Appeal Case Summaries

Secretary, Department of Education v Dawking [2023] NSWPICPD 23

WORKERS COMPENSATION – judicial comity – Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757; Comino v Kremetis [2023] NSWSC 32 applied – not an error to fail to address submissions not made – Brambles Industries Limited v Bell [2010] NSWCA 162 applied – not every failure to refer to an argument amounts to error – Wang v State of New South Wales [2019] NSWCA 263 applied – alleged error of fact – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied

Wood DP

1 May 2023

Facts

The respondent worker was employed by the appellant for 17 years. At the time relevant to the appeal, the respondent was employed as a full-time special education teacher.

On 27 August 2021, the appellant notified its staff (including the respondent) that a COVID‑19 Public Health Order was to be issued by the Premier of New South Wales on that day, which would require all staff to receive two doses of the vaccine (that is, be “doubly vaccinated”) within a prescribed time. The “Public Health Order (COVID-19 Vaccination of Education and Care Workers)” (the Public Health Order), was issued on 23 September 2021, requiring education and care workers to be doubly vaccinated by 8 November 2021, or sooner if attending school grounds. The respondent made a decision to refrain from being vaccinated. The appellant subsequently wrote to the respondent, advising that the respondent was required to be doubly vaccinated or she would be considered guilty of misconduct, she would face disciplinary action, and her employment may be terminated.

The respondent claimed workers compensation, alleging that as a result of the vaccine mandate and her decision not to be doubly vaccinated, she experienced psychological symptoms, rendering her totally unfit for work from 27 August 2021.

The Member determined that the respondent had suffered a psychological injury to which the respondent’s employment was the main contributing factor, and the appellant’s actions were not reasonable. The Member awarded the respondent weekly payments of compensation and treatment expenses. The employer appealed.

The issues on appeal were whether the Member:

(a) failed to consider an argument made squarely by the appellant that the approach taken by Member Wynyard in Bjekic v State of New South Wales [2022] NSWPIC 214(Bjekic) was correct and ought to have been followed (Ground 1);

(b) failed to give adequate reasons:

i) as to the correctness and/or applicability of Bjekic, and/or;

ii) for finding that the respondent’s employment was a substantial contributing factor to her injury and the main contributing factor to the contraction of a disease (Ground 2), and

(c) erred in finding that the respondent’s employment was a substantial contributing factor to the injury and the main contributing factor to the contraction of a disease (Ground 3).

Held: The Member’s Certificate of Determination dated 3 November 2022 was confirmed.

Consideration

1. The appellant submitted that its grounds of appeal all concerned “the issue as to whether the Member ought to have adopted the approach taken by Member Wynyard in Bjekic, central to the Secretary’s arguments on causation, particularly in circumstances where the Member did not find that the reasoning in Bjekic was plainly wrong.” Thus, the appeal depended upon the appellant succeeding in respect of its assertion that the Member ought to have followed Member Wynyard’s reasoning and conclusions. In order for the appellant to succeed, it had to identify the kind of error or errors described in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston). ([100]–[102])

Ground 1 and Ground 2(a)

2. Deputy President Wood noted that the appellant made no submission to the Member over and above the submission that Bjekic was “particularly analogous” to the present matter. The appellant certainly did not submit to the Member that he was required, or even expected, to apply comity in respect of Member Wynyard’s decision. Nor did the appellant submit to the Member that comity required him to follow the decision of Member Wynyard unless he considered it to be wrong. It was not an error for a Member to fail to consider a submission not put. If a matter was not raised, it was not an error not to refer to it. Further, the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties. The appellant could not say that the Member erred by failing to give adequate reasons for the “correctness” of Bjekic or the “applicability” of Bjekic to this case. ([103]–[107])

   (Brambles Industries Limited v Bell [2010] NSWCA 162 applied)

3. The Deputy President held that the Member’s reasoning was sufficient to address the appellant’s submission that Bjekic was a “particularly analogous recent authority” to this matter. In any event, the appellant misunderstood the concept of comity. ([108]–[111])

   (Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757; La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, and Comino v Kremetis [2023] NSWSC 32 (Comino) applied)

4. Wood DP held that the determination required of the Member in this matter was a question of causation of the injury and whether the respondent’s employment was substantial, or the main contributing factor to the injury. The Member’s conclusions were conclusions of fact. The same could be said in respect of Bjekic. As observed in Comino, judicial comity is limited to questions of law and statutory interpretation and has no application to factual determinations. Neither case turned upon questions of statutory interpretation or principles of law. In any event, the appellant had not made it apparent as to how a failure to apply comity could constitute error of the kind required by s 352(5) of the 1998 Act, which allows for an appeal to a Presidential Member to be brought only on the basis of error of fact, law or discretion. The appellant had failed to establish error on the part of the Member in the manner complained of in Grounds 1 and 2(a) of the appeal. Both grounds failed. ([112]–[113])

Ground 2(b)

5. The Deputy President observed that unhelpfully, the appellant’s submissions largely did not clearly identify their relevance to any particular ground of appeal, in contravention of the Procedural Direction. It was difficult therefore to discern what submissions related to this ground of appeal. The appellant’s general submission was that all of the alleged errors on the part of the Member had resulted from the failure by the Member to follow Bjekic. Wood DP determined that there was no error on the part of the Member in not following that decision. ([114])
6. In any event, the Member’s reasons, when read as a whole, were more than adequate to support his conclusion as to the substantial contributing factor to the injury and the main contributing factor. The Member clearly took into account the facts that may have constituted some other contributing factor. The Member pointed out that there was no medical evidence adduced by the appellant to counter the respondent’s evidence and the evidence of Dr Rastogi (psychiatrist qualified by the respondent). He noted that Dr Rastogi had described the respondent as “a highly functioning person who took pride in her job, and her self-worth and self-esteem was enmeshed with her job”. He had already accepted the respondent’s submissions. Ground 2(b) failed. ([115]–[117])

Ground 3

7. Once again, the appellant’s assertion was that all of the alleged errors on the part of the Member had resulted from the failure by the Member to follow Bjekic. The appellant submitted that “the legal or discretionary errors the subject of Grounds 1 and 2(a) give rise to the error of fact the subject of Ground 3, the Member’s erroneous findings on causation”. ([118])
8. It was noted that the appellant had not established error on the part of the Member in failing to adopt the decision in Bjekic and Grounds 1 and 2(a) failed. ([119])
9. The appellant conceded that the email of 27 August 2021 could not constitute the implementation of the policy because the policy had not been implemented until 23 September 2021, yet submitted that there was no “real” or “substantive distinction” between the email and the policy. This submission ignored the evidence that the appellant imposed broader application and sanctions than the content of the Public Health Order, which was eventually issued. The application of the Order and the threatened sanctions initiated by the appellant put in jeopardy the respondent’s career with the appellant, and those factors were plainly spelt out by the Member in his reasons in dealing with the question of causation. ([122])
10. The Member’s conclusion was arrived at by a consideration of the evidence and the submissions of the parties as to what that evidence showed. The conclusions were factual conclusions. The appellant had failed to show that the Member overlooked material facts, or gave undue or too little weight in deciding the inference to be drawn, or that the available inference in the opposite sense to that chosen by the Member was so preponderant that the Member’s decision was wrong. The grounds of appeal did not challenge the Member’s finding as to injury. The grounds were limited to the Member’s failure to follow Bjekic, the Member’s purported failure to give adequate reasons, and the Member’s finding that the respondent’s employment was a substantial contributing factor and the main contributing factor to the injury. Ground 3 of the appeal failed. ([123]–[125])

(Raulston applied)

Ford v Forestry Commission of New South Wales [2023] NSWPICPD 24

WORKERS COMPENSATION – section 352(3A) of the 1998 Act – leave to appeal an interlocutory decision, Licul v Corney [1976] HCA 6; 180 CLR 213 applied – section 38A of the 1987 Act – operation of the transitional provisions introduced by Schedule 6, Part 19H of the 2012 Amendment Act and Schedule 6, Part 19I of the 2015 Amendment Act, and the 2016 Regulation; application of Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; 163 CLR 1 – the duty to give reasons: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 442–444, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, [56]–[67]

Snell DP

3 May 2023

Facts

The appellant worker was employed by the respondent. He was concurrently employed on a part-time basis by the NSW Fire Brigade on a ‘call out’ basis. On 18 November 1987, in the course of his employment with the respondent, he was using a chain saw when he was struck by a log and pinned beneath it. He suffered multiple injuries, including to his internal organs, back and pelvis. The respondent’s insurer accepted liability to pay workers compensation benefits on a voluntary basis. The respondent terminated his employment. In October 1988, the appellant underwent unsuccessful surgery to realign his pelvis. In late 1988 he started work as a bus driver, at one point getting on to full time hours, which he was later forced to reduce. In 1995 he underwent surgery, including fusion and decompression at L5/S1.

In August 1991, the appellant and respondent settled a claim for lump sum compensation pursuant to the Table of Disabilities on the basis of permanent losses and impairments involving 38 per cent of the left leg, 18 per cent of the right leg, 100 per cent of the pelvis, 25 per cent of the lumbar spine and 10 per cent of the sexual organs. There was an additional sum of $30,000 in respect of ‘pain and suffering’.

It was common ground before the Member that the appellant was a ‘worker with highest needs’ within the meaning of s 32A of the 1987 Act. The appellant contended that from the commencement of the 2015 Amendment Act, he should have been paid weekly compensation pursuant to s 38A of the 1987 Act. The appellant commenced proceedings in the Commission claiming weekly compensation from 1 January 2009 on a continuing basis.

The Member issued a Certificate of Determination on 10 May 2022, finding that s 38A of the 1987 Act did not apply to any weekly compensation payable to the appellant under that Act. The Member ordered that the parties confer for the purpose of lodging short minutes of orders to reflect his reasons. The worker appealed.

The issues on appeal were whether the Member:

(a) failed to exercise jurisdiction to determine the transitional provisions for seriously injured workers in relation to s 38A rights (Ground 1);

(b) in the alternative to Ground 1, incorrectly interpreted the transitional provisions for seriously injured workers in relation to s 38A rights (Ground 2);

(c) failed to apply authority including Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47 (Vostek) (Ground 3), and

(d) failed to give adequate reasons (Ground 4).

