Appeal Case Summaries

Rutter v Break Thru People Solutions [2023] NSWPICPD 17

WORKERS COMPENSATION – Section 60 of the 1987 Act – proposed surgery – period of time between injury and reporting of lumbar spine symptoms – caution to use of clinical notes – adequacy of reasons – section 294(2) of the 1998 Act and rule 78 of the 2021 Rules

Parker SC ADP

14 April 2023

Facts

The appellant worker was employed by the respondent as a bus driver/carer of disabled children. On 10 May 2018, the appellant was involved in an incident whilst endeavouring to assist a patient into the van that she was driving. The appellant said that as the patient was on the stepping ladder to get into the van, the patient’s legs suddenly gave way and she fell backwards. The appellant said that she attempted to catch the patient to prevent her from falling to the ground and sustained injury to her neck, lower back and right shoulder.

The respondent accepted the claim with respect to the appellant’s right shoulder and the appellant was paid compensation. She had surgery for right rotator cuff repair on 31 January 2019 and again on 5 September 2019.

In June 2020, the appellant was referred to Dr New, orthopaedic surgeon, who recommended surgery to the lumbar spine. The respondent declined to fund the proposed surgery on the basis that the incident of 10 May 2018 did not result in injury to the lumbar spine. It followed the proposed surgery was not reasonably necessary as a result of an injury in the course of employment.

The issue before the Member was whether the appellant was entitled to the cost of the proposed surgery. The Member found that the appellant had not established that she suffered an injury to her low back on 10 May 2018 and in the circumstance the insurer was not liable for the cost of the surgery. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) finding there had been a long interval between injury and unequivocal complaint of back pain (Ground 1);

(b) his use of the clinical notes and did not exercise the caution he had noted should be exercised [when] dealing with histories in clinical notes and failed to address [the appellant’s] submission (Ground 2), and

(c) failing to provide adequate, proper or sufficient reasons as to the evidence of Dr New, and erred in giving no adequate, proper or sufficient reasons for his apparent rejection of the expert medical evidence of Dr New (Ground 3).

Held: The Certificate of Determination dated 13 May 2022 was confirmed.

Ground 1

1. The appellant referred to the MRI dated 22 July 2020 which identified a broad based L5/S1 foraminal disc protrusion in contact with the under surface of the L5 nerve root causing moderate grade L5/S1 foraminal stenosis. The appellant noted that Dr New consulted with the appellant on at least four occasions between 25 June 2020 and February 2021. He submitted that it was a significant part of the appellant’s case that Dr New obtained a history of no previous episodes of back symptoms or back pain. The appellant submitted that the Member erred in finding there had been a long interval between injury and unequivocal complaint of back pain. ([41]–[47])
2. Acting Deputy President Parker SC was of the view that the appellant had failed to demonstrate error on the part of the Member. The contentious clinical note of 28 June 2018 was fully considered by the Member who reached the conclusion that the reference to back pain in that note was not sufficient to persuade him that it was a more or less contemporaneous record of back pain caused by the incident of 10 May 2018. The Acting Deputy President did not disagree with the Member’s analysis. ([52])
3. The Member’s conclusion that “there are no references whatsoever to back pain or sciatica arising from the work injury of the 10 May 2018”, was correct. It followed that on the evidence accepted by the Member, there was no record in the clinical notes of any attribution of back pain or sciatica arising from the work injury on 10 May 2018. The deficiency was the absence of any indication that the recorded “back pain” was the result of the injury on 10 May 2018. Parker SC ADP held that the Member was correct in his observation that the appellant consulted with her general practitioner either in person or by telephone on multiple occasions between 10 May 2018 and the first consultation with Dr New on 25 June 2020. On none of those consultations was there any reference to back pain arising from the events of 10 May 2018. ([53]–[55])
4. Dr New accepted that in the incident the appellant injured her neck, shoulder and lumbar spine. But that was to do no more than accept what he was told at the consultation. The Member, contrary to the appellant’s statement evidence, concluded that the appellant did not injure her lumbar spine in the incident of 10 May 2018, notwithstanding that the note of 28 June 2018 included the words “back pain”. Parker SC ADP concluded that the appellant had failed to demonstrate error of fact, law or discretion. Ground 1 was rejected. ([56]–[57])

Ground 2

5. The appellant submitted that the clinical note of Dr Abbas (general practitioner) of 28 June 2018 expressly stated that the appellant complained of back pain. The Member appeared to have expected that the clinical note should also have disclosed a complaint by the appellant of a nexus between the back pain that she reported to her GP and the accident. The appellant submitted that was too high a bar and the nexus Dr New relied upon was a temporal relationship between the accident and the onset of back pain. ([58])
6. The appellant also submitted at the arbitration that the clinical note dated 28 June 2018, the month following the work accident wherein she complained of back pain, broadly supported the history she had provided to Dr New as to the onset of back pain and that Dr New’s history taken from the appellant in that regard was broadly accurate. It was argued that the Member did not address this submission at all in his reasons. ([59])
7. Acting Deputy President Parker SC noted that the Member, in the reasons, set out the note of 28 June 2018 “under the heading Musculoskeletal: Neck pain, back pain. Bilateral shoulder pain. Bilateral hip pain. Bilateral knee pain, right ankle pain. No foot pain no painful toes. No injury.” The Member was of the view that the concluding words to the note of 28 June 2018, “no injury”, referred to the whole of the sentence and the body parts mentioned. Parker SC ADP held that was an available reading of the note. ([64]–[65])
8. The appellant’s complaints of pain in those parts of the body as recorded on 28 June 2018 could not be attributed to any particular incident or injury. This available reading of the note appeared to the Acting Deputy President to be directly contrary to the appellant’s claim. The note was being read as saying the complaint of pain was not attributable to an injury. Such a reading of the note may not be shared by others but that did not mean it was in error. The Acting Deputy President noted that even if he were to have a preference for a different view to that held by the Member that would not be sufficient to establish error. ([66])

(Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 applied)

9. Parker SC ADP held that, more importantly, the Member was correct when he said that there were no references to back pain or sciatica arising from the work injury of 10 May 2018. He was also correct in his observation that the certificates by the various medical practitioners did not refer at all to the lumbar spine. They appeared to largely and exclusively refer to the appellant’s right shoulder. ([67])
10. The Member directed himself that he needed to exercise caution when considering the histories contained in clinical notes and medical reports. The appellant did not point to any matter from the reasons indicative of a failure by the Member to proceed with the caution which he reminded himself was required. The Member was careful to record accurately what the notes said and to analyse their content having regard to the parties’ submissions. Parker SC ADP did not detect any error on the part of the Member in his utilisation of the clinical notes and medical reports. In the Acting Deputy President’s view, the Member directed himself correctly, to exercise caution. There was no evidence that he failed to proceed accordingly. ([68]–[69])

