Appeal Case Summaries

COURT OF APPEAL DECISION

Kanajenahalli v State of New South Wales (Western New South Wales Local Health District) [2023] NSWCA 202

CONSTITUTIONAL LAW – federal jurisdiction – whether Personal Injury Commission exercised judicial power when determining claim brought by resident of Queensland against employer State of New South Wales – common ground that Commission exercised administrative power in this case – appeal allowed by consent – short reasons given

Leeming JA; Adamson JA; Basten AJA

30 August 2023

Facts

The appellant worker was employed at Dubbo Base Hospital as an unaccredited trainee in Paediatrics and Child Health. He claimed that he suffered a psychological injury in the course of his employment and sought weekly compensation, treatment expenses and lump sum compensation in the Commission. The State of New South Wales appealed to a Presidential Member against the Member’s Certificate of Determination.

On appeal before a Presidential Member, the Deputy President issued a Direction giving the parties an opportunity to address whether the Commission could determine the dispute as the worker resided in Queensland at the time proceedings were commenced. The parties submitted the Commission was not a Court of a State and was exercising administrative power and had jurisdiction to hear and determine the claim and the appeal. The Deputy President found that the Member had exercised judicial power in determining the claim and that the appeal would also be an exercise of judicial power, neither of which was permissible. She posited an opinion that the Commission could not determine the appeal and the Certificate of Determination was issued without jurisdiction. The proceedings were then stayed so that the proceedings could be remitted to a Court. The worker appealed the Deputy President’s opinion to the Court of Appeal.

The issues on appeal were whether the Presidential Member erred in being of the opinion that the Commission could not determine the appeal.

Held: The appeal was allowed. The opinion of the Presidential Member was set aside and the matter was remitted for determination.

In State of New South Wales (Western NSW Local Health District) v Kanajenahalli (No 4) [2023] NSWPICPD 52, Phillips P formally revoked the Orders of the Commission dated 18 January 2023 and remitted the matter to Deputy President Wood to be heard and determined in accordance with the Court of Appeal decision.

The Court

1. The Deputy President relied on Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146 (Orellana-Fuentes) at [39], where Ipp JA (said of the Workers Compensation Commission that “[u]ndoubtedly the Commission does exercise judicial powers”. The Court noted that the statement in Orellana-Fuentes was made as an initial step in a determination that the Commission was, nevertheless, not a court. It considered that a powerful consideration in reaching that conclusion was the role of medical specialists, of which it was said that “medical specialists are given far-reaching decision-making powers of a fundamentally judicial nature.” It said “[t]his statement suggests that a broad view of the nature of ‘judicial powers’ was applied; otherwise, there was little to reveal the basis of the finding as to the function of the Commission expressed in global terms (and as to ‘powers’, rather than ‘power’).” The Court added that the “context was an argument that there was a general law right to legal representation in the Commission, which was effectively precluded by the promulgation of an unduly low fee scale, an argument which did not appear to apply to medical examinations.” ([3]–[4])
2. The Court ultimately found that the Commission, in this case, was exercising administrative power. ([8]–[11])

(Babaniaris v Lutony Fashions Pty Ltd [1987] HCA 19 applied)

3. It held that what was determinative of the appeal is “the nature of the particular dispute between the parties. More general considerations do not all point in the same direction. Thus (and without being exhaustive), although its decisions are final and binding, the Commission is empowered to ‘reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division’ and ‘rescind, alter or amend any decision previously made or given by the Commission in that Division’: … [the 2020 Act], ss 56 and 57. It is also true that the certificate of the Commission may be filed in a court and will thereafter operate as a judgment: … [the 2020 Act], s 59.” ([12])
4. Noting there was no contradictor in the appeal, the Court said there was no occasion in the appeal’s determination to resolve any more general question as to the nature of the powers exercised by the Commission, or to seek to reconcile the statements in Orellana-Fuentes and Searle v McGregor [2022] NSWCA 213 (although it was noted that the statement in Orellana-Fuentes was expressed in general terms, without regard to the particular powers being exercised in any particular case). It observed that in the case of the particular dispute involving these parties, where the only issue was that arising under s 11A, the Commission was exercising administrative power. The limitation in Burns v Corbett [2018] HCA 15 was not infringed. ([13])
5. The Court set aside the opinion of the Deputy President and declared that neither the decision of the Member nor the appeal to the Deputy President involved the exercise of judicial power within Ch III of the Constitution. ([14])

PRESIDENTIAL DECISIONS

Gimis v Tweed Shire Council [2023] NSWPICPD 44

WORKERS COMPENSATION – issue estoppel and res judicata – Blair v Curran [1939] HCA 23 discussed and applied; Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 discussed and distinguished – where the relief sought is different from that sought in the earlier proceedings – Cassegrain v Gerard Cassegrain & Co Pty Limited [2013] NSWCA 454 applied – jurisdiction of the Personal Injury Commission to determine “injury” pursuant to s 4 of the 1987 Act – Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 applied

Wood DP

1 August 2023

Facts

The appellant suffered an injury in the course of his employment with the respondent. The injury was said to be the result of his employment driving a lawn mower in the period between 1 March 2019 and 30 September 2020. The appellant alleged injury to his back, neck and left shoulder as well as psychological injury. He made a claim for weekly payments which was denied by the respondent. The respondent asserted that the alleged injuries did not arise out of or in the course of the appellant’s employment. The dispute came to arbitration before a non-presidential member of the Commission on 1 July 2021. The matter resolved by agreement between the parties.

The appellant commenced further proceedings in the Commission, in April 2022, relying on the assessments of the whole person impairment of the cervical spine and left upper extremity, in addition to the assessment of impairment of the lumbar spine. The Senior Member declined to refer the cervical spine and left upper extremity for assessment by a Medical Assessor because of the previous awards for the respondent in respect of those body parts. The Senior Member also declined to refer the lumbar spine for assessment because the claim for whole person impairment was below the threshold required by s 66(1) of the 1987 Act. The Senior Member dismissed the claim. The appellant appealed that decision.

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

(a) by determining that the appellant was estopped by either res judicata or issue estoppel from claiming lump sum compensation in respect of the cervical spine and left shoulder because of the orders recorded in the Certificate of Determination dated 1 July 2021 (Ground 1);

(b) by failing to understand, consider and determine the appellant’s submissions, either properly or at all (Ground 2), and

(c) by failing to give any or any adequate reasons in support of her Certificate of Determination (Ground 3).

Held: The Senior Member’s Certificate of Determination dated 21 July 2022 was confirmed.

Ground 1

1. The appellant submitted that he ought to be entitled to bring a claim for permanent impairment. ([44])
2. Deputy President Wood held that the fact that the relief sought in these proceedings was different from that sought in the earlier proceedings did not operate to prevent an estoppel arising. The relevant facts determined in the earlier proceedings were the awards for the respondent in relation to the allegations of injury to the appellant’s cervical spine and left shoulder. A determination of whether the appellant suffered an injury to one or both of those body parts was an indispensable factual foundation necessary to entitle the appellant to his relief sought, whether it was a claim for weekly payments or a lump sum claim, or some other benefit attached to an injury. ([45])

(Cassegrain v Gerard Cassegrain & Co Pty Limited [2013] NSWCA 454 applied)

3. There was no issue raised as to whether consent orders in the Commission can create an estoppel or that not all decisions made in the Commission are final and binding. However, in the prior proceedings, the appellant relied upon allegations of injury to the cervical spine and left shoulder as the threshold foundation that, if found in his favour, would lead him to an entitlement for compensation. The present proceedings concerned identical injuries as the foundations for further entitlements. Those foundations were legally indispensable and were undoubtedly determinations of ultimate facts. To agitate the issue of those injuries having occurred amounted to an assertion that the former findings of the Commission were wrong. ([46]–[47])

   (Blair v Curran [1939] HCA 23 applied)

4. Deputy President Wood held that whether the appellant suffered injuries to his cervical spine and left shoulder were issues for determination wholly within the jurisdiction of the Member when the 2021 consent orders were made, and whether those consent orders created an estoppel disentitling the appellant to compensation was an issue well within the jurisdiction of the Senior Member in these proceedings. ([54])
5. In this matter, the Commission clearly had jurisdiction in the earlier proceedings to make the findings in respect of the question of injury. An entitlement to a lump sum pursuant to s 66 of the 1987 Act rested on whether the appellant suffered injury. It was clear that the Senior Member dealt with this issue. Wood DP held that the Senior Member’s determination that the dispute before her was not a “medical dispute” was well reasoned and accurate. ([58]–[59])

(Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine) distinguished)

6. Deputy President Wood concluded that the appellant had failed to establish that the Senior Member erred in her determination that the appellant was estopped from bringing a lump sum claim because of the earlier consent orders. This ground of appeal failed. ([60])

Ground 2

7. The appellant asserted that the Senior Member failed to consider and deal with his submissions. Deputy President Wood noted the Senior Member referred to the appellant’s submission that the claim before the Commission was for lump sum compensation, which was a different claim to the former proceedings. She noted the appellant’s reliance on Hine. The Senior Member proceeded to distinguish Hine, determined that the issue before the Commission was not a “medical dispute” and discussed the Commission’s jurisdiction to make orders in relation to whether there was an injury within the meaning of s 4 of the 1987 Act. It could not be said that the Senior Member failed to consider and deal with the appellant’s submissions as to why an issue estoppel did not apply. ([62])
8. The Senior Member summarised the appellant’s submissions in relation to the law applicable to an Anshun estoppel and provided reasons as to why she did not accept those submissions as relevant. The Deputy President held that the Senior Member did not fail to consider those submissions or fail to determine their relevance. Her perplexity as to their relevance was understandable. There was no issue raised before the Senior Member that an Anshun estoppel applied. Ground 2 failed. ([63]–[66])

