Member’s reasons adequately explained his conclusion. It followed that Grounds 3, 4 and 5 failed. ([120]–[121])

Ground 8

10. Ground 8 of the appeal asserted error on the part of the Member, expressed as “[a]n error of mixed fact and law in that the Member reversed the onus of proof in respect of the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries.” The appellant submitted that the respondent bore the onus of establishing that he suffered a single incapacity. It submitted that the Member’s observations about Ms Hadley’s evidence and the Member’s failure to deal with that evidence suggested that the Member considered that the appellant bore the onus of proving “two separate and discrete incapacities arising from his psychological and physical injuries.” The appellant said that the Member thus reversed the onus of proof. ([122]–[123])
11. The Deputy President stated that as the respondent submitted, the appellant’s submission did not support the asserted ground of error. The respondent did not bear the onus of proving a single incapacity, he was required to establish that he had two separate and distinct incapacities. There was nothing in the manner in which the Member weighed the evidence, drew inferences from that evidence and dealt with the parties’ submissions that would suggest  the Member thought that the appellant bore the onus of proving two separate incapacities. The Member noted that Ms Hadley did not provide an opinion in respect of the respondent’s incapacity flowing from the primary or secondary psychological injury. He also noted that there was an absence of evidence from the appellant as to the respondent’s physical incapacity. The consideration of that lack of evidence was appropriate. There was nothing helpful in the appellant’s submissions that might support this ground of appeal. The Deputy President concluded the Member did not reverse the onus of proof and the ground of appeal failed. ([124]–[125])

Ground 10

12. Ground 10 of the appeal complained of error by the Member in drawing a Jones v Dunkel inference in relation to the absence of the report of Dr Haig. The appellant submitted that Dr Haig was an orthopaedic surgeon and there was no dispute that the respondent had an incapacity because of his physical injuries. The appellant submitted that “[it] is simply not within [Dr Haig’s] competence to draw conclusions that are those for the Commission to make after a proper consideration of all circumstances and facts.” ([126])
13. In making an assessment of the respondent’s physical incapacity, the Member drew the inference that the failure to rely on the report of Dr Haig indicated that Dr Haig’s evidence would not have assisted the appellant’s case. The appellant asserted that Dr Haig’s opinion was irrelevant because he was not a psychiatrist. The Deputy President stated that it was curious as to how the Member was said to be in error in those circumstances. If the report was “irrelevant”, it would not have assisted the appellant’s case. In any event, the report of Dr Haig was available to the appellant and was not relied upon by the appellant. The inference was clearly available to the Member, and he correctly applied that principle. It followed that this ground failed. ([127]–[128])

Ground 11

14. The appellant asserted that the Member was in error by failing to exercise his discretion to reduce the award for the incapacity flowing from the physical injury. The appellant submitted that apart from the period from 18 June 2012 to 18 February 2013, the respondent’s entitlement should have been reduced, but the Member declined to do so because he was of the view that he was able to determine the amount by reference to the nature of the respondent’s incapacities. ([129])
15. Deputy President Wood held there was no error in the Member commencing the award from 25 November 2011. In respect of the complaint that, apart from the period from 18 June 2012 to 18 February 2013, the Member failed to exercise his discretion, the appellant referred to Member Sweeney’s decision in Stewart v State of NSW (NSW Police Force) [2021] NSWPIC 133 and submitted that the Member should have exercised his discretion to reduce the weekly award by not less than 75%. The appellant said that, additionally, for the period during which the respondent was unfit for work because of the injury suffered in the employ of the post-injury employer, the entitlement should be reduced by greater than 75%. ([135]–[136])
16. The Member applied his discretion to reduce the weekly compensation amount to $100 per week for the period from 25 November 2011 to 17 June 2012 because the respondent was certified partially fit for work but was not working. The respondent’s loss per week was recorded by the Member as $605.17 and not challenged on appeal. The amount by which the potential award was reduced was clearly greater than 75%, so the appellant identified no error in that calculation, and the assertion of error in respect of those periods was rejected. ([137])
17. In respect of the period from 19 February 2013, the Member declined to exercise his discretion to reduce the award. The appellant submitted that a Presidential member has wide powers to intervene in a discretionary decision extending to re-opening the matter for further consideration. The appellant cited no authority for that proposition and the proposition was contrary to s 352(5) of the 1998 Act. ([138]–[139])
18. Deputy President Wood concluded that the Member was not in error in declining to exercise his discretion in respect of the period of total incapacity. She did not accept that the award of compensation made by the Member should be reduced other than for the period that the respondent was totally unfit for his post-injury employment. That is, during the period from 6 November 2019 to 17 December 2019. The appellant submitted that the compensation payable should be reduced by 75% of that award. Accordingly, the Deputy President amended the Certificate of Determination to reduce the amount payable during the period from 6 November 2019 to 17 December 2019 to $168.77 per week. This appeal ground otherwise failed. ([146]–[148])

Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer [2023] NSWPICPD 72

WORKERS COMPENSATION – Application for an extension of time – s 352(4)(b) of the 1998 Act; Rule 133A of the 2021 Rules – whether a substantial injustice would result if leave was not granted – Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Gallo v Dawson [1990] HCA 30 considered and applied – acceptance of uncorroborated evidence – Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 applied – no requirement to accept the whole of the evidence of a witness – Chanaa v Zarour [2011] NSWCA 199 applied – decision-maker not required to accept unchallenged evidence – Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 applied

Wood DP

10 November 2023

Facts

This appeal concerned an application pursuant to s 145(3) of the 1987 Act brought by the appellant in respect of a notice issued by the Workers Compensation Nominal Insurer (the Nominal Insurer) under s 145(1) of the 1987 Act seeking reimbursement of workers compensation payments made to and in respect of Mr Thapa. Mr Thapa was paid compensation in respect of an injury that was alleged to have occurred on 16 October 2019. The appellant, who at the relevant time did not hold a workers compensation insurance policy, disputed that the injury occurred and disputed that he was liable to reimburse the Nominal Insurer.

A Principal Member of the Commission determined that Mr Thapa suffered an injury to his lumbar spine pursuant to s 4(b) of the 1987 Act, which was deemed to have occurred on 2 October 2019, and ordered the appellant to reimburse the Nominal Insurer. The appellant appealed.

The alleged errors on the appeal were:

(a) Ground 1; The Principal Member erred in law in accepting that Mr Thapa was injured on the dates alleged in that the Principal Member:

(i) afforded too little weight to the evidence that Mr Thapa could not remember the exact date of his injury and that Mr Thapa could not remember whether he took sick leave from 2 October 2019;

(ii) found in favour of Mr Thapa when there was no independent or corroborative evidence that Mr Thapa had informed the appellant of his injury;

(iii) failed to draw the appropriate inference from the fact that Mr Thapa’s evidence lacked clarity and was implausible and accepted the evidence of Mr Thapa when his credibility was in issue;

(iv) accepted the evidence from the hospitals in Nepal as to the dates upon which Mr Thapa was admitted when there was no way of ascertaining whether those documents were authentic;

(v) failed to take into account that the Nominal Insurer and Mr Thapa chose not to cross-examine Mr Bhardwaj (the appellant’s sole director);

(vi) failed to afford sufficient weight to the fact that Mr Thapa did not provide a statement to the Nominal Insurer, and

(b) Ground 2: The Principal Member erred in determining that the injury occurred in the course of Mr Thapa’s employment with the appellant.

Held: Leave to appeal the Principal Member’s Certificate of Determination dated 24 October 2022 pursuant to s 352(4)(b) of the 1998 Act was refused.