Held: Leave was granted to the appellant pursuant to s 352(3A) of the 1998 Act to bring the appeal against an interlocutory decision. The Member’s decision dated 10 May 2022 was confirmed. The matter was remitted to a Member to deal with remaining matters relating to outstanding arrears of compensation and interest.

Was the decision interlocutory?

1. Both parties indicated that the appeal was not against an interlocutory decision. Deputy President Snell observed that the Member’s orders provided for the parties to lodge short minutes of order to reflect the weekly compensation payable to the appellant. There was provision for the parties to approach the Commission with a view to seeking a further telephone conference if they were unable to agree. The Member noted he had not heard the parties in any detail in relation to interest on arrears of weekly compensation. The issues relating to arrears and interest remained outstanding. The Deputy President could not see that the Member’s decision dated 10 May 2022 finally disposed of the rights of the parties. It followed that the appeal required leave pursuant to s 352(3A). ([9]–[13])

   (Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 applied)

2. Deputy President Snell stated that the determination of the remaining issues, in particular the outstanding weekly entitlements, would depend significantly on whether the Member’s construction of s 38A was confirmed on appeal. The Deputy President accepted that determination of the appeal was necessary and desirable for the proper and effective determination of the dispute. Leave was granted pursuant to s 352(3A) to bring the appeal. ([14])

Ground 1, 2 and 3

3. The appellant was an ‘existing recipient of weekly compensation’ within the definition in Sch 6, Pt 19H, cl 1 of the 1987 Act, following commencement of the 2012 amendments. It was conceded by the respondent that he was a ‘seriously injured worker’, later known as a ‘worker with highest needs’ following the 2015 amendments. ([58])
4. The appellant’s primary argument was that the Member was bound to apply the decisions of Hee v State Transit Authority of NSW [2019] NSWCA 175; 100 NSWLR 274 (Hee) and Vostek. On appeal the appellant appropriately noted that Hee was a case in which the worker was injured between the 2012 and 2015 amendments and in a footnote stated that it referred to Hee “for completeness”. Snell DP held that the issue in the current appeal was quite different to that in Hee. The appellant’s arguments on this appeal depended essentially on the argument that the Member should have applied the decision in Vostek. ([60])
5. The Deputy President noted there were substantial factual similarities between this matter and Vostek. He noted, however, that Keating P’s reasons in Vostek did not deal with the threshold issue of whether s 38A applied at all, having regard to the transitional provisions. This was not raised as an issue in Vostek. It was very clearly raised in the current matter. ([61]–[62])
6. In the current matter, the Member found that, giving a literal construction to the clear words of the applicable statutory provisions and regulations, s 38A did not apply in the appellant’s circumstances. The Member’s reasons for forming that view were compelling and Snell DP accepted them. The appellant had not, in its submissions, identified an alternate construction that it argued, as a matter of statutory construction, should apply. The issues were whether in the current matter, the application of s 38A in the context of the transitional provisions having been squarely raised, the Commission was in any event bound to follow the result in Vostek. Snell DP held the Member dealt with this in the reasons at [41] to [42]. ([63])
7. Deputy President Snell was of the view that the language from the transitional provisions which was under discussion could not be described as ambiguous. Clause 10(2) of Sch 6, Pt 19H of the 1987 Act inserted by the 2012 amendments, specifically provided that a seriously injured worker’s pre-injury average weekly earnings were “deemed to be equal to the transitional amount”. Clause 35(2) of the 2016 Regulation provided that s 38A of the 1987 Act did “not apply to a worker whose pre-injury average weekly earnings have been deemed to be equal to the transitional amount for the purposes of the application under clause 9 or 10 of Part 19H of Schedule 6 to the 1987 Act ”. ([70])
8. The Member, dealing with the application of the decision in Vostek, distinguished the earlier decision on the basis that the issue was “different”. He said the issue in the current matter “did not arise in Vostek at all”. This was true. The decision in Vostek could not, in the circumstances of the current matter, be regarded as binding, as the Member correctly held. The reasons in Vostek did not, in the current matter, offer an alternative line of reasoning. It did not offer any relevant line of reasoning because the issue raised in the current proceedings was not raised in Vostek. The Deputy President held that it would have been erroneous for the Member to apply the decision in Vostek as supportive of the appellant’s position, having formed the view that such an approach would be inconsistent with the transitional provisions in the 1987 Act and the 2016 Regulation. This was consistent with passages from Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19; 163 CLR 1 at 13 and 23, particularly the statement of principle from Mason J. ([71])

(Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200 applied)

9. Contrary to Grounds 1 and 2, the Member determined the issue of the application of the transitional provisions relevant to the appellant’s factual position. Contrary to Ground 3, the Member’s reasons for not applying Vostek were set out and were referred to. The Deputy President concluded that the Member did not err in the approach he took to the issues raised in these grounds. Grounds 1, 2 and 3 failed. ([72])

Ground 4

10. The appellant submitted there was doubt regarding whether the Member decided the construction argument before him and that the appellant could not comprehend why it lost. The appellant specifically referred to the reasons at [38]. The respondent submitted that the reasons should be read as a whole. ([75]–[76])
11. Deputy President Snell observed that the issues raised in this matter fell within a small compass. The first involved consideration of the relevant transitional provisions in the factual situation (which was not contentious) applying to the appellant. The second involved the appellant’s argument that the Member was required to apply the decision in Vostek, which involved similar facts. ([77])
12. The respondent’s submissions dealing with the transitional provisions were set out in detail in the Member’s reasons. Having summarised this material, the Member at [33] stated that he agreed with the essence of those submissions. In his reasons at [33] to [35], the Member set out the fundamental provisions which supported the result he reached. In particular, he referred to the interplay between Pt 19H, cl 10(2) of the 1987 Act, inserted by the 2012 amendments, and cl 35(2) of the 2016 Regulation. Snell DP held this amply explained the Member’s conclusion on the operation of the transitional provisions. ([78])
13. Deputy President Snell held that it was abundantly clear, when the decision was read as a whole, that the Member decided the construction argument and gave appropriate reasons explaining his decision. This was inconsistent with the argument raised in the appellant’s submissions in reply, that the Member did not regard the construction point as a matter for determination and thus failed to exercise jurisdiction. His reasons satisfied the requirements of the Act and Rules. The reasons satisfied the requirements in decisions such as Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. Ground 4 failed. ([79]–[82])

Opera Services Pty Ltd v Williams [2023] NSWPICPD 25

WORKERS COMPENSATION – Consideration of expert evidence – Member applying judicial notice to reasoning process – section 43(2) of the 2020 Act and rule 73 of the 2021 Rules

Parker SC ADP

4 May 2023

Facts

The respondent worker was employed by the appellant as a cellar man at the Opera Bar in Sydney. On 19 January 2016, he was transferring stock using a walk behind electric pallet jack. As he was doing so, he slipped and fell backwards landing heavily on his buttocks sustaining injury to the lower back.

The appellant accepted that the respondent had suffered injury to the cervical and lumbar spines but disputed that he had sustained a consequential medical condition of the digestive system.

The respondent claimed lump sum compensation pursuant to s 66 of the 1987 Act, alleging a whole person impairment of 22%.

The Member found in favour of the respondent. He determined that as a result of the injury of 19 January 2016, the respondent suffered a consequential medical condition of his upper and lower digestive tracts. In the circumstances, the Member remitted the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as a result of the injuries to the respondent’s cervical spine, lumbar spine and upper and lower digestive tract on 19 January 2016.

The employer appealed, challenging the determination that the respondent sustained consequential gastrointestinal injuries.

The issues on appeal were whether the Member erred in:

(a) applying ‘judicial notice’ to his reasoning process in respect of matters that were beyond those for which inferences could be drawn (Ground 1), and

(b) the reasoning process concerning the non-acceptance of Dr Sethi’s views in that he failed to comply with the principles of Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174 (Wiki) (Ground 2).

Held: The Certificate of Determination dated 19 May 2022 was confirmed.

Ground 1

1. The appellant submitted that the Member was presented with two competing medical cases from different forensic experts (Dr Greenberg and Dr Sethi) relating to the disputed gastrointestinal conditions. It was said that the respondent failed to serve any opinion from his treating gastroenterologist (Dr Wassim Rahman) commenting on causation. As a consequence of this, the appellant submitted that the Member was required to perform an evaluative based fact-finding exercise, weighing the expert evidence and explaining why he preferred one case over another. ([50])
2. Acting Deputy President Parker SC observed that it was appropriate to note that the Commission is not bound by the strict rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter permits. However, r 73 of the 2021 Rules applies. ([65]–[66])
3. The brevity of the Member’s reasoning, which did not descend to a detailed analysis of the reports of either Dr Greenberg or Dr Sethi, made tenuous a conclusion that s 43(2) and r 73 had been satisfied. Notwithstanding, the Acting Deputy President did not accept that the Member’s preference for the evidence of Dr Greenberg was in error. ([67])
4. Acting Deputy President Parker SC was not persuaded that the Member used his knowledge from other cases to do more than enable him to understand the evidence of the medical referees. Although the brevity of the Member’s reasoning was regrettable, the Acting Deputy President was not persuaded that there was evidence of error. The Acting Deputy President held that the Member was entitled to accept that the entry in MIMS relied upon by Dr Greenberg was objective support from a source which could not reasonably be challenged in support of the respondent’s case. Parker SC ADP was not persuaded that the Member was in error and rejected Ground 1 of the appeal. ([77]–[78])