Ground 3

11. The appellant submitted that the Member included a recitation of the medical report evidence of Dr New, but did not otherwise deal with Dr New’s evidence which was the main medical evidence relied upon by the appellant from the treating specialist. The appellant argued that the Member did not address the submission by the appellant that the complaint of back pain to the GP on 28 June 2018 generally was in accordance with the history relied upon by Dr New that since the accident the appellant had suffered back pain. She said the Member gave no reasons for his apparent rejection of the medical evidence of Dr New. ([70]–[71])
12. Acting Deputy President Parker SC noted the difficulty the appellant faced was that the Member rejected the history she gave to Dr New. The Member found that the appellant did not sustain injury to the lumbar spine on 10 May 2018. The Member did not dispute Dr New’s medical diagnosis or therapeutic recommendations. The Acting Deputy President noted the appellant’s submission that the Member merely recited Dr New’s medical reports but did not deal with Dr New’s evidence, did not recognise that because the Member found there was no injury to the back that difficulty was insuperable. ([76]–[77])
13. The assertion that Dr New accepted a nexus between the accident and the onset of back pain could not be used to establish the appellant’s case on causation because the Member did not accept that the connection was made out. Furthermore, Parker SC ADP was satisfied that the Member complied with s 294(2) of the 1998 Act and r 78 of the 2021 Rules. The requirement to provide reasons is an obligation with respect to the reasons for the determination (s 294(2) of the 1998 Act). ([79]–[82])

(Liverpool City Council v Trovato [2004] NSWWCCPD 15 applied)

14. The Member plainly referred to the evidence and made findings on the material question of fact, namely, whether or not the appellant’s symptoms in the low back in respect of which Dr New made the therapeutic recommendation were caused by the incident of 10 May 2018. In relying upon the clinical notes to reject the evidence of the appellant, he directed himself as to the correct authorities requiring caution when relying upon clinical notes and demonstrated the reasoning process that he applied in reaching the conclusion adverse to the appellant. In the Acting Deputy President’s view, the reasons provided by the Member were adequate to explain to the appellant why her claim for the cost of the surgery had not prevailed. Ground 3 was rejected. ([83]–[85])

McMinimee v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 18

WORKERS COMPENSATION – consequential injury – causation – Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570 considered – aggregation of injuries for the purpose of whole person impairment – s 322 of the 1998 Act – Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 considered

Phillips P

14 April 2023

Facts

The appellant worker was employed by the respondent to work in the South Western Sydney Local Health District. The appellant suffered injury to her right shoulder and elbow on 7 March 2011 when, whilst attending an elderly patient’s home, she slipped and fell on stairs. The appellant was off work for about two months before returning to work on light duties in the office.

In the course of her work on light duties on 10 August 2011, the appellant sustained another injury, this time to her left shoulder, which she said occurred when she pulled a compactor in order to retrieve a file.

In the proceedings before the Commission, the appellant sought permanent impairment compensation with respect to her right upper extremity, left upper extremity, cervical spine and scarring. The claim pursued by the appellant was that the August 2011 injury was a consequential condition. The respondent’s case did not dispute that the appellant suffered injuries in the course of her employment as a result of these injurious events. Rather, the claim was resisted on the basis that the impairment suffered as a result of each injury could not be aggregated, thus bringing to light a dispute regarding the nature of the injury sustained on 10 August 2011.

Ultimately, the Member found that while the appellant suffered an injury to the left arm on 10 August 2011, it was not a consequential condition, and therefore, impairments could not be aggregated. The appellant appealed that decision.

The issues on appeal were whether the Member erred in:

(a) misdirecting herself on what the appellant was claiming (Ground 1);

(b) asking the wrong question of fact or identifying a wrong issue of fact (Ground 2);

(c) making a decision that was against the evidence and based on no evidence or an insufficiency of evidence (Ground 3);

(d) failing to apply the law referred to (Ground 4);

(e) applying an incorrect principle (Ground 5);

(f) making an incorrect finding of fact (Grounds 6 and 7);

(g) failing to properly apply the facts to the law (Ground 8);

(h) failing to properly apply the relevant law (Ground 9), and

(i) failing to consider submissions (Ground 10).

Held: The Certificate of Determination dated 12 April 2022 was confirmed. The matter was remitted to the same Member to settle the terms of referral to a Medical Assessor.

Ground 1

1. The appellant asserted that her claim was for a consequential condition to her left shoulder, however the Member found an injury simpliciter to the left shoulder in circumstances where that claim had not been advanced by the appellant. ([34]–[35])
2. The President did not accept the appellant’s submission that the Member was unaware of or misdirected herself on what the appellant was claiming. His Honour observed that the Member had accurately summarised the appellant’s claim that she had suffered a consequential injury. The Member summarised the evidence, in particular noting Dr Dixon’s (orthopaedic surgeon) opinion of the consequential condition and assessment of whole person impairment. The Member summarised the parties’ submissions, noting that while the respondent conceded injury, it disputed whether the injury was consequential. The Member’s reasoning in the “Findings and Reasons” section of her decision dealt squarely with the dispute as framed by the parties. ([38]–[43])
3. The President considered the terms of the dispute were clear. There was no dispute about the fact of an injurious event in August 2011 which caused injury to the appellant. The question was about its nature, either consequential or injury simpliciter. The Member specifically found that the appellant did not suffer a consequential injury. But an admitted injury still occurred at work, hence the Member’s finding the appellant suffered an injury to her left shoulder. The President accepted the respondent’s submission that this finding was “the terminus of the fact finding process that the Member was obliged to undertake regardless of the [appellant’s] own position”. He found the Member did not misdirect herself as to the appellant’s claim, rather she merely found against it. No error was established. Ground 1 failed. ([45]–[47])

Ground 2

4. The President considered this ground was a derivation of Ground 1. The appellant pointed to where the Member found that the appellant “may well have suffered a left shoulder injury on 3 August 2011 [sic] when opening the compactus, irrespective of the condition of her right arm.” The appellant asserted that an injury of the left shoulder was not claimed and that this was an error of law. For the same reasons as Ground 1 had not succeeded, Ground 2 was also not established. Ground 2 was dismissed. ([48]–[50])