Ground 3

9. The appellant asserted that the Senior Member failed to give any or any adequate reasons for her determination because she failed to consider, analyse, and either accept or reject his submissions. Deputy President Wood had discussed the appellant’s submissions that the Senior Member failed to consider and analyse his submissions under Ground 2. She rejected the appellant’s assertion of error. Given that this ground was dependent upon the Senior Member’s purported failure to “consider” and “analyse” his submissions, this ground of appeal also had to fail. In any event, the Senior Member’s reasons were more than adequate to discharge her obligation to articulate the essential grounds upon which the decision rests and to fulfil her statutory duty to lawfully and fairly determine the matter. Ground 3 failed. ([67]–[68])

Fairfield City Council v Comlekci [2023] NSWPICPD 45

WORKERS COMPENSATION – sections 3 and 42 of the 2020 Act – object and guiding principle of the Act to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible – the duty to co-operate with the Commission to give effect to the guiding principle to participate in the processes of the Commission and to comply with directions and orders of the Commission – assessment of earnings in the absence of precise evidence – New South Wales v Moss [2000] NSWCA 133 considered

Phillips P

8 August 2023

Facts

The respondent worker was employed by the appellant as a full-time early childhood educator. On 10 September 2020, whilst working at the appellant’s Wetherill Park Early Learning Centre, the respondent’s right wrist was injured. The respondent and another staff member had been attempting to stop a child from climbing over a fence. The child approached the respondent and head butted her. In the process, the respondent put up her hands to protect herself and felt her right hand being suddenly forced downwards. The respondent reported that she was immediately in pain and attended her GP. The respondent was off work for a short period of time and then performed restricted duties until 5 August 2021. On that date the respondent was informed that unless she was cleared to return to her full pre-injury duties, she would not be permitted to work.

The appellant denied liability for the respondent’s injuries to her right hand/wrist. The Member, in a Certificate of Determination dated 21 April 2022, made findings in favour of the respondent in terms of injury, ordering the payment of medical expenses, and held that the respondent was incapacitated for work for a closed period between 5 August 2021 to 28 February 2022. Before determining the respondent’s award for weekly compensation, the Member ordered that the parties file wage material, wage schedules and submissions, after which, the balance of the dispute would be determined on the papers.

At that point, the appellant lodged its first appeal which was determined in Fairfield City Council v Comlekci [2023] NSWPICPD 6, in which Wood DP refused leave to appeal against an interlocutory decision, and the matter was remitted back to the Member for determination of the remaining issues, being the respondent’s PIAWE and claim for weekly compensation.

The Member issued a subsequent Certificate of Determination on 6 April 2023 confirming the orders made on 21 April 2022 and determining the respondent’s PIAWE, ordering the payment of weekly compensation pursuant to ss 36 and 37 of the 1987 Act for a closed period. The appellant then filed its second appeal, which was determined in this decision, against both decisions of the Member dated 21 April 2022 and 6 April 2023.

The issues on appeal were raised in the following grounds:

(a) Error of law in determining the matter on a basis not put by or to the parties (Ground A);

(b) Error of fact regarding current work capacity and regarding ability to earn (Ground B);

(c) Denial of procedural fairness (Ground C), and

(d) Error of discretion regarding evidence admitted (Ground D).

Held: The Certificates of Determination dated 21 April 2022 and 6 April 2023 were confirmed.

Principles on appeal

1. The principles associated with appeals under s 352(5) of the 1998 Act are well settled. For an appellant to succeed, error must be identified in a meaningful way and then established. The leading case is Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. ([70])
2. In addition, in view of how the appeal had been pursued in this matter, the President made the further following remarks. The practice and procedure for appeals is governed by Procedural Direction WC3 (PD WC3). Procedural Directions are made pursuant to the power found in s 21 of the 2020 Act. Parties to proceedings, their representatives and agents are obliged to comply with them pursuant to s 21(4)(d) . In this appeal, PD WC3, in terms of Grounds A and D in particular, had not been complied with in a proper or meaningful way. There were aspects of non-compliance in the other two grounds as well. ([71])
3. In Kowalski v Repatriation Commission [2011] FCAFC 43 (Kowalski), at [21], the Full Federal Court said the following about appeals and this was directly relevant to the manner in which the appellant had approached this appeal:

“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage, or even worse, just judgment paragraph number what the error might be.” ([72])

Ground A

4. The appellant submitted “that the reasoning of the Commission Member in the decision of 21 April 2022 includes a number of significant instances where the reasons rely on matters which were not put on behalf of the Worker nor were matters which were raised by the Member to be addressed by the parties.” The appellant then said that the instances were found in the following paragraphs of the Member’s 21 April 2022 decision: paragraphs [96], [97], [98], [99], [100], [105], [106], [107] and [119]. After having examined those nominated paragraphs, the President stated that it is very unhelpful to make a broad complaint of error and then simply refer to paragraph numbers in a decision. The alleged error should be identified in a meaningful way and with precision. This was precisely the type of approach that was criticised in Kowalski. The President categorised the complaint into three separate categories of discrete topics. ([77]–[79])
5. The first category was the paragraphs of the Member’s reasons (dated 21 April 2022) from [96] to [100]. In these paragraphs, the Member was dealing with a conflict in the expert medical opinion as to whether the respondent was, at the time of her injury, already suffering from arthritis in her right hand and wrist. The second category encompassed [106] and [107] of the Member’s reasons. These paragraphs dealt with the Member’s considerations about the respondent’s fitness to work in her pre-injury calling as a childcare worker. The third and final category related to [119] of the reasons. In this category, the Member made a finding about what the respondent would be expected to earn in suitable employment. ([80])
6. In category one, the appellant made a direct claim that the Member’s findings were effectively made absent any contribution from the parties and without their awareness. The President held that the appellant’s submission in this category was without merit. The appellant’s submissions to the Member showed that the entire issue about whether the respondent’s right hand and wrist was arthritic pre-injury was a live issue before the Member. Indeed, it was the appellant itself who directed the Member’s attention to this controversy. It was right and proper that the Member deal with this issue. The respondent also addressed on this issue. It was an issue that the Member had to and did address. The error asserted with respect to category one was dismissed. ([84]–[85])
7. Category two comprised the paragraphs found at [106] and [107] of the reasons. The appellant made no specific submission in relation to these two paragraphs other than the broad complaint that the Member’s reasoning related to matters not put by the parties and it was not intimated to the parties by the Member. The respondent said that the Member was not obliged to provide a running commentary on the evidence and that the findings were both open and were not challenged on appeal. ([87])
8. The President held that the respondent’s capacity for work was always a known and notified issue in this case. Starting with the s 78 notice, capacity was an issue. Paragraphs [106] and [107] of the reasons dealt with the limitation that the appellant itself placed upon the respondent’s work capacity and this was an issue that was specifically referred to, certainly by the respondent worker who made submissions about the appellant’s correspondence. The appellant asserted that this was not an issue that was either put to the Member or that the Member raised with the parties. This submission was demonstrably false. Category two had not been established and was dismissed. ([90]–[91])
9. Category three related to what the appellant alleged was “[t]he most obvious and significant example” of the error alleged in this ground and that related to [119] of the reasons. ([92])
10. The Member’s duty was to hear and determine the dispute presented by the parties consistent with the Commission’s statutory mandate in the 2020 Act, including the objects of the 2020 Act to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.” This object sits very comfortably in the context of this matter, the operation of s 43(2) of the 2020 Act and the extract from New South Wales v Moss [2000] NSWCA 133 (Moss) at [87]. Capacity was always an issue in this application and was one which the appellant specifically addressed in its written submissions. The Member informed himself on this issue by reference to the Fair Work Act measurement for the full time minimum wage when faced with a situation much like the one which confronted the Court in Moss. It was the Member’s duty to resolve this aspect of the dispute having heard from the parties on it. The appellant conducted this aspect of its case on the sole basis that the respondent could earn more in suitable employment and thus had no entitlement to weekly compensation. This submission was not supported by any evidence led by the appellant. No alternate proposition was put in the event that this submission did not find favour with the Member. Whilst it might have been preferable for the Member to flag his proposed reliance on the Fair Work Act provision, the appellant had not conducted its defence of the case on this basis. ([100])
11. The President concluded that the Member was not in error to deal with the matter in this way having regard to the manner in which the appellant defended this aspect of the case. No error in category three had been established. It followed that Ground A failed and was dismissed. ([101]–[102])

Ground B

12. In this ground, the appellant commenced with the repetition of its argument from Ground A. Given that the President had dismissed Ground A, his Honour did not need to further deal with this submission. The President remarked about this ground which challenged factual findings, that for an appeal to succeed, error must be established. This process is not a review or rehearing and intervention on appeal does not involve the substitution of factual findings absent the establishment of error. ([103]–[104])
13. This ground attacked the findings made by the Member on the question of the respondent’s capacity for work based on his construction of the medical evidence. The President observed that nowhere in this ground did the appellant in terms point to any aspect of the Member’s construction of the medical evidence at [91]–[101] of the reasons that was factually wrong or made in error. The error required to substantiate this ground, if it existed, would be in those passages. The most the appellant pointed to was an argument that the restrictions placed upon the worker related to risk and not capacity. The President held that no error of the Member’s findings with respect to capacity had been identified and Ground B was dismissed. ([109]–[114])