Ground 2

5. The appellant submitted that the principle established in Wiki at [62] was that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other reasons. The appellant’s submission was that Dr Sethi provided a coherent and reasoned opinion as to causation concerning the gastrointestinal conditions which Dr Greenberg did not. There was no evidence produced from the respondent’s treating gastrointestinal surgeon commenting on causation. ([79])
6. The respondent submitted that the principle from Wiki “is intended to ‘enable the losing party to understand properly the grounds upon which the case was lost’. It is clear that even so, in the present case the Member found that when all the circumstances were considered and weighed up it was the temporal connection that was overall ‘quite compelling’.” ([83])
7. The respondent said that in Wiki, the error was the “preference for medical evidence from a practitioner merely because of his reputation. A decision based solely on demeanour will not always provide the losing party with a satisfactory explanation. The Court confirmed that what is required is a rational examination and factual analysis within a reasoned framework.” The respondent said that here the Member pointed to a sequence of events historically. He recognised that on a common sense basis the view expressed by Dr Greenberg, that the medication consumed contributed, at least in part, and in a material way to the symptoms experienced by the worker, should be accepted. ([84]–[85])
8. The respondent said that Dr Sethi’s opinion that the medications consumed by the worker played no part at all in the aetiology of the worker’s gastric symptoms was difficult to accept. In this case there were multiple factors all capable of (separately or together) playing a part in the genesis of and the maintenance of the condition in the worker. The respondent argued that the Member’s conclusion was fortified by “notorious scientific facts of which he is able to take judicial notice both by reason of his experience and by reference to accepted scientific material (MIMS) that the drugs consumed by the worker namely Nurofen and Naproxen were NSAIDs [non-steroidal anti-inflammatory drugs] of a type well known to contribute to gastrointestinal disturbance.” ([86]–[88])
9. Acting Deputy President Parker SC held that the Member was supported by Dr Greenberg’s opinion and recitation of the support from MIMS. That was objective and scientific evidence not rebutted and, in the Acting Deputy President’s view, to some extent was supported by Dr Sethi. Dr Greenberg relied on the entries in MIMS which presumably accorded with his clinical experience to offer his opinion of the likely effect of Nurofen and Naproxen on the worker. This was a conventional application of established scientific data to the circumstances of Mr Williams’ medical condition. This was neither speculative nor unscientific. Parker SC ADP found the Member was entitled to act on Dr Greenberg’s opinion. ([93]–[94])
10. The Member was not required to give elaborate reasons rebutting Dr Sethi’s opinion. An alternative hypothesis to Dr Sethi’s opinion was provided by the scientific content of the MIMS; the opinion of Dr Greenberg and to a degree by Dr Rahman’s partial agreement with the respondent’s assumption. Furthermore, the Member was not required to discount his acceptance of Dr Greenberg’s reliance on MIMS by reason of Dr Sethi’s reports because those reports made no rebuttal of that aspect of Dr Greenberg’s report. In the Acting Deputy President’s view, the Member was not shown to be in error in the manner in which he dealt with Dr Sethi’s material. It was inevitable, given that he preferred Dr Greenberg’s material, supported as it was by the MIMS entry, that Dr Sethi’s report would be rejected. He was not required to give an elaborate explanation as to why that was so. ([96]–[97])
11. This was not a matter in which the Member determined to prefer Dr Greenberg because of demeanour or Dr Greenberg’s eminence over Dr Sethi. He preferred Dr Greenberg because of the support for Dr Greenberg’s hypothesis contained in the MIMS and the correlation between the respondent’s consumption of NSAIDs and the development of gastrointestinal symptoms. ([98])
12. Acting Deputy President Parker SC concluded there was no other acceptable alternative cause available because Dr Sethi in his hypotheses failed to address the MIMS entry. The objective scientific material in the MIMS entry, together with the temporal correlation, was sufficient to persuade the Member that Dr Greenberg’s report and hypotheses should be preferred. No error was demonstrated in that conclusion on his part. Ground 2 was rejected. ([99]–[100])

Toll Holdings Ltd v Diomidhous [2023] NSWPICPD 26

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 and Paric v John Holland Constructions Pty Ltd [1984] NSWLR 505 considered and applied – parties are bound by the way a case is conducted below – Brambles Industries Ltd v Bell [2010] NSWCA 162

Phillips P

9 May 2023

Facts

The respondent worker was engaged as a courier driver by the appellant. The respondent alleged that during the course of his employment with the appellant, he was subjected to various incidents of bullying and harassment which caused him to sustain a psychological injury, in particular, an adjustment disorder. The respondent complained that the appellant did not pay him his correct entitlements and treated other drivers more favourably. Additionally, the respondent complained that notwithstanding his vehicle being of a two-tonne classification, he was only paid the rate applicable to a one-tonne classification.

The appellant denied all of the respondent’s allegations and stated that any psychological condition that the respondent may have suffered arising out of his employment was as a result of reasonable actions taken by the appellant or on its behalf. Additionally, the appellant denied that the respondent had ever been an employee, and also asserted the respondent was out of time to make a claim, pursuant to the statutory time limitations within ss 254 and 261 of the 1998 Act.

The Member rejected the appellant’s arguments, finding that the respondent was indeed an employee. The Member also considered whether the respondent was a deemed worker, as provided for in cl 2 of Sch 1 of the 1998 Act. The Member found that the respondent could also be regarded as a deemed worker in accordance with that provision. Once finding that the respondent was an employee, the Member also found that he had sustained a psychological injury within the meaning of s 4(b)(i) of the 1987 Act as a result of real events within the workplace. The defence raised by the appellant pursuant to s 11A of the 1987 Act and ss 254 and 261 of the 1998 Act also failed. As a result, the Member ordered payment of weekly compensation based on the respondent having no current work capacity, and ordered the payment of reasonably necessary medical expenses for treatment of the psychological injury.

The appellant employer appealed from the Member’s decision in respect of the finding of injury, the s 11A defence and work capacity. There was no appeal pursued in relation to the finding that the respondent was either an employee or a deemed worker.

The issues on appeal were advanced in the following grounds:

(a) the Member erred in accepting and relying on the opinions of Dr Chow (psychiatrist qualified by the respondent) and Ms Talbot (treating clinical psychologist) (Ground 1);

(b) the Member erred in accepting and relying on the opinion of Dr Mangahis (treating general practitioner) (Ground 2);

(c) the Member erred in his fact finding process (Ground 3);

(d) the Member erred in rejecting the appellant’s defence under s 11A of the 1987 Act (Ground 4);

(e) the appellant was denied procedural fairness (Ground 5);

(f) the Member did not deal with a clearly articulated argument raised by the appellant (Ground 6), and

(g) the Member erred in finding that the respondent had no current work capacity (Ground 7).

Held: The Member’s Certificate of Determination dated 27 July 2022 was confirmed.

Grounds 1 and 2

1. The appellant argued that the Member expressed reservations about the opinions of Dr Chow and Ms Talbot and yet proceeded to place reliance upon these opinions in his ultimate finding of injury at [137] of the reasons. The appellant argued that considering the finding, with respect to Dr Chow and Ms Talbot, their opinions were “of no assistance”, those opinions should have been rejected and not featured as part of the determination. ([54])
2. The appellant’s principal concern about the opinions of Dr Chow and Ms Talbot arose mainly from the use of the phrase “nature and conditions” of employment in the giving of a part of their opinions and the Member’s remarks upon the deployment of that phrase. This, the appellant stated, would lead to these opinions in their entirety being rejected or given no weight. The appellant stated that the Member should have had no regard to either opinion. ([56])
3. The President noted that it was not so much the opinion of Dr Mangahis that was determinative in this finding, rather it was a consideration of his treatment records, which his Honour stated were used by the Member to establish that at least two of the events complained of were real. ([77])
4. After reviewing the reports of Dr Chow, and Ms Talbot, the President found that the appellant had not established error in either Grounds 1 or 2. There was no warrant to reject or give little or no weight to the balance of the reports of Dr Chow and Ms Talbot due to one poorly drafted question each was asked to answer. The answer given by both practitioners to the question was rightly dismissed by the Member. But it was not appropriate to say that the contents of the rest of the reports ought also be given no weight. The decision taken by the Member in terms of the weight to be given to the three medical opinions challenged in these grounds was well within the Member’s discretion as the first instance decision-maker. Grounds 1 and 2 were dismissed. ([78]–[79])

Ground 3

5. As the President found in relation to Grounds 1 and 2, his Honour did not consider that the Member’s finding at [109] of the reasons led to the inexorable conclusion that the entirety of the evidence of Dr Chow and Ms Talbot was to be discarded. A single answer to a poorly worded question in each report did not undermine the balance of the reports or the opinions expressed therein. ([84])
6. In terms of Dr Chow’s report, it was clear that by the time he got to the summary and opinion, Dr Chow had focused on a smaller number of acts giving rise to the respondent’s psychological condition. Those acts were the downgrading of the vehicle classification with a consequential loss in income and the respondent being given lower paid jobs. The report when read in this way, contrary to the appellant’s submissions, did provide support for the Member’s finding at [114] of the reasons. Consequently, with respect to Dr Chow’s opinion, the President did not accept that the Member incorrectly construed the opinion as alleged by the appellant. The President further found that no error had been proven in the Member’s treatment of Ms Talbot’s report when one considered the entirety of the evidence from this source. ([85]–[89])
7. The appellant complained that the Member misconstrued Dr Vickery’s opinions and, as a consequence, the finding of injury made by the Member was made in error. The appellant maintained that a proper reading of Dr Vickery’s reports would not provide the evidentiary support for the findings made by the Member at [114] of the reasons. The appellant submitted that the key piece of evidence of Dr Vickery was his answer to question 4 in his report of 20 April 2021 where he linked his diagnosis of an adjustment disorder to the respondent not being paid an adequate income in 2021. This meant, the appellant said, that this opinion was not available to be used for events wider than 2021. ([90]–[94])
8. The President held that this was not a fair reading of Dr Vickery’s report. In Dr Vickery’s report of 20 April 2021, the doctor linked the aetiology of the respondent’s psychological injury “on the basis of the history provided”. Further, the doctor said in answer to question 13, that the respondent’s “perception of not being paid an adequate income is the substantial contributing factor to the injury on the basis of the history provided”. The President accepted that the answer to question four as asserted by the appellant was limited to 2021. This was a product of the doctor answering the question that was asked which directed attention to “the present time”. His Honour remarked that Dr Vickery saw the respondent in 2021. The doctor’s answers to questions nine and 13, which were not time-limited, attributed the respondent’s condition to not being paid an adequate income on the basis of “the history provided”, which was a wider period than just 2021. Further, the answer to question three in Dr Vickery’s report of 26 July 2021 was also not time limited and was more in keeping with the history provided to Dr Vickery. ([95])
9. The appellant’s complaint with respect to how Dr Vickery’s opinion was dealt with by the Member was distilled to the following proposition, namely, that the Member should have accepted the answer to question four and ignored the answers to questions nine and 13 in the same report and question three from the second report of 26 July 2021. His Honour held that this was not a proper approach to the construction of the doctor's opinion in its entirety. ([96])
10. The President found there was no error in the Member reading the reports as a whole rather than focusing upon the answer to question four in isolation and using the entirety of the doctor’s opinion to the support the findings at [114] of the reasons. No error was established with respect to how Dr Vickery’s opinion was construed. The appellant had been unable to identify error in the Member’s approach at [114] of the reasons. It was essential for the appellant to identify error in order to justify intervention on appeal. The finding made by the Member in this paragraph was, on a dispassionate review of the evidence, a finding that was plainly available to the Member as the first instance decision-maker. Ground 3 was dismissed. ([98]–[101])