Ground 1(a)

1. The appellant asserted that the Principal Member erred in affording insufficient weight to the fact that the Mr Thapa could not recall the exact date of injury. The appellant submitted that it was difficult to ascertain the date of the alleged injury and the evidence should have been rejected. Deputy President Wood stated that in this case, the matter proceeded (without challenge from the appellant) on the basis that the injury asserted by Mr Thapa was a ‘disease’ injury as defined by s 4(b) of the 1987 Act. The Principal Member was therefore required to assess the evidence in order to ascertain the ‘deemed’ date of injury. ([101]–[102])
2. Applying the legislation, the Principal Member was required to determine the first date of Mr Thapa’s incapacity, which she clearly identified from the documents before her to be 2 October 2019. This was the day after Mr Thapa first sought treatment and first took sick or personal leave. It was not necessary for Mr Thapa to have recalled the exact date of injury, particularly where, as in this case, the “injury” referred to by the appellant was the date upon which Mr Thapa received the alleged final insult to his lumbar spine. That date could correctly be identified from the contemporaneous medical evidence and the payslips. In those circumstances, the fact that Mr Thapa could not recall the exact date was not material to the outcome and was not a sufficient basis upon which to reject Mr Thapa’s testimony. ([103])
3. Additionally, the fact that Mr Thapa could not remember whether he took sick leave from 2 October 2019 to 8 October 2019 was not material to the consideration of when the injury occurred. The evidence from the payslips confirmed that Mr Thapa took personal leave and Mr Bhardwaj’s evidence was that that leave was sick leave. It was on this basis that the Principal Member ascertained that the first date of incapacity was 2 October 2019. Thus, there was no error in the Principal Member’s reasoning. The appellant had not identified error of the kind required and this ground of appeal had no merit. ([104]–[105])

Ground 1(b)

4. The appellant asserted that the Principal Member erred in accepting that Mr Thapa suffered the injury when there was no corroborative evidence that he reported the injury to Mr Bhardwaj. The Deputy President stated that as Mr Thapa submitted, there is no principle of law that requires evidence to be corroborated before it can be accepted. ([106]–[107])

   (Woolworths Ltd v Warfe [2013] VSCA 22, and Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 applied)

5. In any event, Mr Thapa was correct in his submission that whether he was entitled to compensation was not dependent upon whether he informed the appellant of his injury. Whether Mr Thapa reported his injury as required by s 254 of the 1998 Act was not an issue raised in the proceedings. The appellant had not identified error on the part of the Principal Member and this ground of appeal lacked merit. ([108])

Ground 1(c)

6. The appellant asserted that the Principal Member failed to draw the “appropriate inference” from the fact that Mr Thapa’s evidence lacked credibility. Deputy President Wood held that the Principal Member considered the evidence referable to the alleged request for a loan. It was implicit in the Principal Member’s reasoning that she considered Mr Thapa’s evidence about that matter as unreliable. That, however, did not act as a bar to the Principal Member concluding that the balance of Mr Thapa’s evidence could be accepted. ([109]–[111])

   (Chanaa v Zarour [2011] NSWCA 199 applied)

7. It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. The Deputy President held that it was open to the Principal Member to accept Mr Thapa’s evidence which was rationally supported by the contemporaneous evidence, despite her having found parts of his evidence unreliable. It followed that the appellant had failed to identify error on the part of the Principal Member in accepting Mr Thapa as a credible witness and this ground of appeal had no merit. ([112]–[113])

   (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

Ground 1(d)

8. The appellant asserted that the Principal Member erred by accepting the evidence from the hospitals in Nepal because the authenticity of those documents had not been established. The appellant said that Mr Thapa’s evidence was that he underwent an MRI scan in Nepal on 6 November 2019 and was admitted to Sushwastha Hospital for 22 days, which evidence was inconsistent with the documents from that hospital. The appellant did not explain where the inconsistency lies. Deputy President Wood did not consider that the inconsistency between the number of days of hospitalisation was material in the context of establishing that Mr Thapa was injured as alleged. ([114]–[115])
9. The appellant further complained that there was no certification that the documents were authentic. The MRI scan results were recorded on the Tribhuvan University Teaching Hospital letterhead, bearing the “Institute of Medicine” insignia and the document was signed by Dr P Kayastha. It contained detailed medical terminology in respect of the results of the scan. There was nothing in that document that would lend suspicion as to its authenticity. Similarly, the Sushwastha Hospital discharge report and the hospital notes from both hospitals bore the letterhead of each hospital and were signed. There was nothing on the face of the documents to indicate that those documents lacked authenticity. The documents were admitted into evidence just as copies of any medical records are admitted in Commission proceedings. The assertion that the documents may lack authenticity was purely speculative. Wood DP concluded that the appellant had not established error of the kind described and there was no merit to this ground of appeal. ([116]–[117])

Ground 1(e)

10. The appellant contended that the Principal Member erred by failing to take into account the fact that both the Nominal Insurer and Mr Thapa elected not to cross-examine Mr Bhardwaj. Deputy President Wood held there is no rule of law that a court must accept unchallenged evidence. If the evidence that had not been the subject of cross-examination was inconsistent with other evidence, which the decision-maker had accepted, then it was open for the decision-maker to reject it. ([118]–[119])

    (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, and Masterton Homes Pty Ltd v Palm Assets Pty Ltd[2009] NSWCA 234 applied)

11. The appellant reiterated the complaint that Mr Thapa could not remember the exact date of injury. Wood DP held that the Principal Member considered and dealt with that inconsistency in Mr Thapa’s evidence and determined the date of injury in accordance with the legislation. It was difficult to see how cross-examination of Mr Bhardwaj would have affected the Principal Member’s conclusion in that regard. The Deputy President found that the appellant had not identified any error on the part of the Principal Member by her acceptance of the corroborated evidence from Mr Thapa in circumstances where Mr Bhardwaj was not cross-examined. There was no merit to this appeal ground. ([120]–[121])

Ground 1(f)

12. The appellant asserted that the Principal Member fell into error by failing to afford sufficient weight to the fact that Mr Thapa did not provide a statement to the Nominal Insurer and failed to take that into account when assessing Mr Thapa as a witness of truth. The appellant did not point to any reason why the absence of such a statement reflected badly on Mr Thapa’s credit or was otherwise of significance. Nor did the appellant explain how, as submitted by Mr Thapa, the absence of such a statement has affected the outcome of this case. The appellant’s submissions were rejected, and the ground of appeal lacked merit. ([122])

Ground 2

13. The appellant asserted that the Principal Member erred in finding that Mr Thapa suffered injury in the course of his employment when the appellant did not operate from the Warriewood store after 30 September 2019 and the Principal Member found the date of injury to be 2 October 2019. Deputy President Wood was of the view that the appellant’s allegation of error disclosed that the appellant did not comprehend the Principal Member’s finding and the legislation applicable to “disease” cases (ss 15 and 16 of the 1987 Act). The Principal Member was required to determine the deemed date of Mr Thapa’s injury by ascertaining the first date of Mr Thapa’s incapacity, which was 2 October 2019. ([123]–[124])
14. It was apparent from the evidence that Mr Thapa attended Mr Eddie Huang for treatment on 1 October 2019 and the history provided was of months of back pain, which worsened two days before the consultation. That evidence was sufficient to indicate that Mr Thapa’s symptoms and the worsening of those symptoms fell well within the period that Mr Thapa performed work for the appellant. That evidence was consistent with the histories recorded by the other treatment providers. The fact that Mr Thapa was employed by the appellant was evident from the appellant’s own evidence that Mr Thapa worked for him until February 2020, and that Mr Thapa took sick leave from 2 October 2019. As Mr Thapa submitted, Top Juice Pty Ltd indicated that Mr Thapa had not worked for that entity since 2018 and there was no evidence to suggest that Mr Thapa worked for anyone else, other than the appellant. The contemporaneous medical evidence made it abundantly clear that Mr Thapa was in the course of his employment when he suffered the injury. It followed that there was no merit to this ground of appeal. ([125]–[126])

Conclusion

15. As the appeal lacked merit, a refusal to grant leave to appeal would not result in a substantial injustice and leave was refused. ([127])

Coles Supermarkets Australia Pty Limited v Moyes [2023] NSWPICPD 73

WORKERS COMPENSATION – hearing loss – section 17 of the 1987 Act – whether worker’s employment was noisy – sections 254 and 261 of the 1998 Act

Parker SC ADP

13 November 2023

Facts

This appeal arose from a Certificate of Determination issued by a Member in which he found that the appellant was liable to pay the costs of and incidental to the provision of hearing aids.

The point before the Member and in the appeal was whether the Member was correct to conclude that the respondent’s employment with the appellant exposed her to noise of sufficient magnitude and duration as to occasion her industrial deafness requiring bilateral hearing aids to ameliorate the disability.

The employer appealed the Member’s decision.

