Appeal Case Summaries

Waverley Council v Sfuncia [2021] NSWPICPD 43

WORKERS COMPENSATION – s 4(b) of the 1987 Act – actions of co-worker towards worker – worker assaulted by co-worker – continued conduct of co-worker after their termination towards worker – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – action of employer in respect of promotion – s 11A(1) of the 1987 Act – contents of medical notes to be approached with care – Mason v Demasi [2009] NSWCA 227 applied – absence of complaints in records – Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548

Phillips P

3 December 2021

Facts

The respondent worker was employed by the appellant as an “Open Spaces Officer”. His role required him to work in a team maintaining parks and streets in Waverley Council.

The respondent claimed workers compensation for a psychological injury as a result of a number of incidents occurring throughout the duration of his employment. These incidents involved harassment and intimidation from his team leader (Mr Baghadi) which continued after Mr Baghadi left the employ of the appellant and resulted in criminal charges, as well as the failure to attain a promotion, and a delayed performance review with pay increase.

Liability was denied by the appellant on the basis that the incidents involving Mr Baghadi following his termination did not arise out of, or in the course of the respondent’s employment. A defence pursuant to s 11A(1) of the 1987 Act was also relied upon, in that the respondent’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant with respect to a promotion. It was undisputed that the respondent suffered a psychological injury. It was disputed, however, how the injury came about and whether the appellant could avail itself of the defence in s 11A(1) of the 1987 Act.

The Member found in favour of the worker and issued a Certificate of Determination dated 12 March 2021 which awarded the worker on-going weekly compensation and medical expenses and referred his claim for whole person impairment to a Medical Assessor. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) law by applying the incorrect test under s 4(b) of the 1987 Act to determine whether the respondent suffered disease injury in the course of his employment (Ground 1);

(b) fact and law in proceeding on the basis that the relevant test under s 4(b) of the 1987 Act was whether there had been aggravation etc of disease (Ground 2);

(c) fact and law in holding that Dr Ng’s opinion was that the respondent’s condition was predominantly caused by his lack of promotion and his difficulties with Mr Baghadi (Ground 3), and

(d) fact and discretion in holding that the failure of the respondent to obtain promotion was not the predominant cause of his psychological condition (Ground 4).

Held: The Member’s Certificate of Determination dated 12 March 2021 was confirmed.

Ground 1

1. The appellant submitted the Member incorrectly used the test for determining the causation issue of ‘arising out of employment’, rather than the correct legal test for determining whether injury arose in the course of employment, in assessing liability under s 4 of the 1987 Act. It said the Member “erred in finding section 4 injury”. ([133])
2. The President held that it was apparent from a consideration of the Member’s reasons at [15] that the Member was well aware that injury had to be one which occurred in the course of the respondent’s employment with the appellant. This was in the context of a discussion as to Mr Baghadi’s post termination behaviour towards the respondent. As a result of the behaviour Mr Baghadi directed to the respondent and others, the appellant undertook an investigation and subsequently terminated Mr Baghadi’s employment. Mr Baghadi later engaged in grossly intimidatory behaviour directed toward the respondent at his home, which on a fair examination of what transpired could be said to be in retribution for the respondent and his colleagues making complaints that led to Mr Baghadi’s employment being terminated. ([135])
3. His Honour held that the Member correctly differentiated between the position of Mr Baghadi and that of the respondent in considering the question as to which person the provisions of s 4(b)(i) are directed to. Clearly and correctly, the Member found that s 4(b)(i) was concerned with the situation of the respondent. The fact that Mr Baghadi’s employment had been terminated was part of the factual matrix to be considered with respect to the respondent worker, but this did not automatically exclude those matters from consideration. ([136])
4. The President observed that Mr Baghadi’s conduct that was directed towards the respondent arose in the course of the respondent’s employment and the Member so found. It could not be said that the post-employment behaviour of Mr Baghadi represented a private quarrel between he and the respondent. Viewed correctly, as the Member did, it was a continuation of the behaviour engaged in by Mr Baghadi whilst he was employed by the appellant and could be seen to be the application of retribution for the respondent complaining about Mr Baghadi’s behaviour. ([137])
5. The President noted the Member applied, without quoting the case, the common sense test found by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). His Honour held that this was not the application of the incorrect test. The Member carefully considered the factual evidence, most of which was not in dispute, and reached a view on the facts that the respondent worker had established injury in the course of employment as is required by s 4(b)(i). Clearly causation had to be considered given the contest over events which are said to have occurred outside the course of employment. Notwithstanding the respondent’s submissions regarding the actions of Mr Baghadi following dismissal, this matter was correctly dealt with under s 4(b)(i) of the 1987 Act. It was not a sustainable proposition that the Member applied the incorrect test, namely that of “arising out of employment” when clearly it was evident from the decision that the correct test was applied and was part of the ultimate finding. Ground 1 failed. ([139]–[142])

Ground 2

6. The appellant alleged that the Member applied the incorrect test. It submitted “the Member erred in considering whether there was aggravation, acceleration, exacerbation or deterioration of the worker’s condition under section 4(b)(ii) [of the 1987 Act] rather than addressing the liability test in section 4(b)(i) [of the 1987 Act].” The appellant asserted there was no evidence that the respondent had suffered a pre‑existing psychological condition or disease which had been aggravated by his work. ([143]–[144])
7. Section 4(b) of the 1987 Act refers to two limbs which distinguish between diseases which are contracted during the course of employment on the one hand, and secondly diseases which are aggravated, accelerated, exacerbated or deteriorate by reason of the employment. If the first limb applies, the worker will not previously have suffered from the disease. ([146])
8. There was no evidence in this case that the respondent had been suffering from a pre-existing disease which had been made symptomatic by reason of his employment as is contemplated by s 4(b)(ii). The evidence was in fact to the effect that this condition was caused by stressors suffered by the respondent in the course of his employment with the appellant. ([147])
9. The Member in dealing with the evidence noted the appellant’s suggestion at first instance that “because this is an aggravation of disease case, pursuant to section 4(b)(ii) of the 1987 Act the aggravation etc must be in the course of employment so that it is not sufficient that Mr [Baghadi’s] conduct arises out of the employment.” Whilst this was recorded by the Member as being the appellant’s then submission, the ultimate finding made it clear that the Member dealt with the matter under s 4(b)(i). At [24], the Member found “The [respondent worker] in the course of his employment with the [appellant employer] between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events.” The President held the alleged error did not occur; the Member correctly dealt with the matter under s 4(b)(i). Ground 2 failed. ([150]–[153])

