Appeal Case Summaries

Randstad Pty Ltd v Vardareff [2023] NSWPICPD 78

WORKERS COMPENSATION – weekly compensation – Pre-injury average weekly earnings – short term workers – clauses 2 and 4 of Schedule 3 to the 1987 Act – clauses 8AB and 8F of the 2016 Regulation

Parker SC ADP

8 December 2023

Facts

The respondent worker sustained injury to the left shoulder and low back on 24 May 2021. At that time, he was working for the appellant as a labourer. The injury was sustained when he and a fellow worker were carrying a timber frame. The fellow worker lost control of the frame and the respondent was required to bear the whole weight of the frame.

The Member made a determination in the worker’s favour. She determined that the respondent had no current work capacity and had an entitlement to weekly compensation payable under s 37 of the 1987 Act, and the respondent had an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act.

The employer appealed, challenging the Member’s determination that the respondent’s PIAWE was $1,190 subject to indexation. The appellant submitted that the Member was required to apply cl 8F(2) of the 2016 Regulation.

The issues on appeal were whether the Member erred in:

(a) law in respect of the construction of clause 4 of Schedule 3 of the 1987 Act and cl 8F of the 2016 Regulation (Ground 1);

(b) fact in respect of the letter dated 8 September 2021 (Ground 2), and

(c) fact by taking into account some irrelevant matter, being the letter of 8 September 2021, and by giving insufficient weight to the evidence of earnings (Ground 3).

Held: The Member’s determination was revoked in part and a new determination was made substituting in order 1 for the figure $1,190 the figure $155.

Ground 1 and 3

1. The appellant submitted that the Member was in error in considering the word “agreement” where it appeared in cl 8F of the 2016 Regulation in isolation. The appellant argued that a proper consideration of the meaning of the word in cl 8F should have been informed by the context and purpose of the provision having regard to the immediately surrounding text and provisions. The appellant submitted that the letter of 8 September 2021 issued by it could not constitute an agreement. It argued that the Member erroneously placed emphasis on the correspondence for the purpose of assessing what the respondent could reasonably have been expected to have earned in employment, but for the injury, during the 52-week period after the injury. ([43])
2. Acting Deputy President Parker SC noted the Member held that there was no evidence of any contract of employment made before the date of injury, of any award relating to the respondent’s employment with the appellant, or of the average weekly amount earned during the 52 weeks before the respondent sustained his injury by other persons for the performance of similar work as the respondent. Those findings excluded clauses 8F(1)(a) and (b) to the extent of any award and cl 8F(2) as being relevant to determination of the respondent’s PIAWE. ([69])
3. The Member said that the correspondence of 8 September 2021 to the respondent from the appellant “confirmed calculation of his PIAWE at $1,190”. She said there was evidence of earnings received by the respondent during the 52-week period before he sustained injury on 24 May 2021. The latter finding, in the Acting Deputy President’s view satisfied cl 8F(1)(c). In cl 8F(1) the expression “the following matters are to be taken into account” is a mandatory direction that such of those matters (a) to (c) as apply “are to be taken into account”. ([70]–[71])
4. The operation of cl 8F required the Member to take into account the earnings received by the respondent during the period of 52 weeks before the injury “in determining the earnings that a worker could reasonably have been expected to have earned in employment for the purpose of clause 4(1) of Schedule 3 to the 1987 Act”. The Member concluded that the respondent received during that period $7,510.51. It seemed that on the basis of the operation of cl 8F(1)(c), the respondent’s PIAWE was relevantly $144.30 unless that calculation could be displaced by some other matter specified in cl 8F(1) or clause 2(4) of Schedule 3 of the 1987 Act. ([72])
5. The Member determined that her calculation of the respondent’s earnings during the 52-week period before the injury was displaced by her construction of the letter of 8 September 2021 which she found amounted to an ‘agreement’ for the purposes of Regulation 8F, in that it was evident from the correspondence that the appellant had previously advised the respondent under cover of correspondence dated 3 June 2021 (which was not in evidence) that his PIAWE was $1,190, which was not challenged by the respondent, and the respondent had been paid weekly compensation by the appellant under s 36 and s 37 of the 1987 Act until his claim was disputed. Parker SC ADP stated that the letter of 8 September 2021 did not, in his view, evidence any agreement between the appellant and the respondent. It merely recorded that on 3 June 2021 “Randstad Pty Limited advised” the respondent of his entitlement to weekly compensation and that the pre-injury average weekly earnings were $1,190. ([73]–[75])
6. The Acting Deputy President ultimately found that the text of the letter simply did not support the conclusion by the Member that the “correspondence amounts to an ‘agreement’ for the purpose of Regulation (8F(1)(b))”. Parker SC ADP was of the view that cl 8F(1)(c) applied so that subject to Clause 2(4) of the Schedule, the PIAWE was $144.43. However, because the PIAWE calculated under clause 8F was less than the minimum amount prescribed by cl 8AB, Clause 2(4) of Schedule 3 applied and the PIAWE was taken to be the prescribed minimum amount of $155. Grounds 1 and 3 succeeded. ([76]–[80])

Ground 2

7. The appellant submitted that the Member made an error of fact in concluding that the letter of 8 September 2021 was an agreement relating (or relevant) to employment for the purpose of cl 8F(1)(b) of the 2016 Regulation. ([81]–[86])
8. The Member rejected the submission that the letter of 8 September 2021 was written in the appellant’s capacity as a self-insurer rather than in its capacity as an employer. She said as the ABN for Randstad reflected in this correspondence was the same as that reflected in the respondent’s pay or in his income tax returns, she was of the same view that this correspondence was forwarded to the respondent by Randstad in Randstad’s capacity as the employer. ([91])
9. Acting Deputy President Parker SC found that this was self-evidently correct. He did not see how it could be said that a self-insurer under Div 5 of Pt 7 of the 1987 Act could purport to act in different capacities. What it does, it does on behalf of that corporate entity which is both the employer and the licence holder with respect to self-insurance. ([92])
10. The Acting Deputy President noted he had found that the Member’s interpretation of the letter of 8 September 2021 as containing a relevant agreement was in error. However, the Member was not in error in her characterisation of the letter as being issued by the appellant in its capacity as an employer. In Parker SC ADP’s view, the appellant was both the respondent’s employer and a self-insurer. Ground 2 of the appeal was not made out. ([93]–[94])

Chubb Fire & Security Pty Ltd v Trad [2023] NSWPICPD 79

WORKERS COMPENSATION – approach to evidence and pleadings – guiding principles and practice and procedure – sections 42 and 43 of the 2020 Act – rule 73 of the 2021 Rules – Commission is not bound by strict pleadings – Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2; The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 applied

Phillips P

13 December 2023

Facts

The respondent worker commenced employment with the appellant on 1 May 2006 as a Portable Service Technician and worked continuously in that role up until his injury on 20 January 2022. On that date, whilst in the course of his employment with the appellant, the respondent was walking across the carpark area at Mount Druitt Hospital to service a parked bus, when he suffered injury to his left knee/left leg. He attended the emergency department at Mount Druitt Hospital and after being discharged, later attended upon his general practitioner and was referred for an MRI scan of his injured left knee and leg. The MRI revealed a vertical tear of the medial meniscus and moderate osteoarthritic changes in the left knee.