Ground 4

11. There were two limbs to the argument advanced by the appellant in Ground 4. The first limb related to the proper construction of the expert medical evidence, the second limb related to the s 11A defences which it was said that the Member failed to consider or deal with at all. ([108])
12. The President held that this appeal ground was without merit. The appellant’s submission did not identify, with any precision, the error of fact, law or discretion said to have been made by the Member in dealing with the medical evidence. Rather, this appeal ground seemed to suggest the appellant’s preferred construction of the medical evidence. In Grounds 1 to 3, his Honour had rejected the same arguments advanced by the appellant in terms of how the Member dealt with the medical evidence. For those earlier reasons, the President did not accept that the opinions of Dr Chow, Ms Talbot and Dr Mangahis “fall away” as asserted by the appellant. Further, his Honour also did not accept the appellant’s approach to Dr Vickery’s evidence for the reasons given in Ground 3. The Member had concerns about the reliance that could be placed upon Dr Vickery’s report in support of the s 11A defence. The Member was correct, at [153] of the reasons, to question the difference between the argument conducted by the appellant on s 11A and how Dr Vickery dealt with the s 11A defence. The first limb of Ground 4 did not show error and that aspect of Ground 4 was dismissed. ([109]–[111])
13. In relation to the appellant’s argument that the Member failed to properly consider all of the grounds relied upon by the appellant in its s 11A defence, the President held that it was clear from [153] of the reasons that the Member only dealt with the category of transfer. The appellant’s submissions before the Member were limited to the category of transfer. No argument or submission in relation to the other grounds set out in the appellant’s s 78 notice were addressed. There was no invitation or submission to the Member about these other grounds. The President found that this submission had no merit, and his Honour accepted the respondent’s submission that a party is bound by the manner in which the case is conducted below. Arguments wider than the category of transfer were not put to the Member. It was not an error for the Member not to deal with the remaining s 11A arguments, set out in the s 78 notice, as they were not argued. No error had been established in this regard, the Member was correct to only deal with the category of transfer. ([112]–[116])

(Brambles Industries Ltd v Bell [2010] NSWCA 162 applied)

Grounds 5 and 6

14. The appellant submitted that the medical experts relied on by the respondent “did not grapple with, much less explain, why the respondent did not suffer any injury until 2021 despite his truck being downgraded in 2008 and he had continued working since then”. The appellant argued that it followed that by reason of that omission, the opinions of Dr Chow and Ms Talbot could not be accepted. This, the appellant argued on the appeal, was a point never dealt with by the Member. ([117]–[120])
15. In his Honour’s consideration of these two grounds, the President considered how the dispute itself was framed. It was tolerably clear that the respondent framed his claim as a psychological disease of gradual onset. The respondent’s statement which appeared immediately after the document framing the claim was consistent with what had been pleaded. This explained in the respondent’s words why he ceased work on 2 February 2021. ([122])
16. After closely reviewing the evidence of Dr Chow and Ms Talbot, the President accepted the appellant’s assertion that neither medical practitioner, in terms, dealt with this question agitated by the appellant. In fairness to both practitioners neither appeared to have been requested to turn their minds to this question in the precise terms asserted by the appellant. The question that arose was whether the argument asserted by the appellant on appeal, which it was said the Member failed to deal with, was actually put fairly to the Member. In order to make good this point on appeal, the appellant was required to point to the argument put below, based upon established facts, which was not dealt with. No established facts underpinning the argument below had been advanced in support of this appeal ground. The absence of an opinion from each practitioner on a question they were not asked was not such a fact. ([126]–[129])
17. In any event, the President did not accept the appellant’s submissions before the Member in paragraphs [17] and [21], in terms of the particular point asserted on the appeal, was required to be specifically dealt with by the Member. These paragraphs, and the other paragraphs in this section of submissions, contained the appellant’s general submissions about the weight that the Member should accord to Dr Chow’s and Ms Talbot’s opinions. The Member plainly dealt with the issue of the weight to be accorded to those opinions. The President rejected this ground of appeal. ([130])
18. In relation to the final argument about whether the Member failed to accord the appellant natural justice, the President did not accept the appellant’s submission that the Member’s approach involved the Member in filling gaps in the evidence based upon the Commission’s status as a specialist tribunal. The offending provision of the decision did not reveal on its face that this was the process being undertaken by the Member. It was certainly not apparent from a reading of the decision that the Member was undertaking the type of process referred to in Strinic v Singh [2009] NSWCA 15. The President concluded that the assertion that the Member failed to accord the appellant natural justice had not been established. This ground of appeal was dismissed. ([131]–[133])

Ground 7

19. The appellant submitted the Member should have rejected the opinions of Dr Chow, Ms Talbot and Dr Mangahis. That, the appellant said, left Dr Vickery who considered the respondent fit to work for another company. The opinion of Dr Vickery, it was submitted, was also consistent with the respondent’s movements, as demonstrated in his bank statements. The appellant argued that that ability to drive freely and engage in society supported a finding of total capacity, or partial capacity at the very least. ([134])
20. The President stated that this appeal ground did not, in terms, specify the error said to have been committed by the Member in dealing with the work capacity of the respondent. Rather, as was the case in the first limb of Ground 4, the appellant asserted its preferred construction of the medical evidence in order to make good this ground. ([135])
21. In support of this ground, the appellant also pointed to the respondent’s movements as demonstrated in his bank statements. The President noted that the Member dealt with this argument at [172] of the reasons. No error in the Member’s findings at [172] had been identified by the appellant on appeal. Given that no error had been identified at [172] of the reasons, the support for Dr Vickery’s opinion that the appellant sought to make based upon the respondent’s bank statement could not be established. The President concluded that the Member was well within the function of the first instance decision-maker to give the opinions of Dr Chow, Ms Talbot and Dr Mangahis such weight as he saw fit. No error had been established with respect to Ground 7, which was dismissed. ([137]–[139])

Bjekic v State of New South Wales (Western Sydney Area Local Health District) [2023] NSWPICPD 27

WORKERS COMPENSATION – Section 4(b)(ii) of the 1987 Act – whether the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the appellant’s sinusitis condition caused by the requirement to wear a surgical mask at work – AV v AW [2020] NSWWCCPD 9 discussed – alleged error by failing to take into account relevant matters and taking into account irrelevant considerations – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied

Wood DP

10 May 2023

Facts

The appellant worker was employed by the State of New South Wales under the umbrella of Western Sydney Area Local Health District (the respondent) as a security officer at Mt Druitt Hospital. For a period of approximately two months in 2020, the appellant was unfit for work because of an undisputed work-related injury. He returned to work in October 2020, performing suitable duties as a COVID-19 Marshall.

In order to deal with the spread of COVID-19, a number of Public Health Orders and Directives were issued with respect to the requirement to wear a mask in all public hospitals and community settings.

In October 2020, the appellant was advised that he was required to wear a face mask for the duration of his shift as a COVID-19 Marshall. The appellant, who suffered from a pre-existing sinus condition, alleged that, as a result of the requirement to wear a mask, his sinus condition was aggravated. In order to alleviate his symptoms, the appellant would, from time to time, wear his mask under rather than over his nose.

When further restrictions came into effect on 23 June 2021, the appellant was stood down because of his inability to wear a mask covering his nose.

The appellant lodged a claim for compensation, which was disputed by the respondent. The Member found that the appellant’s employment was not a substantial contributing factor or the main contributing factor to the injury and entered an award for the respondent. The worker appealed.

The issues on appeal were whether the Member was in error:

(a) to conclude that the appellant had not suffered an injury pursuant to s 4 of the 1987 Act as properly understood, arising out of or in the course of his employment (Ground 1);

(b) to conclude that the respondent was in any way different to the mandating authority that required the appellant to wear a mask during the COVID-19 pandemic (Ground 2);

(c) to conclude that s 4(b)(ii) of the 1987 Act was not satisfied in the circumstances of the case (Ground 3), and

(d) in taking into account irrelevant considerations when making his decision and failing to take into account relevant considerations (Ground 4).

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

Grounds of appeal

1. During the oral hearing, after a lengthy discussion about the issues raised in the grounds of appeal, counsel for the appellant sought to amend the grounds of appeal. Ground 3 was amended by consent. The appellant further advised that Ground 1, which was contrary to the finding by the Member at [44] of his reasons, was not pressed, and, as Ground 2 asserted error on the basis of a matter not raised before the Member, that ground was also not pressed. ([44]–[45])

Ground 3

2. Deputy President Wood noted that whether the appellant’s employment was the main contributing factor to the aggravation of his sinusitis is a more stringent test than that of whether the employment was a substantial contributing factor to the injury, and it is not sufficient to merely show that the injury arose out of or in the course of employment. ([72]–[73])

   (AV v AW [2020] NSWWCCPD 9 (AV v AW) discussed)