Ground 3

10. The appellant maintained that the Member did not properly construe the opinion of Dr Ng, the psychiatrist qualified by the appellant. It submitted: “The Member erred in fact and law in holding that Dr Ng’s opinion was that the [r]espondent’s condition was predominantly caused by his lack of promotion and his difficulties with Mr [Baghadi].” The appellant further alleged that Dr Ng’s opinion was that the respondent’s condition was predominantly caused by the respondent’s failure to obtain promotion. The appellant asserted that in finding otherwise there was error of fact and law. ([154]–[156])
11. The appellant stated that Dr Ng’s opinion was that the respondent’s psychological condition was predominantly caused by his failure to obtain promotion. The Member found, at [21] of the reasons, that Dr Ng’s opinion was to the effect that the psychological condition was predominantly caused by the lack of promotion and his difficulties with Mr Baghadi. The President held that the Member was not in error in his description of Dr Ng’s opinion. Dr Ng did not doubt that Mr Baghadi may have played some part in the respondent’s distress. It was quite clear that Dr Ng through his three reports took a detailed history and did not discount the effect that Mr Baghadi’s abhorrent behaviour had upon the respondent. Nowhere in Dr Ng’s reports did he discount the stressors introduced by Mr Baghadi. In his first report, Dr Ng thought that the respondent’s psychological condition was mostly due to actions taken by the employer with respect to promotion, and in his second report he found “the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr … Francis.” Neither of these descriptions vis-à-vis promotion satisfied the legal test required for the appellant to make out its s 11A defence. His Honour held that the Member’s summation of Dr Ng’s opinion at [21] of the reasons was an entirely available reading and construction of the entirety of Dr Ng’s opinions. Ground 3 failed. ([172]–[173])

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

Ground 4

12. The appellant made various allegations of error under this ground. ([180])
13. The appellant alleged the Member erred in fact and discretion in holding that the failure of the respondent to obtain promotion was not the predominant cause of his psychological condition. The appellant further alleged that the Member failed to consider all relevant matters, and took into account irrelevant matters, in determining whether the appellant had been able to avail itself of the s 11A(1) defence. There were two parts of this appeal ground. The first alleged an error of fact in decision making and the second, and perhaps the more substantial ground advanced, pertained to the submission that the Member’s discretion had miscarried. ([174]–[178])

(House v The King (1936) 55 CLR 499 applied)

14. The appellant submitted that Mr Baghadi’s post-employment activities did not occur in the course of the respondent’s employment with the appellant and therefore could not be taken into account in the assessment of compensation liability. Whether or not Mr Baghadi’s post-termination conduct was or was not in the course of the respondent’s employment involved a consideration of the factual matrix and the Member reaching a conclusion of law with respect to that behaviour. The appellant though had approached this matter as if it was unarguable that Mr Baghadi’s post-employment conduct could not be considered. The Member approached this consideration consistently with the dicta of Kirby P as set out in Kooragang. The appellant did not point out why it was wrong for the Member to apply Kooragang. ([182]–[183])
15. The appellant also alleged that there were significant factual disputes which were not considered by the Member. Whilst the appellant had not identified under this argument the factual disputes which were not considered by the Member, a consideration of the contents of [34] of the appellant’s submissions and the Member’s reasons would relate to the appellant’s witness’s evidence, Ms Parry of Human Resources. It was apparent that there was a contest as to whether or not Ms Parry told the respondent that he was not going to progress further in his employment with the appellant. The President concluded it was not necessary for all of the factual contests which the respondent referred to in the submissions to be resolved. ([185]–[191])

(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 applied)

16. The appellant asserted that where there is a contest with respect to the respondent’s evidence, the respondent’s version should not be accepted. Clearly the appellant was asserting that the respondent worker was not a witness of credit. This was not a proposition put before the Member, rather it was submitted on behalf of the appellant that the evidence of Ms Parry and Mr Francis (his supervisor) would be preferred and this was largely on the basis that whilst the respondent might have had a perception about his treatment, the perception must be as to real events. Given that the matter of the respondent’s credit was not put to the Member in the manner in which it was advanced on appeal, by definition the Member could be involved in no error. ([192]–[194])
17. The appellant took issue with the opinion of psychiatrist, A/Prof Robertson, who was qualified by the respondent worker. The President held that the Member was entitled to consider A/Prof Robertson’s opinion and give it such weight as he considered was appropriate and warranted. Further, no issue was taken before the Member that A/Prof Robertson’s opinion was not given in a “fair climate”, nor that it could not be relied upon for the reasons set out in this appeal ground. ([195]–[196])
18. The appellant alleged that the weight of the evidence supported the conclusion that the predominant cause of the respondent’s illness was his failure to obtain a promotion. The President noted that the weight to be afforded to particular evidence is a matter that falls within the province of the primary decision maker. Additionally, if the Member makes findings of fact these will not be disturbed on appeal if there is cogent support for them in the evidence. The President concluded that no error had been established. ([198]–[203])

(Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 applied)

19. The appellant also alleged that the respondent’s lack of qualifications required for a promotion led to the inevitable conclusion that the appellant’s actions in not promoting the respondent were reasonable. The President observed that this submission might have had some attraction if the evidence was to the effect that the undoubted psychological injury was wholly or predominantly caused by the respondent worker’s failure to obtain a promotion. As his Honour earlier found though, it was open to the Member, properly construing the medical evidence, to find as he did. ([204]–[206])
20. The President ultimately found that all of the allegations of error contained in paragraph [36] of the appellant’s submissions were unsuccessful. Accordingly, Ground 4 failed. [207])

ACR v Grace Worldwide Pty Ltd [2021] NSWPICPD 44

WORKERS COMPENSATION – Acceptance of evidence in the absence of cross-examination Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 applied – acceptance of and weight to be afforded to evidence – principles discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied – s 11A of the 1987 Act – wholly or predominantly caused by action with respect to the provision of employment benefits – JobKeeper benefits – BB v Secretary, Department of Education [2020] NSWWCCPD 27 discussed – Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 discussed and applied

Wood DP

7 December 2021

Facts

The appellant worker, ACR, was employed by the respondent as the Group Marketing Manager on 18 June 2018, reporting directly to the respondent’s Managing Director, Mr Brown. The appellant alleged that, as a result of interactions with Mr Brown, she suffered a psychological injury culminating in her ceasing work on 20 April 2020 and making a claim for workers compensation. She sought weekly payments before the Commission. The Member made an award for the respondent. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) law in failing to apply Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 (Cruceanu), in that the Member considered that cross-examination was not necessary (Ground 1);

(b) law by applying the Fair Work Act 2009, which constituted a jurisdictional error and led to error in determining that: (i) the conduct of Mr Brown and Mr Elsworth could not be described as “bullying”, and (ii) the appellant was not subjected to “unreasonable work demands” (Ground 2);

(c) fact in rejecting or placing little weight on the history recorded by Dr Deng on 20 April 2020, which was the appellant’s perception of events (Ground 3);(d) fact in determining that there was no evidence that the appellant sought medical treatment, when the appellant attended her general practitioner on 20 April 2020 (Ground 4);

(e) fact in finding that events as related by the appellant did not appear to have affected the appellant’s mental health (Ground 5);

(f) law by conflating the separate causal tests of “wholly” and “predominantly” within s 11A of the 1987 Act (Ground 6);

(g) law in finding that the whole or predominant cause of the appellant’s psychological injury was the respondent’s action in standing the appellant down in order to avoid retrenchment (Ground 7);