Ground 3

5. The appellant pointed the Member’s decision, where the Member said that none of the medical evidence referred to the need to protect the right arm though “it [was] reasonable in the context of the treatment she was undergoing and the fact that her duties has changed that that might be the case”. The appellant asserted that the logical conclusion of such reasoning should have been to find that a consequential condition of the appellant’s shoulder had been established, there being no evidence to the contrary. ([51]–[54])
6. The President noted that this dispute was about whether the injury was a consequential injury, as alleged by the appellant, or injury simpliciter as maintained by the respondent. His Honour considered this appeal ground misunderstood the approach adopted by the Member in dealing with this dispute. The Member had two issues with the appellant’s evidence. Firstly, the brevity of the appellant’s description of what occurred at work in August 2011 was insufficient. Secondly, the Member was concerned about the lack of contemporaneous medical evidence supportive of the appellant’s case. ([56]–[58])
7. Phillips P found it was not correct that the appellant’s evidence was not contradicted. Rather, the appellant’s case was very brief on the precise issues in dispute. It clearly did not satisfy the Member in terms of the discharging of the appellant’s burden of proof when the decision was read as a whole. This was not a finding against the evidence or one that was based on no or insufficient evidence as alleged. Ground 3 was dismissed. ([59]–[61])

Ground 4

8. The appellant asserted the Member had correctly quoted Roche DP’s remarks in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), which the appellant said in fact supported the appellant’s case as, similar to Kumar, the appellant’s evidence was “unchallenged and not implausible”. However, the Member had misinterpreted the quote from Kumar as being authority for the proposition that “detailed evidence” was required. ([62]–[63])
9. The President noted Kumar had similarities to this case. In Kumar, Deputy President Roche was grappling with a case where the “evidence [was] less than ideal and the general preparation of his case by his solicitors [had] been sloppy”. Notwithstanding these problems, the Deputy President was able to assess the evidence and establish a basis to find for the injured worker. In this case, the evidence was not ideal and had the deficiencies identified by the Member. The President remarked that the appellant had not raised that the Member was in error or mistaken on these factual deficiencies. However, Philips P considered the Member had undertaken an assessment of the evidence and described what she saw as problems with the nature and quality of the evidence, citing various paragraphs in the reasons where this was apparent. He agreed there was indeed no evidence on several relevant matters associated with the injurious event. By the time the decision reached the impugned phrase “detailed evidence”, the deficiencies in the evidence were clear. ([67]–[73])
10. The President considered that the decision needed to be read as a whole and it was not the Presidential Member’s role to comb through the findings and reasons in search of an error. Upon his reading of the decision, the Member had identified various matters on which the evidence was silent. Further, the Member had identified the relevant passage from Kumar and on the facts clearly distinguished the evidence in that case from that led by the appellant in this case. The evidence asserted by the appellant as “unchallenged and not implausible” was not enough to persuade the Member. When the Member referred to “detailed evidence”, the President found it was tolerably evident that this phrase was referring to the evidence that has not been provided and which the Member had identified in the reasons. The phrase could not be read in isolation nor as the imposition by the Member of a higher standard of required evidence. On this basis, Kumar was correctly distinguished. No error was established and Ground 4 was dismissed. ([74]–[77])

(Kumar discussed and distinguished; Beale v Government Insurance Office (NSW) [1997] NSWLR 430 and Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 applied)

Ground 5

11. The appellant complained the Member dismissed the evidence in the histories recorded by Dr Dixon, but did not dismiss the same evidence in the appellant’s statements. The appellant asserted that evidence of the medical history was evidence of the truth of the history. ([78])
12. The President considered this appeal ground misunderstood the Member’s approach to Dr Dixon’s evidence and the approach taken to expert evidence in the Commission. When dealing with expert evidence where the rules of evidence do not apply, such as in the Commission, the question regarding expert evidence is not one involving admissibility, rather it involves assessing the weight to be given to the expert’s opinion. ([81]–[84])

(Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, and Onesteel Reinforcing Pty Ltd v Sutton[2012] NSWCA 282 discussed and applied)

13. Further, Philips P found the two cases cited by the appellant did not assist as they involved consideration of evidence under the Evidence Act 2005. ([87])

    (R v Welsh (1996) 90 A Crim R 364, and Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 discussed and distinguished)

14. Ultimately, the President did not agree with the appellant’s assertion that her evidence was accepted in terms of her own statement yet dismissed when utilised by Dr Dixon. The Member did not dismiss the appellant’s statements, rather she found that they were too brief to enable the appellant to meet the burden of proof. These statements in Dr Dixon’s hands were (for the same reason) clearly insufficient to support the doctor’s opinion and the weight that could be accorded to it. His Honour found there was no inconsistency with how the Member dealt with the appellant’s evidence. Ground 5 was dismissed. ([89]–[92])

Ground 6

15. The appellant impugned the Member’s finding that the appellant’s statement evidence was in the form of a conclusion. The appellant submitted that no legal conclusion had been expressed, rather her statement described the compactus as “large” and her explanation that she was attempting to protect her right arm was not a conclusion. Therefore, there was no evidence to support the finding, resulting in an error that was material as it was clear the Member gave little weight to the appellant’s evidence. ([93]–[96])
16. The President did not agree with the Member that the appellant’s description of the compactus as “large” was a conclusion. It was direct evidence of the appellant’s observation of the compactus. The expression, “to protect my right arm”, was not direct evidence of a fact or thing observed, rather it was the appellant’s explanation for taking a particular course of action. He did not see this statement as a conclusion. Therefore, the Member was in error. However, not every error will affect the result of a proceeding. The problem the Member had with the appellant’s evidence was its brevity and the things which were simply not described. He did not agree the appellant’s evidence was given little or no weight because of this characterisation. Therefore, the President found that whilst this error had been made out, it was not determinative of the result, especially once the decision was read as a whole. Ground 6 was dismissed. ([96]–[105])

(Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 applied)

Ground 7

17. The appellant asserted that the history obtained by Dr Dixon was adequate. Whilst his reasoning may have been brief, it was appropriately brief as the cause of the left shoulder condition was obvious and further there was no medical opinion that the appellant did not need to protect her other arm. ([106])
18. The President first noted that the Member did not state that Dr Dixon’s reasoning was too brief, rather she found that it was non-existent, namely it was a “bare ipse dixit”. Ultimately, his Honour agreed with the Members characterisation of the doctor’s opinion as a bare ipse dixit. After outlining the relevant sections of the report, he found there was no path of reasoning posited by Dr Dixon which explains why he reached the opinion that he did. There was no explanation as to how the opinion that the injury was due to “overuse” was arrived at. The evidence was about a single action in pulling the compactus causing injury. How this constituted “overuse” was not explained or reasoned. Since McColl JA’s decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, it has been settled that bare ipse dixits carry little weight. Given the Member’s findings about the evidence, the President considered the Member was well within the exercise of her discretion to accord Dr Dixon’s opinion little weight. Ground 7 was dismissed. ([109]–[116])

(Dasreef Pty Ltd v Hawchar [2011] HCA 21 applied)