Ground C

14. The appellant alleged that it was denied procedural fairness in relation to the orders made by the Member at [128] of the reasons dated 21 April 2022. The appellant argued that it had no opportunity to be heard in respect of the orders made at [128] before they were made. This ground also curiously referred to a “denial of procedural fairness already relied on in Ground A”. How the matters referred to in Ground A were said to be relevant to this ground was not specified. In any event, the President had dismissed Ground A and it was not relevant to the consideration of this ground. ([115])
15. The President held that the primary function of the Member is to do justice between the parties in accordance with the statutory mandate under which the Commission operates. In this instance, having conducted an unsuccessful conciliation and addressed other preliminary matters related to the matter on 22 March 2022, the Member directed that written submissions be provided, which they subsequently were. Having considered the parties’ submissions, the Member reached the conclusion at [127] of the reasons that he was not in a position to calculate the respondent’s PIAWE. Indeed, this whole question was reviewed by the Member at [121] to [127] of the reasons. The President noted that appellant did not take issue with the Member’s reasoning or finding that he could not undertake the PIAWE calculation in light of the paucity of the material provided. This was the Member taking steps to ensure the “fair trial” of which Beazley JA spoke in Hamod v State of New South Wales [2011] NSWCA 375 (Hamod). ([120]–[121])
16. The President found that the appellant had been given every opportunity to be heard on the PIAWE issue and to submit such material as was necessary in support of its submission. The procedure adopted by the Member was procedurally fair and was aimed at doing justice between the parties. His Honour concluded that the Member’s direction given at [127] of the reasons in his 21 April 2022 decision was a matter of practice and procedure. The exercise of this discretionary power had not been shown by the appellant to have been affected by error, indeed the direction was completely necessary so as to enable the Member to perform his statutory duty of deciding the dispute. Mindful of the Court of Appeal’s remarks in Hamod, and the appellant’s ongoing breach of Commission orders which related to the very issue covered in this ground, and the fact that error had not been established, this was not a matter that justified appellate intervention. Ground C was dismissed. ([124]–[125])

Ground D

17. The submissions in support of Ground D, in their totality, read: “The Appellant says that the Member was in error in exercising the discretion to admit late documents having regard to the requirements of Procedural [Direction] PIC 3.” The President noted that this appeal, on its face, was an appeal “in respect of the whole of each decision of 21 April 2022 and 6 April 2023”. ([126]–[127])
18. The President stated this submission failed to identify which of the Member’s two decisions this ground was said to relate to. On the basis of paragraph [1] of the appeal submissions, one would assume that both decisions were impugned in this ground, but this was plainly not apparent from the submission in Ground D itself. The Member had made rulings in both decisions about the admission of documents. As a consequence of this approach, the appellant was directed to specify the documents that this ground was said to relate to. In a brief set of supplementary submissions, the appellant identified the documents as being those referred to by the Member in paragraph [15(a) and (b)] of his decision dated 6 April 2023. This material was the respondent’s ATO Income Statements and the respondent’s wages schedule, and this material was filed by the respondent in response to orders [8] and [9] made by the Member in the first Certificate of Determination dated 21 April 2022 to file and serve a wages schedule and submissions regarding the wages schedule and wage material, respectively. ([128])
19. His Honour stated that this ground failed, in even the most rudimentary way, to identify why the admission of this material was in error. This ground failed, in even the most rudimentary way, to then identify how the discretion to admit this material was infected with error in a House v King sense. The President noted that when one read the decision of 6 April 2023, the documents were referred to in paragraph [15(a) and (b)], and then from paragraph [16] onwards the Member dealt with the appellant’s objections to the admission of this material. Nowhere in this ground had the appellant grappled with any aspect of the Member’s decision to admit, which encompassed those 10 paragraphs. Nowhere was any this of this reasoning the subject of any specific submission or attempt to identify error. ([129])
20. The President noted that the respondent had, doing the best she could, attempted to identify those aspects of the decision said to be challenged in this ground and had responded accordingly. But this was unsatisfactory. The respondent should not have to “guess” what it is she is called upon to answer. Intervention on appeal requires the identification and correction of error. The appellant had failed to identify error in any meaningful way in this ground. Ground D had not been made out and was dismissed. ([130]–[132])

Shipley v Visscher Caravelle Australia Pty Limited [2023] NSWPICPD 46

WORKERS COMPENSATION – whether an appeal can fairly and properly be heard in the absence of a transcript – Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48 and Wyong Shire Council v Paterson [2005] NSWCA 74 considered and applied

Phillips P

14 August 2023

Facts

The appellant was employed by the respondent as a storeman at their warehouse. The appellant commenced this employment in January 2018. The appellant said that he suffered injuries on two occasions while working for the respondent. These injuries took place on 31 January 2020 and 2 July 2020. In these incidents, the appellant said that he suffered injury to his left shoulder, his cervical, thoracic and lumbar spines. Before the Commission, the appellant sought a declaration under s 60(5) of the 1987 Act that proposed fusion surgery to his cervical spine was reasonably necessary as a result of the claimed injuries. The issues before the Member involved two questions; did the appellant suffer injury to his cervical spine on either date, and secondly, was the surgery reasonably necessary?

The Member was not satisfied that the appellant had proven injury to his cervical spine and accordingly entered an award for the respondent. The worker appealed.

The issues on appeal were whether the Member erred in:

(a) law in that the Member, having correctly identified the issues for determination at paragraph [3] of the reasons, incorrectly stated and determined a different issue at paragraphs [132] and [133] (Ground 1);

(b) law in failing to determine whether on the balance of probabilities the appellant had sustained injury to his cervical spine on 2 July 2020 (Ground 2);

(c) law in considering whether the appellant had engaged in an ex post facto reconstruction of evidence (Ground 3);

(d) fact in finding that the appellant had engaged in an ex post facto reconstruction of evidence (Ground 4), and

(e) law, fact or discretion in failing to give consideration to the expert opinion of Dr Hsu in his report of 10 August 2022. (Ground 5).

Held: The Certificate of Determination dated 19 May 2023 was revoked. The matter was remitted to another Member for re-determination.

Preliminary matter

1. After this appeal was lodged and it became apparent that there was no recorded audio or transcript of the hearing that took place before the Member on 21 March 2023, the matter was referred to the President. Further enquiries were made to ascertain whether a sound recording of the hearing could be located. Unfortunately, no such audio existed and as a consequence there was no transcript of the hearing. The parties were advised of this circumstance and invited to make submissions as to whether the appeal could be fairly and properly heard absent the transcript. ([9]–[10])
2. The application for surgery in this matter involved a relatively modest amount, the claim being for surgical expenses totalling $22,349.30 as quoted. His Honour was mindful of the costs to the parties and the Commission in the event that this matter has to be reheard due to the absence of a transcript. Considerations of s 42(4) of the 2020 Act arise. ([11])
3. The President held that the absence of a transcript does not constitute the automatic granting of a rehearing. As stated in Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48 (Mosawi), the essence of the appellate function is the identification and correction of error. The matter to be considered is whether, absent a transcript, the Presidential Member can perform that function fairly and properly. ([21])

(Wyong Shire Council v Paterson [2005] NSWCA 74 applied)

4. The circumstances of this matter could (unfortunately) be distinguished from those in Mosawi in this respect. In that case there was broad agreement about what transpired at the hearing. Both parties agreed that there was sufficient material and mutual acceptance as to what occurred to enable the matter to proceed. Without being critical, the President observed such agreement did not exist in this matter. ([22])
5. The President was concerned that in this matter the appeal submissions contained arguments and responses based on what was put to the Member. This was a concern in terms of there being no transcript. The argument about Grounds 1 and 2 was a case in point. The argument was whether the credit, honesty or reliability of the appellant’s evidence had been disputed. The respondent said its s 78 notices did notify of this matter and the appellant failed to take issue with this point in submissions before the Member. The President, having carefully read the s 78 notices, said it was true that the appellant’s claim was disputed but this was essentially done on the basis of the medical evidence and an examination of the clinical records. It was not a fair reading of those notices to say that the appellant’s credit, honesty or reliability was put in issue. ([23])
6. In terms of Ground 5, the respondent asserted that it made submissions about Dr Hsu’s opinion. The appellant did not recall this. Given the argument in Ground 5 and the lack of agreement as to what was (or was not) said, it is simply not possible to fairly decide this matter on appeal. ([24])
7. The President said that the situation was that in relation to all five appeal grounds, there was an aspect of the prosecution or defence of each which did involve a dispute about what was put to the Member. Without access to a transcript, the President would not be able to discern the true position, given the state of the parties’ submissions, so that his Honour could confidently proceed to determine the appeal. This would not be fair to either party. The prudent course was for the matter to be reheard at the earliest date possible. It was necessary for the President, with great reluctance, to revoke the Certificate of Determination on the basis of the absence of the transcript. ([25]–[27])

Toll Transport Pty Ltd t/as Toll Global Express – Wollongong v Apulu [2023] NSWPICPD 47

WORKERS COMPENSATION – section 4 of the 1987 Act – whether worker in course of employment – AV v AW [2020] NSWWCCPD 9 discussed and applied

Parker SC ADP

15 August 2023

Facts

The respondent worker alleged he was injured whilst employed by the appellant as a delivery driver. The injury was described as the onset of sharp pain in the back of the left Achilles as a result of having to jump in and out of his truck several times a day. An additional injury or event was alleged to have occurred on 9 March 2021 when the worker was endeavouring to push a broken-down vehicle up an incline.