(h) law in failing to deal with the appellant’s submission that the cause of the appellant’s injury was not solely the respondent’s action in standing down the appellant and not Mr Wilson, but included the appellant’s feelings over the previous six months that her role was threatened (Ground 8);

(i) discretion in affording the evidence of Dr Allan little weight (Ground 9);

(j) law in misconstruing the statutory phrase “action” within s 11A of the 1987 Act to include “standing down” (Ground 10);

(k) law in misconstruing the statutory phrase “with respect to” within s 11A of the 1987 Act (Ground 11);

(l) law in failing to deal with the appellant’s submission that the appellant’s psychological injury was not wholly or predominantly caused by reasonable action by the respondent with respect to employment benefits (namely “JobKeeper”) (Ground 12);

(m) law in failing to deal with the appellant’s submission that the onus of proof in respect of s 11A of the 1987 Act rested with the respondent so that it was incumbent upon the respondent to adduce evidence about JobKeeper, of which there was none (Ground 13);

(n) law by taking into account an irrelevant, speculative consideration, namely that the appellant may well have been left with little or no income (Ground 14), and

(o) law in misconstruing the statutory phrase “action taken or proposed to be taken” within s 11A of the 1987 Act (Ground 15).

Held: The Member’s Certificate of Determination dated 4 March 2021 was confirmed.

Ground 1

1. Ground 1 of the appeal concerned the Member’s rejection of the appellant’s evidence that the interactions with Mr Brown were causative of her injury. The appellant asserted that, in order for the Member to reject that evidence, the respondent was required to cross-examine the appellant about the inconsistencies between her evidence and the evidence of Mr Brown and Mr Elsworth. The appellant asserted that, in the absence of such cross-examination, the Member was bound to accept the appellant’s evidence. ([211])
2. Wood DP held the Member did not fall into error by: (a) accepting, or failing to accept, evidence which was not the subject of cross-examination; (b) failing to apply the minority judgment in Cruceanu, or (c) concluding that it was not necessary for the evidence to be the subject of cross-examination. This ground of appeal failed. ([218]–[219])

Ground 2

3. Ground 2 complained that the Member committed jurisdictional error by applying the Fair Work Act in order to examine the term “bullying.” Wood DP held the Member was entitled to enquire about the type of action that could be described as “bullying” in order to ascertain what impact the interactions might have had on the appellant. This ground was not made out and failed. ([220]–[223])

Ground 3

4. Ground 3 asserted that the Member fell into error by failing to accept the history provided by the appellant to her general practitioner, Dr Deng. Wood DP noted the appellant did not make the submissions to the Member that she sought to make on the appeal. The appellant asserted that the Member erred by failing to accept that the interactions with Mr Brown and others were causative of the injury because the complaint made to Dr Deng was her “misperception” of those events. The Deputy President did not accept that the Member erred as asserted. This ground of appeal failed. ([224]–[226]) /li>

Ground 4

5. The appellant alleged that the Member erred in fact in determining that there was no evidence that the appellant sought treatment, when the appellant attended Dr Deng on 20 April 2020. Wood DP held that the Member was undoubtedly correct to say that there was no evidence before her that the appellant sought treatment from a health provider prior to being stood down. The error described by the appellant was not made out and this ground of appeal failed. ([227]–[231]) /li>

Ground 5

6. The appellant asserted that the Member erred in fact in finding that the events as related by the appellant did not appear to have affected the appellant’s mental health. The Deputy President held that on the evidence before her, the Member’s finding was open to her and no error was disclosed. This ground failed. ([232]–[236]) /li>

Ground 6

7. The appellant asserted that the Member erred in law by conflating the terms “wholly” and “predominantly” used in s 11A of the 1987 Act, which, she said, are two different concepts. The appellant submitted that the Member erred in finding that the failure to stand down Mr Wilson contributed to the appellant’s condition because she had already determined the predominant cause. ([237])
8. The Member engaged in an analysis of the alleged causative factors as she was required to do. The Member adequately set out her reasons for her decision and the decision must be read as a whole. Deputy President Wood did not accept that, in this case, the Member conflated the two concepts of “wholly” or “predominantly.” This ground of appeal was not made out and failed. ([248], [252]–[253])

Ground 7

9. The appellant alleged error on the part of the Member in finding that the whole or predominant cause of the appellant’s psychological injury was the respondent’s action in standing the appellant down in order to avoid retrenchment. The appellant asserted that the Member did not point to any evidence that supported her conclusion, and there was no such evidence. ([254])
10. The Deputy President held that the passage the Member quoted from the report of Dr Martin, psychiatrist, in the reasons was clear medical evidence that the predominant cause of the appellant’s injury was the appellant being stood down on 2 April 2020. The Member also took into account the emails passing from the appellant to Ms Gilroy, Human Relations Manager, in respect of the effect on the appellant of being stood down and the lack of acceptable medical evidence to support another work-related cause for the injury. These were sufficient reasons in support of the Member’s conclusion The appellant had not identified error on the part of the Member and this ground failed. ([255]–[257])

Ground 8

11. Ground 8 of the appeal asserted error on the part of the Member by failing to deal with a submission made by the appellant. The appellant submitted that the Member “ought to have found” that the appellant’s experiences over the six months prior to the appellant being stood down were additionally causative of the injury. The appellant said that the Member relied on only a select part of Dr Martin’s evidence. ([258])
12. Wood DP held that the Member clearly dealt with the essence of the appellant’s complaints. She did not accept that the Member failed to deal with the submission or that the manner in which the Member dealt with that evidence disclosed error. This ground of appeal failed. ([267])

Ground 9

13. The appellant asserted error on the part of the Member by affording little weight to the evidence of the respondent’s medico-legal expert, Dr Allan, psychiatrist, which the appellant said was a conclusion reached without a proper basis. ([268])
14. The Member’s finding in relation to the probative value of Dr Allan’s evidence was a finding of fact, thus the principles discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 apply. The Member’s finding was rational and open to her and, for the reasons enunciated by her, was not in error. The appellant had pointed to no proper reason to disturb that finding and Ground 9 of the appeal failed. ([272])

Grounds 10 and 11

15. Ground 10 of the appeal asserted that the Member misconstrued the word “action” within s 11A(1) to include “standing down”. Ground 11 of the appeal complained that the Member erred in determining that the action of standing down the appellant was “with respect to” retrenchment. ([273])
16. The relevant words of the section are “... action taken or proposed to be taken ... with respect to ...”. The Member determined that the provision of JobKeeper payments constituted the provision of employment benefits. In the Deputy President’s view, it could not be argued that the JobKeeper payment did not constitute an employment benefit. ([274]–[276])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) applied)

17. The appellant submitted that there was no basis upon which to consider the phrase “with respect to ... retrenchment” and the words “retrenchment” and “redundancy” are different concepts, so that the Member was in error to consider that phrase. This submission was not a submission made to the Member and it was not appropriate to raise this new argument on appeal. In any event, the Member was correct to determine that the defence pursuant to s 11A was made out because the relevant action was “with respect to” the provision of “employment benefits.” That determination was sufficient to disentitle the appellant to compensation. It was therefore not necessary to deal with the appellant’s argument that the relevant action was not with respect to the “retrenchment” of workers. Grounds 10 and 11 failed. ([280]–[282])