3. The appellant asserted error on the part of the Member in that he “introduced a dispute [in respect of s 9A of the 1987 Act] that was not advanced by either party in order to justify and reinforce his erroneous decision in relation to causation.” As the appellant conceded, although neither party chose to make submissions in respect of s 9A, the question of whether the employment was a substantial contributing factor was raised as an issue in the dispute notice issued by the respondent. Both parties proceeded on the basis that the appellant’s injury was an aggravation of a disease and submitted accordingly, however, it was not an error for the Member to have dealt with an issue raised which ultimately was not a matter that was necessary to the ultimate outcome. ([74])
4. Deputy President Wood rejected the appellant’s submission that the Member’s purpose was “to justify and reinforce his erroneous decision in relation to causation”. The Deputy President noted that the test of “the main contributing factor” is more stringent than the test of “a substantial contributing factor”. How a finding that the employment was not a substantial contributing factor justified or reinforced a finding that the employment was not the main contributing factor was not explained and the assertion that this consideration influenced the Member’s ultimate conclusion was not apparent from a reading of the Member’s statement of reasons. ([75])
5. The appellant submitted that there was no dispute that the appellant was required to wear a mask and wearing the mask caused the appellant injury. The appellant said that the requirement was “real and substantial” so that s 4(b)(ii) of the 1987 Act was satisfied because the employment was the main contributing factor to the injury. Deputy President Wood held that the consideration of whether the requirement was “real and substantial”, which was a term applied in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 about a substantial contributing factor, is not sufficient to establish the necessary element within s 4(b)(ii) of the 1987 Act. ([76]–[77])
6. The appellant asserted that the appellant’s employment was the only contributing factor. The Deputy President observed that the Member’s reasons in respect of his ultimate finding that the appellant’s employment was not the main contributing factor were sparse, but the appellant did not challenge the outcome on the basis of a failure to give reasons for that conclusion. This ground of appeal was limited to the assertion that the Member’s factual conclusion was wrong. ([78]–[79])
7. Wood DP noted the Member summarised the principles enunciated in AV v AW. He observed that the onus rested on the appellant and the relevant test was one of causation, which involved a consideration of all of the evidence, including the non-work related factors. He noted that it was “common-ground” that the mandating authority was the New South Wales Government, who issued “restrictive regulations”. That observation was ultimately not challenged by the appellant. The Member concluded that, while the injury occurred in the course of the appellant’s employment, the “substantial” cause of the appellant’s injury was not the appellant’s employment, but was the New South Wales Government, which imposed upon the respondent the change in the appellant’s employment. ([80])
8. Deputy President Wood held it was apparent that the basis for the Member’s determination was that the injury was caused by the directives from the Government of New South Wales and not by the respondent. The conclusion was arrived at by noting the “common ground” between the parties, a consideration of the available evidence, and the application of the principles enunciated in AV v AW. There was no error in that approach. ([81])
9. Section 352(5) of the 1998 Act provides that an appeal is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appellant had failed to establish error on the part of the Member in concluding that the appellant’s employment was not the main contributing factor to the injury and this ground of appeal failed. ([82])

Ground 4

10. The appellant pointed to the Member’s criticism of the quality of the appellant’s statement and asserted that it was not apparent how this criticism may have affected the outcome. It was difficult to discern from the appellant’s submission the identifiable error upon which the appellant relied when he conceded that it was not apparent how the criticism was material to the Member’s ultimate decision. It may be that from time to time a primary decision-maker will comment upon the state of the evidence and those comments do not comprise of a factor in accepting or rejecting the evidence. In the circumstances of this case, the appellant’s statement dated 17 September 2021 annexed to the Application to Resolve a Dispute was in places illegible and the copy annexed to the amended ARD was also difficult to read. The Commission’s Procedural Direction PIC3 – Documents and late documents requires that the parties and legal representatives ensure that copies of documents lodged in proceedings are clear, sharp and legible. The Deputy President did not consider that an observation about the poor quality of a document, the contents of which the Member was required to take into account, was sufficient to say that the Member erred in fact, law or discretion by making such a comment in circumstances where it had no apparent effect on the Member’s decision. ([83])
11. The appellant asserted that the Member further erred by taking into account that there was no exemption to the mask mandate but failed to invite the parties to submit on the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021, Part 3, clause 7. That document was not in evidence. The Member did not determine that there was no exemption to the mask mandate. ([84])
12. Wood DP held that the Member’s observation that there was no evidence before him that compliance could be waived by the respondent was undoubtedly correct. There was no evidence before the Member that the respondent had the power to waive the requirement that the appellant wear a mask. The only document in the bundle lodged by the appellant on 30 March 2022 providing for exemptions was the document relating to “Face Mask Rules as at 25 February 2022” which provided that a person was not required to wear a mask “if you have an illness, condition or disability that makes wearing a mask unsuitable”. That document significantly post-dated the appellant’s injury. ([85])
13. The appellant further asserted that the Member erred by failing to invite the parties to make submissions relevant to the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 commencing on 2 April 2021, and the Member ought to have taken judicial notice of that document. ([86])
14. Deputy President Wood noted that s 43(2) of the 2020 Act provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. Wood DP thought it was necessary to review, and give an opportunity to the parties to address the following Public Health Orders:

(a) the Public Health (COVID-19 Mandatory Face Coverings) Order 2021, commencing on 3 January 2021;

(b) the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 commencing on 1 April 2021, and

(c) the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021, commencing on 26 June 2021. ([87]–[88])

15. The appellant pointed to Part 3, clause 7 of the Mandatory Face Coverings Order, which made provision for exemption applications to be made to the Minister for Health. The Deputy President found that the clause did not help the appellant. Firstly, the document was not in evidence; secondly, the appellant did not raise an issue before the Member that the appellant was exempt; thirdly, the power to grant an exemption rested with the Minister for Health and not the respondent, and fourthly, there was no evidence that the appellant made such application to the Minister. ([94])
16. Additionally, the Public Health (COVID-19 Mandatory Face Coverings) Order 2021 and the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 indicated at clause 5 of each Order that the Order applied to business and retail premises, which, it said, did not include premises that are used for the purpose of providing health services. The appellant conceded in his additional submissions that the Order “suggested” that it did not apply to the appellant. The Member could not have fallen into error by failing to consider the document or by failing to give the appellant the opportunity to make submissions about it when the document was not relevant to the appellant or the respondent. ([95])
17. In any event, as the respondent submitted, it is not incumbent upon the Member to research what evidence might be available to assist the appellant’s case. That, together with the fact that the Public Health (COVID-19 Mandatory Face Coverings) Order (No 2) 2021 was not in evidence was sufficient to dispose of the argument that the parties should have been invited to make submissions in respect of it. ([96]–[97])

(Paul Segaert Pty Limited trading as Lidco v Narayan [2006] NSWWCCPD 296 applied)

18. The appellant contended that the New South Wales Media Release dated 23 June 2021 set out the lawful reasons for not wearing a mask, which included illness. The appellant contended that the Member should have raised that with the parties. Wood DP held that the document did not refer to “lawful reasons for not wearing a mask”. It referred to further significant restrictions being introduced in Greater Sydney and in fact stated that “Masks will be compulsory in all indoor non-residential settings, including workplaces, and at organised outdoor events.” ([98])
19. The appellant’s complaint that the Member erred by taking into account irrelevant considerations and failing to take into account relevant considerations was not made out and the ground of appeal failed. ([99])

Conclusion

20. A component of the purported errors raised in this appeal relates to matters that were not raised before the Member, or evidence that was not before the Member. It is not an error for a Member to fail to deal with matters that were not raised before them. The appellant had not established that the Member erred by taking into account irrelevant matters, or overlooking relevant matters, or that his factual conclusions reached on the basis of the primary facts before him were erroneous. In the absence of the kind of error described in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, the Member’s conclusion that the appellant’s employment was not the main contributing factor to the injury was confirmed. ([100]–[101])

(Brambles Industries Ltd v Bell [2010] NSWCA 162 applied)

Cessnock City Council v Thatcher [2023] NSWPICPD 28

WORKERS COMPENSATION – section 60 of the 1987 Act – whether provision of hearing aids is reasonably necessary – assertion by employer to the Member that the suffering of tinnitus was not work related – the Member proceeded on the basis that tinnitus was not disputed – whether Member proceeded on an incorrect basis

Nomchong SC ADP

23 May 2023

Facts

On 15 May 2020, the respondent worker made a claim for industrial deafness relying on the deeming provisions of s 17 of the 1987 Act with the deemed date of injury being 30 June 2018. Liability was accepted on the basis that the appellant was the last noisy employer. The respondent also made a claim for the cost of hearing aids in the amount of $6,426.00. The appellant denied liability for the hearing aids asserting that they were not reasonably necessary treatment within the meaning of s 60 of the 1987 Act.

The Member determined that binaural hearing aids were reasonably necessary treatment for the work related hearing loss and tinnitus that the respondent had sustained. As a result, the Member made an award for the costs associated with those hearing aids pursuant to s 60 of the 1987 Act. The employer appealed.

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

(a) reasons that liability for tinnitus had been conceded (Ground 1), and

(b) finding that the hearing aids were compensable (Ground 2).

Held: The Certificate of Determination dated 31 January 2022 was revoked. The matter was remitted for re-determination by a different member.

Ground 1

1. Acting Deputy President Nomchong SC said it was clear that the Member proceeded on the basis that liability for tinnitus had been accepted by the appellant. This was incorrect. During the course of the hearing, counsel for the appellant put the appellant’s case on the basis that the binaural hearing loss was of itself so small as to not warrant treatment in the form of hearing aids. Counsel for the appellant then built on that argument and submitted that the respondent’s tinnitus was due to non-occupational causes and should be disregarded when considering the extent of the occupationally caused hearing loss. ([59]–[60])
2. There was an exchange with the Member in which counsel for the appellant was asked whether the Medical Assessment Certificate by Dr Williams, AMS, was binding in relation to the whole person impairment, to which counsel for the appellant agreed. However, his argument was that the opinion expressed by the AMS that hearing aids were necessary was not binding. Further, counsel for the appellant argued that the AMS had not explained why the tinnitus had formed part of the binaural hearing loss assessment or why severe tinnitus would be ameliorated by the use of hearing aids. ([61]
3. The Acting Deputy President noted that in his written submissions on the appeal, the respondent had conceded that the appellant did not accept that the tinnitus was part of the compensable injury. Accordingly, the issue of whether the hearing loss attributable to the tinnitus could be relied on to assess the necessity for hearing aids under s 60 of the 1987 Act was a matter squarely in issue between the parties. In the Acting Deputy President’s view, it was clear that the Member was in error in asserting that the appellant had not disputed liability for the tinnitus. Further, the Member was required to address the argument and then provide reasons for whatever decision she reached in relation to that issue and fell into error by not doing so. ([65]–[68])

(Li v Attorney General for New South Wales [2020] NSWCA 302 applied)

4. There is authority for the proposition that tinnitus is compensable for an assessment of impairment pursuant to s 69A of the 1987 Act (since repealed) as required pursuant to the then WorkCover Guidelines (now 9.11 of SIRA Guidelines to the Evaluation of Permanent Impairment). The Guidelines allow up to an additional 5% for work-related binaural hearing impairment for severe tinnitus as a result of a work injury. However, in the Acting Deputy President’s view, the general principles of causation would need to be applied to determine, on the evidence, whether the tinnitus was part of the respondent’s occupational hearing loss. This was the argument that the appellant invited through its submissions at the hearing and this was the issue which the Member did not address. ([69]–[70])
5. Section 294 of the 1998 Act requires a member to give reasons. This obligation is further addressed in r 78 of the 2021 Rules. The erroneous assumption that liability in relation to the tinnitus had not been disputed meant that the Member did not engage in the debate and therefore did not give reasons as to the conclusion that she proceeded upon, being that the tinnitus was part of the overall compensable hearing loss. Acting Deputy President Nomchong SC was persuaded that proceeding on the erroneous assumption that liability in relation to the tinnitus had not been disputed was an error of fact on the part of the Member. She was also persuaded that failing to address and provide reasons on the argument raised by the appellant, that tinnitus should not be regarded as part of the overall hearing loss for the purposes of the claim for hearing aids, was an error of law. Ground 1 was upheld. ([71]–[74])

