Appeal Case Summaries

Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138

APPEALS – appeal from determination of Presidential member of the Personal Injury Commission – error-based jurisdiction in reviewing decision of arbitrator – jurisdiction of Court of Appeal – decision in point of law – 1998 Act, s 353

APPEALS – applicant bearing burden of proof of employment-related injury cannot invert onus by pleading no evidence of pre-existing injury – applicant bearing burden of proof cannot rely on own evidence to assert no evidence of pre-existing injury

WORKERS COMPENSATION – definition of “injury” – “disease” to be given broadest meaning – categorisation of “biological” and “pathological” changes rejected – 1987 Act, s 4(b)

Brereton, Mitchelmore JJA and Basten AJA

4 August 2022

Facts

The appellant worked with the respondent from October 2008 as a room attendant. He attended varying hotels depending on a roster, where he was required to clean and make up hotel rooms. He collected rubbish, made up beds, replenished tea and coffee provisions and cleaned bathrooms. He said there was pressure to work quickly. There was a break in his employment from March to August 2009 when he returned temporarily to Bangladesh. He resumed his employment with the respondent from 24 August 2009.

The appellant experienced stiffness in the right ring and index fingers in May 2010, for which he saw a general practitioner. On 7 October 2010, pain radiated from his fingertips to his right hand, together with pins and needles from the right side of his neck down to his fingers. He saw his general practitioner. On 11 October 2010, he reported his difficulties to his supervisor, his general practitioner told him to find a more suitable job, and he resigned.

In 2012, the appellant underwent CT scans of the cervical and lumbar regions of his spine. The scan of his cervical spine showed disc protrusions with spinal cord compression. In 2016, a neurosurgeon performed an anterior cervical discectomy and fusion involving cervical discs.

The appellant brought a claim for weekly compensation from 7 October 2010, medical expenses and lump sum compensation in respect of the cervical spine, lumbar spine, surgical scarring and the digestive system.

The Arbitrator made a finding of injury to the cervical spine as a result of the ‘nature and conditions’ of employment, pursuant to s 4(b)(ii) of the 1987 Act. The deemed date of injury was 7 October 2010. There was a finding that the appellant had failed to discharge his onus of proving injury to the lumbar spine as a result of the ‘nature and conditions’ of employment. There was a finding of a consequential condition of the gastrointestinal system as a result of the cervical spine injury. The appellant appealed to a Presidential Member.

The Presidential Member confirmed the Arbitrator’s Certificate of Determination in the decision of Iqbal v Hotel Operations Solutions Pty Ltd [2021] NSWPICPD 40. The appellant then appealed to the NSW Court of Appeal pursuant to s 353 of the 1998 Act.

The issues on appeal were whether the Presidential Member erred in failing to find that:

(a) the Arbitrator should have held that the appellant’s employment caused the appellant’s injuries pursuant to s 4(b)(i) of the 1987 Act;

(b) there was no evidence of pre-existing degenerative changes to the appellant’s lumbar spine;

(c) the appellant’s report of foot pain in 2010 established that the condition of the lumbar spine was symptomatic during, and therefore caused by, his employment, and

(d) the Medical Assessor had acted on the basis of an incorrect criterion.

Held: The appeal was dismissed.

Basten AJA (Brereton and Mitchelmore JJA agreeing)

As to issue 1 – categorisation of injuries

1. The appellant’s submission that his injuries were “contracted” in the course of his employment and were not the aggravation of an existing degenerative condition turned on a categorisation of degenerative changes as “biological” and trauma-based changes as “pathological”. However, the term “disease” in s 4(b) must be given its broadest meaning, which does not depend on its cause. The Deputy President correctly held that s 4(b) does not require, as a matter of law, the drawing of the proposed distinction. ([40], [44])

^{(Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 applied)}

As to issue 2 – pre-existing degenerative changes

2. As to the submission that there was no evidence of any pre-existing degenerative condition, the appellant bore the burden of establishing an employment-related disease in his lumbar spine. He could not invert the onus of proof by asserting that there was no evidence of a pre-existing degenerative condition. Further, he could not rely on his own evidence to establish that there was no evidence of any pre-existing condition. ([61]–[62], [64])

   (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied)

As to issue 3 – contemporaneous evidence of foot pain

3. The existence and significance of a symptom involved a question of fact. An appeal only arises in point of law pursuant to s 353 of the 1998 Act. This ground did not raise any point of law. ([13], [68])

As to issue 4 – medical assessment certificate

4. The medical assessment certificate post-dated the proceedings in the Commission and could not be challenged in the appeal. In any event, there is no right of appeal to the Court of Appeal from the issue of a medical assessment certificate. An application to appeal can only be made to the President of the Commission pursuant to s 327 of the 1998 Act. ([71])

Woolstar Pty Ltd v Wood [2022] NSWPICPD 25

WORKERS COMPENSATION – Duty to give adequate reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; alleged factual error – matters requiring expert medical evidence: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; section 4(b)(ii) of the 1987 Act – ‘main contributing factor’: AV v AW [2020] NSWWCCPD 9

Snell DP

4 July 2022

Facts

The respondent worker was employed by the appellant employer as a storeman from about 2005. He said that he was bullied, harassed and micromanaged. He came under the care of a psychiatrist, ceased employment in February 2018 and did not work thereafter.

The worker instituted prior proceedings in the former Workers Compensation Commission, in which he claimed weekly payments from 26 March 2018, medical expenses and lump sum compensation for 22 per cent whole person impairment in respect of psychological injury. The pleaded date of injury was “13/01/2018 (deemed date)”. It was pleaded that throughout the course of his employment the worker “experienced various incidents of bullying and harassment”. It was alleged: “Due to the nature and condition of his employment, the [worker] has developed the gradual onset of a psychologic injury which has culminated into permanent impairment and manifested period of incapacity from employment” (emphasis added). This claim was pursued on the basis of s 4(b)(i) of the 1987 Act.

The prior proceedings were heard by Arbitrator Homan who was not satisfied that the worker had contracted a psychological injury and made an award for the employer.

The worker was unsuccessful in a Presidential appeal against Arbitrator Homan’s determination.