Ground 12

18. The appellant submitted that the Member did not acknowledge her submission that the appellant did not suffer a psychological condition as a result of being provided with JobKeeper payments, and that there was no evidence to support that notion. Further, the appellant asserted that the Member did not make a determination in relation to that submission, which amounted to an error of law. ([283])
19. Deputy President Wood rejected the appellant’s assertion. The Member referred to the appellant’s submission at [71]–[77] of her reasons. The Member reasoned that “action” incorporated not only actions taken but also proposed actions “with respect to” the matters identified in s 11A of the 1987 Act. Thus, the cause of the psychological injury suffered by the appellant was not of itself being paid the JobKeeper benefit, but those actions taken by the respondent in order to enable those payments to be passed on to the appellant. That is, actions “with respect to” the provision of that benefit. The appellant had not established error on the part of the Member and this ground of appeal failed. ([284]–[285])

Ground 13

20. The appellant asserted error on the part of the Member by failing to deal with her submission that it was incumbent upon the respondent to adduce evidence about JobKeeper. The appellant did not identify what evidence was lacking in respect of the JobKeeper scheme. It was apparent from the evidence of Mr Elsworth, Financial Director, and the appellant’s own experience with the scheme, that the appellant was stood down so that she could receive the scheme payments, thus retaining the appellant’s employment status and passing on the benefit to the appellant. In the COVID-19 climate, there would be very few Australians who would be unaware of those rudimentary aspects of the JobKeeper scheme. ([286]–[287])
21. The Deputy President did not accept that the Member’s determination that it was an employment benefit was determined in a “vacuum.” Further, the nature of the JobKeeper payment was not that of a payment of wages. Those employees such as the appellant were stood down from their employment roles, with the appellant being asked to work just one day per week. Clearly the benefits passed on to those workers were not payments for work done and thus could not constitute a payment of wages. This ground of appeal failed. ([288]–[289])

Ground 14

22. The appellant alleged error on the part of the Member by taking into account an irrelevant consideration, namely by considering that the appellant may well have been left with little or no income. It was abundantly clear that an alternative action taken by the respondent may have left the appellant with little, less or no income. It was therefore a very relevant matter for the Member to take into account when assessing whether the provision of JobKeeper payments was a “benefit” within the meaning of s 11A(1) of the 1987 Act. The appellant’s allegation of error was rejected and this ground of appeal failed. ([290]–[291])

Ground 15

23. The appellant asserted that the Member erred in law by misconstruing the phrase “action taken or proposed to be taken.” The appellant submitted that the Member had no need to ask herself questions about proposed action because the respondent relied upon actions which had actually occurred. ([292])
24. The Member’s consideration of the phrase “action taken or proposed to be taken” was set out in her reasons at [73]–[77]. It was clear that the Member contemplated that the action of retrenching the appellant had not taken place, but that the actions that had taken place still fell within the section because those actions were “with respect to” retrenchment, as well as the provision of employment benefits. This reasoning process was consistent with the observations of Sackville AJA in Heggie that the disciplinary action included the preliminary action of standing down the worker while investigating the complaints. In this case the proposed action was to avoid retrenchment (or redundancies) and to provide the appellant with employment benefits, neither of which actions had occurred when the appellant suffered her psychological injury. Wood DP did not accept that the Member misconstrued the phrase. This ground of appeal failed. ([293]–[295])

McDonald v Woolworths Ltd [2021] NSWPICPD 45

WORKERS COMPENSATION – Causation – alleged factual error in the assessment of medical evidence, section 352(5) of the 1998 Act

Snell DP

10 December 2021

Facts

The appellant worker worked for the respondent from 1990. She worked at the Nowra Stocklands store as a service manager, where her duties involved “running the service area”. There were physical aspects such as clearing baskets and check out work, which was repetitive and involved lifting. The appellant was on her feet all day. She unloaded compressed boxes of shopping bags which were delivered on pallets. She lifted cartons of heavy items such as soft drink which she the n moved on trolleys. She carried bags of coins. She unloaded cartons of cigarettes weighing 10 to 15 kilograms. She used a mop to clean spillages. She was injured on 23 January 2008 when she slipped and fell. She had lower back and leg pain and some time off work. The respondent accepted liability for this injury. By March 2008 the appellant was back at work on “suitable duties”. She said that thereafter she “was never free of back pain and [she] continued at work as best [she] could, carrying out the restrictive [sic] duties”.

The appellant’s ongoing back symptoms were accompanied by paraesthesia and tingling in the legs. On 24 June 2014, Dr Bentivoglio, neurosurgeon, performed surgery involving release of the lateral femoral cutaneous nerve of the left thigh. The appellant stated that five days after the surgery she woke due to leg pain and was walking in her home when her back gave way, her left leg collapsed and she fell. She said she had severe right leg pain following this. She also stated that she had an “altered walking gait following the 2008 work injury”. By July/August 2014 the appellant was suffering extreme lower back and right leg pain. She had an MRI scan on 25 September 2014 which showed disc prolapses at L2/3 and L3/4. Dr Bentivoglio suggested surgery at these levels. The appellant stated the respondent terminated her employment on 29 November 2015.

The appellant saw another neurosurgeon, Professor Jaeger, who recommended an L2/3 microdiscectomy and rhizolysis. The respondent declined liability for this. Professor Jaeger carried out the procedure on 2 February 2017 treating the appellant as a private patient.

The appellant claimed lump sum compensation in respect of her back injury, together with the cost of the more recent surgery, on 5 July 2018. The respondent declined liability for this claim, relying primarily on a report of Dr Casikar, a neurosurgeon who was qualified by the respondent, dated 5 December 2014. By letter dated 31 July 2020, the appellant’s solicitors advised that the appellant also brought a continuing claim for weekly payments from 4 April 2020. The Member made an award in favour of the employer. The worker appealed.

The issues on appeal were whether the Member:

(a) erred in rejecting the evidence of Dr Bodel at paragraph [48] of the decision (Ground 1);

(b) erred in failing to give sufficient weight to the evidence of Dr Bentivoglio at paragraph [47] of the decision (Ground 2), and

(c) failed to take into consideration all of the evidence of Dr Casikar when preferring his evidence on the issue of causation (Ground 3).

Held: The Certificate of Determination dated 24 March 2021 was confirmed.