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

(a) the appellant was denied procedural fairness when the Member refused to allow cross-examination of the respondent worker on evidence which was evidence that was ultimately accepted completely by the Member without being tested (Ground 1);

(b) the Member made findings of fact which were not open to him on the evidence and in doing so fell into error (Ground 2);

(c) the Member failed to apply the relevant test correctly and in doing so made an error of law (Ground 3);

(d) the Member failed to provide sufficient reasons with respect to the determination of the matter, and did not consider relevant evidence with respect to the critical aspects of the case (Ground 4);

(e) the Member failed to consider all available evidence in providing his determination (Ground 5), and

(f) the Member failed to determine s 254 and s 261 of the 1998 Act in accordance with the law (Ground 6).

Held: The Member’s Certificate of Determination dated 18 November 2022 was confirmed.

1. The Acting Deputy President observed that the ‘guiding principle’ embodied in s 42 of the 2020 Act seemed to have got lost in this matter. The amount involved was $5,910. This modest amount has involved a great deal of professional endeavour. ([3]–[5])

Ground 1

2. The appellant submitted that the application to cross-examine was intended to explore the nature of the work and locations where the respondent worker was working and the period during which the worker alleged that she had been exposed to a noisy environment. ([35])
3. Acting Deputy President Parker SC held that cross-examination in the Personal Injury Commission is by leave granted by the Member having regard to the statutory context in which the matter is determined. The exercise of a procedural discretion by the Member required to determine the matter at first instance is not easily overturned or reversed on appeal. ([45]–[46])

(Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 applied)

4. In response to the argument advanced by the appellant that the respondent’s solicitor had consented to cross-examination and not objected to cross-examination, whereas at the hearing counsel for the respondent worker did object, the Acting Deputy President stated:

   (a) there was no prejudice to the appellant by the reversal of the respondent’s position;

   (b) it did not appear to Parker SC ADP having regard to the transcript that the appellant informed the Member of the prior consent to the cross-examination by the worker’s representatives, and

   (c) it was in any event a matter for the Member’s discretion and that discretion could not have been fettered by the parties’ agreement or non-agreement. ([47])

5. The information relied upon by the Member, as his written decision made clear, was the entirety of the material advanced by the appellant and the respondent. It was correct that he made a determination before he had received the parties’ submissions, but the oral submissions as to the application for cross-examination were full and complete at the time he made that determination. Furthermore, given that the issue of cross-examination was prefatory to the final hearing, it was appropriate that short cursory reasons be given. The Acting Deputy President did not think that the Member was required to do more than the cursory expression of reasons provided in the transcript. In this context it was also appropriate to have regard to s 42(1) of the 2020 Act directing the Commission to proceed expeditiously and inexpensively to determine the real issues between the parties. ([48]–[49])
6. In relation to the complaint by the appellant that it was denied procedural fairness, in that it was not permitted to cross-examine the worker, Parker SC ADP held:

(a) The absence of cross-examination meant that the appellant was at liberty to assert that the respondent’s evidence was inconsistent, unreliable or otherwise should not be accepted, notwithstanding that these propositions had not been put to the worker in cross-examination. The rule in Browne v Dunn (1893) 6 R 67 did not apply in circumstances where the application for cross-examination has been denied. This is a considerable advantage because the witness is deprived of the opportunity to explain inconsistency and the like.

(b) The procedures in the Commission require the evidence to be disclosed in advance. This means that each party has an opportunity to answer, explain and/or contradict evidence to be relied upon against the party. The disclosure in advance of such evidence enhances the efficiency with which the parties and thus the Member can be directed to the matters truly in issue. Pre-hearing disclosure is intended to enhance the merit based determination of disputes before the Commission. ([51])

7. The Acting Deputy President was not persuaded that the appellant had demonstrated the Member erred in his discretion to refuse cross-examination of the respondent. Ground 1 was dismissed. ([52]–[53])

Ground 2

8. The appellant submitted that the Member incorrectly referred to the respondent worker as being employed by the appellant as an occupational therapist. This was said to be “factually incorrect” and that while “perhaps nothing falls” on this, the respondent’s role was “fundamentally entrenched within the workers compensation scheme”. The appellant submitted that the Member was in error in drawing the inference that because the plant room had hearing protection, this signified that there was a risk of hearing loss. The appellant submitted that conclusion “was not open to the Member to find” because “[t]he provision of hearing protection is not conclusive evidence that there was a risk of hearing damage.” The appellant submitted there was no evidence however as to how often the respondent worker went into a plant room, whether every day or week or once in her employment, nor the length of time that she spent in the actual plant room. ([54], [58]–[59])
9. The appellant’s first complaint with respect to this ground of appeal is that the Member’s statement at [1] (that the respondent was employed as an occupational therapist) was factually incorrect. The Acting Deputy President stated that the Member may have been confused, but as the appellant noted nothing fell on this. ([65]–[67])
10. The second ground of complaint was that there was no evidence for the conclusion that the respondent was ignorant of her rights to be derived from the legislation and the obligations imposed by it. As the Member correctly pointed out, although the respondent was aware of the gradual deterioration in her hearing, she was not aware of the connection between the deterioration of the hearing and the risk to her occasioned by the employment. ([68]–[70])
11. The respondent’s entitlement to compensation with respect to her loss of hearing depended on satisfaction of s 17 of the 1987 Act. The identification of injury in the form of a loss of hearing and the further determination of a potential to claim compensation from Coles required, at the very least, consideration as to the fact and degree of hearing loss; the cause of the hearing loss by exposure to noise; and the identification of the last noisy employer as Coles. It was not unreasonable to accept that even a knowledgeable injury management officer would not without professional assistance (both medical and legal) conclude that she had an entitlement to compensation under s 17 and thus an obligation to give notice under s 254 and s 261. ([72]–[73])
12. There was no evidence as to what the respondent may have known. The Member concluded that it was not until Dr Macarthur’s (qualified ear, nose and throat surgeon) report and the advice from the respondent’s solicitors that the respondent could be said to be aware of her right to claim compensation with respect to her deteriorating hearing. No error was demonstrated in the Member’s conclusion in this regard. The inference to be drawn from the provision of hearing protection with respect to the plant rooms was that as a conscientious employer, the appellant made available hearing protection because the noise level was likely to expose persons who entered the plant room to a risk of harm. The Member drew that inference which was open to him. A conclusion to the contrary would be difficult to support. Ground 2 was dismissed. ([74]–[77])

Ground 3

13. The appellant submitted that there was no evidence of the noise levels to which the respondent was exposed, the periods of that exposure or whether those two factors were sufficient to result in the employment being employment to the nature of which boilermaker’s deafness was due. ([78])
14. The Member found, relying upon the respondent’s statement, that her main role was to provide practical assistance for injured workers and that 50% of her time was spent in an office environment but that she was also required to travel to work sites, for example, distribution centres, to provide on the job assistance. The Member appeared to have accepted the description of her work experience given by the respondent. ([91]–[92])
15. On the evidence not in dispute, the respondent had bilateral sensori-neural hearing loss due to exposure to occupational noise in which the last noisy employment (indeed the only noisy employment) was with the appellant. The Acting Deputy President stated that doctors and medical witnesses as part of their daily practice hear and interpret histories and symptoms provided by their patients as part of their diagnostic and treatment processes. When the doctor undertakes such an interpretive process, the resulting medical opinion is expert evidence. It is not just lay evidence from the patient, though it is based in part on the history given by the patient. ([99]–[100])
16. Drs Macarthur and Howison (qualified by the appellant) interpreted the history given to them together with the other material to form their opinions. It was open to the Member to accept the respondent’s evidence and to combine that with the medical evidence to the effect that the respondent had noise induced bilateral sensori-neural hearing loss. In the Acting Deputy President’s view, the Member was not in error in his acceptance of the respondent’s evidence and the conclusions of the medical witnesses. The finding that the appellant was the last noisy employer for the purpose of s 17 of the 1987 Act based on that evidence was open to the Member and was not shown to be in error. Ground 3 was dismissed. ([100]–[102])

Ground 4

17. The appellant submitted that the Member did not expose his reasoning process with regard to the ultimate determination of the matter. Acting Deputy President Parker SC held that the Member exposed his reasons for the conclusion that the appellant was the last noisy employer in paragraphs [25]–[37] inclusive. In the Acting Deputy President’s view those reasons adequately:

    (a) exemplified to the parties what material he relied upon for the conclusion that the employment with the appellant was noisy employment;

    (b) enabled appellate review of the reasoning process, and

    (c) satisfied the requirements of s 294(2) of the 1998 Act and r 78(2) of the 2021 Rules for setting out the Commission’s reasons for determination. ([104], [110])