The Member found that the worker sustained injury to the left leg in the form of aggravation of a pre-existing asymptomatic condition of the left leg around the Achilles tendon. The Member found the respondent was incapacitated and provided with light duties. An offsider, Ahmed, was assigned to help him because he was not otherwise able to do his full job. The Member further found that on 9 March 2021, the respondent sustained a further injury which was an aggravation of the 18 November 2020 injury. The injury of 9 March 2021 was found to have occurred whilst the respondent and his fellow employee, Ahmed, were endeavouring to assist a motorist to move his vehicle which had broken down.

The Member made a determination that the appellant pay the respondent weekly compensation and the cost of proposed surgery, being a left Achilles debridement proposed by Dr Cadden in his report of 24 May 2021. The employer appealed.

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

(a) any compensable injury sustained by the respondent had resolved and was superseded by the injury on 9 March 2021 in that the Member:

(i) should have found the injury sustained on 9 March 2021 was a distinct injury to the 18 November 2020 injury;

(ii) should have found the injury sustained on 9 March 2021 was not sustained during the course of the respondent’s employment with the appellant;

(iii) should have found the injury on 9 March 2021 was, for the purpose of any liability under the 1987 Act a novus actus, and

(iv) did find that any ongoing need for treatment or incapacity for work arose solely from the injury sustained on 9 March 2021 and not the 18 November 2020 injury (Ground 1), and

(b) the respondent’s employment with the appellant was not the main or substantial contributing factor to his injury (Ground 2).

Held: The Certificate of Determination dated 26 August 2022 was amended to correct the date in order (1) to 18 November 2021, but was otherwise confirmed and referred to the Division Head of the Workers Compensation Division to issue the amended certificate accordingly.

Ground 1(i)

1. Acting Deputy President Parker SC said that much of the appellant’s submissions in relation to Ground 1(i) appeared to merely re-agitate the appellant’s submissions to the Member at the hearing. They did not really identify the error it was said that the Member made. The Member made what he could of the answers given by Dr Ho (independent medical examiner qualified by the appellant) and while the appellant submitted that the Member should have reached different conclusions with respect to Dr Ho’s answers, the Member’s interpretation of Dr Ho’s answers was available. ([78]–[79])
2. The Acting Deputy President found there was nothing in Dr Ho’s third report which contradicted the conclusions reached by the doctor in his first two reports. The Member’s conclusion that the 9 March 2021 events represented an aggravation of the November 2020 injury not only did not show error but was based upon an available reading of Dr Ho’s reports of 28 September and 11 October 2021. ([81]–[86])
3. Furthermore, Parker SC ADP was not persuaded that the Member had misused his medical knowledge in the manner the primary judge did in Strinic v Singh [2009] NSWCA 15, or that he had sought to supplant the evidence of the expert witnesses with his own anecdotal knowledge of medical material. ([87])
4. The Acting Deputy President held that the debate concerning the decisions of State Government Insurance Commission (Western Australia) v Oakley (1990) 10 MVR 570 and Rail Services Australia v Dimovski [2004] NSWCA 267 was not really germane to the Member’s overall reasoning. The Member’s reference to those decisions was peripheral to his consideration of the matter. This was not to say that the Member’s remarks demonstrated error, but simply that the Member’s comments with respect to these decisions were not central to his determination adverse to the appellant. Ground 1(i) of the appeal was rejected. ([88]–[89])

Ground 1(ii)

5. Parker SC ADP held that the difficulty with the argument advanced by the appellant was that, as the respondent submitted, a delivery driver inherently would be confronted with situations on the road in the course of his employment. A worker employed as a driver will in the course of his employment be required to respond to various situations which present themselves on the roadways. Those responses will in the usual course be incidental to work as a delivery driver. ([103])
6. The appellant said that it was open for the respondent to have reversed the truck and driven around the broken-down car when traffic cleared, as other road users did. That was true, but that did not make what the respondent did any less incidental to his employment as a delivery truck driver employed by the appellant. ([104])
7. The appellant’s submission amounted to this: if the worker had sustained his injury while reversing his truck that injury would have been sustained in the course of employment, but the injury sustained when trying to remove the broken-down car was not, presumably because the former involved driving whereas the latter did not. Acting Deputy President Parker SC did not accept that the work of a delivery truck driver comes to an end when he gets out of the truck. ([105])
8. Furthermore, the Acting Deputy President accepted the respondent’s submission that the Member’s acceptance of the evidence of Dr Ho meant that the effects of the 18 November 2020 aggravation were continuing as at 9 March 2021. Parker SC ADP had, in considering Ground 1(i) of the appeal concluded that the Member did not err in his conclusion that the aggravation of 18 November 2020 continued. Ground 1(ii) of the appeal was rejected. ([106]–[107])

Ground 1(iii)

9. The Acting Deputy President held that for the reasons given with respect to Ground 1(ii), the events of 9 March 2021 were correctly regarded by the Member as being incidental to the worker’s employment by the appellant. The Member had made no error of fact, law or discretion in rejecting the submission that the 9 March 2021 events represented a novus actus. Ground 1(iii) of the appeal was rejected. ([110]–[111])

Ground 1(iv)

10. Neither party addressed any submissions in support of this sub-ground of appeal. Acting Deputy President Parker SC assumed that it was not pressed and he accordingly dismissed it. ([112])

Ground 2

11. The Acting Deputy President agreed that the circumstances of the injury of 9 March 2021 satisfied both s 4(a) and (b) of the 1987 Act. Further, he held that the appellant had failed to show error in the Member’s conclusion that the worker’s employment was a substantial contributing factor and the main contributing factor. ([124]–[125])
12. The example given by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd [2009] NSWCA 324 was apt in the circumstances of this case. The respondent was injured on 9 March 2021 because of his employment activity. It was because he was working, driving his delivery truck, that the need arose to remove the obstruction constituted by the broken-down car in the manner in which he did. ([128])
13. If the injury was viewed as a simple injury under s 4(a), then the test given by s 9A, that is, that the employment must be a substantial contributing factor, was satisfied. If, as the Member held, the injury was viewed as an aggravation of a disease condition, then it was necessary for the employment to be the main contributing factor. The Acting Deputy President held that contrary to the appellant’s submission, the question of main contributing factor was not solely dependent on the medical evidence. The Member was required to assess the medical evidence in the context of the other evidence overall. ([129]–[132])

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

14. Although the dispositive passage of the Member’s reasons only referred to “getting out of the car”, the Member in accepting the evidence of the respondent had to be taken to have embraced the entirety of the description given by the respondent of the events of 9 March 2021, including the effort required to push the broken-down vehicle. The oral statement of reasons should not be scrutinised meticulously for inadvertent misdescription, particularly is this so where the Member has not edited or revised the draft. ([133]–[134])
15. The Member accepted the medical evidence of Drs Ho and Bodel that the events of 9 March 2021 had an effect on the underlying pathology. It was noted that the Member was not persuaded that the worker’s obesity was causative. Rather, he took the view that the worker’s obesity was an existing factor upon which the employment activity of 9 March 2021 acted. The Member concluded that the worker was an obese, overweight man who was not provided with appropriate footwear and for whom the nature and conditions of his employment resulted in the underlying condition of tendonitis or tendinopathy affecting the Achilles tendon being aggravated. ([136]–[139])
16. The main contributing factor was a reference to the effective cause of the aggravation. In the worker’s case, the main contributing factor arising from the 9 March 2021 incident was the attempt to push the broken-down car, which was an incident of the worker’s employment by the appellant. ([140])
17. The lay evidence was that the 9 March 2021 injury occurred shortly after the worker got out of the car and started pushing the broken-down vehicle. The medical evidence was that that activity caused a worsening of the existing pathology. There was no evidence that the pathology on that day was impacted in any way except by the worker’s efforts to remove the broken-down vehicle. ([141])
18. Acting Deputy President Parker SC concluded that the appellant had not established error in the Member’s assessment of the medical and lay evidence overall, or in his conclusion that the employment was the main contributing factor to the aggravation. Ground 2 of the appeal was rejected. ([142]–[143])

Hendrix v Accuro Homecare Pty Ltd [2023] NSWPICPD 48

WORKERS COMPENSATION – The requirements of expert evidence in the Commission: application of South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351; Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764; fact finding: Nguyen v Cosmopolitan Homes [2008] NSWCA 246; the Commission as a specialist tribunal: MMI Workers Compensation (NSW) Ltd v Kennedy (1993) 9 NSWCCR 482; ICI Australia Operations Pty Ltd v Workcover Authority of New South Wales [2004] NSWCA 55; 60 NSWLR 18; Wallaby Grip (BAE) Pty Ltd v Macleay Area Health Service (1998) 17 NSWCCR 355; duty to give reasons: Hume v Walton [2005] NSWCA 148; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816

Snell DP

16 August 2023

Facts

The appellant worker was employed by the respondent as a field officer providing homecare to the disabled. On 28 April 2010 while attending a client’s house she fell on a flight of stairs. The appellant stated that by three days later she found she was aware of significant low back pain with radiation to the left leg and foot. In June 2010, the appellant resumed work. She stated that although she was cleared for restricted duties, she was given physical duties that included lifting paraplegic clients.