Consideration

1. In essence, the Member did not accept the views of Dr Bodel and preferred the evidence of Dr Casikar. The grounds challenged the assessment of the parties’ medical cases as a whole, and the Member’s ultimate preference for the opinion of Dr Casikar. The Deputy President dealt with all three grounds together. ([25])

The issue as litigation

2. The Application to Resolve a Dispute (ARD) pleaded a frank injury, within the meaning of s 4(a) of the 1987 Act on 23 January 2008, the occurrence of which was not contentious. The injuries sustained included injury to the back. The ARD additionally pleaded ‘consequential’ injury to the back, including the left buttock and groin. That is, that the consequential injuries (more correctly, conditions) resulted from the injury on 23 January 2008, and that there was an unbroken chain of causation from the injury on 23 January 2008 to the consequential conditions, consistent with the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796. The ARD additionally pleaded injury, pursuant to the ‘disease’ provisions in s 4(b) of the 1987 Act, due to the ‘nature and conditions’ of her employment from 2008 to 22 June 2014 (the last day of her employment). ([36])
3. Snell DP held it was apparent, reading the Member’s reasons as a whole, that he approached the matter consistent with how the case was run, on the basis that the real issue was the causal linkage between the injury on 23 January 2008 and the upper lumbar condition that Professor Jaeger treated surgically on 2 February 2017. That  causal link was supported by Dr Bodel on various bases. There was debate regarding the extent to which it was supported by Dr Bentivoglio. It was not supported by Dr Casikar. ([37]–[38])

Discussion

4. Deputy President Snell dealt with Ground 2 first. The appellant submitted that there was probative force in the opinion evidence of Dr Bentivoglio to satisfy the appellant’s onus. It submitted the Member failed to give any reason for not accepting this submission. ([60])
5. The Deputy President held that the Member’s view, that Dr Bentivoglio’s preparedness to request payment for surgery did not, on its own in the circumstances, represent sufficient evidence to satisfy the onus on causation, was correct. The appellant effectively sought to rely on an inference, drawn from Dr Bentivoglio’s request for the further surgery to be funded, although the appellant did not put it in those terms. One could not know what questions the doctor considered before making such a request or the basis on which he answered them. It was necessary that this step taken by Dr Bentivoglio was considered in conjunction with other available evidence going to the doctor’s view. ([62])

(Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, and Luxton v Vines [1952] HCA 19; 85 CLR 352 applied)

6. Dr Bentivoglio’s report dated 30 October 2014 constituted direct proof of the doctor’s opinion on the causation issue, rather than a proposed inference. The doctor said, of the upper lumbar protrusions, “this is a new finding, unrelated to the work injury she described in approximately 2008”. The inference the Member drew was not properly available. If the contrary view was taken, that the inference drawn by the Member was available, the probative force of that inference, in the face of the direct evidence of Dr Bentivoglio’s opinion (which was to the contrary) was slight. Dr Bentivoglio’s evidence, taken as a whole, did not support the appellant’s case on causation. The way in which the Member dealt with the doctor’s views in the reasons at [45] and [47] was in no way unfair to the appellant. Ground 2 failed. ([63])
7. With respect to Ground 3, which went to the evidence of Dr Casikar, Snell DP held that the specific, alleged deficiency, identified in the history assumed by Dr Casikar, was that the doctor was unaware of Dr Bentivoglio’s opinion that the necessity for further lumbar surgery resulted from the 2008 fall. That did not fairly put Dr Bentivoglio’s opinion regarding the need for the upper lumbar surgery. The submissions relating to Ground 3 did not otherwise identify specific alleged inadequacy in the history on which Dr Casikar’s opinion was based. The appellant’s submissions made no developed argument regarding how any deficiency in the doctor’s history affects the weight to be given to Dr Casikar’s opinion. Ground 3 failed. ([64]–[71])

(Paric v John Holland (Constructions) Pty Ltd[1985] HCA 58, and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 applied)

8. In her submissions on Ground 1, the appellant alleged error in the fact finding at [48] of the reasons. The appellant submitted that, on the initial consultation with the appellant, Dr Bodel failed to obtain “a proper history of the surgery, the subsequent leg pain and the fall”. She submitted that on his second consultation he obtained such a history and made the diagnosis that the appellant suffered a right sided disc rupture at L2/3 in the fall at home some days after the surgery was performed by Dr Bentivoglio. The appellant submitted this “full and accurate history” was not apparently disputed. The appellant submitted this was a common-sense explanation for the change in Dr Bodel’s opinion. ([72]–[75])
9. The Member dealt with the incident where the appellant stumbled at home, in the days following the 2014 surgery, at [55] of his reasons. He accepted the appellant’s evidence that the incident occurred: “I do not doubt the [appellant’s] evidence that she experienced severe pain following that incident”. The Member expressed a view that “the mechanics of the fall as described by her are not, in my view, sufficient to have caused such significant pathology”. The Deputy President had serious reservations regarding whether such a finding could be made by the Member on the basis that it fell within the realm of “common knowledge and experience”. This was not raised as an issue on this appeal, for understandable reasons. The finding at [55] of the reasons followed on from a discussion of the competing medical evidence, including a rejection of Dr Bodel’s opinion on this issue and acceptance of the competing views of Dr Casikar. The decision did not turn on the Member’s factual finding regarding the capacity of the fall at home to cause the relevant discal injuries. ([77])
10. Snell DP held it was open to the Member to conclude, as he did, that Dr Bodel’s reports contained internal contradictions. These unexplained inconsistencies represented a valid reason for the Member to not accept the doctor’s views, and to prefer the opinion of Dr Casikar. The appellant had not succeeded in establishing error within the meaning of s 352(5) of the 1998 Act. These inconsistencies had not been dealt with by, for example, obtaining supplementary evidence from Dr Bodel to explain his reasoning and ultimate opinion. Ground 1 failed. ([84]–[85])

(Caruana v Darouti [2014] NSWCA 85 applied)

Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46

WORKERS COMPENSATION – Section 17 of the 1987 Act – requirement to give notice of further injury – Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 discussed, Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 discussed and applied – whether the employment materially contributed to the need for provision of further hearing aids – Bluescope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 discussed and applied

Wood DP

13 December 2021

Facts

The respondent worker was previously employed by the appellant employer as a plant operator and front end loader driver. The respondent left that employment in 2009 and commenced employment with a subsequent employer for a short period before commencing with an organisation referred to as “ACI Operations”.

On 28 June 1999, the respondent lodged a claim against the appellant for lump sum compensation in respect of 16.8% binaural hearing loss pursuant to the then, ss 66 and 67 of the 1987 Act. Following negotiations between the appellant and the respondent, the claim was resolved for $9,665.50 on the basis of 14.87% binaural hearing loss. The agreement was registered in a document lodged with the WorkCover Authority of NSW dated 12 November 1999. The date of injury, which was deemed in accordance with s 17 of the 1987 Act, was recorded as 28 June 1999.

In 2010, the respondent made a claim against the appellant for bilateral hearing aids, which the appellant agreed to pay. The respondent made a further claim for hearing aids against the appellant in 2016, which the appellant again accepted. On 23 October 2020, the respondent made another claim on the appellant for hearing aids. The letter of claim referred to the previously accepted claim for lump sum compensation in 1999.

The appellant disputed the claim made on 23 October 2020 in a notice issued in accordance with s 78 of the 1998 Act, asserting:

(a) the respondent had not suffered further injury in the form of industrial deafness in accordance with s 17 of the 1987 Act as a result of his employment with the appellant;

(b) the appellant was not the respondent’s “last noisy employer”, and

(c) the claim for hearing aids was not reasonably necessary because the need for hearing aids did not result from the respondent’s injury in 1999.