Ground 8

19. The appellant asserted that the Member incorrectly applied category one of State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley), which applies when the incident giving rise to the subsequent condition would not have happened but for the original injury. The appellant asserted that as the Member found the appellant was performing suitable duties in the office at the time of her consequential left shoulder condition, it must follow that the consequential condition would not have happened but for the accepted right shoulder condition. ([118])
20. The President considered that the appellant was arguing the same ground that was pursued before the Member, which was that the appellant was a nurse who was injured while on selected duties due to her earlier injury. As a result of that injury, she was working in the office and the injury suffered during that work was therefore by definition consequential. His Honour ultimately found that the Member was not obliged to find a consequential condition simply based on the appellant performing different duties because of an earlier injury. There was no dispute that an injurious event took place on 10 August 2011, the dispute was about its true character. Alive to this issue, the Member examined the evidence to determine if a consequential condition had occurred, and in this examination, indicated the various issues, gaps and deficiencies in the appellant’s evidence. It was not a misapplication of the facts to the law, it was a case of the evidence not reaching the necessary standard. Ground 8 was not established. ([120]–[127])

Ground 9

21. The appellant submitted that once the Member found that the first category in Oakley had not been made out, it was incumbent upon the Member to consider the application of the second category, but she did not. ([128])
22. The President did not accept the appellant’s submission that it was “incumbent” upon the Member to consider category two. Oakley identified three separate categories of case in the context of proceedings in negligence. Nowhere in Oakley did it say that a decision-maker must consider each category. Further, by definition, the Member cannot have been in error by failing to consider an argument that was not put. The President held that even if the Member was obliged to consider category two of Oakley, this appeal ground would still fail as the same deficiencies in the evidence would serve to defeat the appellant’s claim. This ground failed for the same reasons as Ground 8. Ground 9 was dismissed. ([130]–[137])

Ground 10

23. The appellant asserted that the Member did not consider the operation of Kooragang and had she done so, the Member would have found the consequential condition resulted from the accepted injury in the sense that the latter made a material contribution to the former. The respondent submitted that the Member was alive to the issues arising from Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), referred to it expressly and applied the principles arising from it. ([138]–[139])
24. The President considered the appellant’s submissions did not identify where the asserted error was made by the Member, rather they were directed at the entirety of the Member’s reasoning and therefore, his Honour dealt with this ground on that basis. The President said the Member’s decision needed to be read as whole. His Honour noted that the parties agreed Kooragang says causation is a question involving the application of a degree of common sense and that the Member referred to this principle and authority in the reasons. Thereafter the Member conducted a close assessment of the appellant’s evidentiary case and for the reasons the President had described, she was not satisfied that the claim had been established. He noted no issue had been taken in the appeal with the deficiencies in the claim as identified by the Member, and the deficiencies as identified all represented the exercise of common sense, as required by Kooragang. The Member had also considered other relevant authorities dealing with aggregation. It was not necessary for the Member to specifically refer to Kooragang when a fair reading revealed what was done. The President found this ground implicitly seeks to impugn the issues which were not subject to challenge, namely the Member’s finding on the evidentiary deficiencies which adversely affected the appellant discharging her burden of proof. Ground 10 was dismissed. ([140]–[145])

Secretary, Department of Communities and Justice v Pell [2023] NSWPICPD 19

WORKERS COMPENSATION – Clause 2 of Schedule 3 to the 1987 Act – calculation of pre-injury average weekly earnings – whether Regulation 8C of the 2016 Regulation applies to exclude from the calculation a period when workers compensation payments were received in respect of an earlier injury – Sidhu v Secretary, Department of Communities and Justice [2021] NSWPIC 522 considered

Wood DP

19 April 2023

Facts

The respondent worker was employed by the appellant as a Correctional Officer. The respondent was involved in an incident at the Liverpool Court in 2020 in which he suffered a shoulder injury. He underwent surgery and was off work until 11 May 2021. Liability for the injury was accepted by the appellant and the respondent was paid weekly compensation. On 30 August 2021, the respondent was diagnosed as suffering from COVID-19 and was unfit for work from that date until 28 September 2021. The appellant accepted that the contraction of COVID-19 was work related.

This appeal concerned a dispute as to how the respondent’s pre-injury average weekly earnings for the COVID-19 injury should be calculated. The appellant calculated the respondent’s pre-injury average weekly earnings as $1,114.49, based upon the average weekly earnings for the period of 52 weeks prior to the injury. The respondent disputed the calculation and argued that his pre-injury average weekly earnings should be calculated from 11 May 2021 because, for the first 36 weeks of the 52 week period, he had been in receipt of weekly payments of compensation for his shoulder injury.

The Member determined that the period during which the respondent received weekly compensation for his prior injury should be excluded from the calculation of his pre-injury average weekly earnings and that the respondent’s pre-injury average weekly earnings figure was $2,581.85. The employer appealed.

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

(a) excluding from the calculation of the respondent’s pre-injury average weekly earnings a period during which the respondent received compensation benefits for an unrelated condition and when doing so failed to address the issue raised by the appellant or failed to give reasons for reaching that conclusion (Ground A), and

(b) finding in the alternative that the respondent was entitled to compensation at the rate that he claimed based on pre-injury average weekly earnings entitling him to compensation at the maximum adjusted rate because of his acceptance of the submissions prepared by Mr Wright KC (Ground B).

Held: The Member’s Certificate of Determination dated 13 May 2022 was confirmed.