The worker’s solicitors made a further claim on his behalf seeking lump sum compensation in respect of 18% whole person impairment (psychiatric injury). The letter of claim described the date of injury as follows: “Date of Injury: 13/01/2018 and/or 19/02/2018 (Deemed – last date of employment) and/or 20/08/2019 (deemed – date claim made pursuant to s 16 of the [1987 Act])”. The letter of claim included the following: “We note that the psychiatric injury sustained by our client on the above dates of injury is pleaded pursuant to 4(b)(ii).”

The appellant employer denied injury under both subss (a) and (b) of s 4 of the 1987 Act, ‘main contributing factor’, the satisfaction of s 9A of the 1987 Act and an entitlement to benefits. It additionally asserted that the worker was estopped from bringing a further claim in respect of psychological injury.

In a Certificate of Determination dated 23 September 2021, Member Peacock made a finding that the worker had suffered injury involving the aggravation of a pre-existing psychological condition to which his employment was the main contributing factor. She concluded that the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun) did not apply as the worker did not, at the time of the initial proceedings, have medical evidence to support a case based on s 4(b)(ii) of the 1987 Act. Member Peacock made orders for the referral of the matter to a Medical Assessor to assess permanent impairment (psychological injury). The employer appealed.

The issues on appeal were whether the Member:

(a) failed to give proper, or lawful, reasons concerning the determination of Anshun estoppel (Ground 1);

(b) erred at law in determining the Anshun estoppel point when finding that the principles in Anshun were not made out (Ground 2);

(c) erred in her exercise of discretion when finding the principles in Anshun had not been made out (Ground 3);

(d) erred in fact or law when finding an injury pursuant to s 4(b)(ii) was not inconsistent with the award for the employer regarding the allegation of injury pursuant to s 4(b)(i) in the initial proceedings (Ground 4);

(e) made an error of fact and/or law in the assessment of evidence and approach to causation pursuant to s 4(b)(ii) of the 1987 Act (Ground 5), and

(f) erred at law in failing to give proper, or lawful, reasons concerning the determination of the question of causation (Ground 6).

Held: Leave to appeal an interlocutory decision was granted. The Certificate of Determination dated 23 September 2021 was confirmed.

Ground 1

1. A number of matters relevant to the Anshun argument were not in issue. The Member noted the following common ground:

   (a) The worker was estopped from running an ‘injury’ argument based on s 4(b)(i) of the 1987 Act.

   (b) The worker did not, in the initial proceedings, seek to run a case, or to plead ‘injury’, on the basis of s 4(b)(ii) of the 1987 Act. It was the view of Dr Clark, the worker’s Independent Medical Expert in the initial proceedings, that the worker had contracted a disease of gradual onset, a psychological injury.

   (c) The worker, in the initial proceedings, failed to disclose his prior psychological condition. This was partly why he failed in those proceedings.

   (d) The worker suffered from a pre-existing psychological condition.

   (e) The worker now suffers from a Major Depressive Disorder. ([29])

2. The employer was critical of the brevity of the Member’s discussion in her reasons at [51], which it described as “the dispositive discussion”. It submitted there was “no evaluation undertaken, the findings are a bare conclusion”. It is necessary that the reasons be read as a whole. The Member, in her reasons at [51], referred to “what the authorities can be distilled as saying is for me to find ...”. Read in context, this was consistent with an intention on the Member’s part that she apply the authorities discussed in the reasons. A number of factual matters relevant to the Anshun issue were not contentious and did not require lengthy discussion. ([29], [35])

   (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25, and Secretary, Department of Communities & Justice v Miller (No. 5) [2020] NSWWCCPD 38 applied)

3. The employer made a specific challenge to how the Member dealt with the material produced by the Engadine Medical Centre. It submitted the notes demonstrated a pre-existing psychological condition and the Member failed to engage with this evidence. The Member specifically noted that there was a pre-existing psychological condition which the worker had failed to disclose in the initial proceedings. In the reasons at [22], the Member referred to the employer’s submission, that “[t]here can be absolutely no contest on that and, in fact, the [worker] seeks to advance that [the pre-existing condition] at this point in time”. The existence of the pre-existing condition was not contentious. ([36])
4. It may be that the employer was critical of the reasons dealing with reasonableness. The Member dealt with why it was not unreasonable that s 4(b)(ii) was not pursued in the initial proceedings, in her reasons at [20]. The Member referred to the opinion of Dr Clark, described as that “upon which [the worker] relied to found his case” in the initial proceedings. She observed that Dr Clark’s opinion was that work events “resulted in [the worker] contracting a disease of gradual onset namely a psychological injury”. This, of course, would potentially support a case pursuant to s 4(b)(i), as opposed to s 4(b)(ii). In her reasons at [23], the Member noted that Dr Clark now gave an opinion “with the benefit of that disclosure” of the pre-existing condition. The Member referred to a report of Mr Anning, a psychologist, dated 27 August 2020, “not available to [the worker] before”. The Member said that Dr Clark’s most recent report, and the report of Mr Anning, supported the worker’s case on the basis of an “aggravation of his pre-existing psychological condition”. ([37])
5. Snell DP held that contrary to the employer’s submission, the Member did engage with the evidence in the notes, although she regarded the clinical notes as supporting the worker’s case. The Member’s expressed reasoning was that it was not unreasonable that the worker did not pursue a case pursuant to s 4(b)(ii) in the initial proceedings, as he did not have medical evidence to support that argument. The reasons expressed this proposition clearly and did so in the light of the discussion that came before. ([38]–[39])
6. Reasons must be adequate for the exercise of a facility for appeal. One should not be left speculating on the basis of a particular finding. The reasons should expose the basis for resolving a point critical to the contest, and they should do justice to the parties’ cases. The extent and content of reasons will depend on the case at hand, it is not necessary to spell out every detail of the reasoning process. Reasons should identify the basis of the decision. The primary judge should enter into the issues canvassed and explain why one case is preferred over the other. Where there are credit issues the reasons should explain why the evidence of one witness is preferred to that of another. ([40])
   (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (Pollard), and Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) applied)
7. In the Deputy President’s view, the Member conformed with her obligation to give adequate reasons for how she dealt with the Anshun estoppel issue. Ground 1 failed. ([41]–[42])