The appellant asserted that the respondent’s employment with ACI Operations was sufficiently noisy to constitute employment to the nature of which the respondent’s further hearing loss was due and ACI Operations was thus the respondent’s “last noisy employer”.

The Senior Member determined that the appellant was liable to pay for the hearing aids. The employer appealed.

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

(a) by finding that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999 (Ground 1);

(b) in accepting that the injury can have multiple causes and that the respondent was required to establish that the injury materially contributed to the cost of treatment (Ground 2);

(c) by finding that s 17(3) of the 1987 Act applied to this matter (Ground 3, which the appellant wrongly referred to as Ground 4), and

(d) by finding that the supply of replacement hearing aids was akin to seeking revisionary procedures in respect of hip or knee replacements (Ground 4, which the appellant wrongly referred to as Ground 5).

Held: The Senior Member’s Certificate of Determination dated 18 May 2021 was confirmed.

Consideration

1. There was no dispute that the respondent suffered from hearing loss caused by a gradual process such that it constituted a hearing loss injury that fell within the provisions of s 17 of the 1987 Act. There was also no dispute that the respondent’s employment with the appellant was employment to the nature of which the injury was due (a “noisy employer”), in accordance with s 17 of the 1987 Act. ([76])
2. Section 17(1)(a) of the 1987 Act deems the injury to have occurred at the time when the notice is given if the worker is employed at that time by a noisy employer or, if the worker is not so employed, the deemed date of injury is the last day upon which he or she worked in noisy employment. Section 17(1)(c) provides that the employer liable to pay compensation is either the noisy employer who employed the worker at the time he or she gave notice of the injury (s 17(1)(c)(i)) or, if the worker gives notice of the injury when not so employed, the last noisy employer before that notice was given (s 17(1)(c)(ii)). ([77])
3. Thus, the entitlement to and liability for compensation within s 17 is undoubtedly fixed by the giving of notice of the injury. The only notice of injury given by the respondent was the notice of injury given to the appellant on 28 June 1999 which initiated the claim for lump sum benefits pursuant to s 66 and the former s 67 of the 1987 Act. The respondent made claims for hearing aids in 2010 and 2016, again against the appellant. Subsequently, he made further claims for hearing aids, firstly on 14 September 2020, citing the deemed date of injury as “2008” and secondly on 23 October 2020, advising that the claim for hearing aids was based upon the prior hearing loss claim made in 1999. Both of those claims were directed to the appellant. Nothing was raised in the proceedings below about the effect, if any, of the claim made on 14 September 2020 which referred to a deemed date of injury in 2008, and which in any event was a date upon which the respondent was still in the employ of the appellant. The appellant was also correct to say that the phrase “injury is a loss, or further loss” in s 17(1) contemplates that there can be more than one injury caused by gradual onset. ([78]–[79])

(Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 applied)

Grounds 1 and 3

4. Ground 1 asserted error of law on the part of the Senior Member by finding that the appellant was the last employer who employed the respondent in employment to the nature of which the sensorineural hearing loss was due when the respondent gave notice of the injury on 28 June 1999. Ground 3 asserted that the Senior Member again erred in law by finding that s 17(3) of the 1987 Act applied to this matter. ([82])
5. The Senior Member identified that one of the issues for determination was whether the appellant was the last noisy employer who employed the respondent in employment to the nature of which the injury was due in accordance with s 17(1)(a)(ii) of the 1987 Act. The Senior Member’s reasons disclosed that he was of the view that the respondent’s employment with ACI Operations would have satisfied the criteria in s 17 of the 1987 Act. ([83])
6. Wood DP held there was no error disclosed in the Senior Member’s observations at [91]–[92] of the reasons. The reasoning acknowledged the presence of a later noisy employer, explained the significant difference between giving notice of injury and making a claim, and notes that no notice of injury, which was required in order to initiate the deeming provisions of s 17, had been given to the later employer. Further, the Senior Member specifically dealt with subs 17(3), which clearly articulates that the employer referred to in subs 17(1)(c), in this case the appellant, was liable notwithstanding that the worker had commenced employment with a later noisy employer, because the appellant was the employer to whom the notice of injury was given. On any ordinary reading of the legislation, the appellant in these proceedings was the entity to whom the notice of injury was given and was liable. There is no requirement in the legislation that compelled the respondent to give a notice of injury to the later employer and s 17 is not concerned about actual causation of injury. ([85])

(Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 applied)

7. Deputy President Wood rejected the appellant’s submission that if the legislation intended that a worker need give only one notice of injury in claims to which s 17 applies, the section would have contained a provision to that effect. The Deputy President held that the legislation allows for further notices of injury to be given to later employers but does not oblige the worker to give a notice of injury to every employer. If the respondent was seeking lump sum compensation, he may very well have fallen into difficulties by not having proceeded against the later employer. His claim, however, was for s 60 expenses in the form of further hearing aids to replace those already provided in respect of the injury deemed to have occurred on 28 June 1999. In those circumstances, it was open to him to proceed as he did. ([87])
8. The Deputy President further rejected the appellant’s submission that subss 17(1)(a)(i) and 17(1)(a)(ii), being alternate provisions, supported its assertion that the later employer was liable. The respondent was in the employ of the appellant when he gave notice of injury. Subsection 17(1)(a)(ii) did not apply because the respondent did not give notice of injury after he left the employ of the appellant. Grounds 1 and 3 failed. ([88]–[89])

Ground 2

9. The appellant asserted that the Senior Member misdirected himself by forming the view that the respondent was only required to establish that the injury “materially contributed” to the need for treatment, which was an error of law. The appellant asserted that “causation” does not apply to a hearing loss claim. ([90])
10. The Deputy President found the appellant misapprehended the requirements of s 17 and s 60 of the 1987 Act. There is indeed no application of the test of causation of the injury in a hearing loss claim. The respondent’s injury, however, was established by agreement in 1999 in accordance with s 17, as well as his entitlement to compensation pursuant to ss 66 and 67 of the 1987 Act and his earlier s 60 expenses. The appellant denied liability for the third claim for hearing aids, not on the basis that it disputed the respondent suffered a hearing loss injury in 1999, but on the basis that the respondent had suffered a further injury with a later employer. ([91])
11. In determining whether the hearing aids were reasonably necessary in accordance with s 60 of the 1987 Act, the normal principles which are applicable to any claim for treatment expenses arising from an injury are relevant. The Senior Member discussed the relevant authorities and applied those principles. One of those authorities to which the Senior Member gave particular reference was Bluescope Steel (AIS) Pty Ltd v Sekulovski [2018] NSWWCCPD 48 (Sekulovski), which involved a consideration of whether hearing aids were reasonably necessary in circumstances where the worker suffered from subsequent deteriorating hearing loss which was not attributable to the worker’s noisy employment. In her earlier decision in Sekulovski, Wood DP applied the principles enunciated in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 and determined that the worker’s employment materially contributed to the need for the hearing aids. On appeal, the Court of Appeal found that there was no error in that approach. The appellant’s complaint that the Senior Member erred by taking the same approach was therefore contrary to authority and without foundation. It followed that this ground of appeal failed. ([92]–[93])