The respondent made a claim for compensation which was rejected by the appellant. Liability was disputed pursuant to ss 4, 9A, 33 and 60 of the 1987 Act on the basis that the injury sustained while walking through the carpark could have occurred anywhere, at any time, and thus, employment was not a substantial contributing factor. The respondent brought proceedings in the Commission seeking weekly compensation and an order for the payment of his expenses under s 60 of the 1987 Act.

The Member found in favour of the respondent. The Member held that employment was a substantial contributing factor to the injury, being employment which required him to walk across an uneven surface through the carpark of the hospital in the course of his duties. The employer appealed.

The appellant relied on the following three grounds of appeal:

(a) the Member erred by determining the matter in favour of the worker in light of a finding that the worker’s pleaded case (a fall into a ditch or pothole) could not be accepted (Ground 1);

(b) having continued to consider the case after the finding rejecting the worker’s pleaded case and evidence, erred by failing to determine the actual mechanism of injury (Ground 2), and

(c) having made the previous two errors, compounded them by finding that employment was a ‘substantial contributing factor’ in spite of the worker’s pleaded case describing a different mechanism of injury, and in spite of the Member finding that the worker’s medical evidence did not address the features relevant to the actual determined cause of the fall (Ground 3).

Held: The Certificate of Determination dated 24 January 2023 was confirmed.

Some principles applying to appeals in the commission and matters of pleading, practice and procedure

1. Given the way that the appellant had framed this appeal, it was necessary for the President to set out some relevant appeal principles and discuss the function of pleadings in the Commission. Intervention on appeal is dependent upon the appellant establishing that the Member’s decision is attended upon by error of fact, law or discretion. The seminal treatise on how this power is to be exercised is found in Raulston v Toll Pty Limited [2011] NSWWCCPD 25. In practice, this means that factual findings made by a member at first instance stand unless they can be shown to be wrong. Findings of fact will not be disturbed on appeal if they have rational support in the evidence. This approach to appeals does not exist in isolation from the practice, procedure and the statutory mandate under the 2020 Act under which the Commission operates. The Commission is required under s 3(c) the 2020 Act to resolve the “real issues” in dispute “justly, quickly, cost effectively and with as little formality as possible”. This object is repeated in the guiding principle, and practitioners are obligated to give effect to the application of the guiding principle under s 42. ([41]–[43])

   (Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

2. The Commission is not a body where a strict approach to pleadings is required. Pleadings do need to be sufficient to satisfy the requirements of procedural fairness and to alert one’s opponent as to the nature of the case being brought. The Commission’s practice and procedure is sufficiently flexible so as to promote and enable the statutory mandate found in ss 3 and 43 of the 2020 Act. Under s 43(2) of the 2020 Act, the Commission is not bound by the rules of evidence and may “inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.” How this may be done is found in r 73 of the 2021 Rules. In many respects r 73 codifies the long-standing approach to tribunals or commissions and other situations where the rules of evidence do not apply. ([47]–[49])

Ground 1

3. The appellant argued that the factual case actually brought and pleaded by the respondent was rejected by the Member, namely that the respondent has suffered injury as a result of stepping into a ditch. The President stated that for the appellant to make good this ground, his Honour had to effectively accept that the respondent was bound by the way the case had been pleaded. The error asserted against the Member was that “she decided the case on any other basis than that which was pleaded or supported by the worker in evidence.” Notwithstanding the appellant’s acceptance in its submissions in reply that the Commission is not a jurisdiction of “strict pleadings”, the net effect of the appellant’s arguments in this ground was contrary to this principle. ([50], [64]–[65])

   (Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2 applied)

4. His Honour accepted, as was submitted by the appellant, that the claim was framed in the manner alleged. Namely that the respondent asserted that while walking across the carpark he injured himself by stepping into a pothole or ditch. But as was evident from what transpired at the hearing, this was not the way the evidence ultimately unfolded before the Member. The submission was made by counsel for the respondent which framed the case differently in light of the evidence adduced at the hearing. The case was still about the respondent walking across the carpark and suffering injury, the contest was within that ambit but somewhat narrower, namely what happened to cause that injury? This was the “real issue” in contest between the parties, as contemplated in s 42(1) of the 2020 Act, as was the application of s 9A of the 1987 Act to the facts as found. ([66])
5. The President commented that at no time during the hearing did the appellant argue that it was caught by surprise, or that the case it was called upon to meet had changed to its disadvantage (in the sense referred to in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 (Bott). The suggestion was that the appellant was not on notice of the case it was to meet. This assertion had not been established nor was it a point taken before the Member. ([67])
6. The Commission’s practice and procedure is attended upon by great flexibility, subject always to observing the rules of procedural fairness (ss 3 and 42 of the 2020 Act; r 73 of the 2021 Rules; Bott). The terms of s 43(3) of the 2020 Act were of particular resonance in the consideration of this appeal ground, which would set this provision at nought and impose a highly technical regime binding a party to its pleading. The President declined to accept the appellant’s submission as to the binding effect of a pleading in this jurisdiction. ([68])
7. His Honour found that the factual findings made by the Member at [110], [111], and [115] of the reasons were available to be made by the Member upon a dispassionate examination of the evidence. There was rational support in the evidence for these findings. The President did not read the appellant’s submission in this ground as cavilling with the factual findings themselves, rather the complaint related to how these findings departed from the case as pleaded. The Member was not in error to decide the matter on a basis slightly different to the manner in which the claim had been pleaded. Rather, the Member acted in accordance with the Commission’s statutory mandate to resolve the real issues in dispute “without regard to the technicalities or legal form”. It was the Member’s duty to decide the real issues. The President noted no complaint of a want of procedural fairness was made. This ground could not be sustained and was dismissed. ([69]–[72])