Grounds 2 and 3

8. The Member correctly observed that the onus to establish a defence based on Anshun rested on the employer. She said that for the defence to succeed it would be necessary that she find that it was unreasonable, on the worker’s part, not to run the s 4(b)(ii) aggravation case in the initial proceedings, in the absence of expert evidence to support it. She said that “without that evidence he could not run that case”. This was a simple and persuasive argument. The employer raised the failure of the worker to provide a history of his previous psychiatric history, and the failure of his medical case (essentially based on Dr Clark) to deal with that history. ([81])
9. Deputy President Snell held that the worker, after not originally including reference to his prior psychiatric history, did so in his history to Dr Clark recorded in the report dated 28 February 2019, and in his statement dated 17 April 2019. Having been furnished with this additional history, Dr Clark did not suggest any significant change to his views on causation. The doctor’s second report did not involve expert opinion that would have supported, on a medical basis, the worker bringing a case pursuant to s 4(b)(ii). The worker brought, and pursued to conclusion, a claim based on injury pursuant to s 4(b)(i). The worker acted reasonably in not seeking to prosecute a claim pursuant to s 4(b)(ii) in the initial proceedings after obtaining Dr Clark’s second report, which referred to a history of the pre-existing psychological symptoms, and did not support such a course. It was only in his third report, dated 17 September 2020, subsequent to the earlier decision, that Dr Clark expressed an opinion that supported injury on the basis of aggravation. ([85])
10. It followed that, in presenting his case in the initial proceedings as one within the meaning of s 4(b)(i), the worker was running the only available medical case on causation for which he had specialist medical support. The evidence overall supported the Member’s conclusion that the worker did “not run the section 4(b)(ii) case because he did not have expert evidence that supported that case”. The passages from Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [39] and [89] describe the focus of the Anshun test as being based “on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings” and said “its point is the test of unreasonableness”. It was not unreasonable that the worker pursued his claim, in the initial proceedings, on the only basis reasonably open to him on the medical opinion then available. ([86])
11. The two limbs of s 4(b) of the 1987 Act are related to the extent that both deal with injury in the context of the ‘disease’ provisions. The provisions apply in different factual circumstances. One would not anticipate that failure to pursue the claim pursuant to s 4(b)(ii) in the initial proceedings would result in conflicting judgments. In the circumstances the initial decision of Arbitrator Homan, that injury pursuant to s 4(b)(i) was not established, did not conflict with the Member’s finding in the current proceedings that injury by way of aggravation was established. The Member did not err in her conclusion regarding the application of the defence pursuant to Anshun. Grounds 2 and 3 failed. ([88]–[89])

Ground 4

12. Deputy President Snell said it was necessary to read the reasons as a whole. On a fair reading of the reasons, the Member proceeded on the basis that there was a pre-existing condition, that the current case was brought pursuant to s 4(b)(ii) on the basis of aggravation, and that a finding that the condition was caused by employment was precluded by the decision in the initial proceedings. The only finding that she made was of the aggravation injury. None of this was inconsistent with the decision in the initial proceedings or with the basis on which the second proceedings were brought. ([92]–[94])
13. The employer submitted that, because the Member relied on Mr Anning’s opinion, and Mr Anning’s opinion referred in part to the development of a depressive condition, this amounted to a finding by the Member of injury pursuant to s 4(b)(i), inconsistent with the estoppel that flowed from the decision in the initial proceedings and with the finding pursuant to s 4(b)(ii). The main impediment to this argument was that the Member did not make such a finding. Her fact finding carefully restricted itself to the issue of aggravation, which was the only case brought in the current proceedings. ([95])
14. The Member referred to the opinion of Mr Anning in support of her finding of an aggravation injury. This did not mean that she accepted all aspects of Mr Anning’s opinion, much less that she necessarily made findings consistent with all aspects of it. The error alleged in Ground 4 was not made out, and this ground failed. ([96]–[97])

Ground 5

15. The employer referred to an absence of evidence weighing the contribution of the pre-existing condition against the contribution from the employment. The employer in this appeal did not argue that AV v AW [2020] NSWWCCPD 9 was wrongly decided. It followed that the reference to weighing the contribution of the pre-existing condition against the contribution from the employment was misconceived. ([101]–[103])

    (Murray v Shillingsworth [2006] NSWCA 367 and AV v AW [2020] NSWWCCPD 9 discussed)

16. Deputy President Snell concluded that the Member’s reasoning dealing with ‘injury’ was consistent with a conclusion that employment was the ‘main contributing factor’ to the aggravation injury. It was sufficient to support the Member’s formal finding in her reasons at [52], that the worker “suffered an aggravation of a disease to which his employment was the main contributing factor”. Ground 5 failed. ([105]–[106])

Ground 6

17. The Deputy President observed that it was not apparent why, if the employer sought to challenge the adequacy of the Member’s reasons, it had done so in two separate grounds of appeal (grounds 1 and 6) which used substantially similar arguments and which relied on the same authorities. This was simply repetitive. ([109])
18. Snell DP held that the Member’s reasons complied with s 294 of the 1998 Act. They complied satisfactorily with the requirement to furnish reasons as discussed in Pollard and Soulemezis. Ground 6 failed. ([110]–[113])

Midcoast Council v Cheers [2022] NSWPICPD 26

WORKERS COMPENSATION – submissions made after the time period for doing so was closed – Bale v Mills [2011] NSWCA 226 applied – Member’s duty to provide reasons – rule 78 of the 2021 Rules – failure to consider submissions made – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 considered

Wood DP

5 July 2022

Facts

The respondent worker was employed by the appellant, amongst other roles as a team leader in Roads and Construction. The respondent alleged that, following a co-worker’s promotion to roads supervisor (alternately referred to as “works supervisor”) in about March 2019, he began to be unfairly treated, including being moved from the Roads and Construction team to the Parks and Gardens team, where he performed work in a lesser role. The respondent attributed that treatment to the fact that he had discovered and reported allegedly corrupt and inappropriate business activities undertaken by the new roads supervisor.