After proceedings were commenced in the former Workers Compensation Commission, the respondent accepted liability to pay for recommended surgery involving fusion at L3/4 and L4/5, performed by Dr Coughlan on 7 September 2012. The appellant subsequently limped and developed foot pain. She ultimately underwent further surgeries, being: L2/3 anterior interbody fusion on 22 May 2014; surgery to her right foot in October 2015 and January 2016, as well as surgery to her left foot in August 2016. She said that she had difficulty with pain in the feet and lower back, together with worsening urinary incontinence. She underwent further surgery on 5 and 6 March 2018 involving a 360-degree fusion at L5/S1.

The appellant ultimately made a claim for lump sum compensation for a combined whole person impairment of 49 per cent to her back, feet and urinary and reproductive system. She relied on a report of Dr Bentivoglio, orthopaedic surgeon, for impairment to her back and feet, as well as reports from Dr Rochford, a urologist, which assessed 30 per cent permanent impairment in respect of the worker’s urinary and reproductive systems. The respondent declined liability for the urological conduction, relying on a report of its qualified urologist, Dr Wines.

The Member made an award in the employer’s favour in respect of the consequential condition of the urinary and reproductive system, and on the related claim for expenses in respect of treatment of the urinary condition, pursuant to s 60 of the 1987 Act. The remaining elements of the lump sum claim (the lumbar spine, left lower extremity (foot) and right lower extremity (foot)) were remitted for referral to a Medical Assessor. The worker appealed.

The issues on appeal were raised in the following grounds:

(a) failing to find that the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010 (mistakenly recorded as 29 April 2010) (Ground 1);

(b) failing to give adequate reasons for her failure to find the urological condition suffered by the worker was a consequence of injury to her back on 28 April 2010 (Ground 2);

(c) failing to include the worker’s urological condition in her referral to a Medical Assessor for assessment for her whole person impairment (Ground 3), and

(d) such other grounds as may appear from the transcript of evidence when it becomes available.

Held: The Certificate of Determination dated 22 June 2022 was revoked. In its place, a finding was made that the worker sustained a consequential condition of her urinary and reproductive system as a result of the conceded work injury to her lumbar spine. An order for the worker’s section 60 expenses was made; and the matter was remitted for referral to a Medical Assessor to assess the worker’s permanent impairment.

Ground 1

1. Deputy President Snell noted there was a significant body of evidence from treating doctors. It was not necessary that the reports of any single medical witness in the worker’s case be capable of fully proving her case on causation. ([77])

   (Nguyen v Cosmopolitan Homes [2008] NSWCA 246 applied)

2. The necessary explanation of an expert’s opinion will “depend on the circumstances”. This will include the circumstances in which an expert’s report is prepared and the purposes for which it is prepared. Some medical reports, such as radiological reports, typically describe the observed findings on investigations with little by way of history or explanation. Serial reports, from a treating specialist to a referring general practitioner, may well be terse, reflecting the shared knowledge of the correspondents and the role of such reports in the treatment of a patient. This does not deprive such reports of all probative force, which needs to be assessed in the circumstances of the individual case. It is additionally necessary that the reports of an expert be read together, in assessing whether there is “a scientific or intellectual basis” for the opinion expressed. ([79])

   (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 applied)

3. Deputy President Snell observed that the previous Workers Compensation Commission of New South Wales, and then the Compensation Court of New South Wales, were long regarded as specialist tribunals. There was no reason why the Workers Compensation Division of the Personal Injury Commission of New South Wales should not be similarly regarded. He accepted that the Commission, as an expert tribunal, is entitled to rely on its expertise in understanding the evidence before it and in drawing appropriate inferences from the evidence. ([85]–[86])

   (Perkins v Ceva Materials Handling Pty Ltd [2011] NSWWCCPD 32 applied)

4. The doctors generally agreed that neurological injury, associated with lumbar surgery to treat the work injury, could be consistent with causing (at least in part) the complaints of incontinence. There were divergent views on whether a neurological injury had occurred. Dr Ruthven (treating urologist) said there was no evidence of a neurological injury. Dr Manning (treating urogynaecologist) ultimately considered there was a neurogenic bladder. In her last report Dr Manning said the “leakage obviously relates greatly to her neurogenic bladder”. Dr Manning considered the loss of sensation in the saddle area suggested the incontinence was likely related to the back injury and surgery. This was notwithstanding the urodynamic studies, which Dr Manning said “on occasions do not demonstrate what is happening”. Dr Manning and Dr Rochford referred to relevant numbness on examination in the saddle distribution. Neither suggested this symptom was in any way non-organic. Dr Wines described the numbness as “inconsistent”. He did not explain his use of this term. It may be intended to refer to inconsistent findings on examination. This was not completely clear. ([99])
5. The fields of specialised knowledge and the expert status of the various doctors were not challenged. It was apparent that there was a significant volume of medical evidence dealing with the causation issue, which was the only issue in this case. Various issues presented themselves regarding the presence and significance of neurological signs (including numbness) and the potential significance of the urodynamic testing. There were conflicting medical views. ([100]–[101])
6. In the Deputy President’s view the Member’s conclusion, that none of the experts’ reports complied with their duty to explain the opinions they expressed, involved error. She found that the reports of all of the treating doctors and the medicolegal experts on both sides of the record failed to comply with the principles governing expert evidence in the Commission. In the reasons at [80] the Member said that “the medical experts have not provided the explanation that would allow their opinions to be evaluated and understood”. On a fair reading of the multiple reports, the Member’s finding regarding the weight to be afforded to the medical evidence was not properly available. It affected the result, leading the Member to give diminished weight to the evidence supporting the appellant’s medical case, with the consequence that she concluded the appellant’s onus on causation was not satisfied. The Member’s finding was one of fact, and the finding of error on appeal involved satisfaction consistent with the principles dealing with s 352(5) of the 1998 Act. Ground 1 succeeded. ([104]–[105])

Ground 2

7. The appellant submitted the Member failed to give adequate reasons for not finding there was a ‘neurogenic component’ of the urological condition. In the alternative, the appellant submitted the Member failed to give reasons for why she did not accept any such neurogenic component resulted from the accepted back injury and surgical treatment. ([106])
8. Snell DP held that because of the approach taken to the perceived inadequacy of the medical evidence, the Member did not enter into the issues canvassed and explain why one medical case was preferred over another. This amounted to a failure to furnish adequate reasons in the circumstances of this case. It is appropriately understood as error of the kind identified by Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816. It followed that Ground 2 succeeded. ([114]–[115])

(Hume v Walton [2005] NSWCA 148, and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied)

Grounds 3 and 4

9. The appellant in Ground 3 referred to error, in that there was a failure to remit the matter to a medical assessor to assess the degree to which the urological condition resulted from the back injury. This alleged error flowed from the fact that the Member did not find that the urological condition resulted, at least in part, from the conceded back injury. The Deputy President noted it was not a ‘stand-alone’ ground. It was not appropriate to deal with Ground 3 as if it were a discrete error. Ground 3 was misconceived. Ground 4 did not raise any separate error and did not require consideration. ([116])

Disposition

10. It followed that orders [1] and [2] of the orders made on 22 June 2022 (both of which turned on the correctness of the award for the respondent in respect of the allegation of injury to the urinary and reproductive system) were revoked. It was desirable that this matter be dealt with promptly, consistent with the objects in s 3 and the ‘guiding principle’ in s 42 of the 2020 Act. In the circumstances it was appropriate for Snell DP to re-determine the matter. He preferred and accepted the evidence of Dr Manning, supported as it was (in various ways) by the reports of Dr Rochford and Dr Coughlan. Dr Manning had the advantage, as a treating doctor, of examining the worker on three occasions over a period from August 2017 to November 2018. She took a history, performed urodynamic testing and conducted physical examinations. She did not suggest the worker’s responses on physical examination (or her history) were unreliable. It was apparent from Dr Manning’s reports that she regarded the found numbness in the saddle distribution and on parts of the legs as an objective finding supporting the proposition that there was neurological injury. The Deputy President found that the worker had succeeded in establishing the necessary causal link between the relevant workplace injury to her lumbar spine and the consequential condition in the urinary and reproductive system. ([117]–[132])

Bui v HyView Fabrications Pty Ltd [2023] NSWPICPD 49

WORKERS COMPENSATION – whether surgery is a reasonably necessary medical expense pursuant to section 60 of the 1987 Act – Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 and Diab v NRMA Ltd [2014] NSWWCCPD 72 considered – approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246, South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 applied – guiding principles under rule 73 of the 2021 Rules and section 21 of the 2020 Act – revocation and redetermination on appeal – section 352(6A) of the 1998 Act – Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 applied

Phillips P

16 August 2023

Facts

The appellant worker held various positions which involved him undertaking heavy physical work until commencing employment with the respondent, on 10 October 2018. On 3 April 2019, in the course of his employment with the respondent, the appellant fell off the tynes of a forklift and suffered injuries to his neck, shoulder and head in the nature of a concussion. Injury was not in dispute.

The appellant’s treating specialist, Dr Singh, orthopaedic and spine surgeon, recommended that the appellant undertake surgery, being a C4 to C6 decompression and fusion. The respondent contested whether the proposed surgery was reasonably necessary. The Member found that the proposed surgery was not reasonably necessary and entered an award in favour of the respondent. The worker appealed. After the appeal was lodged, the respondent advised that it would not be filing submissions in opposition to the appeal.