18. The appellant did not specify any piece of evidence or submission that it said the Member should have dealt with but did not deal with. It was apparent from the reasons that the Member accepted the respondent’s evidence and to the extent there was other evidence from the appellant inconsistent with the respondent’s evidence, that evidence was rejected. The Member in this matter did not find the respondent to have lied, much less to have committed perjury. The fact that her evidence may be contradicted by other evidence did not mean the witness was untruthful or dishonest, much less did it mean that the witness had perjured herself. Ground 4 was not made out and was dismissed. ([111]–[115])

Ground 5

19. The appellant submitted that the respondent did not adduce evidence of noise levels above 85dBA for 8 hours per day necessary, so it submitted, to “create a real risk of hearing loss”. Parker SC ADP was of the view that there is no requirement in s 17 for the worker to establish by precise measurement the level of noise to which she was exposed. If there were readings, doubtless the Member would be required to take them into account. The issue was whether or not she had noise induced hearing loss. That was a medical issue. Whether or not the respondent’s employment was a noisy employment by reason of the characteristics of that employment is an issue of fact which needs to be determined on the available evidence. The appellant’s submission that the real issue was whether the respondent’s hearing loss was sustained as a result of her employment with the appellant employer misstated the test. ([122]–[124])
20. The Member was satisfied that the employment with the appellant was noisy employment, that was to say, an employment the incidence and characteristics of which were such as to give rise to a risk of injury in the form of noise induced deafness. He was not required to form a view as to whether or not the particular employment with the appellant in fact caused the respondent’s industrial deafness. The evidence adduced by the appellant was far short of establishing that the respondent’s industrial deafness could not have been caused by her employment with the appellant. Ground 5 was dismissed. ([126]–[129])

Ground 6

21. The appellant submitted that there was simply no basis for the Member to make the findings of the connection between the respondent worker’s employment with the appellant and the deterioration in her hearing, particularly noting that the respondent worker ceased employment with the appellant in 2012 and did not make her claim until some 9 years later in 2021. The Acting Deputy President was unable to detect the gravamen of this ground of appeal. In any event, it seemed to him that much of what was complained of was addressed under the rubric of Ground 2 of the appeal when dealing with the conclusions expressed by the Member at [22] of the reasons. ([130]–[133])
22. The Member did not ignore the circumstances of the respondent’s employment. The Member plainly acknowledged the respondent’s qualifications but in the circumstances explained why, in his view, those qualifications and abilities were not such as to provide her with the requisite knowledge and awareness to engage the requirement to give the appellant notice. Acting Deputy President Parker SC was of the view that this ground of appeal had to be dismissed for the reasons in relation to Ground 2. ([135]–[136])

Woolstar Pty Ltd v Viapiana [2023] NSWPICPD 74

WORKERS COMPENSATION – Duty to give reasons – application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; causation – application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, expert evidence – application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; alleged constructive failure to exercise jurisdiction – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, Day v SAS Trustee Corporation [2021] NSWCA 71; Wang v State of New South Wales [2019] NSWCA 263

Snell DP

21 November 2023

Facts

The respondent worker was employed by the appellant employer as a storeperson at a Woolworths Distribution Centre. On 2 June 2006, she was picking product when a package of canned tuna became stuck on some rollers. As she attempted to free the package she suffered right shoulder pain, which she reported. She developed right sided neck symptoms that deteriorated with time. She came to shoulder surgery involving acromioplasty and subacromial decompression in September 2008. On 3 September 2009, the parties entered into a complying agreement providing for lump sum compensation of $15,500 in respect of 12 percent permanent impairment. The worker worked on, performing lighter duties, with the assistance of medication. The employer withdrew those duties in May 2014 and terminated the worker’s employment. The worker was paid ongoing weekly compensation.

The worker was assessed by Dr Burns, AMS, in the former Workers Compensation Commission, who in a MAC dated 21 July 2014 certified 14 percent whole person impairment, 7 percent in respect of the cervical spine and 8 percent in respect of the right upper extremity (shoulder). A Certificate of Determination was issued on 25 March 2015 providing for a further sum of $3,000 for the additional permanent impairment assessed.

The worker came under the care of Dr Coughlan, a neurosurgeon. He initially recommended conservative treatment of the ongoing neck pain, and later recommended that the worker have surgery, which he said would “improve her axial neck pain” and he felt there was a good prognosis. The employer disputed that the recommended surgery was reasonably necessary as a result of the work injury.

The Member found that the C6/7 anterior cervical decompression and fusion proposed by Dr Coughlan was reasonably necessary surgery as a result of the injury sustained by the worker in the course of her employment with the employer on 2 June 2006. The Member ordered that pursuant to s 60(5) and s 61(4A) of the 1987 Act, the employer was to pay for the costs of the C6/7 anterior cervical decompression and fusion proposed by Dr Coughlan, and expenses related to that surgery. The employer appealed.

The issues on appeal were whether the Member erred an error of law:

(a) in failing to provide adequate reasons for his findings (Ground 1), and

(b) by failing to provide the employer with procedural fairness by not dealing with the submissions made on its behalf (Ground 2).

Held: The Certificate of Determination dated 21 November 2022 was confirmed.

Ground 1

1. Deputy President Snell observed that it is not unusual for apparently minor injuries to develop into more serious conditions. ([48])

   (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied)

2. The employer’s challenge to the adequacy of the reasons was put on the basis that the Member did not specifically answer its arguments against acceptance of the worker’s case on causation. The employer’s submissions proceeded on the basis that explanation, consistent with those questions, was a necessary part of the Member’s reasoning if the causal question were to be answered in the worker’s favour. This was against a background, in the employer’s submissions at first instance, that there were various underlying difficulties in the worker’s case on causation. ([49])
3. After extensively reviewing the evidence, the Deputy President observed that the Member, after referring to the appropriate test on causation, accepted that the effects of the 2006 injury to the worker’s cervical spine continued. The Member explained the medical evidence that he accepted. He referred to his preference for the opinion of Dr Coughlan, the treating neurosurgeon over a number of years, which was also supported by Dr McKechnie (neurosurgeon qualified by the worker). He said that those clinical notes available, from May 2009 to November 2017, were consistent with continuing, significant neck pain since the work injury. The Member made a factual finding that the worker had “continued to suffer significant neck pain constantly since the work injury”. On the evidence overall Deputy President Snell accepted that this factual finding was open. There was not, in the Deputy President’s view, factual error within the meaning of s 352(5) of the 1998 Act. The Member’s reasons were adequate having regard to s 294 of the 1998 Act, the Rules and the relevant authorities. Ground 1 failed. ([66]–[67])

Ground 2

4. The employer disputed that the relevant surgery was reasonably necessary and that it resulted from the pleaded work injury. The causation argument was the one that dominated the running of the case and the appeal. On a fair reading of the transcript of the Member’s reasons, he was clearly aware of the employer’s case. The Member’s reasons summarised the employer’s submissions based on its medical case, including from doctors who did not support the worker’s position. He summarised the employer’s submissions regarding the allegedly “minor pathology” in and following 2006 and the reference in 2018 to significant collapse at C6/7. Deputy President Snell found there was no basis for concluding that the Member misunderstood the employer’s case on the issue. There were competing medical views. It could not be validly argued that the Member failed to address the central or critical elements of the dispute. The employer’s argument based on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (Dranichnikov) failed. ([77]–[81])

   (Dranichnikov applied)