The respondent sought psychological assistance from about June 2019. He ceased work with the appellant because of his psychological condition and lodged a claim for workers compensation on 3 December 2020. The appellant denied liability in accordance with s 11A(1) of the 1987 Act on the basis that any psychological injury suffered by the respondent was wholly or predominantly caused by reasonable actions taken by the appellant during 2019 and 2020 with respect to discipline, performance appraisal and/or transfer.

The respondent sought weekly payments and treatment expenses. The Member concluded that she was not satisfied that the respondent’s psychological injury was either “wholly” or “predominantly” caused by actions taken by or proposed to be taken by or on behalf of the appellant with respect to transfer, performance appraisal and/or discipline. Further, she was not satisfied that those actions were reasonable. The Member also determined that the respondent had no capacity for work. The employer appealed.

The issues on appeal were whether the Member:

(a) erred in law, or committed jurisdictional error or a constructive failure to exercise jurisdiction, by merely reciting parts of the evidence and failing to make material findings of fact and resolve factual conflicts based on the evidence before her (Ground 1);

(b) failed to provide an adequate statement of reasons, thus failing to comply with r 78 of the 2021 Rules (Ground 2);

(c) erred in law by failing to engage or grapple with the competing cases presented by both parties in their submissions (Ground 3), and

(d) erred in finding that the respondent’s psychological injury was not wholly or predominantly caused by reasonable action with respect to the s 11A factors advanced at first instance (Ground 4).

Held: The Member’s Certificate of Determination dated 9 November 2021 was revoked and the matter was remitted to another non-presidential member for re-determination.

Consideration of Grounds 2 and 4

1. The appellant’s case as presented in oral submissions made to the Member in relation to the whole or predominant cause of the injury, was that:

(a) the history of the respondent’s prior psychological issues was more significant than that reported by the respondent in his statement evidence and to the forensic medical experts;

(b) the failure of the respondent to disclose that full history impacted the respondent’s credibility in respect of what actually occurred in the workplace;

(c) given the extensive nature of the respondent’s prior history, which was not disclosed to either of the forensic medical experts, the opinion of Dr Smith (psychiatrist qualified by the respondent) as to causation should be rejected, and

(d) it was the respondent who requested a transfer. ([129])

2. In its reply to the respondent’s written submissions, the appellant further submitted that:

(a) the respondent did not disclose the details of the new roads supervisor’s conduct to the operations manager until well after March 2019, which affected the evidence of the respondent that he was targeted from March 2019 in respect of such a disclosure, and

(b) the evidence of Mr Connell (a co-worker), Mr Menser (co-worker and union delegate) and Mr Martin (union delegate) should be treated with caution and afforded no or little weight because of their positions as advocates, and/or because of the hearsay nature of their evidence. ([130])

3. Wood DP observed that it is clear from the authorities that in the context of more than one potentially causative event, whether the events were causative of the psychological injury requires medical evidence. The Member was, therefore, required to determine the weight to be afforded to, and the acceptance or rejection of, medical opinions about causation, before she concluded what was, or was not causative of the injury. The Member accepted the opinion of Dr Smith over that of Dr Bisht (psychiatrist qualified by the appellant) because Dr Smith provided reasons as to why he maintained his view after reviewing the opinion of Dr Bisht. The Member referred to the issue of the respondent’s failure to disclose his earlier psychological problems and the effect that had on the probity of the medical opinions. She concluded that, as the past history related to other causes, they appeared to be of no concern in the context of Dr Bisht’s finding that the injury was an aggravation of a pre-existing condition. The appellant, however, submitted to the Member that the respondent’s failure to disclose his psychological history and drug use affected the respondent’s credit, so that the respondent’s factual assertions could only be accepted if they were corroborated by other objective evidence. The Member did not go so far as to address that submission. ([133])

   ^{(Hamod v State of New South Wales [2011] NSWCA 375 applied)}

4. The Member concluded that the injury was caused by the appellant’s behaviour towards the respondent after the new roads supervisor was appointed and the respondent had raised the new roads supervisor’s conduct with the operations manager. There was a conflict in the factual evidence as to whether the respondent did disclose the new roads supervisor’s alleged illegal activities to the operations manager prior to the appellant initiating performance management practices and before the respondent lodged a public interest declaration in October or November 2019. The appellant’s case was that while the respondent mentioned that he knew matters about the new roads supervisor, there was nothing concrete disclosed by the respondent in the meeting in March 2019, or in May 2019. In the appellant’s case, the first performance management meeting took place in March 2019, which the appellant maintained was well before the respondent raised issues with the operations manager, or anyone else, about the new roads supervisor’s activities. The Member did not deal with the apparent conflict in the evidence as to whether the relevant actions took place before or after the respondent complained of the new roads supervisor’s conduct, before reaching her conclusion that the performance issues were not raised until after the respondent complained to the operations manager about the new roads supervisor. ([134])
5. The reasoning by the Member that the respondent consistently reported that after he made the complaint, he was poorly treated and suffered a deterioration in his psychological health again relied upon the question of when the respondent did in fact complain about the new roads supervisor’s conduct. In addition, the reasoning relied upon the assumption that the respondent was being poorly treated, when the appellant’s case was that it was fairly dealing with performance issues and those actions had nothing to do with the respondent informing on the new roads supervisor. The Member found consistency in the evidence from Mr Menser and Mr Connell and the history recorded by Ms Felber, psychologist and EAP counsellor. She did not, however, weigh the respondent’s evidence against that presented by the appellant in order to determine whether the facts asserted by the respondent were made out and the respondent’s evidence was sufficient to be accepted. ([135])
6. Deputy President Wood also found that the Member did not address the appellant’s assertion that the evidence of Mr Connell, Mr Menser and Mr Martin should be afforded little or no weight. The Member explicitly accepted the evidence of Mr Menser and that of Mr Connell without assessing the probative value of that evidence. It followed that the Member, in accepting that evidence on its face without considering the appellant’s argument, erred by overlooking a material submission made by the appellant. ([136])
7. The Member’s conclusion would constitute legal error if it amounted to a failure to deal with the appellant’s case on the evidence. However, it was not necessary for the Deputy President to be satisfied that an error of law was exposed because s 352(5) of the 1998 Act is engaged if she was satisfied that an error of fact, law or discretion had occurred. The Member either misunderstood the appellant’s case, or simply failed to address its submissions in relation to:

(a) the credibility of the respondent’s evidence;

(b) the lack of probative value of the evidence of Mr Menser and Mr Connell, and

(c) the appellant’s allegation that the respondent did not disclose the new roads supervisor’s conduct to the operations manager until well after the performance issues were raised. ([137]–[138])

^{(Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 considered and applied)}

8. Wood DP held the Member did not expose her reasoning for concluding that the appellant’s management behaviour towards the respondent commenced after the discussion with the operations manager about the new roads supervisor’s unsuitability for the role. The Member arrived at her conclusions without sufficiently engaging with the appellant’s submissions in relation to those matters. Rule 78(2)(c) of the 2021 Rules requires the Member to provide brief reasons, including the reasoning processes that led her to the conclusions made by her. Those omissions on the part of the Member were sufficient to show error on her part in her determination as to the whole or predominant cause of the injury and such error is of the kind of error required by s 352(5) of the 1998 Act. ([139]–[140])
9. Having established error on the basis of Grounds Two and Four of the appeal, it was not necessary for the Deputy President to consider the remaining grounds of appeal. ([141])

Mieth v Sydney Trains [2022] NSWPICPD 27

WORKERS COMPENSATION – section 4(b)(ii) of the 1987 Act – aggravation, acceleration, exacerbation or deterioration in the course of employment of a prior psychological condition – perception of events in the workplace – test of causation – State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 discussed and applied

Parker SC ADP

14 July 2022

Facts

The appellant worker was employed by the respondent as a Customer Service Attendant. He claimed that as a result of bullying, harassment, intimidation and interpersonal conflict with his manager he suffered an aggravation of a pre-existing psychological injury with a deemed date of injury of 8 May 2020. He sought weekly payments for a closed period and expenses pursuant to s 60 of the 1987 Act.

The respondent declined liability on the basis that the appellant had not sustained psychological injury arising out of or in the course of employment with the respondent. The respondent further said that any psychological condition was a manifestation of the pre-existing psychological condition.

The issue before the Member was whether the appellant sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act and if so, was he incapacitated from 8 May 2020 to 5 August 2020. The Member found in favour of the respondent. The worker appealed.

The issues on appeal were whether the Member:

(a) “erred at [81] of the reasons in failing to properly consider and misconceiving of the medical evidence of Dr Bisht (psychiatrist qualified by the respondent) and misdirecting herself as to that evidence in determining that the appellant’s misperception was a manifestation of his underlying pre-existing psychological condition as opined by Dr Bisht and thereby not a basis for a finding of a compensable psychological injury” (Ground 1);

(b) “erred when having determined at [59], [69], [71], [76], [77], and [80] of the reasons that the appellant’s perception of the various events or tasks described represented a misperception by him of innocuous matters she then at [80] and [81] of the reasons misdirected herself in applying an incorrect causation test when failing to properly consider and misconceiving the opinion of Dr Bisht and misdirecting herself as to the final opinion of Dr Bisht in report dated 2 August 2021” (Ground 2);

(c) “erred in failing to engage with the appellant’s submissions as to incapacity from 8 May 2020 to 5 August 2020 and failed to provide reasons sufficient to show her path of reasoning in rejecting the medical certification of Dr Leung [treating doctor] and the opinion of the treating psychologist Ms Ticinovic that the appellant had no capacity to work to 5 August 2020” (Ground 3), and

(d) “failed to engage with or give reasons in relation to the appellant’s claim for s 60 medical and related treatment expenses” (Ground 4).

Held: The Certificate of Determination dated 16 September 2021 was revoked. A finding was made that the appellant sustained an injury in the nature of an aggravation, acceleration, exacerbation, or deterioration of a pre-existing psychological condition to which his employment was the main contributing factor within the meaning of s 4(b)(ii) of the 1987 Act. The appellant’s claim for weekly compensation was remitted to another Member for determination.

Ground 1

1. The appellant submitted that the opinion of Dr Bisht satisfied s 4(b)(ii) of the 1987 Act because it was no more than a re-statement of an opinion that the appellant suffered from a pre-existing psychological injury which rendered the appellant more susceptible to psychological insult to his mind than if he had not had such a pre-existing condition. ([32])
2. Acting Deputy President Parker SC noted that the opinion of Dr Bisht in his first report dated 20 April 2021, as the Member recognised, was an acceptance that the events in the workplace were real and causative of an aggravation to the appellant’s pre-existing psychological condition. Dr Bisht reviewed his opinion and wrote another report dated 2 August 2021 in view of a factual investigation report that was provided to him. ([45]–[47])
3. Dr Bisht said in the report of 2 August 2021 that the aggravation of the pre-existing condition was not caused by “substantial events at the workplace, but rather by his reaction to routine workplace events, with this reaction likely resulting from the pre-existing psychological injury.” In the Acting Deputy President’s view, the opinion expressed was that the events which caused the psychological condition were not, as described by the appellant, “substantial events” but were “routine workplace events”. Nevertheless those events caused the psychological injury because they acted upon a pre-existing psychological injury. As the Acting Deputy President read Dr Bisht’s revised opinion to the effect that the routine workplace events, the happening of which was undisputed, precipitated the psychological injury in the form of the aggravation of the pre-existing condition that the appellant experienced. The Member seemed to have acknowledged this reading of Dr Bisht in paragraphs [80] and [81] of the reasons. ([48]–[49])
4. Acting Deputy President Parker SC observed that there was an apparent tension in paragraphs [80] and [81] of the reasons. In the Acting Deputy President’s view, Dr Bisht did not support the conclusion that the psychological injury was a manifestation of the underlying psychological condition. Paragraph [80] of the reasons was contrary to paragraph [81]. The “misperception” of real events which occurred in the course of the appellant’s employment with the respondent was caused by the underlying psychiatric condition, but that misperception was of real events that occurred in the course of employment. The Member’s conclusion at [81], that the psychological injury was a manifestation of the pre-existing condition, was not supported by the evidence of Dr Bisht and was erroneous. ([50]–[53])