The issues on appeal were whether the Member erred in:

(a) fact in making a finding that the appellant’s clinical history was not properly investigated by the treating specialist, Dr Bhisham Singh (Ground 1);

(b) fact by making a factual finding that the opinion of Dr Singh was a bare ipse dixit and did not consider the appellant’s own circumstances (Ground 2);

(c) law in failing to provide sufficient reasons in rejecting the evidence of the treating specialist (Ground 3);

(d) fact in finding that Dr Singh did not consider the appellant’s psychological issues (Ground 4);

(e) fact in finding that not all conservative measures have in fact failed (Ground 5), and

(f) law as to the test regarding whether treatment is reasonably necessary pursuant to Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) (Ground 6).

Held: The Certificate of Determination dated 19 July 2022 was revoked. There was an award in favour of the appellant for the cost of the C4-6 Anterior Cervical Decompression and Fusion recommended by Dr Singh. The respondent was ordered to pay the reasonable cost of this surgery as particularised by the appellant.

Some principles about the approach to expert evidence in the Commission

1. In this appeal, the appellant took issue with how the Member construed the expert evidence, specifically giving little or no weight to the opinion of Dr Singh regarding the proposed surgery, which opinion the Member ultimately found was a “bare ipse dixit”. This appeal therefore involved a consideration of the Member’s approach to dealing with this expert evidence and whether it was affected by error. The President noted the Commission is not bound by the rules of evidence. His Honour made the following remarks regarding the approach to expert evidence in the Commission. The expert has to expose their path of reasoning in reaching their opinion. This reasoning then must have a connection to the view reached and the specialised knowledge said to be held by the expert. His Honour set out the following approach to dealing with expert evidence in the Commission:

   (a) Evidence must be logical and probative, evidence based on speculation and unsubstantiated assumptions is not acceptable.

   (b) Rule 73 of the 2021 Rules does not reintroduce the rules of evidence.

   (c) An expert’s report will need to conform, in a sufficiently satisfactory way, with common law standards for admissibility.

   (d) Strict compliance with every feature referred to in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 is not required.

   (e) The question of the acceptability of expert evidence will not be one of admissibility but of weight.

   (f) The expert’s evidence should be determined by reference to all the expert’s reports.

   (g) An expert’s bare ipse dixit will usually carry little weight.

   (h) As a corollary to points (a) and (g) above, the expert must expose their path of reasoning in reaching their opinion. That reasoning must relate to the opinion and the expert’s specialised knowledge.

   (i) Not every expert opinion needs to be supported by reference to appropriate authority nor does the expert have to “offer chapter and verse in support of every opinion”.

   (j) It is the task of the tribunal of fact to assess the evidence and reach a view as to whether the opinion, even in the face of discrepancies, was given in a ‘fair climate’ such that it can be acted upon.

   (k) The Commission must be satisfied that the expert evidence provides a satisfactory basis upon which the Commission can make its findings.

   (l) The failure to explain an opinion or a lack of reasoning may reduce the weight to be accorded to an opinion, but even so it may be still capable of supporting a conclusion or having probative value.

   (m) The fact-finder needs to feel an actual persuasion of the existence of a state of affairs.

   (n) Inferences may be drawn from all of the evidence in a case, including expert evidence. ([43]–[58])

   (Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 ; 13 DDCR 351; Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell); Dasreef Pty Ltd v Hawchar [2011] HCA 21; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 ; AMP Capital Investors Ltd v Transport Infrastructure Development Corporation [2008] NSWCA 325, and Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 applied)

Ground 1

2. The President observed that all six grounds of appeal took issue with how the Member dealt with the evidence of Dr Singh. His Honour stated that the Member’s criticism of Dr Singh did in large part relate to what the Member considered was the doctor’s lack of knowledge about the history of the appellant’s prior treatment and condition generally, including his shoulder and psychological conditions. Indeed, in the three paragraphs of the reasons impugned in this ground (paragraphs [84], [87] and [92]), the Member was at pains to find fault or omissions with the doctor’s opinion. At [87] of the reasons, the Member said that all the doctor took into account was the MRI scan of 12 September 2020 and the relief given after receiving injections. The President was of the view that this was not an accurate reflection of what the doctor considered. The doctor took the history from the appellant and physically examined him. The doctor was clearly aware that the appellant had had ‘conservative’, that is, non-surgical, treatment. In this same paragraph [87], the Member was critical of the doctor when she said: “He did not say that he had considered and contrasted the previous scan.” Hodgson JA dealt with a similar situation in Bell. ([69])
3. The President ultimately found that the Member was in error in terms of her approach to Dr Singh and for the purposes of the Member’s criticism of the doctor not properly investigating the appellant’s clinical history. His Honour noted that the doctor was not obliged to offer “chapter and verse” to support every opinion, all that was needed was that the expert evidence provided a satisfactory basis for the Commission to make its findings. Inferences may be drawn from all the evidence in the case including expert evidence. The failure to examine the earlier MRI scan goes to weight, not to completely discounting the probative evidence of the report. In this case whilst the doctor had not referenced or set out the treatment history in detail, this history was otherwise available from the appellant’s evidence and that of his other treating doctors. A fair reading of Dr Singh’s letters and report clearly revealed that he was generally aware of the earlier treatment efforts even though he did not record them in terms. The President did not accept that the Member’s criticism of the doctor’s knowledge of the appellant’s treatment history was factually inaccurate or that not viewing the earlier MRI scan was determinative. To the extent that this factual finding, adverse to Dr Singh’s opinion, was made to accord his opinion little or no weight, the Member was in error. Ground 1 had been established. ([72]–[73])

Ground 2

4. In this ground, the appellant challenged the Member’s finding that Dr Singh’s opinion was a bare ipse dixit. ([74])
5. The President stated that a problem with the Member’s finding at [98] of the reasons that “[m]any of [Dr Singh’s] statements can be described as ‘bare ipse dixits’” was that it was not apparent which ‘statements’ were being referred to by the Member and thus presumably being dismissed or given little weight. Dr Singh had treated the appellant, he had examined him, he recommended further MRI scans and reviewed the results. Dr Singh was aware of the temporary relief experienced after the cervical injection. The doctor understood that conservative treatment had been tried for two years without producing any appreciable pain relief. The President stated that Dr Singh was correct in noting that treatment had been undertaken. Granted he did not spell it out in detail, but that was not his obligation. This apparent deficiency could be made good by other evidence. The essence of the doctor’s opinion was that conservative measures had not worked, hence the need for surgery. But to be fair to Dr Singh, his opinion was not based on this alone, he had examined the appellant and recorded his clinical findings. He had an MRI scan undertaken and noted the injection results, which he found to be of “diagnostic importance”. The doctor’s opinion would have been stronger had he spelt out the treatment history in more detail but that does not mean that it can be discounted entirely. ([78])
6. The President was of the view that the doctor’s path of reason in arriving at his recommendation for surgical intervention could be readily understood once one considered the entirety of the doctor’s material and the other reports and records which detail the prior treatment. His Honour did not consider that a fair reading of Dr Singh’s opinions would enable the Member to dismiss them as bare ipse dixits. But it was not clear which opinion or aspect of the doctor’s material that this criticism was directed to. To the extent this finding was made to either dismiss the doctor’s opinion supporting surgical intervention entirely or to give it little weight, this finding was made in error. The Member was obliged to engage with the entirety of the doctor’s opinion. Ground 2 had been established. ([79]–[80])

Ground 3

7. The appellant complained that the Member had not given adequate reasons as to why she preferred Dr Stephen’s findings on examination and his reading of the radiology over that of Dr Singh. The President firstly noted that at no point in her decision did the Member express, in terms, that she preferred the opinion of Dr Stephen over that of Dr Singh. This finding was simply not made. This was a critical issue in the circumstances of this case. On the appellant’s side, Dr Singh’s opinion was strongly in favour of the recommended surgery. For the respondent, Dr Stephen was of the contrary opinion. This was the crux of the contest between the parties that had to be resolved. Reading the decision as a whole and in light of the result, one can readily draw the conclusion that Dr Stephen’s evidence was preferred by the Member. The only problem was that it was not apparent from a reading of the decision why this was the case. ([82]–[86])

   (The Nominal Defendant v Kostic [2007] NSWCA 14; Mifsud v Campbell (1991) 21 NSWLR 725, and Sant v Tsoutsas [2009] NSWCA 3 (Sant) applied)

8. The President found that in the dispositive sections of the Member’s reasons dealing with Dr Singh, the Member dealt principally with the issues or problems she had identified with Dr Singh’s opinions, sometimes deploying remarks or opinions from Dr Stephen to support this assessment. The Member had not explained why Dr Stephen’s opinion was preferred as the extract from Sant requires. This was an error. If this was because she did not accept Dr Singh’s expertise (and this was not explained) this was an error as his expertise had not been challenged. The Member’s duty was to provide a reasoned analysis as to why one doctor’s opinion was preferred over the other and this has not been done. Ground 3 was established. ([87]–[90])

Grounds 4, 5 and 6

9. In light of Grounds 1, 2 and 3, it was necessary that the Certificate of Determination be revoked. It was not necessary for the President to consider Grounds 4, 5 and 6. ([91])
10. In terms of the Member’s approach to the expert evidence, the Member had imposed a standard in terms of what she expected from Dr Singh which was not consistent with the approach to expert evidence in the Commission. ([92])

The Star Entertainment Group Ltd v Samaan [2023] NSWPICPD 50

WORKERS COMPENSATION – referral to a medical assessor for an assessment of permanent impairment – s 293 of the 1998 Act – Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 considered

Phillips P

18 August 2023

Facts

The respondent worker was employed by the appellant as a cleaner. On 9 July 2014, the respondent was working for the appellant, and while using a backpack vacuum cleaner, he bent under a table and chairs, suffering injury to his lumbar spine. Whilst the appellant did not contest injury, it subsequently denied ongoing liability for weekly compensation and medical related treatment on 29 June 2015 on the grounds that the effects of the accepted injury had ceased. The appellant relied on the medical opinion of Dr Vote, orthopaedic surgeon.