5. In respect of the appellant’s argument based on Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 (Paric), the Deputy President stated that the rules of evidence do not apply in the Commission: s 43(2) of the 2020 Act. The ‘Guiding principles for applicable proceedings’ in r 73 of the 2021 Rules (in an earlier and substantially identical form) were described by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds) as “broadly reflect[ing] fundamental principles of the common law concerning the admissibility of evidence”. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 Beazley JA said “an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence”. In the context of the former Workers Compensation Commission, her Honour said that “[i]n the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight”. ([84])
6. The Deputy President did not accept that this argument fell within Ground 2. In the event that he was in error in this view, he dealt with the argument. Snell DP could see nowhere in the transcript where the employer challenged the weight to be given to the medical evidence in the worker’s case, on the basis of a lack of correlation between the facts assumed by the doctors and the facts as established. This was the subject matter of the decisions in Paric to which the employer referred. He could not see, in the employer’s submissions on appeal, where it specifically made such a point. In its submissions at [22], the employer submitted there was not a ‘fair climate’ for the acceptance of Dr Coughlan’s opinion. The Deputy President could not see that these comments adequately raised the principles in Paric. The Member could not have erred in not dealing with a matter that was not raised. It followed that this argument did not assist the employer. ([85])
7. The appellant’s submissions, after referring to the need for a ‘fair climate’, continued saying “[w]hilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere ‘ipse dixit’ (an assertion without proof) is required.” This submission was consistent with the reasons of McColl JA in Edmonds. Again, Snell DP could not see that this argument fell within Ground 2. ([86]–[89])
8. The Deputy President held that the matters set out by Dr Coughlan satisfied the requirements discussed by Beazley JA in Hancock. The Member’s findings on causation and the need for surgery were not, in any event, solely based on the reports of Dr Coughlan. The Member described Dr Coughlan’s views as being “supported by another neurosurgeon, Dr McKechnie”. The Member said Dr McKechnie accepted the disc pathology and that the proposed surgery was a “reasonably treatment option”. Dr McKechnie’s report also satisfied the requirements of expert evidence. It followed that even if one accepted that this argument fell within Ground 2, it would not assist the employer. Ground 2 failed. ([96]–[99])

Secretary, Department of Communities and Justice v Farrugia [2023] NSWPICPD 75

WORKERS COMPENSATION – Construction of clause 8C of the 2016 Regulation – meaning of “employment arrangement” in clause 8C – adequacy of reasons for an ex tempore decision

Perry ADP

28 November 2023

Facts

The respondent worker sought weekly payments of compensation for an injury she received on 4 May 2022 in the course of her employment with the appellant as a correctional officer. The appellant did not dispute this injury and had admitted liability to pay compensation under the 1987 Act. The dispute that arose concerned the rate of weekly compensation payable to the respondent. This involved a calculation of her pre-injury average weekly earnings (PIAWE).

The respondent’s employment was governed by the Crown Employees (Correctional Officers, Department of Justice – Corrective Services NSW) Award (serial 8629), (the Award). The Award provided, amongst other things, “for Correctional Officers who have completed twelve (12) months service on the 2nd year rate to progress to the rank of First Class Correctional Officer, subject to [certain] criteria”.

Up to on or about 28 March 2022, the respondent was classified as “Correctional Officer, Level 02”. That position carried a base rate of pay of $68,246. During the pay period 28 March 2022–10 April 2022, this classification changed, and she progressed from Correctional Officer, Level 02 to Correctional Officer, FST CLSS Level 01. The latter classification carried a base rate of pay of $72,077.

The respondent’s case to the Member was that her progression through these classifications enlivened cl 8C so that the relevant earning period of 52 weeks for calculating the PIAWE should be adjusted to exclude those weeks before that progression.

The appellant’s argument to the Member was that the alleged classification change did not constitute a relevant change of an ongoing nature to the employment arrangement (within the meaning of cl 8C) because there was an expectation under the Award that she would progress through the classifications after a certain period of service, with a resulting entitlement to a higher rate of pay. Therefore, there was a “normal expectation” that after a certain period of service, there would be an increase in her pay.

The issue before the Member was whether the classification change, from “Correctional Officer, Level 02” to “Correctional Officer, FST CLSS Level 01”, was “a change of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings of the worker” within the meaning of cl 8C.

The Member found in favour of the respondent, finding that the provisions of cl 8C of the 2016 Regulation “apply to circumstances where an award provides for a financially material change to the earnings of the worker”. The employer appealed that decision.

The issues on appeal were whether the Member:

(a) failed to give adequate reasons in determining that clause 8C applied (Ground 1), and

(b) erred in finding:

(i) The classification change from Correctional Officer, Level 02 to Correctional Officer, FST CLSS Level 01 constituted a change within the meaning of cl 8C (Ground 2(a)).

(ii) The Award was contractual or a contractual guarantee of a financially material change to the earnings of the respondent (Ground 2(b)).

Held: The Certificate of Determination dated 16 February 2023 was revoked. Upon redetermination, the Commission found that the change in the respondent’s employment classification under the Award from Correctional Officer, Level 02 to Correctional Officer, FST CLSS Level 01 did constitute a change of an ongoing nature to the employment arrangement resulting in a financially material change to her earnings within the meaning of clause 8C of the 2016 Regulation.

Discussion

1. Acting Deputy President Perry did not accept the appellant’s submission that the classification change did not constitute “a change of an ongoing nature to the employment arrangement” within the meaning of cl 8C. The text of cl 8C needs to be read with the context and purpose of the provision in mind. Sch 3, cl 2(3) of the 1987 Act authorises the primary “relevant earning period” of 52 weeks in Sch 3, cl 2(2) to be adjusted by extending or reducing that period. Clearly enough, it does so in an attempt to ensure the PIAWE calculation properly reflects what an injured worker would have been paid but for the injury and this is its purpose. This is not new. ([33]–[35])

   (Lismore City Council v Garland (1992) 26 NSWLR 542 discussed)