Ground 2

8. The appellant argued that the Member, having rejected the respondent’s evidence that he suffered injury when he stepped into a pothole or ditch, was then obliged to find what the mechanism of injury actually was. ([73])
9. The President noted that the approach in this ground was that injury was not in dispute. The real dispute was whether the respondent could satisfy the provisions of s 9A of the 1987 Act. His Honour noted this ground, as expressed by the appellant, also built on the appellant’s arguments in Ground 1, which the President had dismissed. ([80])
10. The appellant made a very specific complaint in this ground namely that the Member failed to make a finding as to how the injury occurred. It was trite to say that a decision must be read as a whole. It is also the approach that on appeal, one should “avoid overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addresses the ‘real issue’ presented by the contest between the parties.” It is not the function of a Presidential Member to comb through the decision in search of error. His Honour also noted that the obligation to give reasons has to be considered in light of the issues raised for consideration by the parties. ([81])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 , and Brambles Industries Ltd v Bell [2010] NSWCA 162 applied)

11. The President stated that a fair reading of the Member’s reasons revealed that the Member had found that the injury was caused by the respondent walking over rough or rocky terrain in the carpark while carrying work equipment. His Honour accepted that the finding of the mechanism of injury was not expressed in the succinct terms. But the fact was if one read the decision fairly, without attempting a minute examination to elicit error and it was read as a whole, that was the finding of the mechanism of the injury. The error alleged in this ground had not been established and Ground 2 was dismissed. ([85]–[87])

Ground 3

12. The gravamen of the appellant’s complaint in this ground was that the Member’s findings of the involvement of the rough, rocky surface and carrying the work equipment was not support by the medical evidence. This, it was said was an error. ([93]–[95])

    (May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93 (May) discussed and applied)

13. The Member referred to a number of authorities at [89]–[91] of the reasons which were also to the same effect as May at [212], namely that the assessment (under s 9A) is not a purely medical determination. Rather, the approach is to consider all of the evidence. This is not surprising when one considers the statutory mandate under which the Commission operates. Section 43 of the 2020 Act governs the approach, along with the requirements to observe procedural fairness. ([96])
14. The appellant’s argument fundamentally misconstrued the Member’s functions and said, in effect, that the approach taken in the mainstream courts ought be applied. This was incorrect in principle. The Member’s duty was to consider the entirety of the evidence and consider whether it provided her with a satisfactory basis to make findings within the context of how the Commission operates within its statutory mandate. It was not an error for the Member to proceed as she did, rather the approach was consistent with the approach to fact finding and decision making in the Commission. There was no need for the ultimate findings to be supported by medical evidence if there was support elsewhere in the evidence. The factual findings and observations made by the Member, which were not supported by medical evidence, were themselves not subject to any challenge on appeal. These observations and findings were available to be made on the evidence without error. Ground 3 was dismissed. ([97]–[99])

Barden v Walgett Shire Council [2023] NSWPICPD 80

WORKERS COMPENSATION – acceptance and rejection of evidence – inconsistent reasoning constituting error – denial of procedural fairness by failing to afford a party the opportunity to make submissions before evidence rejected

Wood DP

14 December 2023

Facts

This appeal concerned a determination made by a Member in respect of weekly payments entitlements for an injured worker, Mr Barden (the appellant) who was employed by the respondent as an urban maintenance worker. The appellant brought proceedings in the Commission asserting that he had suffered a psychological injury in the course of his employment for which he was entitled to weekly payments and treatment expenses pursuant to s 60 of the 1987 Act. The respondent disputed the injury and contended that any injury suffered by the appellant resulted wholly or predominantly from reasonable action taken by the respondent with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the 1987 Act . The respondent further disputed that the appellant was incapacitated for work as a result of any injury.

The Member determined that the appellant was injured as alleged and that the respondent had not satisfied its onus in establishing that the injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of the actions relied upon. The Member ordered the respondent to pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act and awarded the appellant weekly payments of compensation from 14 April 2021 to 17 September 2021. He entered an award for the respondent in respect of the weekly payments claim for the period beyond 17 September 2021 because he was not satisfied that there was sufficient evidence before him to support a claim for incapacity after that date.

The respondent appealed the Member’s decision in respect of the finding that the injury was not wholly or predominantly caused by reasonable action taken by the respondent (appeal no A2-W585/22). Deputy President Wood issued a decision in relation to that appeal – Walgett Shire Council v Barden [2023] NSWPICPD 81 – in which she confirmed the Member’s Certificate of Determination in relation to the issues pertaining to injury and s 11A of the 1987 Act.

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

(a) having rejected Dr Bertucen’s opinion on incapacity, the Member erred in law in giving it consideration in his assessment of the evidence of Dr White and Dr Chow (Ground 1);

(b) the Member erred in affording no weight to the appellant’s medical certification dated 19 April 2022 provided by Dr White (Ground 2);

(c) the Member erred in asking himself why the appellant did not see a different doctor during that period, in order to obtain certificates of capacity if he was in fact incapacitated (Ground 3);

(d) having asked himself why the appellant did not see another doctor, the Member erred in failing to answer the question (Ground 4);

(e) having found that the appellant was a truthful witness, the Member erred in failing to take account of his own evidence as to capacity (Ground 5), and

(f) the Member erred in law in failing to afford the appellant procedural fairness (Ground 6).

Held: The Certificate of Determination was revoked in part and the matter was remitted to another non-presidential member for re-determination.