^{(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied)}

5. The “misperception” of real, albeit innocuous, events in the course of employment resulted from the underlying pre-existing psychological condition, but that does not mean the events were delusional or illusory. The appellant’s psychological injury was caused by the events, even though such events would not cause psychological injury to a person who did not have the appellant’s pre-existing psychopathology. ([54])
6. On the basis of Dr Bisht’s opinion and the Member’s finding at paragraph [80], the aggravation of his pre-existing psychological injury was caused by the appellant’s misperception of the innocuous events in the course of employment. The Member’s finding to the contrary in paragraph [81] was in error. Ground 1 was made out. ([55]–[57])

Ground 2

7. The appellant submitted that the Member emphasised Yeo v Western Sydney Area Health Service [1999] NSWCC 1; 17 NSWCCR 573 (Yeo) and relied upon it as support for her reasoning at paragraph [59]. The appellant submitted that the test was correctly stated in Townsend v Commissioner of Police (1992) 25 NSWCCR 9 and that the decision on this aspect of the matter in Yeo was mere obiter. ([58])
8. Acting Deputy President Parker SC held that the Member applied the wrong test of causation. The Member quoted extensively from State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (Chemler). In particular, she quoted paragraph [47] which emphasises that the critical issue is whether there were acts in the workplace which had a particular effect on the mind of the respondent. The point of the Chief Justice’s reference to the talem qualem principle that employers take their employees as they find them was that the employer was liable for the reaction that the worker had to the events which occurred in the workplace even though that was a reaction which might not have been experienced by others. The contrast with Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (Townsend), as the Chief Justice made clear at [49], was that in Townsend, “nothing suggested the rumours could be sourced to conduct in the workplace …”. Parker SC ADP noted that the Member did not refer to Basten JA’s judgment in Chemler at [69]. ([71]–[73])
9. The Acting Deputy President stated that the issue accordingly was whether or not the events in fact occurred and whether the appellant’s perception of real events in the course of employment led to a cognisable psychiatric injury. The accepted evidence of Dr Bisht was that the appellant had a reaction to routine workplace events “with this reaction likely resulting from the pre-existing psychological injury” (emphasis added). ([74])
10. The appellant had a particular reaction to innocuous events in the course of employment because of the pre-existing condition. On the findings of the Member, the appellant felt bullied and harassed by his manager, under pressure to perform unsafe tasks, threatened as a result of his position with the union, and subjected to the possibility of a false complaint by a fellow (female) employee. He perceived those events as “offensive and hostile”. His perception was objectively mistaken but nevertheless, the events caused the reaction and this satisfies the test for causation. ([75])
11. The Acting Deputy President held the dicta of Judge Nielson in Yeo at [53] was not a correct statement of principle. As the Chief Justice observed in Chemler at [54], Judge Nielson stated the authority of Townsend too broadly. Furthermore, it is important to understand that Judge Neilson’s remarks were by way of addendum to the substantial decision which related to s 11A(1)(b) of the 1987 Act. ([76]–[79])

^{(Attorney General’s Department v K [2010] NSWWCCPD 76 applied)}

12. Acting Deputy President Parker SC held that Ground 2 of the appeal was established. The failure to find causation in favour of the appellant was erroneous. ([80])

Ground 3

13. The appellant submitted that the Member found that the appellant was not incapacitated as a result of an aggravation of his pre-existing condition, without engaging with the appellant’s evidence and submissions concerning his incapacity from 8 May 2020 to 5 August 2020. ([81])
14. It was plain that the psychologist, Ms Ticinovic, regarded the appellant as having no capacity for work as at 8 May 2020 and for a period of 12 weeks thereafter. Dr Leung’s certificate dated 8 July 2020 provided that the appellant had no current work capacity for any employment at that time. In the certificate dated 9 September 2020, the doctor certified the appellant as having a capacity to perform his pre-injury duties but not under the previous manager. The reports of Dr Bisht were not specific with respect to the appellant’s incapacity as at 8 May 2020, and to this extent his reports did not contradict or engage with the appellant’s evidence at the arbitration on the issue of capacity. ([92]–[94])
15. Acting Deputy President Parker SC was of the view that the Member’s determination with respect to the appellant’s capacity for work as a result of the aggravation of the pre-existing psychological condition was in error because:

(a) The Member made no express finding with respect to the appellant’s “capacity for work”.

(b) The test applied by the Member that she did “not accept that the [appellant] was incapacitated for work” was not the appropriate statutory test for the purpose of s 36. The statutory test for s 36 is whether or not the appellant has a “current work capacity”.

(c) The Member’s reasons, on this point, did not refer to the evidence of Ms Ticinovic or Dr Leung with respect to the appellant’s capacity for work for the period 8 May 2020 to 5 August 2020. Indeed, so far as the reasons were expressed it did not appear to have been appreciated that the first occasion on which the appellant was certified fit for work not under the previous manager was Dr Leung’s Certificate of 5 August 2020. ([98])

16. Ground 3 was made out. ([99])

Ground 4

17. In view of the Member’s determination it was unnecessary for the Acting Deputy President to determine this issue. As the Acting Deputy President found the first three grounds of appeal in favour of the appellant it followed from the respondent’s concession that the appellant was entitled to an order with respect to s 60 expenses if any had been incurred. ([102]–[103])

    Conclusion

18. Parker SC ADP revoked the Certificate of Determination dated 16 September 2021. The Acting Deputy President was satisfied as to causation of the injury and made a new determination of the injury issue, namely, that the appellant sustained an injury within the meaning of s 4(b)(ii) of the 1987 Act. ([104]–[105])
19. The Acting Deputy President remitted the remaining issues of work capacity and the appellant’s s 60 entitlement to a Member for determination. ([107])

Zurawski v Remondis Australia Pty Ltd [2022] NSWPICPD 28

WORKERS COMPENSATION – failure to bring to the attention of the parties an intention to determine a matter on the basis of an issue not raised – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197; Stead v State Government Insurance Commission [1986] HCA 54 applied

Wood DP

19 July 2022

Facts

The appellant was employed by the respondent for approximately 11 years, initially in an administrative role. From November 2019 to March 2020, and from about November 2020 to 31 March 2021, the appellant performed a sales role in the respondent’s Liquids Business Development area.