Ground A

1. The appellant did not dispute that, in accordance with cl 6(2)(a) of Sch 3, the calculation of an injured worker’s pre-injury average weekly earnings does not include any weekly compensation payments paid to the worker during the 52 week period. The appellant disputed that the respondent experienced an ongoing change in the nature of his employment, because there was no change in his contractual role or the nature of his employment. ([48])
2. Deputy President Wood rejected that submission. She held that there is nothing in reg 8C of the 2016 Regulation that requires the change to be in the nature of a change in the contract of employment. The words of the regulation should be read as they are expressed. That is, there must be “a change of an ongoing nature to the employment arrangement.” The change in the “employment arrangement” was that the respondent was off work as a result of an incapacity, following which, by a return-to-work arrangement with the appellant, he returned to his pre-injury role. That change in the employment arrangement was clearly ongoing in that the respondent continued to work for the appellant. ([49])
3. The appellant asserted that the Member did not address, or provide reasons for rejecting, its submission that the respondent had not experienced an ongoing change in the nature of his employment arrangements. The Member correctly identified the issued raised by the appellant and summarised in some detail the appellant’s submissions. He noted the respondent’s written submissions and further noted that both parties referred to the decision of Sidhu v Secretary, Department of Communities and Justice [2021] NSWPIC 522 (Sidhu), which he summarised. The Member noted that the appellant asserted Sidhu was wrong. The Member proceeded to consider the application of reg 8C to the circumstances of the respondent’s case. The Member then went on to express other reasons as to why reg 8C applied, including the beneficial nature of the legislation, policy reasons and “an interpretation point of view”, before concluding that the appellant’s argument was without merit. The appellant could not say that the Member failed to address its submissions, or that the Member failed to give reasons for his conclusion. ([50]–[51])
4. The appellant asserted that the respondent’s circumstances were not the type of change suggested by reg 8C. The appellant said that this was because the “Earnings” of a worker specifically excludes workers compensation payments, and the receipt of workers compensation payments does not constitute “a change of an ongoing nature to the employment arrangement”. That submission was somewhat obtuse. In any event, the Member did not find that workers compensation payments were included in earnings or that the receipt of workers compensation payments constituted a change of an ongoing nature in the employment arrangement. The Member determined that the change in the ongoing nature of the employment arrangement was the cessation of weekly payments (which weekly amount is as a matter of course less than a worker’s full weekly earnings) and the return to remunerative employment. He expressed a view that his finding was “in accordance with” the determination in Sidhu. Wood DP held there was no error in that approach. ([52])
5. The appellant finally submitted that, if the legislature intended reg 8C or generally that the circumstances where a worker had been in receipt of workers compensation should apply, it would have said so. Regulation 8C provides one example of when the regulation applies, which is that the worker moves from full time work to part time work. The example is clearly not intended to be exhaustive of all applications of the regulation and the appellant concedes that the converse position would apply, that is, where a worker moves from part time work to full time work. Deputy President Wood saw no difference in the situation where a part time worker moves into full time employment and the circumstances where a worker is in receipt of weekly payments of compensation and then returns to full pre-injury duties. The submission was rejected. The appellant had failed to establish error on the part of the Member and this ground of appeal was unsuccessful. ([53]–[54])

Ground B

6. Deputy President Wood quoted the Member’s references to the respondent’s written submissions prepared by Mr Wright KC. The Deputy President observed that the Member then proceeded to consider the meaning of the term “pre-injury average weekly earnings” by reference to Sch 3 and the wording of cl 2 of Sch 3. He considered the term in the context of the respondent’s position, that is, that when the respondent had been in receipt of weekly payments he was not engaged in “work,” which in his view meant that the respondent had to be engaged in “earnings for effort”. He said, in his view, those earnings did not include compensation for an injury. ([55]–[56])
7. The Member concluded that, on that basis, the respondent’s pre-injury average weekly earnings figure was the higher rate asserted by the respondent. Given that the appellant conceded that the weekly payments of compensation were not to be included in the earnings, and the Member’s acceptance of the respondent’s submissions was limited to that aspect of the decision-making process, it could not be said that the Member fell into error in his approach. On that basis, Ground B of the appeal also failed. ([57]–[58])

Conclusion

8. Wood DP noted that the appeal failed. She noted that, in this case, the respondent was in receipt of weekly compensation for his prior injury at the commencement of the 52 week period. Regulation 8C(2) provides that “The relevant earning period is to be adjusted by excluding from the period any period before the change to the earnings of the worker occurred.” How the period should be adjusted in circumstances where the injured worker’s receipt of workers compensation, or other change to earnings, is to be assessed where the period within the 52 weeks falls between two periods of full employment was not relevant to this appeal. ([59]–[60])

Dunn v Westruss Manufacturing Pty Ltd [2023] NSWPICPD 20

WORKERS COMPENSATION – interlocutory appeal – failure to determine claim for whole person impairment – s 281 of the 1998 Act – leave to appeal denied – s 352(3) of the 1998 Act

Phillips P

20 April 2023

Facts

The appellant worker was injured on 24 October 2019. He allegedly sustained a primary psychological injury whilst unloading a truck wherein he sustained other physical injuries after timber trusses fell on him.

Whilst the nature of the injuries accepted by the respondent were unclear in these proceedings, the respondent’s insurer commenced the payment of weekly compensation and of medical or related treatment expenses. The appellant claimed 15% whole person impairment with respect to the primary psychological injury pursuant to s 66 of the 1987 Act, relying upon a report of Dr George, consultant psychiatrist.

The respondent’s insurer, it was maintained, did not respond to the claim consistent with the obligations in s 281 of the 1998 Act. As a consequence, the appellant commenced proceedings in the Commission on 10 May 2022. The appellant asserted that in the absence of the respondent complying with its obligations under s 281, orders based on the appellant’s evidence alone should be entered in his favour. The appellant also asserted that he was not obliged to attend a medical examination arranged by the respondent. The respondent resisted this course of action, noting that it had arranged for the appellant to be medically examined and was entitled to schedule such an examination consistent with s 119 of the 1998 Act. The President noted that subsequent to the hearing before the Member, the appellant did attend a medical examination at the respondent’s request.

On 13 July 2022, the Member had made orders suspending the appellant’s weekly compensation and payment of medical expenses pursuant to s 119 of the 1998 Act until such time as he attended an independent medical examination scheduled by the respondent. The Member vacated the hearing date set for 4 August 2022. The respondent was ordered to arrange the medical examination before 30 September 2022, and parties were given liberty to apply to the Commission in respect of the vacated hearing date or the scheduled Medical Assessment in November 2022. The appellant appealed against the Member’s orders of 13 July 2022 which effectively declined the appellant’s application that the matter be dealt with in the manner he had proposed.

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

(a) failing to determine the substantive issue between the parties; or

(b) if there was a determination of the substantive issue between the parties, failing to provide any adequate reasons for same.

Held: Leave to appeal the decision of the Member dated 13 July 2022 was refused. The matter was remitted to the Member to make such directions as to the further conduct of this matter as was necessary for the just, quick and cost-effective settlement of the real issues in dispute.