Ground 1

1. Deputy President Wood stated that the Member did not explicitly accept the opinion of Dr Bertucen that the appellant was fully fit for any work, whether with the respondent or in alternate employment. The Member reviewed the medical evidence provided by Dr White and accepted his opinion as to the appellant’s incapacity up until 17 September 2021. He observed that he was thereafter unassisted by the subsequent certificate of capacity because of the various concerns he raised about that evidence. The Member observed that Dr Bertucen’s opinion would have carried more weight if the doctor had appreciated that the appellant’s pre-injury duties would involve interaction with his supervisor and the director, with whom he had difficult interactions.([50]–[51])
2. The Deputy President stated that it was implicit from the reasons that the Member, having preferred the evidence of Dr White over that of Dr Bertucen, rejected the opinion that the appellant was fully fit for work when considering the issue of capacity for work up to 17 September 2021. The Member then rejected the appellant’s evidence as to the appellant’s capacity beyond 17 September 2021 and, by expecting that Dr White and Dr Chow were required to counter Dr Bertucen’s opinion, implicitly took Dr Bertucen’s opinion into account when making that assessment. ([53])
3. The respondent contended that it was open to the Member to reject some of the evidence provided by an expert witness but accept other parts of the expert’s opinion. That proposition was undoubtedly correct, however in this case, the Member rejected Dr Bertucen’s opinion that the appellant had made a conscious decision not to work because Dr Bertucen did not have a correct history of the appellant’s difficulties with his supervisor and the appellant’s director. The Member then took that opinion into account when assessing the weight to be afforded to the evidence of Dr White in the back-dated certificate of capacity and the evidence of Dr Chow, who assessed the appellant on 29 September 2021. While the Member ultimately concluded that the appellant had not discharged his onus of proving an incapacity, he did so by assessing the appellant’s medical evidence against that of Dr Bertucen, which he had not earlier accepted. That approach disclosed an inconsistency in the Member’s reasoning and constituted error in the process of determining the issue of the appellant’s capacity for work. ([54]–[55])

Ground 6

4. The appellant asserted error on the part of the Member by finding that there had been a change in the appellant’s work capacity in the context of there being no evidence to that effect, the appellant was not cross-examined about having recovered from the effects of the injury, and was not asked to submit about that issue. He asserted that he was caught by surprise by the finding. The appellant also submitted that the Member, having raised the query as to why the appellant did not consult a different doctor in the absence of Dr White, ought to have given his counsel the opportunity to make submissions on the existing evidence in answer to the query and the appellant ought to have been asked about it when he was giving oral evidence. ([56])
5. The Member did not find that the appellant did not seek treatment while Dr White was away, and that was not the appellant’s evidence. The appellant’s evidence was that he continued to consult his treatment providers and his symptoms had not changed. The Member referred to that evidence when assessing the appellant’s medical case for the period from 18 September 2021. The Member found it adverse to the appellant’s claim that that there was no further acceptable evidence from Dr White in circumstances where the appellant’s evidence was that he continued to consult that doctor. ([58])
6. The Deputy President stated that the more compelling complaint from the appellant was that he was surprised by the Member’s reasons for rejecting Dr White’s evidence in the form of the certificate of capacity dated 19 April 2022 and should have been afforded the opportunity to address the Member’s concerns about that evidence. The requirement to afford procedural fairness to a party does not require the Member to provide a running commentary of his thinking process. However, the affected party has a right to have their mind directed to a critical issue or factor upon which the decision is likely to turn in order to deal with it where the adverse conclusion drawn was not an obvious or natural evaluation of the material. ([59])

(Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 applied)

7. Deputy President Wood did not consider it obvious or a natural evaluation of the certificate of capacity that the Member would reject the certificate of capacity for the reasons given. The respondent’s submissions to the Member about the certificate were limited to comments that the certificate was back-dated, that there was a lack of certification for some periods, and that the Member ought to prefer the respondent’s medical evidence. The Member’s rejection of the evidence of the certificate of capacity was critical to the outcome of the appellant’s case and the reasons given for rejecting that evidence were matters that could potentially have been explained, had the appellant been given the opportunity to do so. ([60]–[61])
8. The Deputy President was satisfied that the appellant was denied procedural fairness and that the Member erred in failing to provide the appellant with that opportunity. It followed that the Member erred in his determination of the appellant’s entitlement to weekly compensation. It was not necessary for the Deputy President to deal with the other grounds of appeal. It was appropriate in the circumstances that the matter be remitted for re-determination by a different non-presidential member. ([62]–[63])

Walgett Shire Council v Barden [2023] NSWPICPD 81

WORKERS COMPENSATION – Section 352(6) of the 1998 Act – fresh or additional evidence – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – section 11A of the 1987 Act – where there is insufficient acceptable medical evidence to establish that the injury was wholly or predominantly caused by reasonable action by the employer in respect to discipline or termination of employment – onus rests upon the employer – Commissioner of Police v Minahan [2003] NSWCA 239

Wood DP

14 December 2023

Facts

Mr Barden (the respondent) was employed by Walgett Shire Council (the appellant) as an urban maintenance worker, operating from the Collarenebri depot.

The respondent alleged that, as a result of a number of events occurring in the course of his employment, he suffered a psychological injury. He ceased work on 12 April 2021 and lodged a claim for weekly payments and treatment expenses from that date, claiming that he had been bullied, harassed and unsupported by the appellant. The claim was denied on the basis he did not suffer an injury as alleged, his employment was not a substantial contributing factor to any injury, or, if the injury was a disease, it was not contracted in the course of the respondent’s employment, and the employment was not the main contributing factor to the disease. Liability was further disputed on the basis that, if there was an injury, it resulted wholly or predominantly from reasonable action taken by the appellant with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the 1987 Act. It was also asserted that the respondent was not incapacitated for work and that any treatment expenses incurred by the respondent were not reasonably necessary as a result of a compensable psychological injury.

The Member determined that the respondent had suffered a “disease injury” within the meaning of s 4(b) of the 1987 Act and the respondent’s employment was the main contributing factor to the injury. He further determined that the injury was not wholly or predominantly caused by reasonable action taken by the appellant in respect of the actions relied upon. The Member ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act and awarded the respondent weekly payments of compensation from 14 April 2021 to 17 September 2021. He entered an award for the appellant in respect of the weekly payments claim for the period beyond 17 September 2021 because he was not satisfied that there was sufficient evidence before him to support a claim for incapacity after that date. Both parties appealed.

This decision by Deputy President Wood was the determination of the employer’s appeal.

The respondent in this appeal (the worker) appealed the Member’s determination in respect of the award in favour of the appellant relating to his claim for weekly compensation for the period after 17 September 2021 (matter number A1-W585/22). The worker’s appeal was determined in Barden v Walgett Shire Council [2023] NSWPICPD 80.