The respondent made a claim for permanent impairment compensation for 21% whole person impairment relating to the lumbar spine, scarring, urinary and reproductive systems, relying on the report of Dr Guirgis, consultant orthopaedic surgeon. Liability was disputed on the basis that the respondent was not suffering from any assessable impairment as the injury to the lumbar spine had resolved shortly after the incident, thus failing to reach the threshold of at least 10% whole person impairment required for an entitlement to lump sum compensation under s 66 of the 1987 Act. The appellant relied on the report of Dr Millons.

During a telephone conference on 23 June 2022, the Member issued a Direction that the parties lodge written submissions addressing:

(a) whether there was any impediment to the claim for lump sum compensation with regard to the lumbar spine being referred to a Medical Assessor in view of the admission of liability made by Dr Vote and Dr Millons;

(b) was there any impediment to the matter being assessed by a Medical Assessor as to the scarring caused by surgery on Mr Samaan’s lumbar spine on 13 May 2020.

After lodgment of the submissions, the Member issued a Certificate of Determination remitting the matter to the President for referral to a medical assessor for an assessment of whole person impairment with respect to the lumbar spine. The other body parts claimed were not included in the referral. The employer appealed.

The issues on appeal were raised in the following grounds:

(a) the Member erred in proceeding upon the basis that he had power or jurisdiction to decide whether a medical assessment should take place (Ground 1);

(b) the Member erred in deciding that he had power or jurisdiction to remit the matter to the President “… for referral to a medical assessor for an assessment of Whole Person Impairment …” (Ground 2);

(c) alternatively or in addition to Ground 2, in purporting to decide that it was open to him to make a determination committing the President to make a “… referral to a Medical Assessor for assessment of Whole Person Impairment …” (Ground 3), and

(d) alternatively to Grounds 1 to 3, if the Member had power or jurisdiction to decide whether a referral for medical assessment should take place:

(i) the Member erred in not treating his power as a discretionary one; or

(ii) if he did not so err, his discretion miscarried in that he failed to take account of all relevant surrounding considerations and circumstances and restricted himself to what was an irrelevant antecedent matter, namely the existence of a power of referral (Ground 4).

Held: The Certificate of Determination dated 23 August 2022, as amended 30 August 2022, was revoked and the matter was remitted to another Member for re-determination.

Discussion

1. Before the President turned to the appeal grounds, his Honour remarked on what transpired before the Member. The Member issued a Direction on 23 June 2022 which invited submissions on two issues. In each question, the Member sought views on whether there were any “impediments” with respect to the proposed referral to a medical assessor. The appellant correctly stated that it was “not clear exactly what ‘impediment’ was taken to mean”. The Member did refer to this in his decision, but this was obviously after the Direction had been responded to. This was borne out in fact by virtue of the different approaches to answering the 23 June 2022 Direction taken by both parties. The respondent was firmly of the view that there was no impediment and that the “determination of a medical dispute is to be resolved by way of a medical assessor. The appellant submitted that the Member was precluded from referring the dispute until causation for what it had described as consequential conditions had been determined. The President noted the Member accepted the respondent’s submission that there was no impediment to the claim being referred to the medical assessor and that this was a medical issue requiring the application of medical expertise to determine. ([28])

Grounds 1, 2, 3 and 4

2. The parties accepted that all four appeal grounds essentially relied upon the submissions advanced in Ground 1. The President dealt with all four grounds together. ([29])
3. The President stated that the decision reached by the Member was essentially a by-product of how he had characterised what he had been called upon to decide in his Direction of 23 June 2022. In short, this Direction sought the answer to a fundamental question of whether the Member had the power to do what he was being asked to do by the respondent. It was clear from the Member’s decision that this question was answered in the affirmative and the referral was made. ([34])
4. His Honour found that the Member at [42] of his reasons had conflated the respective roles of the Member to determine matters of causation and the medical assessor to assess permanent impairment. This conflation was apparent where he said: “The causal nexus of treatment to injury was plain, subject to the view of the [medical assessor] as to whether ...”. The Member was positing a view on the question of causation expressed to be subject to the view of the medical assessor. In the event that the medical assessor had stated a view on causation which the Member found determinative, this might have had the result of a challenge on the grounds of a denial of natural justice. Parties are not represented before a medical assessor, which is to be contrasted to a causation dispute taking place before a Member with a subsequent right of appeal. Had the Member determined causation, as he was empowered to do after the 2018 Amendments, the referral may or may not have been necessary depending upon the answer to that question. In so doing, the Member has acted on a wrong principle in the House v The King [1936] HCA 40; 55 CLR 499 sense. ([38])
5. The President said that a problem with the argument before the Member was the terminology used. The appellant made reference to ‘consequential conditions’ which was probably not an apt expression. The Member had the power to determine the ‘nature of injury’, which was a matter for the Commission Member. The Member should have acted on this. His Honour also commented that under the 2020 Act proceedings are to be conducted “justly, quickly, cost effectively and with as little formality as possible”. The Member deciding the question of causation before considering a referral to a medical assessor is completely in simpatico with these objects. ([39]–[40])

(Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 referred to)

6. The President found error on the Member’s part in the exercise of his discretion and indicated that he would be revoking the Certificate of Determination. Before doing so, his Honour dealt with the appellant’s submissions on s 293 of the 1998 Act. Section 293 refers to ‘medical disputes’ as defined in Part 7. The definition then appears in s 319 of the 1998 Act, which defines a range of medical disputes, which includes, amongst other things, permanent impairment disputes. The division of responsibility is that under s 293 of the 1998 Act, power in relation to all medical disputes (as defined in s 319 of the 1998 Act) resides with the President. But this power is not exclusive when it comes to permanent impairment disputes; s 321A vests limited power in a member’s hands with respect to that discrete category of medical dispute. ([41])
7. The problem with the Member’s decision was that it was not apparent which provision he was purporting to act under. He set out both provisions in his reasons. If it was s 321A, there was no need to remit the dispute to the President. If it was s 293 of the 1998 Act, he could within power remit it to the President and no more. The problem was that the Member seemed to have gone beyond a mere remitter when he said in the Certificate of Determination that the remitter was for referral to a medical assessor. It was not clear which section was the operative provision for the Member’s decision and this was an error. The President assumed that the remitter must be for the purposes of s 293 of the 1998 Act, as remitter is not required if s 321A were the source of power being relied upon. ([42])
8. The President also observed that the respondent had pursued a claim in relation to three body systems; the lumbar spine, scarring, and urinary and reproductive systems. Yet the Direction and the Certificate of Determination only made reference to the lumbar spine. It was not obvious if this limitation was by design, agreement or error. His Honour further noted that at [42] of the reasons, the Member had posited a view about causation. In the circumstances, given that causation of what the appellant had described as the ‘consequential condition’ had neither been accepted nor argued in full, the only submissions being about the Direction, it was preferable that the matter be remitted to another Member to decide. ([43]–[44])

Magliano v Workers Compensation Nominal Insurer [2023] NSWPICPD 51

WORKERS COMPENSATION – Whether the monetary threshold pursuant to s 352(3)(a) of the 1998 Act is satisfied – Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7; Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 3 applied; Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47 distinguished – s 145 of the 1987 Act – whether the Commission has the power pursuant to s 145 to determine whether the injured worker suffered a different injury not previously claimed in matters involving reimbursement to the Workers Compensation Nominal Insurer – ss 65, 105 and 260 of the 1998 Act and the Workers Compensation Guidelines 2021 – applicable principles in disturbing a primary decision-maker’s exercise of discretion – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied – adequacy of reasons – s 294(2) of the 1998 Act; rule 78 of the 2021 Rules – Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied – corroboration of evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied

Wood DP

28 August 2023

Facts

The appellant was employed by Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph’s Smash Repairs (the employer) as a spray painter. The appellant alleged that he was spray painting a car in the course of his employment and suffered an injury to his back on 12 February 2019 when he fell from a plank that was suspended on two plastic crates. The employer did not hold a workers compensation insurance policy at the time of the alleged injury. The appellant did not cease work until February 2020, by which time the employer had obtained workers compensation insurance cover.

Although the appellant asserted that he advised the employer of his injury at the time it occurred, the employer, through its sole owner, Mr Terkalas, denied that assertion. Mr Terkalas stated that he was unaware of the allegation of injury until February or March 2020. In any event, because the employer was not insured as at 12 February 2019, the appellant lodged a claim for weekly compensation and treatment expenses with the Workers Compensation Nominal Insurer (the Nominal Insurer). The employer disputed the veracity of the claim. The Nominal Insurer accepted the claim and paid weekly compensation and the appellant’s treatment expenses.