(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, and Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 applied)

Ground 2

6. The Acting Deputy President was of the opinion that the Member proceeded on an erroneous basis in asserting that liability for hearing loss attributable to the tinnitus was not disputed. That was a foundational piece of the decision-making by the Member, who applied the test under s 60 of the 1987 Act on the basis of the total binaural hearing loss and tinnitus, and then concluded that the hearing aids were reasonably necessary treatment for work-related hearing loss and tinnitus. ([75]–[77])

(Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; 10 DDCR 290, and Walshe v Prest [2005] NSWCA 333 applied)

True it was that the Member noted the evidence of the respondent about the lack of efficacy of the hearing aids in reducing his tinnitus, but this did not address the gravamen of the appellant’s argument that the tinnitus should not be taken into account at all in determining causation between the compensable injury and the reasonable necessity for the hearing aids as treatment. The failure to meet and determine that argument necessarily meant that the conclusion reached by the Member was infected by error and Nomchong SC ADP was persuaded that the error was substantial. Ground 2 was upheld. ([78]–[80])

Walters v Good Guys Discount Warehouse (Australia) Pty Ltd [2023] NSWPICPD 29

WORKERS COMPENSATION – validity of a claim for permanent impairment compensation pursuant to section 66 of the 1987 Act – claim made and resolved by way of Complying Agreement – construction of a complying agreement under section 66A of the 1987 Act – Cram Fluid Power Pty Limited v Green [2015] NSWCA 250 applied – Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others [2004] HCA 52; 219 CLR 165; Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50; Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92; Di Paolo v Cazac Constructions (NSW) Pty Ltd [2013] NSWWCCPD 8 considered and applied – limit of one claim for permanent impairment pursuant to s 66(1A) of the 1987 Act – ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 applied; Woolworths Ltd v Stafford [2015] NSWWCCPD 36 considered – finality of a Complying Agreement – reasons in Yildiz v Victoria Yeeros Pty Ltd [2016] NSWWCC 108 considered – principles of finality in R v Unger [1977] 2 NSWLR 990 and Despot v Registrar-General of New South Wales [2016] NSWCA 5 adopted

Phillips P

24 May 2023

Facts

The appellant worker worked for the respondent employer as a shop assistant. On 31 March 2012, while at work, the appellant suffered injury to her left knee. The respondent accepted the appellant’s claim. On 20 January 2014, the appellant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act for 4% whole person impairment (2014 claim). This claim was resolved by the parties entering a “Complying Agreement” on 26 February 2014. By this agreement the respondent agreed to pay the appellant $5,500 for 4% whole person impairment (WPI) with respect to the left knee and subsequently paid this sum. The respondent also agreed to pay the appellant’s legal costs as agreed or assessed. The Complying Agreement, which was signed by the appellant, confirmed that the appellant had received independent legal advice about the Complying Agreement before it was entered into.

In November 2018, the appellant had a total knee replacement performed on her left knee. Following this surgery, the appellant’s right knee developed symptoms. The right knee soon deteriorated leading to a total knee replacement on the right knee in March 2020.

On 30 August 2021, the appellant made another claim for WPI pursuant to s 66 of the 1987 Act, this time claiming the combined amount of 34% WPI for both knees (2021 claim). This was based on the opinion of Dr Giblin dated 7 July 2021, who assessed the appellant’s left knee with 20% WPI, and assessed the right knee with 18% WPI. The form accompanying this claim noted that the appellant had already received compensation in respect of 4% WPI in respect of the left knee. The employer declined liability on the basis that the appellant had already received her one claim for permanent impairment compensation arising from the injury and therefore had no further entitlement, as restricted by s 66(1A) of the 1987 Act. Liability was also declined on the basis of Dr Powell’s (independent medical expert qualified by the respondent) report dated 17 December 2020, in which the doctor stated that the appellant’s permanent impairment was not greater than 10% as required by s 66(1) of the 1987 Act, and as a consequence she was not entitled to pursue the claim.

The Member found that the appellant had no entitlement to pursue the 2021 claim and entered an award for the respondent. In that circumstance it was not necessary for the Member to resolve the whole person impairment dispute between the parties. The worker appealed.

The issues on appeal were raised in the following sole ground of appeal:

“It is the Appellant’s contention that the Member, in making her determination that the effect of the Complying Agreement was that the claim was ‘resolved’, committed an error of mixed fact and law. Such a finding is an error of fact as it accepts that the entry into a Complying Agreement made contrary to law was valid and was an error as to the law as it determined that such a Complying Agreement was capable of bringing resolution to an invalid claim”.

Held: The Certificate of Determination dated 18 May 2022 was confirmed.

Consideration

Relevant Background

1. The appellant suffered her injury in the course of her employment with the respondent on 31 March 2012. Notification of the injury was given to the respondent’s insurer who accepted the claim. The appellant’s 2014 claim for permanent impairment compensation pursuant to s 66 of the 1987 Act was made on 22 January 2014. Between these two dates, the Parliament passed the 2012 amending Act. The 2012 amending Act commenced on 27 June 2012 and amended s 66 of the 1987 Act in two important respects. Firstly, s 66(1) was amended to limit workers’ entitlements to circumstances where a worker “received an injury that results in a degree of permanent impairment greater than 10%”. There was also a consequential amendment to s 66(2) which removed the mechanism for calculating compensation where the degree of permanent impairment was less than 10%. Secondly, s 66(1A) was introduced and limited workers to only one claim for permanent impairment compensation in respect of an injury. The President remarked that in Cram Fluid Power Pty Limited v Green [2015] NSWCA 250 (Cram Fluid) the Court of Appeal emphasised the clear legislative intent in limiting workers to a single claim for lump sum compensation, construing s 66(1A) as the “leading provision” so as to maintain “the unity of the statutory scheme”. ([39])
2. The President noted that the letter of 22 January 2014 contained a claim, amongst a number of other claims, for compensation under s 66 of the 1987 Act. Axiomatically this was a claim made after the commencement of the 2012 amending Act. The insurer responded by letter dated 12 February 2014 accepting the claim as made. Attached was a Complying Agreement specifying a 4% WPI, identifying the relevant body part as the left knee and agreeing to pay the amount of $5,500. This document was then completed by hand and signed by the appellant on 26 February 2014, with an additional notation that the appellant’s costs would be paid as agreed or assessed. It confirmed that the appellant had received independent legal advice about the Complying Agreement before it was entered into. The document was then signed by the respondent insurer on 14 March 2014. The claim as made was accepted and a slightly higher amount than had been claimed by the appellant was paid by the respondent. ([43]–[45])
3. At the time the 2014 claim was made by the appellant, the relevant law was that as stated by the Court of Appeal in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel No 1), a decision of 29 April 2013. This decision meant that at the time the appellant made the 2014 claim, she was entitled to do so. Subsequently, on 16 May 2014, the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 (Goudappel No 2) overturned the Court of Appeal decision in Goudappel No 1, meaning that the appellant was not entitled to pursue the 2014 claim as the 2012 amending Act applied to it. As was evident, the 2014 claim was resolved by complying agreement in the period after the Court of Appeal decision, but before the High Court decision. ([46])
4. The President remarked that the appellant advanced no argument about the circumstances specifically provided for by s 66A(3) of the 1987 Act, which would establish an entitlement, on the appellant’s part, to “additional compensation” as contemplated by the provision. The purpose of s 66A(3) could be seen to somewhat temper the otherwise non-beneficial operation of the 2012 amending Act, and in particular the effect of the new s 66(1A), by permitting an award of additional compensation if one of the confined circumstances set out in s 66A(3) apply. His Honour remarked though that the Court of Appeal in Cram Fluid did say that the operation of s 66A(3) was limited, with s 66A(1) being the leading provision. ([48])

Discussion

5. The President dealt with the appellant’s argument about the effect of s 234 of the 1998 Act, noting that s 66A(5) is an express statutory exception to the s 234 prohibition against contracting out. This argument was without merit and was dismissed. ([51]–[53], [56])

   (Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50; Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92, and Di Paolo v Cazac Constructions (NSW) Pty Ltd [2013] NSWWCCPD 8 applied)

6. This left the appellant’s argument about the validity of the 2014 claim and the Complying Agreement. It also left a subsidiary argument regarding the 2021 claim being an amendment to the 2014 claim, thus avoiding the statutory prohibition on pursuing more than a single lump sum compensation claim. Whether this argument had substance depended upon the answer to the anterior question, namely the validity of the 2014 claim and resolution. ([57])
7. The President observed that at the time the 2014 claim was filed and resolved, the law was as stated by the Court of Appeal in Goudappel No 1. This was an important consideration when considering “the surrounding circumstances known to the parties, and the purpose and object of the transaction”. At this point in time the 2014 claim was a valid claim. The resolution of this claim, objectively viewed, paid total impairment benefits to the appellant in a slightly larger amount than had been claimed by the appellant at a time where the surrounding circumstances known to the parties would have included knowledge about the effect of Goudappel No 1. The President reiterated that the appellant took no issue with any of the circumstances surrounding the entering of the Complying Agreement and certainly made no complaint with respect to the provisions of s 66A(3). In accordance with the remarks from Cram Fluid, the 2014 claim had been resolved. ([52], [58])

(Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 applied)