In this appeal, the employer relied upon the following grounds of appeal:

(a) Ground 1: the Member erred in fact and at law by misdirecting himself and finding that the predominant cause of the respondent’s condition was limited to “the events that occurred between 18 March 2021 and 14 April 2021” and in so doing, failed to provide adequate reasons;

(b) Ground 2: the Member erred by failing to adequately consider or provide reasons responding to:

(i) the appellant’s submission that the respondent’s expert medical evidence was based on assumptions that did not provide a fair climate to enable any weight to be given to their opinions, concerning whether the respondent’s condition was “predominantly caused” by reasonable action taken or proposed to be taken by the appellant with respect to discipline and proposed dismissal;

(ii) the submission that the respondent’s condition could have been regarded as “predominantly caused” by reasonable action or proposed action on behalf of the appellant, broadly with respect to inter alia the provision of employment benefits;

(iii) the opinion of Dr Bertucen, that the respondent’s condition “caused by his perception that he is somehow being targeted or persecuted,” was predominantly caused by the appellant’s reasonable action or proposed action with respect to discipline and proposed dismissal, and

(iv) evidence supporting the conclusion that the respondent “came to the view that he was likely to be dismissed at the meeting of 15 April 2021”;

(c) Ground 3: the Member erred by failing to provide adequate reasons when dealing with (or failing to deal with) specific factual issues, raised between the parties to the dispute, including:

(i) whether there was evidence that the respondent displayed an oppositional disposition;

(ii) whether there existed a formal performance management plan other than the final warning letter of 17 March 2021, dealing with the respondent’s management thereafter;

(iii) how the time sheet for the working week ending Sunday 11 April 2021 came to be located under papers on the table in front of the place where the respondent usually sat, in the crib room during the toolbox meeting held on 14 April 2021, and

(iv) the relative reliability of the evidence given by the respondent and by Mr Masoudi.

Held: The Member’s Certificate of Determination dated 8 December 2022, as amended by Barden v Walgett Shire Council [2023] NSWPICPD 80 was confirmed.

Ground 1

1. Deputy President Wood held that the Member did not find that the events that occurred between 18 March 2021 and 14 April 2021 were the pre-dominant cause of the injury. The Member:

   (a) noted that the respondent relied on those incidents as being causative of his injury and reviewed those events;

   (b) referred to the principles set out by Roche DP in Attorney General’s Department v K [2010] NSWWCCPD 76 in relation to whether the perception of events involved “real” events, and

   (c) applying those principles, made a finding that the respondent’s “perception of the events which occurred between himself and [Mr] Masoudi in the period from 18 March 2021 to 14 April 2021 affected his psyche.” ([195])

2. The Deputy President found that the Member’s conclusion was clearly open to him on the available evidence. The Member considered that the “main causative factor” for the respondent leaving work on 14 April 2021 was the events that occurred on that day. The Membered correctly concluded that none of the events occurring between 18 March 2021 and 14 April 2021 could be considered actions with respect to discipline, termination, or the provision of employment benefits. ([197]–[200])
3. Wood DP held that the appellant’s allegation that the Member erred by “misdirecting himself and finding that the predominant cause of the [respondent’s] condition was limited to ‘the events that occurred between 18 March 2021 and 14 April 2021’ and in so doing, failed to provide adequate reasons” was not made out. The Member did not make such a finding and provided more than adequate reasoning for the conclusion that the appellant, who bore the onus of proving that the appellant’s actions with respect to discipline and/or termination of employment were the predominant cause of the injury, had not made out its case. This ground of appeal failed. ([202])

Ground 2(a)

4. The Deputy President stated that the appellant’s submissions made in respect of this ground did not assist in relation to an assessment of whether the Member erred in the manner alleged. As submitted by the respondent, the submissions were more pertinent to a complaint that the Member erred by failing to accept the opinion of Dr Bertucen, which was a complaint more relevant to Grounds 2(c) and (d). ([203])
5. Deputy President Wood held that the Member did not fail to consider the question of whether the respondent’s medical evidence provided a fair climate upon which to base his findings. In fact, the Member expressly noted that neither Dr Chow nor Dr White offered a view as to whether the respondent’s injury was predominantly caused by reasonable actions on the part of the appellant with respect to discipline or termination of employment. The Member then turned to the evidence of Dr Bertucen. He did not accept that the respondent’s medical experts’ opinions were provided in a “fair climate” and the Member’s ultimate conclusion was not based upon the evidence of those experts. This ground was not made out and failed. ([203])

Ground 2(b)

6. Ground 2(b) of the appeal asserted that the Member erred by failing to adequately consider and provide reasons in respect of its submissions that the respondent’s psychological injury was predominantly caused by reasonable action taken in relation to the provision of employment benefits. Deputy President Wood held that it could not be said that the Member failed to consider or provide reasons in respect of the appellant’s submission. In the context of the appellant having not made any submissions to the Member in support of its assertion, the Member’s consideration and reasons for his conclusion were adequate. This ground failed. ([205]–[209])

Ground 2(c) and (d)

7. The appellant referred to the Member’s observation that the main causative factor for leaving work on 14 April 2021 was the events that occurred on that day. The appellant asserted that the observation was inconsistent with the Member’s subsequent observation that the respondent was happy to be back at work on 18 March 2021 but then became distressed after interpersonal conflict with Mr Masoudi, culminating in the respondent ceasing work on 14 April 2021. The inconsistency was not readily apparent and Deputy President Wood found that both observations were available on the evidence. ([211])
8. The appellant said that the only compelling conclusion was that all of the events were steps in the broader process of investigating the time sheet discrepancies. That submission was not accepted. As the Member correctly identified, the events involving interpersonal conflict between the respondent and Mr Masoudi did not involve actions taken by the appellant in respect of discipline or termination of employment. The respondent may well have been concerned that his employment was in jeopardy because of the events occurring around him, but that concern did not change the characteristics of the interpersonal difficulties with Mr Masoudi, which were not disciplinary actions. ([212])
9. The Deputy President stated that the Member did not accept Dr Bertucen’s view that the respondent’s injury was wholly or predominantly caused by the appellant’s actions with regard to discipline and proposed dismissal. He provided reasons for doing so. ([213])
10. The appellant submitted that it was likely that the respondent was motivated to avoid the meeting on 15 April 2021 because he believed he was to be dismissed at the meeting. The appellant said that this was evidence that supported Dr Bertucen’s conclusion that the respondent feared dismissal from employment and the Member did not engage with that proposition. Wood DP said that if the appellant was asserting that the respondent was somehow feigning a disability, then that assertion was not made out in the evidence. She concluded that Grounds 2(c) and (d) did not disclose error on the part of the Member and the grounds of appeal failed. ([214]–[215])

Ground 3(a)