Ground 4

12. The appellant asserted that the Senior Member erred in law by finding that the supply of replacement hearing aids was akin to seeking revisionary procedures in respect of hip or knee replacements. The appellant contended that the fact that the appellant had met the cost of hearing aids in 2010 and 2016 was irrelevant. The appellant said that it may have been relevant if the respondent had not engaged in noisy employment after ceasing work with the appellant. The appellant asserted that the claim now made by the respondent arose from a further injury in accordance with s 17 of the 1987 Act. ([94])
13. Wood DP held that no further injury is established until the respondent lodges a further notice of injury. Until that occurs, liability for the treatment expenses rests with the appellant if the respondent can establish that the hearing aids are reasonably necessary. The evidence was supportive of the provision of hearing aids in order to address the respondent’s hearing loss in 1999, agreed to be 14.8%. There was, therefore, evidence to support the Senior Member’s conclusion that the deemed injury on 28 June 1999 materially contributed to the need for hearing aids, and the provision of hearing aids was reasonably necessary as a result of the injury deemed to have occurred on 28 June 1999. ([95]–[96])
14. The appellant asserted that the Senior Member misdirected himself by likening the need for replacement hearing aids to that of requiring a replacement prosthesis. The appellant put forward no explanation as to why that was the case and no submission as to where the error lay when the test of “material contribution” applied. In any event, the Senior Member’s comment did not go so far as to have any effect his ultimate conclusion and no error was apparent. This ground of appeal failed. ([97])

Geary v UPS Pty Ltd [2021] NSWPICPD 47

WORKERS COMPENSATION – Application of the principles of Anshun estoppel – whether claim estopped by failure in original action to plead a disease injury pursuant to s 4(b)(ii) of the 1987 Act; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 23; Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 applied

Phillips P

17 December 2021

Facts

The appellant worker was employed by the respondent as a warehouse worker, commencing employment in 2013. This was a physically demanding role which required the appellant to repetitively lift and handle boxes. The appellant alleged that he suffered injuries to both shoulders and his cervical spine (also referred to as the neck) as a result of performing this work. The appellant continued in this work until 1 February 2018 when he developed severe pain in his right shoulder. He has not worked since.

The appellant had brought two applications before the Personal Injury Commission and its predecessor organisation, the Workers Compensation Commission. The initial set of proceedings filed by the appellant were registered by the Workers Compensation Commission on 10 September 2019 (the 2019 proceedings). In this case the appellant claimed certain benefits which were ultimately resolved by consent orders made in the 2019 proceedings in a Certificate of Determination dated 29 November 2019. Subsequently, the appellant commenced a second set of proceedings, dated 14 January 2021 (the 2021 proceedings).

The Member found that the appellant was estopped from pursuing an allegation in the 2021 proceedings in relation to a disease injury to his neck, including on the basis of the nature and conditions of the appellant’s employment with the respondent. This estoppel was based upon the application of the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun). The appellant appealed, challenging the adverse finding made against him based upon an application of the Anshun principles.

The issues on appeal were whether the Member erred:

(a) in determining that a disease injury to the cervical spine was a “claim or issue” so connected with the subject matter of the 2019 proceedings so as to have made it unreasonable not to have been raised in those proceedings (Ground A);

(b) at law in determining the issue of Anshun estoppel without regard to the discontinuance of the lump sum claim in the 2019 proceedings (Ground B);

(c) at law in applying principles of issue estoppel to the determination of the question of Anshun estoppel (Ground C), and

(d) in law and fact in determining that there would be the creation of conflicting or contradictory judgments (Ground D).

Held: The Certificate of Determination dated 10 May 2021 was confirmed.

Discussion

1. The decision in Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller No 5) was made before the commencement of the 2020 Act. Section 350 of the 1998 Act, which was in force at the time of Miller No 5, was repealed and its modified version can be found in ss 56 and 57 of the 2020 Act. For the purposes of this argument however there was no material change to this provision which would alter or affect the President’s earlier remarks in Miller No 5 at [187]. The position under the 2020 Act is that decisions under the Workers Compensation Acts (as defined in s 5 of the 2020 Act) are final and binding except as provided for by the 2020 Act or the enabling legislation. There is no provision in the 2020 Act which would modify or derogate from the approach taken to questions of Anshun estoppel in the Personal Injury Commission’s legacy organisations, the Workers Compensation Commission or the Compensation Court before it. ([89])

Ground A

2. The appellant asserted that originally, the 2019 proceedings only pleaded a consequential injury to the neck as a result of the frank injury on 1 February 2018. Consequently the 2019 Certificate of Determination discontinued the claim with respect to the neck on the basis of a frank or consequential injury. The date of injury was specified as 1 February 2018 and the description read as: “The Applicant suffered physical injuries to his right shoulder while at work. As a result of overcompensation, the Applicant suffered consequential injuries to his left shoulder and neck.” In the same Application to Resolve a Dispute, three body parts were specified beneath the subheading “Permanent Impairment/Pain and Suffering”, they being the cervical spine, the left upper extremity and the right upper extremity claiming a total WPI of 37%. In the Certificate of Determination – consent orders dated 29 November 2019, the following relevant orders were made:

   “2.     Amend ‘Injury Details - 1/12/2018’ by adding after the words ‘right shoulder’ the words ‘cervical spine.

   3.     Award in favour of the respondent in respect of the allegation of injury and/or consequential condition to the cervical spine.” ([91]–[93])