8. His Honour noted the real question for consideration was the effect, if any, of the High Court’s decision in Goudappel No 2 upon the validity of the 2014 claim and its resolution. A similar question had been considered in the former Workers Compensation Commission in Yildiz v Victoria Yeeros Pty Ltd [2016] NSWWCC 108 (Yildiz). The President noted that the difference between Yildiz and this case was the manner in which each claim was resolved. In Yildiz, the claim was resolved by the issuing by the then Commission of a Certificate of Determination following a Medical Assessment Certificate. This case involved the settlement of the 2014 claim by way of a complying agreement. Whilst Arbitrator Harris (as he then was) in Yildiz had to consider the principle of merger in judgment, the principles discussed in that case regarding finality apply equally to the resolution of the matter by way of a complying agreement. The President endorsed and adopted the approach of Arbitrator Harris in Yildiz and the principles he set out arising from the cases regarding finality. ([59]–[61])
9. Consistent with the decision in Cram Fluid, the execution of the Complying Agreement had the effect of resolving the 2014 claim. The President asked the question was this agreement then rendered invalid by the High Court’s later decision in Goudappel No 2? His Honour held the answer to this question must be no. Firstly, the 2014 claim, having been resolved, was no longer a live claim capable of being affected by the High Court decision. Secondly, this result sat comfortably with the principles of finality as discussed in Yildiz, arising from the cases of R v Unger [1977] 2 NSWLR 990 and Despot v Registrar-General of New South Wales [2016] NSWCA 5. Whilst these cases dealt with decisions which would have been made differently if decided after a later appellate decision, the earlier decisions stand unaffected. There was no reason in principle not to apply the same approach to the circumstance of a matter being resolved by virtue of a statutorily recognised agreement such as a complying agreement provided for in s 66A. Thirdly, the 1987 Act provides for the making of complying agreements and in s 66A(3) provides for limited circumstances where additional compensation might be later sought. No such circumstance existed in this matter. Fourthly, there is a significant public policy benefit which attaches to resolution of claims by agreement. Scarce court and tribunal resources are then not taken up with hearing matters that ought to be resolved by agreement. The President noted that there was no issue taken with any aspect of the Complying Agreement or the circumstances by which it was entered. The scheme of the 1987 Act provides for parties to resolve lump sum claims by way of entering a complying agreement, which the Court of Appeal in Cram Fluid confirmed had the effect of resolving the claim. Disturbing agreements otherwise lawfully entered is contrary to the public policy benefit identified by the President. Further, given the terms of s 66A, it was clear that the intent of the legislature was that such agreements be final and binding subject only to the limited capacity to obtain additional compensation as provided for in s 66A(3). ([62])
10. Consequently, his Honour did not accept that the Member was in error when she found that the Complying Agreement had the effect of resolving the 2014 claim. Whilst the President did not agree with the Member’s finding that the 2014 claim was invalid, given the state of the law at the time it was made and the fact that the 2014 claim was resolved before the High Court’s decision in Goudappel No 2, nothing turned on that finding. In light of the decision the President reached, this error regarding the validity of the 2014 claim did not affect the result. ([63])
11. For completeness, the President dealt with the subsidiary argument regarding the 2021 claim being an amendment to the 2014 claim. The President held the later claim could not be attached to an earlier claim which had been resolved by complying agreement. The same situation existed in this case, the resolution of the 2014 claim meant that that claim was at an end and as a consequence there was no claim existent that could be amended by a later claim (such as the 2021 claim). Before the Member and on appeal, the appellant had pointed to the decision of Roche DP in Woolworths Ltd v Stafford [2015] NSWWCCPD 36 (Stafford). Stafford could be distinguished from the circumstances in this case. In Stafford the earlier invalid claim had never been resolved. Deputy President Roche, for the reasons outlined in Stafford, found that a later valid claim was an amendment to the earlier invalid claim. The difference with respect to this matter was that the 2014 claim had been finally resolved by the Complying Agreement. The Member was correct to find as she did. The appeal was dismissed. ([64]–[65])

(Yildiz v Fullview Plastics Pty Limited [2019] NSWWCCPD 24 (Fullview Plastics) applied)

DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30

WORKERS COMPENSATION – Section 352(3) of the 1998 Act – whether the monetary threshold required to appeal is satisfied – Grimson v Integral Energy [2003] NSWWCCPD 29; Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5; Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied – whether the decision appealed against is an interlocutory decision within the meaning of s 352(3A) of the 1998 Act – South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied – determination of a dispute on the basis of common sense – Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 applied

Wood DP

29 May 2023

Facts

The respondent worker was employed by the appellant as a truck driver. On 4 September 2019, the respondent stepped out of his truck and slipped on ground that was wet from quite heavy rain, falling into a ditch. The respondent twisted his right ankle and landed on both outstretched hands. He was taken to hospital, an x-ray was performed which did not disclose any pathology, and the ankle was bandaged. He was provided with crutches and a wheelchair and was discharged. The respondent was subsequently provided with a CAM boot which he wore for several weeks.

An MRI scan performed on 19 September 2019 disclosed a tear of the anterior talofibular ligament and a partial tear of the calcaneofibular ligament, with contusions. The respondent consulted a number of medical practitioners and on 13 January 2020 was admitted to hospital, undergoing a right ankle arthroscopy and ligament stabilisation. The respondent reported ongoing difficulties with his right ankle throughout 2020. He also complained of pain in both wrists, which was investigated and treated.

The respondent alleged that, as a result of his right ankle injury, he relied more on his left side and began to experience pain in his lumbar spine. The appellant accepted liability for the injury to the right ankle and both wrists. The respondent then made a claim for lump sum compensation pursuant to s 66 of the 1987 Act on the basis of 31% whole person impairment. The impairment claim comprised of impairments of the right lower extremity (ankle), both upper extremities (right and left wrists), and scarring following surgery to the right ankle and the right wrist. The claim also included an assessment of the lumbar spine on the basis that the onset of lumbar spine symptoms approximately 15 months after the injury was referrable to walking with an altered gait because of the ankle injury.

The appellant disputed liability for the claim in respect of the lumbar spine.

The respondent commenced proceedings in the Commission in respect of the claim pursuant to s 66 and a claim for treatment expenses pursuant to s 60 of the 1987 Act. The Member determined that, amongst other matters, the respondent sustained a consequential condition in his lumbar spine as a result of the injury to the right ankle. The employer appealed.

The issues on appeal were whether the Member erred in:

(a) fact in determining that there was altered gait (Ground A);

(b) law in failing to provide adequate reasons for his findings (Ground B), and

(c) law by failing to provide procedural fairness to the appellant by not dealing with the submissions made on its behalf (Ground C).

Held: Leave to appeal the Member’s interlocutory decision was granted. The Member’s Certificate of Determination dated 18 October 2022 was confirmed.

Whether the decision appealed against was interlocutory in nature

1. The appellant asserted the appeal was not against an interlocutory decision. The respondent submitted the appeal was against an interlocutory decision. ([25]–[30])
2. Wood DP was satisfied that the decision the subject of the appeal was an interlocutory decision and the appellant required leave to bring the appeal at this stage. ([33]–[34])

(Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48, Moore v Greater Taree City Council [2009] NSWWCCPD 17 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied)

3. The referral to the Medical Assessor included an assessment of the lumbar spine. If the appeal did not proceed at this interlocutory stage, the assessment of the lumbar spine would take place and a Medical Assessment Certificate would be issued. If the appeal was then lodged and succeeded, the Medical Assessment Certificate would require amendment which would involve further procedures taking place in the Commission. The Deputy President was of the view that it was desirable to grant leave to appeal as it was the more efficient and effective manner in which the dispute can be determined. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act was granted. ([37]–[38])

Ground A

4. Deputy President Wood accepted the respondent’s submission that observations about the respondent’s gait made after the onset of the lower back pain were irrelevant to the question of whether his asserted altered gait pattern was causative of the onset of his lower back condition. ([128])
5. The appellant submitted that the following findings were wrong:

(a) the respondent had prolonged periods of using crutches and wearing a CAM boot;

(b) the respondent complained that throughout 2020 he was favouring his left leg because of the right ankle;

(c) the restrictions in the right ankle were consistent with an altered gait, and

(d) the injury caused an altered gait and the altered gait caused the onset of lumbar symptoms. ([130])

6. Deputy President Wood found that the Member’s observation that the respondent was required to use crutches and wear a CAM boot for a prolonged period was consistent with the evidence that those aids were provided to the respondent after the injury on 4 September 2019 and after the surgery in January 2020 until late February 2020. That is, up to some five months after the injury. The Deputy President did not consider the references to no lack of stability, or the absence of pain, were critical to the acceptance or otherwise of the respondent’s case. There were no assertions made that the alleged altered gait was caused by instability in the ankle, although the evidence disclosed that on 19 October 2020, Dr Weenink (general practitioner) discussed the respondent’s persisting right ankle “weakness” with Mr Rendeci (physiotherapist). Complaints of ongoing pain were recorded by Dr Viswanathan (treating orthopaedic surgeon) in his report dated 22 July 2020. It was clear from the history recorded in Dr Weenink’s clinical notes that the respondent’s ongoing difficulties in relation to his right ankle were of notable concern to the respondent’s treatment providers. The Member referred to some of those clinical entries in his reasons. ([132]–[133])
7. Wood DP found that, as the respondent submitted, Dr Hassan’s (neurologist) observations did not indicate that the respondent had a normal gait. Further, there continued to be weakness of the right ankle as well as other persisting functional issues in the right ankle. The respondent’s limitations were described by Ms Liaros (exercise physiologist) as “significant.” Dr Assem (rehabilitation specialist) described severe flexion contracture, no power in ankle dorsiflexion and limitation in the ankle and subtalar movement. According to Dr Assem, the respondent suffered from permanent contracture of the gastrocnemius musculature with no eversion, and no active dorsiflexion of the right foot. The clinical notes recorded by Dr Weenink between 26 June 2020 through to 8 January 2021 consistently recorded complaints of stiffness, reduced ankle range of motion, reduced dorsiflexion, ongoing weakness and right foot drop. The clinical notes revealed that, during that period, the respondent was receiving ongoing physiotherapy treatment in an effort to improve his right ankle condition. ([135]–[136])
8. The respondent’s evidence was that, following the injury, he relied more heavily on his left side because of his right foot injury. There was no medical or other evidence that contradicts that assertion and, given the significant pathology described in the medical evidence, such an assertion was plausible. ([137])
9. Deputy President Wood held that the Member applied a common sense approach to the issue before him. In a consideration of all of the evidence in this case, the evidence referred to by the appellant was not determinative and not material evidence, which, if accepted, would have resulted in a different outcome. There was no error in the approach taken by the Member in applying “common sense” in this case and his conclusion was consistent with the available evidence. This ground of appeal failed. ([138]–[140])

(Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28, and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 applied)