The appellant ceased work on 31 March 2021, following a meeting with her supervisors, in which she was advised that she was to return to her previous role in administration. The appellant lodged a workers compensation claim, in which she alleged that she was “demoted for the second time from Liquids BDM to Admin and finance, even after the fact that I was stalked … harassed [and] discriminated against [and] … was also not paid accordingly for my role …”.

The respondent denied liability on the basis that the appellant had not suffered a psychological injury within the meaning of s 11A(3) and s 4 of the 1987 Act or that the appellant’s employment was a substantial contributing factor to the injury, or the main contributing factor to the injury (ss 9A and 4(b) of the 1987 Act). In the alternative, the respondent asserted that no compensation was payable because any psychological injury suffered by the appellant was wholly or predominantly caused by actions taken or proposed to be taken by the respondent with respect to transfer and/or the provision of employment benefits in accordance with s 11A(1) of the 1987 Act.

The Member determined that the appellant had suffered a psychological injury but that the injury was caused by reasonable action taken by the respondent with respect to transfer within the meaning of s 11A(1) of the 1987 Act. The worker appealed.

The appellant brought seven grounds of appeal. As the first ground of appeal succeeded, it was not necessary to deal with the six remaining grounds.

The issue in the first ground of appeal was whether the Member erred by making adverse findings as to the appellant’s credit in the absence of any submission from the respondent that the appellant’s credit was in issue, and in the absence of any indication from the Member that he intended to make an adverse finding in respect of the appellant’s credit.

Held: The Member’s Certificate of Determination dated 10 November 2021 was revoked and the matter was remitted to another non-presidential member for re-determination.

Ground 1

1. The first ground of appeal asserted error in that the Member made adverse findings as to the appellant’s credit:

   (a) in the absence of any submission from the respondent that the appellant’s credit was in issue;

   (b) without giving the appellant notice that he intended to make an adverse finding as to the appellant’s credit, and

   (c) without giving the appellant the opportunity to address on the issue. ([107])

2. The basis of the Member’s rejection of the appellant’s claim was that he considered that her statement evidence was at odds with the recorded entries in the clinical notes from the Rope’s Crossing Medical Centre, as was the history relied upon by Dr Khan (forensic psychiatrist qualified by the appellant) in forming his opinion as to causation. The Member determined that the only pleaded stressors that may have led to injury and that were founded in the evidence were the “stalking” by the appellant’s manager and the co-employee, and the meeting on 31 March 2021. ([108])
3. The appellant submitted that the respondent’s case primarily involved an allegation of a single date of injury, which was the meeting on 31 March 2021. The appellant pointed to the evidence, which she said disclosed that she had experienced work-related stressors over a significant period of time, commencing from 4 July 2018, at which time the appellant was diagnosed as suffering from an adjustment disorder. The Member interjected at that stage and rhetorically queried whether the appellant had denied in her statement that she had experienced psychological symptoms prior to the pleaded events. ([110]–[111])
4. The appellant’s counsel then took the Member through the further entries in the clinical notes which, he submitted, related to the appellant’s stressful employment with the respondent as an accountant. He referred to the entry on 12 September 2020, which recorded stress and anxiety in relation to workplace gossip about her relationship with a co-worker and her manager, and to the entries on 1 April 2021 and 6 April 2021. The further submissions dealt with the complaints made by the appellant in her statement, the factual contest as to whether the appointment to the position of sales in the Liquids Development sector was a trial, or was a promotion, and whether the conduct of the respondent was reasonable. ([112])
5. In respect of this ground of appeal, the most relevant point in the respondent’s case was the submission that the earlier entries in the clinical notes, in which the appellant was diagnosed as suffering an adjustment disorder with anxiety, did not relate to the onset of symptoms on 31 March 2021. The submission was made in response to the appellant’s submission that the appellant’s psychological condition, diagnosed as an adjustment disorder, manifested well before the meeting on 31 March 2021. At no point did the respondent invite the Member to infer from the evidence that the appellant’s credit was in issue. Nor did the respondent squarely raise the issue before the Member that there was a sufficient conflict between the appellant’s evidence and the contemporaneous medical records to reject the appellant’s statement evidence and the opinion evidence of Dr Khan. ([113])
6. Wood DP found that at no time did the respondent articulate an argument that the records were so inconsistent with the case put forward by the appellant that the appellant’s evidence as to the matters that were causative of her injury should be rejected. Nor did the respondent submit that such evidence called into question the appellant’s credibility to the extent that the whole of her evidence should be rejected where it was not corroborated by objective evidence. ([114])
7. The Member was clearly required to evaluate the evidence, including the evidence from the clinical notes and the competing lay evidence. The Member touched upon the question of how the entries in the clinical notes were relevant to the case brought by the appellant in his exchange with the appellant’s counsel. It was unclear, however, whether the question raised by the Member related to the respondent’s submission that the earlier complaints of symptoms recorded in the clinical notes were relevant to the symptoms arising in March 2021, or to a potential concern that the causative factors recorded in those notes were not pleaded. ([115])
8. The Deputy President held that the Member decided the case on the basis that was never put to him, and without providing the appellant the opportunity to address the Member about those concerns. This amounted to a denial of procedural fairness. An error in the form of a denial of procedural fairness must be corrected unless it could not possibly have affected the outcome. ([116]–[118])

^{(Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197 , and Stead v State Government Insurance Commission [1986] HCA 54 applied)}