3. The appellant argued that by virtue of the combination of these two consent orders, any dispute regarding the cervical spine thereby ceased to be a “claim or issue” connected with the subject matter of the proceedings. The appellant said this led to an error on the part of the Member in finding that the injury pleaded in the 2021 proceedings relating to the neck was connected to the subject matter of the 2019 proceedings. ([95])
4. The President found that this argument could not be sustained. Firstly, the Member in finding at [79] of the reasons that the disease injury to the neck was a claim or issue connected with the subject matter of the 2019 proceedings, was exercising a discretion of the House v The King (1936) 55 CLR 499 (House) type. Secondly, the problem with the appellant’s argument was that it concentrated on the ultimate conclusion in the 2019 proceedings rather than the principles associated with Anshun estoppel. ([96]–[98])
5. Thirdly, the Member at [83] of the reasons, made the following finding regarding the 2019 proceedings and the 2021 proceedings. After remarking upon what he considered to be some differences, he found: “But whether or not it was so available does not affect my opinion in this respect - which remains that the extent of the overlap between the facts in both sets of proceedings are more than great. They are essentially the same.” (emphasis added). On this appeal, and in particular with respect to Ground A, there was no challenge to this finding. This was a significant finding from an Anshun point of view in terms of what the High Court said about conflicting judgments with respect to the same transaction. ([99])
6. Fourthly, at [84] of the reasons, the Member referred to the remarks of Wilcox J in Ling v Commonwealth of Australia [1996] FCA 1646; 68 FCR 180, about the relevance of any difficulties that existed or might reasonably have been perceived in raising the matter earlier. The Member remarked that “there is no explanation from the applicant about any such difficulties existing or being perceived.” This, the Member identified, was a “minor” factor pointing towards it being unreasonable not to have relied upon disease injury on the 2019 proceedings. No challenge was made to this approach which ultimately led to, at [89] of the reasons, the Member finding that the appellant was estopped from relying upon the disease injury claim to the neck in the 2021 proceedings. No challenge was made under this ground of appeal, nor in the appeal generally, that the finding of unreasonableness was made in error. ([100])
7. It was artificial, in the extreme, for the appellant to assert that the claim in relation to the neck injury was not a claim or issue connected with the 2019 proceedings. A claim in relation to a neck injury had been made by the appellant prior to the proceedings being commenced and then at all times during the proceedings up to their eventual resolution on 29 November 2019. Up until this point the appellant had pursued a lump sum compensation claim with respect to his neck. No error in the Member’s approach to dealing with this aspect had been identified. ([101])
8. The President did not accept the appellant’s assertion that were the Member’s reasoning to be accepted, it would require “[a]pplicants to bring all potential disputes before the [Personal Injury Commission], despite them not being relevant to the final relief claimed, just so that there can be no question of an Anshun estoppel arising when the claim or relief is discontinued.” In this case, prior to the commencement of the 2019 proceedings, the appellant possessed evidence from his own qualified specialist, Dr Guirgis, that 90% of the appellant’s neck symptoms were due to the nature and conditions of his work with the respondent. This evidence was subsequently relied upon, along with other evidence, in the 2021 proceedings. It could not be said that the appellant or his advisers were in any ignorance about the medical evidence regarding the appellant’s condition prior to and during the 2019 proceedings. His Honour held it is certainly possible in the context of workers compensation cases to pursue different statutory benefits in different proceedings. However this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. The question is whether it was unreasonable not to have pleaded the cause in an earlier action. ([102])

(Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 23 (Habib), and Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 applied)

9. The President did not accept the appellant’s submission that the net effect of the Member’s reasoning would be to require that in every case, all of an applicant’s claims would have to be brought at once. Anshun is always a case by case consideration as to whether or not that principle applies to estop a claim. All the Member had done was to apply the principles in Anshun, as described and expanded upon in later cases such as Habib, in this case. It did not produce or represent any change to practice in this Commission or its predecessor organisations, nor did it represent any change in approach as to how the Anshun principle is applied. Ground A failed. ([103]–[104])

Ground B

10. The appellant asserted that the Member failed to determine that the discontinuance of the lump sum claim in the 2019 proceedings was in fact a bar to Anshun estoppel in the circumstances. The circumstances being that the appellant was not claiming relief with respect to the neck once the discontinuance had been made. The appellant said that the essence of the error in determining the Anshun estoppel was not considering the 2019 Certificate of Determination. ([105])
11. The President held it was incorrect to assert, as the appellant had done, that the Member failed to consider the 2019 Certificate of Determination before deciding the Anshun estoppel question. At [85] of the reasons, the Member considered the 2019 Certificate of Determination in detail. The Member carefully construed not only the text of the 2019 Certificate of Determination but conducted an examination of the facts and evidence that was available in the 2019 proceedings. ([106])
12. The President was of the view that whilst it was proper and appropriate for the 2019 Certificate of Determination to be examined in detail, as the Member did, the contents of that document did not alter or change the Member’s task in assessing whether or not an Anshun estoppel arose in the circumstances. The Member had to consider whether or not the point raised in the 2021 proceedings was a “point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” ([108])

(Habib applied)

13. The Member had to consider whether it was reasonable or not to have pursued the case regarding the appellant’s neck in the earlier proceeding. In so doing the Member undertook the evaluative exercise as described by McColl JA in Habib. To focus upon the 2019 Certificate of Determination, as the appellant asserted in this appeal ground, as being determinative in and of itself was incorrect. ([109])
14. The essential argument under Ground B really alleged a House type error on the part of the Member, namely a failure to consider the 2019 Certificate of Determination. The President found that no such error existed as the Member plainly did carefully consider and construe the consent orders of the 2019 Certificate of Determination. There had therefore been no error of the House type to consider relevant matters. Ground B failed. ([111]–[112])

Ground C

15. At [86]–[87] of the reasons, the Member dealt with the various submissions which were put by the parties and made reference to the decision in Thompson v George Weston Foods Ltd [1990] NSWCC 18; 6 NSWCCR 370 (Thompson). It is true that Thompson was a case which dealt with issue estoppel. However, contrary to the appellant’s submission under this ground, Thompson was not relied upon in terms of the principles it espoused regarding issue estoppel. ([113])
16. The Member stated that an injury, whether by way of disease or personal injury, is the underpinning foundation for entitlement to benefits under the 1987 Act. Thompson was then given as an example to make good this point. The President accepted the respondent’s submissions that “this was done to contextualise the submissions made on the Respondent’s behalf as to why it was unreasonable for the Appellant to have not pursued a claim in relation to, inter alia, a disease injury to the cervical spine.” Reading the decision as a whole, it was abundantly clear that the Member had carefully considered the Anshun line of authority and had applied it in finding that the appellant was estopped from relying upon a disease injury claim to his neck in the 2021 proceedings. This decision, as could be seen from a fair reading of the judgment, was made on the basis of the Anshun principles, not principles pertaining to issue estoppel. ([114])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied)

17. His Honour also accepted the respondent’s submission that even if this alleged error had been made, which it had not, such an error was immaterial to the result. It was immaterial because ultimately when one considered the Member’s reasons as a whole, it was clear that the Anshun principle had been considered and applied. Ground C failed. ([115]–[116])

Ground D

18. The appellant’s argument with respect to Ground D concentrated upon what had been pleaded in the 2019 proceedings as opposed to the 2021 proceedings. In the 2019 proceedings, the appellant had originally pleaded a consequential injury to the neck and in the 2019 Certificate of Determination resolved that case by way of an award to the respondent with respect to the allegation of a frank injury on 1 December 2018 as well as a consequential condition to the neck. The appellant said this was a completely different case to the one pursued in the 2021 proceedings, which was a disease claim said to have been caused by the nature and conditions of the appellant’s employment with the respondent. In making this distinction, effectively the appellant was arguing that different causes of action were pursued in the 2019 proceedings as opposed to the 2021 proceedings. ([117]–[118])
19. The President held the Member quite rightly cited the passage from Anshun where the plurality discussed what it meant by conflicting judgments. With respect to the appellant, that aspect of Anshun was completely apposite to the circumstances in this case and the Member was correct to rely upon it. Further, his Honour would not go so far as to say that the Member actually determined, as was alleged in this appeal ground, that there “would be the creation of conflicting or contradictory judgments”. Rather, having analysed the matter, he took this prospect into account when analysing what was described in his reasons as “the third issue”. In truth what the appellant was attempting to do in the 2021 proceedings was to pursue rights in relation to the same transaction, albeit by a differently pleaded path. This was exactly what happened in Anshun and was an approach which found no favour with the High Court in that matter. No error on the part of the Member was disclosed and Ground D failed. ([120]–[122])