Ground B

10. In order for the appellant to succeed on this ground, it must demonstrate not only that the reasons are inadequate but that their inadequacy discloses that the Member failed to exercise his statutory duty to fairly and lawfully determine the matter. ([141])

    (YG & GG v Minister for Community Services [2002] NSWCA 247 applied)

11. The appellant asserted that the Member failed to give reasons for accepting Dr Assem’s opinion when Dr Assem recorded that the respondent’s gait was normal. The Deputy President stated that it was of little relevance that Dr Assem observed a normal gait in September 2021. The Member reasoned that he preferred the opinion of Dr Assem because it was consistent with the respondent’s evidence, and the contemporaneous clinical notes which recorded stiffness, restriction of movement and foot drop on the right side. There was no error in that approach. ([142])
12. The appellant asserted that the Member failed to give adequate reasons for his finding when the weight of the evidence was against the Member’s conclusion. Deputy President Wood noted that where there is an obligation to give reasons, it is not necessary to give lengthy or elaborate reasons. The Member gave sufficient reasons for rejecting the submission that the lower back pain was referrable to the respondent’s weight gain. The only medical evidence that pointed to the weight gain and inactivity as being causative was that of Dr Weenink, who, as the Member noted, later resiled from that position, providing a rational reason for doing so. Further, the Member gave sufficient reasons for accepting the evidence of Dr Assem. The appellant had failed to show that the Member failed to give adequate reasons for his conclusion and this ground of appeal failed. ([144]–[148])

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

Ground C

13. The appellant said that it submitted that the opinion of Dr Assem was not founded upon a “fair climate” and should not have been accepted, relying on Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58. The appellant submitted that Dr Assem did not point to any evidence where altered gait was recorded and thus his opinion was a mere “ipse dixit”. The Deputy President held that this submission ignored the fact that the respondent provided a history to Dr Assem of experiencing what Dr Assem referred to as “altered gait” at the relevant time, described in lay terms by the respondent in his statement as relying more on “his left side”. The submission also failed to acknowledge the correct approach to expert evidence in the Commission. Compliance with the principles governing expert evidence requires the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.” ([149]–[153])

    (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 applied)

14. The appellant submitted that the Member did not engage with its submissions that Dr Assem’s opinion should not have been accepted. Deputy President Wood held that the Member provided cogent reasons for accepting the opinion of Dr Assem and clearly addressed the appellant’s submission that the cause of the lower back symptoms was the deconditioning from inactivity. As the appellant submitted, in order to establish error by failing to consider a submission, the kind of argument put forward must have been capable of having an effect on the outcome. That is, the argument must be substantial and capable of altering the decision. The submission raised that the Member ought not to have accepted the opinion of Dr Assem because there was normal gait in September 2021 was not a submission capable of changing the outcome in this case. Nor was the submission that the lower back symptoms arose as a consequence of deconditioning, which was a submission that had no real foundation in the evidence. This ground of appeal failed. ([156]–[160])

McGrath v P.M. Electric Pty Limited [2023] NSWPICPD 31

WORKERS COMPENSATION – interest pursuant to s 109 of the 1998 Act with respect to lump sum death benefit payable in accordance with s 25 of the 1987 Act – alleged error of discretion – House v R [1936] HCA 40; 55 CLR 499 applied – held that the rate of inflation is not to be considered in exercising the discretion in s 109 of the 1998 Act

Parker SC ADP

31 May 2023

Facts

Mr McGrath passed away on 21 September 2019 whilst on a trip to the Formula 1 Grand Prix in Singapore funded by his employer, the first respondent.

The appellant, the widow of Mr McGrath, brought proceedings with respect to lump sum death benefit payable in accordance with s 25 of the 1987 Act. Mr McGrath’s children were also parties to the proceedings as dependants.

On 8 June 2021, a Member of the Commission entered an award for the employer. On 4 March 2022, an appeal against that decision was successful and the matter was remitted for re-determination by another member of the Commission. Deputy President Wood remitted the matter for determination of the issues as to whether:

(a)     the injury arose out of or in the course of employment in accordance with s 4 of the 1987 Act;

(b)     the deceased’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act, and

(c)     any remaining issues including in respect of the apportionment of any amount of compensation payable.

On the listing of the re-determination on 2 June 2022, the substantive claim for re-determination was resolved by consent in favour of the widow and the dependants. The Member exercised her discretion and determined the apportionment of the lump sum amongst the widow and the dependants.

The claim for interest was contested as to when the payment of interest should commence and at what rate.

The Member determined those issues and ordered the first respondent employer to pay interest at the rate of 2.1% for the period 6 March 2020 to 31 May 2022 on each lump sum amount payable to the widow and the dependants.

The appellant appealed against the order for interest in her favour. She sought to have Orders 11, 12 and 13 of the Certificate of Determination revoked to the extent that the rate of interest was determined to be 2.1% and the matter remitted to another Member for re-determination.

Letters lodged in the Commission on behalf of the children indicated that the second and third respondents entered submitting appearances in the appeal. The Acting Deputy President was not sure that this would necessarily have entitled those respondents to the benefit of a successful appeal (but in view of the outcome of the appeal, this was of no consequence).

The issue on appeal was whether there was an error “of law in failing to exercise discretion pursuant to s 109 [of the 1998 Act] in accordance with precedent authority.”

Held: Orders 11, 12 and 13 of the Certificate of Determination dated 2 June 2022 were confirmed.

Ground 1

1. The appellant and the first respondent accepted that the relevant principle was in House v R [1936] HCA 40; 55 CLR 499. The settled rule is that an appellate court will not disturb the exercise of a discretion by the primary decision maker unless it is convinced that he or she has acted on a wrong principle of law, misapprehended the facts, or taken into account irrelevant matters or failed to take into account relevant matters. In addition, while error may not be apparent or demonstrable, the outcome is so unreasonable or unjust that it can only have been achieved on the basis of error. ([79], [96])
2. The appellant submitted that the Member acted on a wrong principle in ignoring inflationary factors to cure the disadvantage which she submitted statutory interest is designed for. Acting Deputy President Parker SC did not accept that proposition. ([80])
3. The Acting Deputy President held that s 109 of the 1998 Act does not mention inflation as a factor relevant to determining the rate of interest. Section 25(4) of the 1987 Act indicates that the legislature did not intend for the death benefit to be adjusted for CPI adjustments between the date of death and the date of the order. The reasonable inference was that the legislature did intend the statutory benefit to be adjusted for inflation between the date of death and the date of the determination. ([81]–[82])
4. Sections 110 and 111 of the 1998 Act each provide for interest to be paid on unpaid amounts of compensation. Unlike s 109, the rate of interest in these sections is subject to an order by the Commission to the contrary prescribed either by the regulation or, in the absence of such a prescribed rate, the rate prescribed for the purpose of s 101 of the Civil Procedure Act 2005. That indicated to the Acting Deputy President that the legislature intended the decision maker to have a very wide discretion as to the correct rate of interest for the purpose of s 109. ([83])
5. Parker SC ADP further held that the scheme of the Act is to award compensation in the event of a worker’s death as a lump sum, fixed at the date of death, and to compensate by way of interest on the lump sum, entitlement between the date of death and the date of the determination. The awarding of interest under s 109 is thus compensatory in accordance with conventional practice in relation to the awarding of pre-trial interest. ([84]–[85])

(Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 and Bennett v Jones [1977] 2 NSWLR 355 applied)

6. The Acting Deputy President held that the discretion is in one sense more constrained than that provided for in the Civil Procedure Act because interest is not to be awarded for the period prior to the claim being “duly” made. He noted that the Member found that the claim was duly made on 6 March 2020 and that interest should be calculated from that date. This was in accordance with the appellant’s submissions. ([86]–[87])
7. Parker SC ADP stated that what the appellant lost by the delay in payment was the use of the funds. If the death benefit had been paid to the appellant in March 2020, she would have had available the funds to be disposed of as she regarded as appropriate. The Member’s conclusion, “[h]ad the death benefit been paid in March 2020, she and the second and third respondents would not have achieved a rate of bank interest that was remotely commensurate with the rate of inflation”, was a finding of fact which was not disputed. The Acting Deputy President held that because the relevant loss to be compensated was the loss which the appellant suffered because she did not have the funds in her hands, what icare may have achieved on its investments was entirely irrelevant. ([88]–[89])
8. Acting Deputy President Parker SC held that the appellant’s submission that the overriding principle of s 109 is to compensate for the financial disadvantage due to the delay in payment of money overstated the intention of s 109. The language of s 109 is simpler and that language states clearly the legislative intent that is to permit a discretionary award of interest. ([90])
9. The question of what is the appropriate rate of interest is entirely discretionary for the Member. A judicial discretion has to be exercised for reasons attuned to the purpose of the statute. The Member recognised that interest rates referrable to the period commencing 6 March 2020 were historically and notoriously low. The appellant did not submit to the contrary. The Member adopted the cash rate plus an additional amount as reflecting what the appellant would likely have earned had the funds been paid to her on 6 March 2020. In this regard, the Acting Deputy President observed that the Member’s determination accorded with other decisions in the Commission. This achieved a measure of consistency in relation to awarding interest more broadly. ([91]–[93])
10. The appellant suggested an alternative rate of interest, which she said remedied the circumstance that the statute imposes an “arbitrary and artificial statutory limit” fixed at a point of time different from when the award is made and accounts for the fact that, as a matter of public record, icare attracted in the same period an 18% per annum return. Acting Deputy President Parker SC rejected this submission. He noted it was an attempt to avoid what the legislature plainly intended, that is, that the amount of benefit should be fixed at the date of death. Section 109 provides for the payment of interest. It does not empower the Commission to provide “compensation” for inflationary loss. If the legislature wanted to do that it would have made this explicit. ([94]–[95])
11. The Acting Deputy President concluded that the outcome accorded with what other members of the Commission have done. The Member had exposed her reasoning which did not exhibit error of legal principle. No error of fact was asserted. In the Acting Deputy President’s view, to include consideration of inflation in determining the rate of interest would be to take into account an irrelevant matter. There were no other matters the Member was said to have failed to take into account. The outcome reached by the Member was neither unjust nor unreasonable so as to bespeak error otherwise undetectable. As at 6 March 2020, the cash rate was notoriously at 0.1%. Acting Deputy President Parker SC was not persuaded that an allowance of 2% in addition to the cash rate as at the date of the determination was wrong or unfair to the appellant. The appeal failed. ([97]–[100])