11. Ground 3(a) of the appeal complained that the Member erred by failing to give adequate reasons when determining whether the respondent displayed an “oppositional disposition.” The Deputy President stated that the Member’s observation that the notion was not supported by any medical evidence was sufficient to dispel the submission. Whether the respondent did or did not have such a disposition was not a determination open to a decision-maker without some relevant expert evidence. Further, the relevance of any adversarial attitude was not explained by the appellant in terms of the impact of such an attitude on matters to be determined by the Member in relation to the application of s 4 and of s 11A of the 1987 Act. This ground of appeal failed. ([216]–[217])

Ground 3(b)

12. Ground 3(b) of the appeal asserted that the Member failed to give adequate reasons when determining whether a formal performance management plan existed. The appellant submitted that the Member did not resolve the issue of whether a formal performance management plan existed, that it was clear that it was based upon the formal warning letter and the plan was carried out in a reasonable manner. ([218])
13. Deputy President Wood held that the assertion that the Member did not resolve the issue of whether the performance plan was put in place was incorrect. The Member clearly proceeded on the basis that a performance management plan had been put in place, which accorded with the conditions imposed by the final formal warning letter. The Member concluded that the implementation of the plan was not reasonable because Mr Masoudi, the respondent’s supervisor, had not been provided a copy of the plan and was not aware of the background to it. The Member’s ultimate determination was, however, that while the absence of the plan weighed against the appellant’s case, the implementation of the plan did not appear to have caused the respondent any significant distress, other than that he had to deal with Mr Masoudi, with whom he had difficulties in any event. Thus, the error asserted by the appellant had no foundation and this ground of appeal failed. ([219]–[220])

Ground 3(c)

14. Ground 3(c) of the appeal complained that the Member erred by failing to provide adequate reasons when dealing with the issue of how the time sheet came to be located under paperwork on the table in the crib room. As the respondent submitted, the Member’s determination did not rest upon how the time sheet came to be in the crib room but involved the respondent’s perception of the event and there was no suggestion that the incident of the time sheet being on the crib room table did not occur. The appellant made no submissions relevant to this ground of appeal and in those circumstances, it was impossible to point to any error on the part of the Member. This ground of appeal failed. ([221])

Ground 3(d)

15. This ground asserted error on the part of the Member by failing to give adequate reasons when weighing the reliability of the evidence of the respondent against that of Mr Masoudi. The appellant referred to the Member having accepted that Mr Masoudi had said that he had forgotten to lodge the respondent’s time sheet and that Mr Masoudi felt some degree of responsibility for not submitting the time sheet. ([222])
16. The Deputy President was of the view that the reasons provided by the Member in relation to the time sheet not being submitted are more than adequate. The evidence established that the time sheet had not been submitted and it was Mr Masoudi’s responsibility to attend to that task. The Member’s conclusions were matters of common sense. The Member observed that it was a fact that the time sheet had not been submitted and it was a fact that there was a confrontation between the respondent and Mr Masoudi, which distressed the respondent. Thus, the Member concluded they were “real events” and, in the circumstances where there had been prior issues in relation to time sheets, the respondent’s perception was reasonable. The appellant had not established error on the part of the Member and this ground of appeal failed. ([223]–[225])

H J Heinz Company Australia Limited v Tagudin [2023] NSWPICPD 82

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – whether action taken by an employer is reasonable with respect to performance appraisal and discipline – Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 and Mani v Secretary, Department of Education [2021] NSWPICPD 3 considered

Phillips P

15 December 2023

Facts

The respondent was employed by the appellant as a production operator. In 2017, she was given two written warnings after two separate incidents of unsatisfactory performance in April and June of that year. Nothing further untoward occurred until 26 July 2021. On that date incorrect labels were affixed to sauce bottles which the respondent was held responsible for. After the respondent supplied the appellant with a written report of the incident, a meeting took place on 10 August 2021 where the respondent was issued with a third and final warning. On 13 August 2021, another incident occurred involving incorrect temperature settings being set on a line that was being operated by the respondent. In accordance with established procedure, the respondent was required to provide a written report of the incident. This she did.

On or about 1 September 2021, the respondent was handed a letter inviting her attendance at a meeting to discuss the 13 August incident. The respondent left work having received the letter and had not returned to work since.

The respondent said that between the meetings referred to above which took place in 2021, she was “repeatedly” called into the office and interrogated about what had happened and asked for more information. The respondent said that she felt bullied, embarrassed and harassed by this behaviour.

The respondent made a claim for psychological injury arising from these events. There was no dispute that the respondent suffered a psychological injury or that it was wholly or predominantly caused by her work, namely, performance appraisal and discipline. The dispute was whether for the purposes of s 11A of the 1987 Act. The Member found in favour of the respondent worker, finding that the employer’s conduct, namely, calling her into repeated meetings, was unreasonable. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) law by failing to provide the appellant procedural fairness in determining a matter which was not in dispute, namely that the “the [respondent] suffered injury arising out of or in the course of her employment with the [appellant]; there is no dispute that the injury was wholly or predominantly caused by action taken in respect of performance appraisal/discipline” (Ground 1);

(b) law by taking into account an irrelevant consideration, namely the matter referred to in Ground 1 above (Ground 2);

(c) law by misdirecting herself as to the test of reasonableness for the purposes of s 11A of the 1987 Act (Ground 3), and

(d) fact by finding that the appellant had not acted reasonably (Ground 4).

Held: Order 2 of the Certificate of Determination dated 1 March 2023 was amended to add the word “reasonable”. The Certificate of Determination was otherwise confirmed.

Grounds 1 and 2

1. “Injury”, it was agreed by the parties, had been wholly or predominantly caused by performance appraisal or discipline in the course of the respondent’s employment with the appellant. The appellant submitted that the reasonableness of its actions, with respect to performance appraisal or discipline, was the only matter in contest. This being the case, the appellant said there was no need for the Member to address causation. The appellant further complained that in relation to the Member’s findings at [129] of the reasons, it had been denied procedural fairness. The appellant said that on this issue, it had no opportunity to tender evidence, call witnesses or make submissions. ([34]–[36])
2. With respect to Ground 2, the appellant submitted that the Member, having decided a matter that had been agreed by the parties, took into account irrelevant considerations in her decision-making process. ([37])
3. The obligation of practitioners appearing before the Commission is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The President stated this was precisely what the parties did when it was agreed that the injury was caused by the appellant’s actions with respect to performance appraisal or discipline. This meant that the ‘real issue’, being the reasonableness of those actions, was the matter requiring determination in terms of s 11A of the 1987 Act. This acknowledgment between the parties was completely appropriate and was in line with the Commission’s statutory mandate. However, the appellant said that this having been agreed, causation was not open to be visited by the Member and as a result the appellant was denied procedural fairness. This, it was also said, was the Member taking into account an irrelevant consideration. The President did not accept these submissions. ([40]–[42])
4. Under s 11A of the 1987 Act, the Member was obliged to examine the entire process to gauge reasonableness. It was necessary, in particular, for the Member to examine the respondent’s assertions that between the formal performance appraisal or discipline meetings, she was repeatedly called back into the office to be further interrogated about her actions. This involved not only an examination of the lay evidence for both parties but also the complaints about this conduct recorded by the medical practitioners. It would be highly artificial to expect the Member, when performing her task of examining all the circumstances (such as they were) to assess the reasonableness of the appellant’s actions, to then eschew considering any of the facts that went to injury. To the contrary of the assertion in Ground 2, this was in fact a very relevant exercise and involved the Member in no error of approach. ([43])

(Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 and Irwin v Director General of Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported) applied)

5. In relation to the appellant’s assertion that it was denied procedural fairness, the President stated that this submission could only be made good if the denial affected the outcome. In this matter, that injury had been caused wholly or predominantly by the actions of the employer with respect to performance appraisal or discipline was an agreed position between the parties. With respect to the issue of injury, if this was the issue that this complaint related to, clearly the asserted denial of procedural fairness could not have affected the result on that discrete issue. Neither ground had been established and Grounds 1 and 2 were dismissed. ([44], [46]–[47])

   (Toll Pty Limited v Morrissey [2008] NSWCA 197 and Stead v State Government Insurance Commission [1986] HCA 54 applied)

Ground 3 and 4

6. The essence of Ground 3 was the appellant’s complaint that the Member has misconstrued the test of ‘reasonableness’ under s 11A, instead imposing a higher burden upon the appellant’s conduct. The appellant said that the Member applied too much scrutiny to the appellant’s conduct. In terms of Ground 4, the appellant complained that at [125] of the reasons, the Member found “that there was ‘almost no evidence to counter [the respondent’s] claim that she was called repeatedly to meetings through July-August 2021 to explain the purpose.’ In making this finding, the Member erred factually by not taking into account (or not giving weight to) the important evidence given by Ms Novak [former Human Resources Business Partner] in her statement dated 10 November 2021.” The appellant submitted that in evaluating reasonableness, the positions of the parties needed to be considered. Food safety was very important to the appellant, hence the requirement for scrutiny given this important purpose. ([48]–[51])
7. The President found that the appellant had failed to show how the Member was wrong in coming to the factual assessment of the evidence at [125] of the reasons. Where the Member said that the appellant “has provided almost no evidence” in that section of the reasons, this was an accurate statement of the state of the evidence. The evidence relied on by the appellant on this issue was either inconclusive (Ms Novak) or absent (Mr Zahra, the respondent’s manager). ([61])
8. His Honour did not accept the appellant’s assertion that the Member applied a standard which imposed a counsel of perfection upon the appellant’s process. The formal process outlined by Ms Novak and confirmed by the respondent was not subject to any criticism. The issue clearly was with the “process” of repeated interrogation, which took place outside the parameters of the formal process that the Human Resource Business Partner, Ms Novak, described. Cleary, on the evidence, this process which took place outside what was contemplated by the parties as being the known process was very distressing to the respondent. The Member found that Mr Zahra “had to be aware that she was claiming that being asked to explain her actions repeatedly was causing her psychological symptoms.” This finding substantiated the ultimate finding at [129] of the reasons that the process between 26 July and 1 September 2021 was not reasonable. This was balanced against the appellant’s need for food safety, which the Member referred to and accepted. ([62]–[63])

(Mani v Secretary, Department of Education [2021] NSWPICPD 3 considered)

9. It was apparent that the appellant believed that its duty to guarantee food safety was paramount and its actions in pursuit of this aim were thus reasonable. This did not answer the respondent’s claims about the process. It was insufficient for the appellant to believe that it was “compelled to act as it did” and this was the effect of what the Member found. There was no error in this process. The President concluded that the appellant had failed to identify error on the Member’s part in either ground and Grounds 3 and 4 were dismissed. ([64]–[66])

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

10. There was an obvious error in the Member’s orders that omitted the word “reasonable”. The President corrected this error. ([67]–[68])

Cumberland City Council v Davis [2023] NSWPICPD 83

WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act – Mohareb v State of New South Wales [2023] NSWCA 289 applied – whether error in the exercise of discretion – House v King [1936] HCA 40

Wood DP

21 December 2023

Facts

This appeal concerned a claim made by the respondent worker in respect of an incident that occurred on 30 December 2020 in the course of her employment as a parking patrol officer with the appellant. The incident involved an aggressive member of the public who believed (incorrectly) that the respondent had booked him for illegally parking his car. When the respondent retreated to her car, the man slammed the door of her car, catching her left ankle, which had previously been injured in an earlier work-related incident. The respondent suffered further injury to her left ankle and a psychological injury diagnosed as post-traumatic stress disorder.

The respondent made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 19% whole person impairment, relying on the report of her treating psychiatrist Dr Kumagaya. He made no deduction for any secondary psychological injury, pre-existing condition, or non-work related causes.

The appellant relied on the assessment of its qualified psychiatrist, Dr Nagesh, who assessed 17% whole person impairment, after making a deduction of 2% because of the effects of a secondary psychological condition arising from the ankle injury, which was not compensable pursuant to s 65A(1) of the 1987 Act.

Before the Senior Member, the parties agreed to consent orders dated 28 August 2023, which included remitting the matter to the President for referral to a Medical Assessor to assess whole person impairment for primary psychological injury, with no regard to be had to any impairment or symptoms arising from a secondary psychological injury pursuant to s 65A(2) of the 1987 Act.

The appellant lodged and served a supplementary report from Dr Nagesh dated 1 September 2023 in an Application to Admit Late Documents. The respondent objected to the supplementary report being admitted on the basis that it was beyond a response to the additional clinical notes referred to by the Senior Member in the consent orders.

In a telephone conference before the Senior Member, the appellant sought to amend the consent orders. The Senior Member declined to amend the orders and determined that the substance of the report exceeded the purview of a response to additional material and would cause prejudice and/or procedural unfairness to the respondent if the report in its entirety was admitted. She ordered that substantial parts of the report were to be redacted before the report was admitted and included in the remitter to the Medical Assessor.