2. The appellant said the respondent’s employment was governed by the Award, the Award was the employment arrangement cl 8C referred to, thus the classification change was not a change to the arrangement. This argument was rejected. It ignored the change in the respondent’s position from a Level 1 Officer to an Officer First Class – except to say this was no change at all and not ongoing as it was “embedded in the Award” and or was to be expected. ([36])
3. The appellant had not explained how the interaction between the Award and cl 8C could practically or logically operate if it were read this way. For example, it would, in the Acting Deputy President’s opinion, still leave the problem of what to do with, or how to read, the words “a change ... to the employment arrangement resulting in a financially material change to the earnings ...” (emphasis added). It was implicit in the appellant’s argument that those emphasised words had no work to do if the relevant “employment arrangement”, or at least the one in this case, the Award, was the employment arrangement itself for the purposes of cl 8C. The penultimate ellipse omitted the words “of an ongoing nature” as Perry ADP did not see any basis for the appellant to say that any relevant change was not of an ongoing nature. The classification change was not, for example, in the nature of a one-off bonus, or earnings during a period where there was an unusual amount of overtime, or a depression in earnings due to a temporary illness or other circumstances where a worker was on temporary leave without pay. This was consistent with the example of a change from full-time to part-time work in cl 8C(1), because such a change qualifies for the adjustment, even though it is not difficult to envisage situations where there is a possibility of a change back to full-time work at some stage in the future. This does not mean there may not be many factual circumstances where the full clause needs to be considered in order to properly conduct the analysis. ([37]–[39])
4. In this case, the appellant’s focus appeared to be on whether “there was a change ... to the employment arrangement”. In the Acting Deputy President’s opinion, it was clear that if there was such a change, it was ongoing and also one which had resulted in a financially material change in the earnings. One question that arose was why, if the appellant’s position was right, does cl 8C(1) use the term “arrangement” rather than “contract” or “agreement” or “award”. In the Acting Deputy President’s opinion, this was because cl 8C contemplates its applicability to any specified or class of contract of employment, industrial agreement, award or other employment arrangement. ([40]–[41])
5. These terms are used elsewhere in the 1987 Act. Sections 49 and 50 relevantly provide for weekly compensation being payable despite having received holiday pay or “sick leave” under any “Act ... award or industrial agreement ... or contract of employment”. Similarly, s 87A authorises the regulations to prescribe additional or alternative compensation, including payments to workers or their dependants in respect of injuries or deaths under any specified or class of contract of employment, industrial agreement, award “or other arrangement”. These examples are not exclusive. ([42])
6. A more important question that arose was: even assuming the Award itself was the “employment arrangement” referred to in cl 8C, what did the appellant’s argument mean? The essential extent of the submission in that respect was that there could not have been a relevant change because the classification change was the employment arrangement. If this meant, for example, cl 8C had no work to do unless the Award itself was changed, another question arose of how that would work. If it meant cl 8C would only apply in this instance if there was a change, for example, to the salary rates payable under cl 6, or allowances under cl 7, of the Award, Perry ADP did not see how there would be a difference between such change and the change (“Progression and Promotion”) in cl 8 of the Award. The issue appeared to largely boil down to what “employment arrangement” meant. This required consideration of the text, context and purpose of the matter to be interpreted. ([43]–[44])
7. The statute authorising cl 8C, the 1987 Act, provides some assistance in the interpretation of it. Schedule 3, cl 2(3) relevantly provides “for the adjustment of the relevant earning period ... (a) to take into account any period of unpaid leave or other change in earnings circumstances in the employment ...” (emphasis added). The emphasised words are consistent with the statute contemplating regulations in many and varied situations where there is a change in earnings circumstances in the employment, and likely in a more general rather than limited way. ([45])
8. When cl 8C provides for an adjustment where “there was a change of an ongoing nature to the employment arrangement”, it is difficult to see how the legislative intention would be to limit the type of change – except of course in the way spelt out in Sch 3, cl 2(3)(a) (“earnings circumstances in the employment”) and in cl 8C (“of an ongoing nature to the employment arrangement resulting in a financially material change to the earnings”). ([46])
9. Making the appellant’s argument even harder to accept was the appearance of the cl 8C example. There was no hint that this operated in the context of an employment arrangement (whether it be a contract, award or other type of employment) only where the machinery to facilitate the change was not already part of the arrangement. There was also no explanation of how the appellant’s interpretation might be consistent with the statute and regulation. In the Acting Deputy President’s opinion, this interpretation attempted to create an artificial distinction between the employment arrangement itself and its constituent parts. It was a specious argument, and a distraction from what should be addressed: whether the respondent’s classification change “was a change of an ongoing nature to the employment arrangement” (emphasis added). ([47])
10. It was also difficult to see how the respondent’s earnings circumstances relevantly differed from the cl 8C example, particularly given the way the appellant had put its case: thus, if cl 8C did not apply in the respondent’s case, as there was no change to the employment arrangement because the change was the very nature of the arrangement, how can that be reconciled with the cl 8C example? The appellant had not addressed this either. ([48])
11. In other words, if a change from full-time to part-time work does constitute a change of an ongoing nature to the employment arrangement why would a change in a worker’s job classification, through progression and promotion, not also qualify? Clause 19 of the Award (“Permanent Part-Time”) contemplated arrangements being made to allow for part-time work, subject to those arrangements being acceptable to the employer and in compliance with the relevant legislation and policies. Perry ADP was of the opinion that there was no reason why there should be a difference. Of course, it does not matter whether an award or a contract is involved. It was not difficult to envisage a clause similar to cl 8 of the Award in an employment contract. ([49])
12. The appellant’s submissions, in relation to both grounds of appeal, also ignored the criteria the respondent needed to comply with before being progressed and promoted from the classification of Officer Level 02 to Officer First-Class Level 01. It may even be said that the terms of cl 8C make it unnecessary to show the circumstances underlying the change. It was unnecessary to determine that in this case. But the terms of the criteria were relevant here because they were further evidence confirming a change, and one that had resulted “in a financially material change to the earnings” of the respondent. ([50])
13. The criteria made clear, as the Member found, that “it cannot be said that the increase … the financially-material change is an automatic one …”. In Perry ADP’s opinion, the terms of the criteria were inconsistent with the appellant’s argument that “there could not have been a change to the ongoing nature of the employment arrangement because the classification change was the very nature of [it]”. This was a fallacy by circular reasoning. The Member’s reference to “automatic” was appropriate in circumstances where the appellant was submitting there was an “expectation” or a “normal expectation”. ([51])
14. This was also relevant to the appellant’s complaint of inadequate reasoning. The Member clearly regarded this as important in his reasoning, as he recorded in those reasons both the chapeau to the criteria as well as each criterion. His comment that it could not be said to be automatic may be pithy but that was appropriate in the circumstances. ([52])
15. Acting Deputy President Perry held that “employment arrangement” refers to the nature of the employment relationship, that is, whether it be, for example, by contract, award or other arrangement, and includes the various ingredients of the arrangement, which include other arrangements within the purview of that arrangement including, for example, terms or clauses or understandings (of contracts, agreements or awards or other arrangements). This is all limited to a “worker for work in any employment” (Sch 3, cl 2(1)). ([54])
16. As to Ground 2(b), the appellant’s characterisation of an industrial award, including the Award, as being relevantly different to a “contract or a contractual guarantee … as found by the Member” was incorrect. The bare reason or basis given for this statement is “an industrial award, like the subject Award, are legal documents that outline the minimum pay rates and conditions of employment”. It could be accepted that industrial awards do provide for minimum entitlements or standards, and that an employment contract may “guarantee” higher entitlements or standards. But that is not always the case or necessarily so. More importantly, it was beside the point of this case and was another distraction. There was no basis in the 1987 Act or cl 8C, or the evidence, for this submission. ([55])
17. Acting Deputy President Perry rejected the appellant’s argument that the Member erred in finding that the Award was contractual or a contractual guarantee that there will be a financially material change to the earnings of the worker. Ground 2(b) was rejected. ([59])
18. In relation to Ground 2(a), the passage at T12.14–25 of the Member’s decision concerned Perry ADP in the context of whether the classification change constituted “a change … to the employment arrangement …” limb of cl 8C. This, rather than the “financially material change” limb, was the appellant’s essential argument. This passage referred to “the term of the clause” as being “the financially-material change” – so omitting “change of an ongoing nature to the employment arrangement resulting in”. ([60])
19. It appeared that the Member may have understood that at least part of the appellant’s argument was that cl 8C did not apply to an award per se – in other words, there was a particular difficulty with the Award being applicable simply on the grounds that it was an award. It did not appear, on the Acting Deputy President’s reading of the transcript before the Member, that the appellant’s case was, at least necessarily, put that way. In any event, at a later and critically important juncture, the Member stated in conclusion: “I therefore find that the [respondent] is entitled to the increased amount by the amount of increase permitted by the award because it’s a financially-material change” (emphasis added). This finding was of concern because it was dispositive, and only related to part of the correct test in cl 8C, omitting the limb of the test which represented the appellant’s main argument (“a change of an ongoing nature to the employment arrangement ...”). The error was consequential as the above language had found its way into the Certificate of Determination, which appeared to be formulated as a type of general declaration about the applicability of an award. ([63]–[65])
20. Acting Deputy President Perry held that the Member erred in applying a wrong test and/or identifying a wrong issue. Ground 2(a) was upheld as there was error in the finding that the classification change did not constitute a change within the meaning of cl 8C, and the Member’s decision was revoked. ([66]–[68])

(Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 applied)

21. The Acting Deputy President, for completeness, dealt with Grounds 1 and 2(b), which failed. ([69]–[79])

Redetermination

Acting Deputy President Perry redetermined that the change in the respondent’s employment classification under the Award from Correctional Officer, Level 02 to Correctional Officer, FST CLSS Level 01 did constitute a change of an ongoing nature to the employment arrangement resulting in a financially material change to her earnings within the meaning of cl 8C. Liberty was given to the parties to apply in relation to any further dispute in the formulation of the rate(s) and or period(s) of weekly compensation. ([81]–[82], [87]–[88])

Port Marina Pty Ltd v McKinnon [2023] NSWPICPD 76

WORKERS COMPENSATION – section 60 of the 1987 Act – the worker slipped and fell onto her left side and ruptured a breast implant – whether the worker sustained an injury within the meaning of section 4 of the 1987 Act – May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 discussed and applied – whether the Member considered relevant evidence – adequacy of reasons

Phillips P

29 November 2023

Facts

The respondent worker commenced employment as a cleaner with the appellant in about February 2021.

Approximately 20 years prior to this employment, the respondent had undergone bilateral breast augmentation surgery. The respondent stated that she never experienced any trouble with the implants over the years up until the accident, which was the subject of these proceedings.

On 6 May 2021, whilst working for the appellant, the respondent was mopping a bathroom floor when she slipped on the wet floor. In her statement, she described landing heavily on her left breast and left side. The respondent attended upon her medical practitioners with an MRI subsequently confirming a capsular rupture in the left breast. The respondent’s claim for weekly compensation and surgery, to remove and replace the damaged breast implant, was denied by the appellant. The Member largely found in the respondent’s favour, ordering the appellant pay the respondent weekly compensation and the respondent’s s 60 expenses resulting from the injury to her left breast including the expenses of and incidental to the removal and replacement of the ruptured implant in her left breast. The employer appealed.

The issues on appeal were whether the Member:

(a) committed errors of either fact or law by making a critical finding of fact that was not based on the evidence (Ground 1);

(b) failed to consider relevant evidence (Ground 2);

(c) committed error of law in providing reasons that were neither rational nor logical (Ground 3), and

(d) erred at law in failing to give proper, or lawful, reasons concerning the determination of the question of injury (Ground 4).