1. The President caused enquiries to be made with the parties about whether the Member’s orders of 13 July 2022 had been complied with. The respondent confirmed that the appellant had attended the medical examination and that weekly benefits and treatment expenses continued to be paid to the appellant. The appellant’s solicitor confirmed this position, though purported that it was unclear whether the weekly benefits continued to be paid in respect of the appellant’s physical injuries or the primary psychological injury which was subject of the claim for whole person impairment before the Commission. Notwithstanding that the medical examination took place in accordance with the Member’s order, neither party had applied to the Commission to reinstate the hearing before the Member or the medical assessment. ([5]–[6])

   Threshold matters

2. Both parties agreed that the Member’s decision was interlocutory and as a result leave was required in order for the appellant to pursue the appeal. ([10])
3. The “substantive issue”, said the appellant, was the impairment dispute and the appellant’s desire to have the matter heard on the basis of his evidence alone, given the respondent’s failure to determine the claim. ([12])
4. The President held that the substantive issue raised by the appellant was without merit. The claim that the appellant was entitled to have his case heard and determined on the basis of his evidence only was an issue or argument that was created by the appellant. It was, at best, only obliquely related to the real issue in dispute, which was a whole person impairment dispute. His Honour was not satisfied that determining this appeal was necessary, or desirable, for the proper or effective determination of the whole person impairment dispute. ([14])

(Collingridge v IAMA Agribusiness Pty Ltd[2011] NSWWCCPD 31 applied)

5. It appeared that the appellant was effectively asserting a right to have a default judgment entered in his favour due to the respondent’s apparent failure to comply with its obligations pursuant to s 281 of the 1998 Act. The President held that such a “right” does not exist and is entirely contrary to the Commission’s statutory mandate. ([15])
6. If the respondent had breached s 281, and the President made no comment or finding in that regard, the remedy is found in the offence provisions commencing at s 283 and following of the 1998 Act. Insurers were reminded of the importance of complying with their obligations under the legislation. Nonetheless, the Commission may hear a dispute about a claim for lump sum compensation where the person on whom the claim is made “fails to determine the claim as and when required by [the 1998] Act”. ([16])
7. Once a dispute is before the Commission, the provisions of the 2020 Act, the Commission’s Rules and Procedural Directions as well as the Member’s independence and discretion as a decision-maker govern how a dispute is to be conducted. In particular, the appellant’s assertion that he had a right for the matter to be determined solely on the basis of his evidence alone was contrary to the procedure envisaged by s 43 of the 2020 Act and in particular s 43(3) of that Act. ([17])
8. The appellant pointed to the prospect of a significant delay in the proceedings. The President did not accept this proposition. The appellant’s claim was a relatively straightforward claim for whole person impairment. The Commission deals with such applications routinely, which usually involve an expert medical assessment and the issuing of a Certificate of Determination where there was a failure to determine. The only cause of delay in this matter before the Commission had been occasioned by the prosecution of the “substantive issue” as asserted by the appellant. ([18])
9. The President declined to exercise his discretion to grant the appellant leave. The “substantive issue” sought to be argued was without merit. Additionally, the appellant’s own conduct of this matter in the Commission, effectively pursuing an argument aimed at shutting out the respondent contrary to the terms of the 2020 Act, did not warrant the granting of leave. The prosecution of this argument and its associated costs and delays was contrary to the objects of the 2020 Act and its guiding principle. Leave to appeal the decision of the Member dated 13 July 2022 was refused. ([19]–[20])

Philpott v Australian Plays Transform [2023] NSWPICPD 21

WORKERS COMPENSATION – weekly compensation – work capacity – whether an assessment of a teacher’s ability to earn in suitable employment can include the value of alleged unpaid work performed by a teacher outside the school classroom – whether the law of restitution is relevant to an assessment of weekly compensation

Perry ADP

21 April 2023

Facts

The appellant worker was employed by the respondent as its artistic director/chief executive officer. He had an education and work history which included substantial work as a writer and teacher. The respondent is in the business of developing programs for playwrights and other creative endeavours.

The appellant suffered a psychological injury between July 2018 and 26 March 2019. The respondent ultimately accepted the injury as compensable under the 1987 Act and commenced to pay weekly compensation and expenses under s 60 of the 1987 Act to the appellant.

On 26 May 2021, the respondent issued a notice pursuant to s 78 of the 1998 Act, advising him of its Work Capacity Decision made under s 43(1)(c) of the 1987 Act, that he was able to earn in suitable employment the amount of $1,184.30 per week as a secondary school teacher for 26 hours per week at the rate of $45.55 gross per hour. This was confirmed on review under s 287A of the 1998 Act (the WCD).

The appellant lodged an Application to Resolve a Dispute in the Commission to challenge the WCD. He ultimately sought a determination that he was only able to earn in suitable employment an amount representing about half of his ability to earn as assessed in the WCD. This was on the basis that the WCD only took into account 26 hours’ face-to-face teaching in circumstances where he would also be required to undertake class preparation and/or administrative duties for about an equivalent number of hours to the face-to face teaching.

The Member rejected the appellant’s argument, dismissed the Application to Resolve a Dispute and confirmed the WCD. The worker appealed.

The issues on appeal were whether the Member:

(a) misdirected himself as to the correct test in law for the assessment of weekly benefits (error of law) (Ground 1), and

(b) misconstrued the nature of the appellant’s work duties for the purposes of assessing weekly benefits (error of fact) (Ground 2).

Held: Order 2 in the Certificate of Determination dated 4 March 2022 was amended by replacing “27 September 2021” with “21 September 2021”. The Certificate of Determination dated 4 March 2022 was confirmed.