The Senior Member issued a Direction on 21 September 2023 directing that the supplementary report of Dr Nagesh dated 1 September 2023 be redacted by deleting two of the three questions posed by the appellant, as well as Dr Nagesh’s responses to those questions. She determined that the second question and answer should remain. The appellant appealed the Senior Member’s decision. The parties agreed that the decision was an interlocutory decision and leave was required to bring the appeal under s 352(3A) of the 1998 Act.

The issues on appeal were whether the Senior Member:

(a) improperly excluded the evidence in response to the third question posed to Dr Nagesh;

(b) erroneously determined that the reliance on Dr Nagesh’s supplementary report would cause the respondent a denial of procedural fairness, and

(c) provided inadequate reasons for her decision.

Held: Order 1 of the Senior Member’s Direction dated 21 September 2023 was confirmed. Order 2 of the Direction dated 21 September 2023 was revoked and the matter was remitted to the President for referral to a Medical Assessor.

Leave to appeal

1. Ordinarily leave to appeal an interlocutory decision will only be granted if the proposed appeal raises an issue of principle, a question of general importance or an injustice which is reasonably clear, that is going beyond what is merely arguable. The appellant asserted that an injustice would occur if the report from Dr Nagesh was not referred in its entirety to the Medical Assessor and the respondent contended that she would suffer an injustice if the unredacted report was admitted. ([23])

   (Mohareb v State of New South Wales [2023] NSWCA 289 applied)

2. At this stage of the proceedings, the only issue for determination was the degree of the respondent’s whole person impairment, which, in the absence of agreement between the parties must be assessed by a Medical Assessor. It was important to determine what evidence should be forwarded to the Medical Assessor prior to the assessment being undertaken. Deputy President Wood considered that leave to appeal the decision should be granted at this interlocutory stage because it would assist in the proper, effective and expeditious finalisation of the issues in dispute. Leave was granted to the appellant to bring the appeal at this interlocutory stage. ([24]–[25])

Consideration

3. The first complaint raised by the appellant was that the Senior Member improperly excluded the third question posed by the appellant to Dr Nagesh. The appellant submitted that the third question directed to Dr Nagesh to the material produced by the respondent’s treatment providers and Dr Nagesh provided his responses on the basis of those documents, which was within the scope of the Senior Member’s Direction. ([72])
4. Deputy President Wood stated that the third question asked Dr Nagesh to consider the apportionment between any impairment that resulted from the primary psychological injury on 30 December 2020 and the secondary psychological condition resulting from the effects of the respondent’s left ankle injuries. She held that it was patently clear that Dr Nagesh formed his view in relation to his initial assessment of impairment in the context of the history of the respondent’s concerns in relation to COVID-19, her vaccination status, as well as her loss of employment. He expressed the view that the respondent’s whole person impairment was 19%, which he reduced by 10% to 17% because the respondent’s chronic major depressive disorder was a secondary psychological condition and this not compensable. ([76])
5. The consent order recorded by the Senior Member permitted the appellant to seek a response from Dr Nagesh in relation to the “additional clinical and treating notes”. It was not an invitation for Dr Nagesh to re-visit the evidence already provided to him and revise his earlier opinion of the respondent’s compensable whole person impairment. ([78])
6. The appellant further asserted that the Senior Member erroneously determined that the reliance on Dr Nagesh’s supplementary report would cause the respondent a denial of procedural fairness. The respondent asserted that, because the appellant stepped outside of the scope of the consent order and requested Dr Nagesh to review his earlier assessment, she had lost the opportunity to respond to Dr Nagesh’s revised assessments. ([79])
7. The dispute notice issued by the appellant pursuant to s 78 of the 1998 Act disputed, among other things, that the respondent suffered an injury pursuant to s 4(a) of the 1987 Act. The notice referred to the report of the respondent’s GP, Dr Lim, dated 3 August 2021 and the clinical records of  Schofields Medical Practice. The author of the notice noted that Dr Kumagaya assessed the respondent’s whole person impairment as 19%, diagnosed a post-traumatic stress disorder and attributed the entire loss to the incident on 30 December 2020. The author of the notice also noted that Dr Nagesh had attributed the whole of the impairment to multiple causes. ([80])
8. It was patently apparent from the outset that the respondent’s case was that she suffered a primary psychological injury on 30 December 2020 which was a personal injury pursuant to s 4(a) of the 1987 Act and resulted in permanent impairment. It was not readily apparent why the original pleadings required amendment, and the amendment did not depart from the case originally claimed by the respondent. From the outset, Dr Nagesh’s opinion was that the impairment was attributable to multiple causes. The appellant made no attempt from the commencement of the claim to seek a further assessment of the loss solely resulting from the personal injury alleged to have occurred on 30 December 2020, despite the matter having such a protracted history. Even at the time the consent orders were entered into, it did not appear that the appellant made an application for leave to obtain an assessment in response to the respondent’s claim as pleaded. ([82])
9. The pleaded injury was always “limited to the specific incident on 30 December 2020.” In the Deputy President’s view, to allow the course adopted by the appellant in the eleventh hour, which was a course that ought to have been taken at the commencement of the claim, undoubtedly would result in procedural unfairness to the respondent, which had already involved three telephone conference and two conciliation/arbitration hearings. In any event, that was not the only reason the Senior Member excluded questions one and three and the responses to those questions. The Senior Member considered that that evidence was beyond the scope of the leave granted and it was not open to her to unilaterally amend an order made by the consent of the parties. The Senior Member was correct on both counts. The first and third questions posed by the appellant fell well outside of the scope of the consent order, which was acknowledged by the appellant when it made submissions seeking that the consent order be amended by the Senior Member so that Dr Nagesh’s whole opinion could be admitted. ([83])
10. The appellant asserted that the Senior Member provided inadequate reasons for her decision. The appellant made no submissions pointing to the Senior Member’s reasons and did not identify why those reasons were inadequate. The Senior Member’s reasons were clear and logical and were sufficient to discharge the duty imposed upon her by statute. ([84])
11. It followed that the appellant had not identified error on the part of the Senior Member of the kind required by House v The King principles. The appeal failed and Order 1 of the Senior Member’s Direction dated 21 September 2023 was confirmed. Order 2 of the Direction, which confirmed a medical assessment with Dr Singh on 10 November 2023, was obsolete and was therefore revoked. ([85])

(House v King [1936] HCA 40 applied)