Held: The Certificate of Determination dated 25 November 2022 was confirmed.

Some principles about the approach to medical and clinical records

1. The gravamen of the appellant’s complaints in this matter related to how the clinical notes ought be read and whether they provided support for the Member’s findings. The appellant said that the notes did not reveal any pathology or clinical findings of injury to the respondent’s left breast. ([65])
2. The President noted that the Courts have long said that such medical treatment records need to be approached with caution. They are not proof of evidence and they are created for an entirely separate purpose from litigation. ([66])

(Mason v Demasi [2009] NSWCA 227, and Nominal Defendant v Clancy [2007] NSWCA 349 applied)

Ground 1

3. The appellant complained that at three separate places in the decision (one at [70] of the reasons and two in [71] of the reasons), findings were made that were not supported by the evidence. ([78])

   Reasons [70]

4. The Member said at [70] of the reasons that there were observable and identifiable physiological changes to the breast which could be described as a soft tissue injury. Clearly the doctors received complaints of pain in the left breast and the scans subsequently revealed the ruptured implant. No doctor made a positive finding of soft tissue injury other than Dr de Torres (surgeon, qualified by the respondent). The appellant said that the opinion of Dr de Torres in his second report of 1 June 2022 was flawed because neither of the other two surgeons nor the GP found any evidence of bruising on examination. Dr de Torres was also seemingly criticised for conducting a video telehealth examination. It was not clear from the report whether this was true, the doctor in his first paragraph said he saw the respondent in his Sydney rooms on 31 January 2022 but later said “[o]n examination via video teleconference” and then related a number of findings. The President remarked that as at January 2022, the COVID-19 pandemic was still current and telehealth was a very common practice at that time for the conduct of medical examinations. His Honour took judicial notice of that fact. The implication from the appellant’s submission was that as a result of the examination possibly being by telehealth, it ought be accorded little or no weight although the submission was not advanced in those terms. ([79]–[81])
5. The President accepted that the Member had not expressed the findings at reasons [70] as carefully as might have been preferable, but for a member in a busy tribunal such a circumstance was understandable. There were two categories of medical evidence to deal with, the treating material which did not provide evidentiary support for the findings impugned in this ground, and the medico-legal evidence which did support the findings. It would have been helpful had the differences between the two categories been identified and reconciled. Assuming for argument’s sake that this was an error, namely that the finding was not supported by a proper view of the treating evidence, the finding was supported by the medico-legal evidence. The Member’s finding did have an evidentiary basis in Dr de Torres’ opinion, namely that there was physiological change in the form of bruising or inflammation which caused the implant to rupture. As a consequence, this error in dealing with the treating evidence did not affect the result. The President was satisfied that the real contest between the parties was addressed by the Member. This aspect of Ground 1 had not been established. ([83]–[84])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, and Roncevich v Repatriation Commission [2005] HCA 40 applied)

Reasons [71]

6. The appellant said that two of the findings made by the Member at [71] of the reasons were not supported by the evidence, and this submission was made on the same basis as the complaint about [70] of the reasons. The issue in [71] of the reasons was the same as [70], namely that there was not support for the findings in the treating medical evidence, but there was support in the medico-legal evidence. For the same reasons that the President dismissed the complaint of error in relation to [70] of the reasons, the complaint about reasons [71] also failed. Ground 1 was dismissed. ([85]–[86])

Ground 2

7. In this ground, the appellant argued that the Member failed to consider, or in fact misunderstood, relevant evidence. That evidence was identified firstly as Dr Wai’s (treating doctor) opinion which originally queried the existence of a soft tissue injury and then later excluded it. The appellant said the Member did not deal with this fact, having recorded at [67] of the reasons the initial entry in Dr Wai’s notes on 6 May 2021 which queried the soft tissue injury. Secondly, the appellant said that the Member did not address the opinion of Dr Hodge which was to the effect that there was no clinical finding of soft tissue injury. ([87])
8. In many respects this ground was a derivation of the argument appearing in Ground 1. The President accepted that the Member did not reconcile or deal with the two issues argued by the appellant in this ground. For the reasons set out in Ground 1, his Honour stated there was no support for the Member’s findings in the treating evidence. But not only was there such support in the evidence comprising Dr de Torres’ reports, but also such support could be found in the respondent’s evidence. ([90])
9. This ground invited the elevation of the clinical notes and treating doctors’ opinion as being determinative in the proof of ultimate fact, did the respondent suffer injury? The President stated that it is a matter for the tribunal of fact, considering all of the evidence, as to whether it is satisfied of the existence of injury. As was said in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (May), “[m]edical evidence or opinion will, of course, be relevant; but it may not be determinative.” ([91])
10. The President held that it was not incumbent upon the Member to refer to every fact or every argument. His Honour accepted the Member did not refer to the aspects of Dr Wai and Dr Hodge’s (treating surgeon) material referred to in this ground. ([92])

(Whisprun Pty Ltd v Dixon [2003] HCA 48 applied)

11. The appellant in this ground asserted that Dr Hodge was of the opinion “that there was no clinical finding that supported a soft tissue injury.” The President thought that the appellant’s submission did put Dr Hodge’s opinion too highly. His Honour did not read it as entirely discounting a soft tissue injury, noting “no significant findings” but accepted that Dr Hodge’s opinion could not be said to support a soft tissue injury diagnosis. A fair reading of that report revealed the purpose of seeing the doctor was to obtain advice about the respondent’s left breast pain. The doctor suggested removal and replacement of the implants and did not, to be fair, closely examine the entire question of whether there had been bruising or soft tissue injury which caused the implant to rupture. This simply was not addressed as that was not the purpose of the consultation. Dr Hodge’s opinion therefore provided no support for the appellant’s argument on the appeal. Given the contents of Dr Hodge’s report, it was not necessary for the Member to deal with it in terms. ([93])
12. The President did not read the medical opinions, especially that of Dr Hodge and that of Dr de Torres, as being in conflict. His Honour stated that for the reasons given in respect of Ground 1, the purpose of the treating doctors was providing the respondent with a diagnosis and further treatment recommendations. Whilst they did not record signs of bruising or soft tissue injury, that did not end the inquiry. They did not consider, as Dr de Torres considered, the role of inflammation or bruising in causing the “severe folding” of the breast implant. Dr de Torres was able to proffer his opinion based on the established or uncontested facts. Therefore the Member did not have to attempt to reconcile competing opinions. No error which was determinative in the result had been established and Ground 2 was dismissed. ([94]–[96])

Ground 3

13. This ground took issue with the Member’s findings with respect to soft tissue injuries and the fact that there was no support for this finding in the treating doctors’ records or reports. The appellant once more pointed to its complaints about how the Member did not deal with Dr Wai and Dr Hodge’s opinions, which were dealt with in Ground 2. The appellant said that the clinical picture presented by the treating doctors had not been addressed and as a result the decision was neither rational nor logical. ([97])
14. Essentially the submission in this ground asserted that the Member’s findings of soft tissue injury were not reasonably available to be made on the evidence. In many respects the argument in this ground was another derivation of that which had been advanced in Grounds 1 and 2. For the reasons the President gave in answer to those grounds, this ground too had to fail. ([102])
15. The appellant, as had been its approach generally on this appeal, had attempted to elevate the status of the records of the treating doctors as effectively being determinative in the outcome of this dispute. This approach ignored the evidence of the respondent herself and Dr de Torres. It also ignored the results of the scans (ultrasound and MRI) which confirm the implant rupture. Only Dr de Torres had provided a reasoned opinion as to the mechanism of this rupture being inflammation and bruising. Support for the Member’s reasons, albeit inelegantly expressed, could be found in these aspects of the evidence. In particular at [69] of the reasons, the Member recounted Dr de Torres’ opinion about the mechanism of the implant rupture, which formed part of the evidentiary basis for the Member’s findings. As a consequence, the argument in this ground that the decision was neither rational nor logical could be put aside. Ground 3 was dismissed. ([103]–[105])

(May applied)