Ground 1

1. Acting Deputy President Perry held that the underlying premise of both appeal grounds, as put for the appellant – that the Member did not take into account what the appellant described as “non-classroom work” – was incorrect and rejected the appellant’s submissions in this regard. The Member conducted a comprehensive review of the evidence which included him noting “the relevance of preparation time was first raised by Mr Philpott in an addendum to his statement of 14 September 2020”. The Member then detailed the relevant passages of that statement, including that “the non-face-to-face hours for a secondary school Drama teacher include admin, meetings, duties, training, planning ...”. ([81]–[85])
2. While acknowledging that there is no “generalised concept of restitution” and that “the 1987 Act must be construed in its terms”, the appellant submitted that “absent statutory formula to determining a right under the 1987 Act, common sense should apply, and the objectives of the legislation are clearly to compensate injured workers”, and a worker will not be compensated “without restitution to his or her position but for injury, and that requires a common sense evaluation ... of what the work in question actually involves – not just the hours for which remuneration is made by the employer” (emphasis added). ([86])
3. The appellant submitted that the real issue in dispute was the “respondent not taking into account the unpaid work which a teacher must do in addition to standing in front of a classroom” (emphasis added). It was agreed, or at least there was no issue about the fact, that working 26 hours per week as a secondary school teacher did constitute suitable employment within the meaning of s 32A and s 43(1)(b) of the 1987 Act. The appellant had not otherwise argued that he had been incapacitated for any aspect of the out-of-class duties, except as to him needing to work about the same amount of unpaid non-classroom hours as with face-to-face teaching. ([87]–[88])
4. The appellant submitted the legislation was silent on the precise issues in the appeal, namely, whether a teacher’s non-classroom work is taken into account or not, and because there is “no legislative restriction on common sense, common sense should prevail. For this reason, [it was submitted that] the [Member] misdirected himself as to the resolution of the matter, including as to” aspects of the evidence as noted in the appellant’s submissions. ([89])
5. Acting Deputy President Perry rejected this argument. He held that the 1987 Act may be silent about “whether a teacher’s non-classroom work is taken into account or not”. But that was wholly unsurprising. Legislation is usually unable to express or imply universally specific factual circumstances. The appellant’s argument used an erroneous approach to analysing whether the Member misdirected himself as to the correct test for the assessment of weekly benefits and was thus flawed if only for this reason. To conflate the notion of the 1987 Act being silent about a teacher’s non-classroom work with the terms of Ground 1 generated that error. ([90])
6. The appellant acknowledged that “the 1987 Act must be construed in its terms”. However, the appellant’s submissions overlooked, or did not at least adequately engage with, the legislative provisions that do represent the “correct test” for “the assessment of weekly benefits”, namely, Pt 3 Div 2 of the 1987 Act (“Weekly compensation by way of income support”). This includes s 32A, defining “suitable employment”, s 37(3), regarding the calculation of a weekly compensation payment to a worker who has returned to work for less than 15 hours (or who has not returned to work), Sch 3 cl 8(b) and cl 9(1), defining current weekly earnings and current work capacity, and s 43(1) of the 1987 Act. ([91])
7. In the context of the WCD, by reference to the “precise issues”, s 43(1) identifies which decisions are work capacity decisions. The relevant decisions under s 43(1) are about: the appellant’s current work capacity; what constitutes suitable employment for the appellant; the amount the appellant is able to earn in suitable employment, and the amount of the appellant’s pre-injury average weekly earnings or current weekly earnings. There was no issue about the WCD being a work capacity decision under s 43(1). The “test in law” then invokes the relevant ingredients of s 43(1) decisions, about the above decisions. ([92]–[93])
8. The Acting Deputy President observed that the parties either agreed and/or there was no issue about the appellant having some current work capacity, limited to 26 hours per week within the meaning of s 43(1)(a). There was also no issue about and/or the parties agreed that employment as a secondary school teacher did constitute suitable employment in terms of s 43(1)(b). There was also no issue or argument about the insurer’s decision that the appellant’s PIAWE was $1,184.30 per week in terms of s 43(1)(d). ([95]–[97])
9. The Member’s determination of what the appellant was able to earn in suitable employment in terms of the s 43(1)(c) decision was also largely informed by the way the issues were framed. There was no complaint about or challenge to this figure being accepted, nor to the Member’s reasons including their adequacy with respect to each of the agreements and/or lack of issue by the Member. Perry ADP held that the Member’s determination of what the appellant was able to earn in suitable employment in terms of the s 43(1)(c) decision was also largely informed by the way the issues were framed. He noted “there has been no argument that the amount of $1,184.30 is what Mr Philpott would earn teaching for 26 hours per week”, but that the argument was about the unfair “division of work required between face-to-face teaching and preparation for the same”. The Acting Deputy President found the clear inference from this passage, and in the context of the way the issues were framed and a fair reading of the decision as a whole, was that the Member found the appellant was able to earn $1,184.30 per week in suitable employment as a secondary school teacher for 26 hours a week in terms of ss 32A, Sch 3 cll 8(b) and 9(2) and s 43(1)(c) of the 1987 Act. This was consistent with there being no argument about or evidence of the appellant having an incapacity for any aspect of (26 hours’) work as a secondary school teacher. ([98]–[99])
10. The appellant alleged that the Member “focused on the wrong issue” at [94] of the reasons, and explained that the issue was not ultimately whether restitution was an apt term or not. The appellant’s submissions were opaque in relation to whether or not, and if so how, the concept of restitution was relied upon. In the Acting Deputy President’s opinion, the Member was right to find that the concept of restitution did not apply to injured workers in the context of the workers compensation legislation. He was also right to reject the appellant’s argument that the law of restitution had any application in the presenting circumstances. It has been held that a claim for recovery of overpayments, and that such claims did not involve a matter arising under the 1987 Act arose under the general law of restitution and unjust enrichment. The Acting Deputy President observed that there is no express power in the 1987 Act which authorised the recovery of the overpayments, and that such claims did not involve a matter arising under the 1987 Act. ([105]–[107])
11. Perry ADP held there is no express power, relevant to the present circumstances, in the 1987 Act to otherwise authorise the application of restitutionary principles. This case did not relate to recovery of overpayments of compensation. However, a fortiori, the same principle applies to seeking primary relief under the 1987 Act, that is, the circumstances did not appear to relate to restitutionary principles in any event. ([109])

(Melesco Manufacturing Pty Ltd v Thompson (1996) 40 NSWLR 525 applied)

12. The Acting Deputy President further held that the Member did not err in refusing to accept the appellant’s interpretation of the Report “Understanding work in schools ... 2018 report to the NSW Teachers Federation” (the SU report), or to give it anything but the limited weight he identified. Perry ADP held that the Member took into account the SU report and his summary of the appellant’s submissions before the Member in this respect was fulsome. ([128]–[142])
13. Acting Deputy President Perry concluded that there was no error in the Member coming to the conclusion that the appellant’s premise underpinning the dichotomy between face-to-face teaching and non-classroom work was illogical. The Member was right to characterise the appellant’s submissions as essentially seeking a finding as to the proper rate of pay that the appellant should have been paid as a teacher. The Acting Deputy President found that the relevant jurisdiction of the Commission was competently exercised to confirm the WCD – that the appellant had the ability to earn $1,184.30 per week in suitable employment as a secondary school teacher, 26 hours per week. The reference to 26 hours per week meant 26 hours per week, not double (albeit approximately) those hours. In other words, if the appellant is in fact required to work double those hours, unpaid, in order to earn $1,184.30 per week, he may wish to seek a remedy. But any such remedy needed to be pleaded in a court or commission which is empowered with such jurisdiction. Ground 1 failed. ([143]–[148])

Ground 2

14. The submission in support of Ground 2 put that “[a]s the misdirection in law for ground 1 relates to the approach taken to the evidence ..., in the alternative, ... there [was] an error on the facts as well”. There was no clarity as to what was meant by the claim that the Member “misconstrued the nature of the appellant’s work duties”, nor was there any detailed identification of what any error on the facts was, or how any such error arose. In these circumstances, the disposition of Ground 1 also covered and disposed of Ground 2, such as it is put, a fortiori. In this regard, the Acting Deputy President noted the comments of Basten JA in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, at [20] and Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 , at [72] and the analysis of the evidence to the extent it was identified in the appellant’s submissions. Ground 2 also failed. ([62]–[63], [149]–[150])

City of Ryde v Clarke [2023] NSWPICPD 22

WORKERS COMPENSATION – the duty to give reasons, application of Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Snell DP

26 April 2023

Facts

The respondent worker was employed by the appellant from 2015 as a leading hand landscaper. On 15 December 2016 the respondent was carrying base plates (estimated to weigh 31 kilograms each) for a temporary fence when he said he felt significant back pain and pain in both upper and lower limbs. The respondent fell to the ground and had difficulty moving his legs. He was treated at hospital with medication and physiotherapy. He underwent various investigations, including for his back and neck.