9. Wood DP said that it was difficult to see how the absence of an opportunity for the appellant to address the Member on this issue could have no bearing on the outcome of this case. The appellant should have been given the opportunity to give some explanation for the apparent inconsistencies, if there was such an explanation available. The appellant ought to have been given the opportunity to persuade the Member that the apparent inconsistencies were not so great as to warrant a rejection of the whole of the appellant’s evidence. It followed that the Member erred in his determination by failing to provide the appellant with the opportunity to address the Commission on a matter critical to the outcome of these proceedings. Ground 1 of the appeal therefore succeeded, the Certificate of Determination was revoked and the matter required re-determination. It was thus not necessary for the Deputy President to deal with the remaining grounds of appeal. ([120])

Fairfield City Council v McCall (No 2) [2022] NSWPICPD 29

WORKERS COMPENSATION – reconsideration application – section 57 of the 2020 Act –Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 discussed and applied – held that the appropriate remedy that should be sought should be under s 353 of the 1998 Act instead of a reconsideration application

Parker SC ADP

27 July 2022

Facts

The respondent worker lodged an Application to Resolve a Dispute against the appellant employer. A Member found in favour of the worker. The employer appealed. On 29 April 2022, Acting Deputy President Parker SC determined the appeal, confirming the Member’s Certificate of Determination dated 14 July 2021.

On 8 June 2022, the appellant filed an application for reconsideration of Acting Deputy President Parker SC’s decision of 29 April 2022 (the decision). The appellant sought to have the decision reconsidered pursuant to s 57 of the 2020 Act.

Held: The application to reconsider the decision of 29 April 2022 was refused.

Appellant’s submissions

1. The appellant took issue with the Acting Deputy President’s acceptance that the respondent made the submission as recorded in [64] of the Member’s Certificate of Determination. The appellant submitted that no such submission was made and nor was the availability of the inference raised with the parties. The appellant submitted that the respondent did not submit that an adverse inference should be drawn against the appellant. It said this was not an issue raised with the parties. The appellant  submitted that the determination constituted an error of the kind dealt with in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) and JA & MA Costa Pty Limited v Makouk [2021] NSWPICPD 11 with the consequence that the Member’s decision should be revoked and the matter remitted for further hearing. ([10]–[13])
2. The appellant submitted that the matter should be dealt with by way of reconsideration as an alternative to appeal because of the significant further cost, including the prospects of an adverse costs order. ([14])

Consideration

3. In Ceccato v Australian Steel Mill Services Pty Limited (No 2) [2021] NSWWCCPD 6, Deputy President Snell collected a number of general authorities on similar provisions in the course of a reconsideration application under the since repealed s 350(3) of the 1998 Act. He applied the principle in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel). Parker SC ADP held that the principles outlined in Samuel with respect to an application to reconsider under the repealed s 350(3) of the 1998 Act are of assistance in considering the operation of s 57(1) of the 2020 Act. ([24]–[26])
4. The discretion to reconsider is to be exercised for reasons and with a view to advancing the objects of the 2020 Act. It is not, in the Acting Deputy President’s view, intended to be a substitute for the rights of appeal given by s 353 of the 1998 Act. ([29])
5. This reconsideration application was not based on additional or fresh evidence, rather it was submitted that the Member and the Acting Deputy President each acted on the basis of a submission not made by the worker in circumstances where the employer was not informed of the intention to determine the matter on this basis. ([32])
6. The type of error identified in Ghaleb is one based on a denial of procedural fairness. If such an error was established, it is an error of law requiring a rehearing. In the Acting Deputy President’s view, the employer’s remedy in respect of the decision of 29 April 2022 was by way of appeal to the Court of Appeal pursuant to s 353 of the 1998 Act rather than a further reconsideration by the Commission. ([33]–[35])
7. Parker SC ADP held that whilst s 57(1) of the 2020 Act may well be wide enough to enable the Presidential Member to reconsider a matter vitiated by error of law, he doubted that such errors were the intended subject of s 57(1). The text of s 57(2)–(6) identifying the types of error otherwise contemplated by the section, albeit “without limiting the generality of subsection (1)”, are plainly not errors of law. Section 353 of the 1998 Act provides for a party “aggrieved by a decision ... in point of law” to appeal directly to the Court of Appeal. While it may be that where there is a clear undisputed legal error, s 57(1) could be utilised to make the correction, but this was not such a case. The legal error was neither clear nor undisputed. ([35])
8. The Acting Deputy President held that the objects of the 2020 Act include the disposition of proceedings with “as little formality as possible” in a timely, fair, consistent and high quality manner. This has to be read in the context of a clearly defined appellate procedure set out in ss 352 and 353 of the 1998 Act. ([35])
9. There are obvious circumstances in which the remedy given by s 57 would be readily deployed to achieve a timely and fair disposition of matters with as little formality as possible. For example where the Member overlooked a body of undisputed evidence, or an agreed factual position or a concession made by the parties or where evidence not previously available has become available. In such cases where there was a serious possibility of an altered outcome, it is plainly convenient and in line with the objects of the 2020 Act for the decision to be reconsidered and dealt with in accordance with s 57. This was not such a matter. ([35])
10. Acting Deputy President Parker SC refused to grant the application for reconsideration. ([36])
11. The Acting Deputy President added, for the assistance of the parties, that had he exercised the discretion in favour of reconsideration, he would have found against the appellant’s challenge in any event. ([37]–[50])

^{(Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel), and Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 applied)}

12. Parker SC ADP stated that it was not necessary for the worker to have made an express submission with respect to the inference to be drawn from the absence of evidence or a report from Dr Foo. The Member was entitled to draw inferences from the evidence before him whether or not a party submitted that a particular inference should or should not be drawn. ([48])
13. The Acting Deputy President added that a Jones v Dunkel inference does not supply evidence, it merely makes a conclusion properly based on other evidence before the Commission more easily accepted. The rule in Jones v Dunkel does not fill in gaps in the evidence or convert conjecture or suspicion into an inference. It followed that even if the employer were correct that the Member was not entitled to draw the inference that he did at [132] of the reasons, the outcome would have been the same. ([49])
14. Because the inference does not provide evidence but merely makes other evidence more easily accepted, it followed that the decision against the employer in the hearing before the Member must have rested on other satisfactory evidence. In this circumstance the employer could not satisfy the requirement that the outcome of the hearing, had the inference not been drawn, would have been different. ([50])