Ground 4

16. The appellant submitted that the Member failed to provide proper, lawful reasons for the decision. The President noted that this ground was very similar to the preceding three grounds advanced by the appellant. His Honour did not read Dr de Torres’ opinion as confusing or necessarily in conflict with the treating opinions or notes. Indeed Dr de Torres was the only doctor who provided an opinion on the mechanism of the rupture of the breast implant. There was no conflict between this opinion and the treating doctors’ evidence. This question was simply not adverted to by the treating physicians. As a consequence, there was no conflict for the Member to resolve between competing opinions. Further the President did consider that it was correct to characterise Dr de Torres’ two reports as being in conflict. The second report addressed more directed questions than the first. ([106]–[109])
17. At [69] of the reasons, the Member examined this opinion, noting the answer to question two in Dr de Torres’ second report where the Member writes: “In his answer to the second question he explained how that rupture occurred – as a result of bruising causing the folding of the capsule which can lead to rupture.” The Member was entitled to accept this evidence. ([110])
18. His Honour held there was thus a basis for the findings made by the Member which was apparent from the decision. This was a decision on a factual matter which was within the Member’s province as the first instance decision-maker. There was a rational basis for the finding of soft tissue injury causing the implant rupture based on Dr de Torres’ evidence. This was thus within the fact-finding discretion of a first instance decision-maker – and this decision based on the evidence was not made in error. Ground 4 was dismissed. ([111]–[112])

Canterbury Bankstown City Council v Gazi (No 2) [2023] NSWPICPD 77

WORKERS COMPENSATION – Section 352(3) of the 1998 Act; application of Grimson v Integral Energy [2003] NSWWCCPD 29, Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23, NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, Popovic v Liverpool City Council [2017] NSWWCCPD 49

Snell DP

29 November 2023

Facts

The respondent worker was employed by Canterbury Council as a senior finance officer for approximately 30 years. On 12 May 2016 Canterbury Council and Bankstown Council amalgamated. The worker’s employment, along with that of other staff, was transferred to the newly created Canterbury Bankstown City Council (the employer). The worker went off work from the new amalgamated council from 14 August 2017. On 6 October 2017 the worker claimed compensation on the basis that she had sustained a psychological injury. The employer denied the occurrence of injury and also asserted a defence on the basis of s 11A of the 1987 Act.

The worker commenced proceedings in the former Workers Compensation Commission (matter no. 2970/18). An award was entered on 22 October 2018 by an Arbitrator in the worker’s favour. An appeal by the employer was determined by Phillips P. The Arbitrator’s finding that the worker was subjected to an excessive workload and suffered injury pursuant to s 4 of the 1987 Act was held to involve no error. The issue of the employer’s defence pursuant to s 11A of the 1987 Act was found to have involved error and was remitted to the same Arbitrator for re-determination. When the matter came before the Arbitrator for re-determination, on 11 June 2019, the proceedings were discontinued by consent.

The current proceedings (matter no. W3636/22) were commenced by lodgment of an Application to Resolve a Dispute (ARD) dated 9 June 2022. The worker pleaded a psychological injury on the basis of the ‘disease’ provisions with a deemed dated of injury of 14 August 2017. She claimed ongoing weekly compensation, together with medical, hospital or related expenses of $2,000 in respect of a Medicare Notice of Charge.

The worker additionally brought proceedings against the employer in matter no. W3755/22, in a Miscellaneous Application. This application sought reconsideration of the Arbitrator’s findings, at [131] and [138] of the reasons dated 22 October 2018 in matter no. 2970/18.

These two sets of proceedings were listed on 13 October 2022 before the Member who had previously (as an arbitrator of the former Workers Compensation Commission) dealt with the matter in 2018.

The Member dismissed the application in W3755/22 for a reconsideration of the findings made in the Certificate of Determination no. 2970/18.

In the course of the subsequent hearing, counsel for the worker advised that the worker was going to confine the claim in W3636/22 to a general order under s 60 and discontinue the weekly compensation claim.

The Member determined the worker sustained a psychological injury in the course of her employment with the employer and the employer had failed to establish a defence pursuant to s 11A of the 1987 Act. It was ordered the employer pay the worker’s reasonably necessary medical or related treatment for the psychological injury she sustained in the course of her employment with the employer on 14 August 2017 pursuant to s 60 of the 1987 Act. The employer appealed.

There was a preliminary issue on the appeal as to whether the monetary threshold pursuant to s 352(3) of the 1998 Act was met.

The appellant relied on the following grounds of appeal:

(a) error of law in either identifying or applying an incorrect test of causation to the question of whether the worker’s injury was wholly or predominantly caused by action in respect of transfer (Ground 1);

(b) the Member erred in law in failing to consider all of the relevant circumstances that were causative of the respondent worker’s injury (Ground 2);

(c) the Member erred in law in failing to give reasons for his conclusion that the worker’s injury resulted from increased workload alone from late June 2017 or alternatively failed to engage with the employer’s case in this respect (Ground 3), and

(d) error of law in failing to give sufficient reasons for his determination that the Council’s actions were not reasonable (Ground 4).

Held: The appeal did not satisfy the requirements of s 352(3) of the 1998 Act and could not be brought.

The issue regarding section 352(3) of the 1998 Act

1. The employer submitted the application was for weekly compensation from 28 August 2017 to date and continuing at the rate of $1,447.22 plus a general order pursuant to s 60 of the 1987 Act. It said the matter involved the re-determination of a remitter on appeal, where the monetary threshold had been met. Following the original decision on 28 October 2018, the worker was paid weekly compensation by way of arrears and was paid weekly compensation until the decision of the President dated 11 April 2019 (there being no stay on the weekly payments pending the appeal). It was argued that weekly payments to date, as a consequence of the initial decision of the Arbitrator (as he was at the time) exceeded $5,000. ([24])
2. The employer submitted that, in discontinuing the weekly claim during the course of submissions, for want of up-to-date evidence on incapacity, the worker “warehoused that part of her claim which has in no way been abandoned”. The employer submitted the decision on liability fixes the employer with liability for at least the sum awarded in the 2018 decision, which exceeded $5,000. It submitted s 352(3) was satisfied. ([25])
3. The worker submitted the monetary threshold in s 352(3) was not satisfied. She submitted the award against which the employer sought to appeal (the decision dated 10 January 2023) did not provide for an amount of at least $5,000 to be paid to the worker. It was a general order pursuant to s 60 of the 1987 Act. ([26])
4. Deputy President Snell stated that the proceedings in matter no. 2970/18 were those which were dealt with by the President on appeal, and in which an order for remitter was made in the President’s decision dated 11 April 2019. Those proceedings were then discontinued by consent, in their entirety, on 11 June 2019. ([32])
5. The current proceedings, matter no. W3636/22, were commenced by way of  ARD dated 9 June 2022. It claimed weekly compensation from 28 August 2017. It also claimed “Medical, Hospital or Related expenses” in the amount of $2,000 in respect of a “Medicare Notice of Charge”. During the running of the case the worker sought to amend to withdraw the weekly claim, and to restrict the order sought to a general order for the payment of medical expenses pursuant to s 60 of the 1987 Act. It was clear from the Member’s reasons at [17], and the content of the orders in the Certificate of Determination that the matter proceeded on the basis that the ARD was amended accordingly. ([33])
6. The sum initially claimed by way of medical expenses in the ARD in the current proceedings was $2,000, on account of a charge to the Health Insurance Commission, a sum less than $5,000. The claim was then amended to be one in respect of a general order pursuant to s 60. Such a claim, without more, did not represent an award of compensation that would satisfy the threshold in s 352(3) of the 1998 Act. The passage from Popovic v Liverpool City Council [2017] NSWWCCPD 49, at [25]–[28] makes it clear that reference should be had to the basis on which the claim was “run and decided”. The award for a general order pursuant to s 60 cannot satisfy the threshold in s 352(3) of the 1998 Act. ([34])
7. It followed that the threshold in s 352(3) of the 1998 Act was not satisfied and the appeal could not be brought. ([30]–[31], [35])

(Grimson v Integral Energy [2003] NSWWCCPD 29, Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23, NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63 applied)

8. In its submissions in reply, the employer sought an indication regarding whether an application by it, for reconsideration of the worker’s application to amend, could be reconsidered by Deputy President Snell, as a Presidential member. The Deputy President’s power to deal with a Presidential appeal was subject to the procedural limitations in s 352 of the 1998 Act. It is limited to the identification and correction of any error of fact, law or discretion within the meaning of subs (5) of s 352. It would be inappropriate for the Deputy President to express any opinion regarding the procedural options that may or may not be available to the employer in the circumstances. ([36])