The respondent completed and lodged a claim form on the date of injury, which described the injury as a “lumbar disc prolapse” and the body parts affected as “both arms + both legs inclusive of back”. He stated his symptoms included the thoracic and cervical spine as well as the lumbar region. He said that he resumed work on 7 March 2017; he worked normal hours with a lifting limit of 10 kilograms, minimal bending and no digging or twisting.

The respondent stated that on 25 May 2017, he was required to shovel eight tonnes of soil off the rear of a truck. He stated that he “suffered more pain up and down my back as well as my neck”. The respondent stated that he was put off work by Dr Tran on 27 May 2017. He stated that his pain soon resumed the state it was in previously. On 15 March 2018, the respondent underwent lumbar surgery involving L4/5 disc replacement and segmental fixation at L5/S1. The respondent described ongoing lower back and neck symptoms, including numbness in the arms and a loss of control in the legs.

The Member issued a Certificate of Determination, in which there was a finding that the respondent suffered injury on 15 December 2016 to both the cervical spine and the thoracic spine, in addition to the lumbar spine (which was not disputed). The matter was remitted to the President for referral to a Medical Assessor to assess permanent impairment in respect of all body parts claimed in the Application to Resolve a Dispute. The employer appealed.

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

(a) failing to give adequate reasons for his decision (Ground 1);

(b) failing to identify the legal test that he was applying to the question in issue, namely injury to the thoracic and cervical spines (Ground 2), and

(c) that whatever legal test he may have been applying there was no evidence to support his finding of symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by Mr Clarke at the time he was admitted to hospital (Ground 3).

Held: Leave to appeal against an interlocutory decision was granted. The Certificate of Determination dated 1 June 2022 was revoked and the matter was remitted to a different Member for re-determination.

Interlocutory decision

1. The appellant correctly submitted that, as the Member’s orders involved a referral for medical assessment only, the decision appealed was interlocutory. The decision did not finally dispose of the rights of the parties. The appellant sought leave to appeal pursuant to s 352(3A) of the 1998 Act. Deputy President Snell accepted that the balance of convenience favoured determination of the appeal at this point rather than after a medical assessment was held. The grant of leave was desirable for the proper and effective determination of the dispute. Leave was granted pursuant to s 352(3A) of the 1998 Act. ([18]–[19])

   (Licul v Corney [1976] HCA 6; (1994) 180 CLR 213; P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 , and Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 applied)

Grounds 1 and 2

2. The extent and requirements of adequate reasons depend on the particular case and the issues between the parties. ([32]–[41])

   (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Mifsud v Campbell (1991) 21 NSWLR 725; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Hume v Walton [2005] NSWCA 148 (Hume), and The Nominal Defendant v Kostic [2007] NSWCA 14 discussed and applied)

3. Deputy President Snell observed that the matter was conducted on the basis that issues of ‘injury’ were to be determined by the Member. It was then to be a matter for a Medical Assessor to assess the degree of permanent impairment resulting from the injuries that were found. There was little common ground between the parties on the issue of whether the respondent had suffered the contested injuries. ([60]–[61])

   (Haroun v Rail Corporation of New South Wales [2008] NSWCA 192; 7 DDCR 139, Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 ; 13 DDCR 156, and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 referred to)

4. The Member said that assessment of permanent impairment was a matter for the Medical Assessor. The Member said: “[i]t is sufficient for me to be satisfied that there were symptoms consistent with a cervical and thoracic spine injury reported contemporaneously by [the respondent] at the time he was admitted to hospital.” Deputy President Snell said that the test identified by the Member did not fully reflect the matters which he needed to be satisfied about to make a relevant finding of ‘injury’. It was necessary that he be satisfied of the occurrence of the disputed injuries, not simply that there were potentially relevant symptoms present at the time of the hospital admission. The presence of symptoms could clearly be relevant to whether the contested injuries were proved. The reference to “back” in the injury description in the claim form did not necessarily relate to the thoracic spine. There was no reference to the neck in the claim form. ([64]–[65])
5. The reference to “both arms” did not relate directly to the neck or the thoracic spine. It is not unusual to encounter upper limb symptoms in the presence of injury to the thoracic and cervical regions of the spine. It is in no way invariable that injury to the cervical or thoracic regions of the spine will be associated with upper limb symptoms. Much will depend on the precise nature of the injury sustained. The Member’s reasons described the symptoms of numbness and tingling radiating to the respondent’s arms as “consistent with an injury to [the respondent’s] thoracic and cervical spine”. This was not common ground. ([66])
6. The Deputy President held that the approach taken by the Member was to treat the symptoms described in the claim form (which did not directly refer to injury or symptoms in the thoracic or cervical regions of the spine) as corroborative of the allegation of the disputed injuries. The extent to which the evidence overall, including the reference in the claim form to arm symptoms, was sufficient to discharge the respondent’s onus of proving the disputed injuries, was very much in contest. The appellant ran a precise and clearly argued case that the respondent had not discharged his onus of establishing the alleged injuries to the cervical and thoracic regions of the spine. ([67])
7. The Member’s reasons referred to the “voluminous amount of medical evidence”, which he said he “had regard to” but did not propose to “unnecessarily traverse”. He referred to the “various competing medical opinions … comprehensively referred to by both barristers, as were the diagnostic reports”. Deputy President Snell held that the reasons failed to engage in analysis of the competing medical cases. The need to deal with the competing medical cases was not obviated by the reference in the claim form to “both arms”. The appellant’s submissions challenged whether there was an organic explanation for the respondent’s presentation, whether there was any significant structural abnormality in the contested parts and whether the peripheral numbness was secondary to a psychiatric disorder. The appellant on the appeal submitted, with justification, that there was no explanation of how or why the arm symptoms were consistent with the injuries claimed. ([68])
8. It was necessary that the reasons “do justice to the issues posed by the parties’ cases” and enable the parties to understand “the extent to which their arguments had been understood and accepted”. It was a case which involved disputed expert evidence. It was necessary that the Member enter into the issues canvassed. The reasons did not comply with the Member’s obligation to provide adequate reasons. It followed that Grounds 1 and 2 were made out. It was unnecessary for the Deputy President to deal with Ground 3. The found error was an error of law and the appropriate course was that the matter be remitted for re-determination by a different Member. ([69]–[71])

(Hume applied)