The Nominal Insurer issued a Notice to Reimburse pursuant to s 145(1) of the 1987 Act and a Certificate pursuant to s 145(5) of the 1987 Act, requiring the employer to reimburse the Nominal Insurer the sum of $173,257.71 in respect of the compensation paid to or for the appellant in relation to the appellant’s alleged injury on 12 February 2019.

The employer commenced proceedings in the Commission by way of miscellaneous application seeking a determination of its liability in respect of the amount sought to be recovered, in accordance with s 145(3) of the 1987 Act. It became apparent from the evidence placed before the Commission that the appellant’s back condition could be defined as a “disease” which possibly could have been aggravated by the nature of the work performed by the worker over the course of his employment in accordance with s 4(b) of the 1987 Act. If that was the case, then s 16 of the 1987 Act provided that the appellant’s deemed date of injury was the date of his incapacity, that is February 2020, and the workers compensation insurer at that time, Employers Mutual Limited (EML), could be either partly or wholly liable for compensation to the worker.

Consequently, the Member ordered that EML be joined to the proceedings as an “interested party.” As noted in the Member’s Certificate of Determination, the issue was raised for the first time by the employer at the first arbitration date (1 February 2022), the appellant had not yet made that claim and EML had not had the opportunity to investigate and determine that claim. As a consequence, EML did not file a Reply to the miscellaneous application. The Member issued a Certificate of Determination on 30 June 2022 in which she determined that the appellant did not suffer a personal injury pursuant to s 4(a) of the 1987 Act on 12 February 2019, and that the employer was not liable to reimburse the Nominal Insurer.

The worker appealed the Member’s decision.

The issues on appeal were whether the Member erred as follows:

(a) failing to determine the threshold dispute as to the power of the Commission pursuant to section 145 of the 1987 Act (Ground A);

(b) failing to provide adequate reasons addressing the rejection of the lay evidence in the claim (Ground B);

(c) determining the issue of injury on the basis of a purported lack of contemporaneous treating evidence and/or approaching contemporaneous treating evidence as determinative of the question of causation (Ground C), and

(d) failing to determine the issue of whether the appellant’s injury arose as a result of the ‘nature and conditions’ (Ground D).

Held: The monetary threshold to appeal required by s 352(3)(a) of the 1998 Act was satisfied. The Member’s Certificate of Determination dated 30 June 2022 was confirmed.

Threshold matters

1. The Nominal Insurer submitted that the appellant was required to show that the appeal satisfied that both the amount of compensation in issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. The Nominal Insurer submitted that the appellant had not demonstrated that the threshold was satisfied. Deputy President Wood noted that the application lodged by the employer was commenced in accordance with s 145(3) of the 1987 Act. Relevantly, subs (1) provides that the Nominal Insurer may serve on an employer a notice to reimburse “an amount ... specified in the notice” in respect of payment made to an injured worker in respect of a claim under the Division (Div 6 of Pt 4 of the 1987 Act). Subsection (3) provides that the employer can apply to the Commission in order to have determined its liability in respect of payments made to an injured worker and subs (4) permits the Commission to “make such awards or orders as to the payment of compensation under this Act or in respect of the injured worker ...”. Subsection (5) provides that a certificate issued by the Nominal Insurer certifying that the payments specified in the certificate were paid to or in respect of an injured worker and that, in the opinion of the Nominal Insurer, the employer was liable to pay an injured worker compensation under the Act, is admissible in the proceedings. ([15]–[35])
2. In response to the employer’s submission, the Deputy President did not accept that Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47 (Transport Contract Services) was authority to say that the reimbursement sought by the Nominal Insurer in this case was not “compensation” in issue. Transport Contract Services involved an application brought by an employer seeking a determination that the injured worker’s pre-injury average weekly earnings figure was less than that calculated by the insurer. Deputy President Snell determined that there was no amount of compensation in issue in the circumstances where:

(a) the weekly payments were made by the insurer;

(b) the employer was not seeking reimbursement of what it alleged to be overpayments;

(c) the power to seek any repayment rested with the insurer, and

(d) the benefit sought by the employer was the effect the payments had on his workers compensation insurance premium. ([38])

3. Deputy President Wood held that this matter was factually at odds with the facts in Transport Contract Services and turned on the question of whether the reimbursement of $173,257.71 could be classed as “an amount of compensation”. It was not contested that the amount certified by the Nominal Insurer was the total of the amount the Nominal Insurer paid to the appellant in the form of compensation. ([39])
4. Wood DP did not accept that the amount of compensation paid to the appellant lost its character as compensation once the compensation had been paid and the Nominal Insurer seeks “reimbursement” of that amount. Section 145(1) provides that the amount specified in the notice is the payment made to an injured worker in respect of a claim for compensation. In accordance with s 145(3), the employer applied to the Commission for a determination of its liability in respect of compensation payments made to the appellant. The employer was found not liable for the alleged injury for which the appellant’s compensation was paid and the appellant appeals that decision. If he is successful, the employer would be liable to reimburse the Nominal Insurer for the compensation paid to the appellant. The Deputy President was of the view that the amount of $173,257.71 retained the character of “compensation”, which was in issue in the proceedings before the Member and was in issue on the appeal. She was satisfied that the amount of compensation in issue exceeded $5,000 and the threshold required by s 352(3)(a) was satisfied and the appeal could proceed. ([40]–[42])

Grounds A and D

5. It was convenient for the Deputy President to deal with these two grounds together. The first ground was a complaint that the Member did not determine whether, by virtue of s 145 of the 1987 Act, the Commission had jurisdictional power to consider the appellant’s alternate allegation of injury as a consequence of the ‘nature and conditions’ of his employment. In the context of this case, the answer to that question must be that the Commission did not have that power. The appellant asserted that he raised the claim for the “alternate” injury, and EML were joined to the proceedings because of that claim, so were well aware of the allegation. ([186]–[188])
6. Deputy President Wood stated that the Commission’s jurisdiction is vested in s 105 of the 1998 Act. Thus, the Commission does not possess an inherent jurisdiction, but only those powers which are incidental and necessary to the exercise of its statutory jurisdiction. Section 105 provides that the Commission has exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts, but the jurisdiction is subject to the provisions of the 1998 Act. That is, the “exclusive jurisdiction” is qualified by express prohibitions and restrictions within the Act. ([189])

(Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley [2006] NSWCA 235 applied)

7. Section 65 of the 1998 Act provides that a claim must be made in writing and s 260 of the 1998 Act requires that a claim must be made in accordance with the Workers Compensation Guidelines. The Workers Compensation Guidelines, Part 3, prescribe what is required in order to make a claim. Part 3.1 provides for the minimum requirements for making a claim. Division 3 of Part 4 of the 1998 Act deals with determinations of disputes by the Commission. Section 289 of the 1998 Act provides that a dispute about a weekly payments claim or a claim for medical treatment cannot be referred to the Commission unless the person on whom the claim is made disputes the claim or fails to determine it. ([128], [190]–[192])
8. There was no evidence of the appellant having provided the necessary information to EML at the time of the Member’s decision, particularly in relation to the provision of a description of the injury and how it happened. There was no statement from the appellant or any other person who may have witnessed the nature of the work the appellant performed that might constitute work of a heavy nature. In the absence of a claim made in accordance with the legislative requirements, there was no “dispute” capable of being referred to the Commission for determination by the Member. EML rightfully complained that they had not had the opportunity to assess the allegation, which also would have raised an issue of procedural fairness had the Member proceeded to determine the allegation. ([193]–[194])
9. The appellant submitted that the Nominal Insurer’s position was that the power conferred by s 145 was sufficient to enable a re-examination of the cause of the incapacity. Wood DP stated that was not an accurate assertion. The Nominal Insurer indicated that in the proceedings below and on appeal, it neither supported nor contested whether the Member had the requisite power to determine the ‘nature and conditions’ claim. In any event, jurisdiction cannot be conferred by the consent of the parties. Secondly, the broad power conferred on the Commission in s 145(4) of the 1987 Act to make such awards and orders as it sees fit is limited to the application made. The Deputy President did not accept that the provision enables the Commission to determine another unrelated claim and make orders in respect of that unrelated claim, which claim had not yet been made. ([195]–[196])
10. Deputy President Wood found that in this matter, while the Commission has a broad discretion to make such orders as it considers appropriate, those orders are limited to the application before it. The subject matter of the application was a claim for reimbursement from the employer to the Nominal Insurer in respect of compensation paid for an injury alleged to have occurred on 12 February 2019. It was this injury that was the subject of the dispute as to liability raised by the employer and it was incumbent upon the Member to determine that liability. The power to make orders under s 145(3) is a discretionary power. The Member was clearly not required to determine whether the appellant suffered a different injury. As observed in Micallef v ICI Australia Operations Pty Ltd[2001] NSWCA 274 , in order to disturb the Member’s refusal to determine whether the appellant suffered an alternate injury, the appellant is required to establish that the Member:

(a) made an error of legal principle,

(b) made a material error of fact,

(c) took into account some irrelevant matter,

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. ([202])

11. Applying those principles, Wood DP held that the Member:

    (a) made no error of fact or of legal principle;

    (b) did not take into account an irrelevant matter or fail to take into account a relevant matter, and

    (c) did not arrive at a decision that was not unreasonable or unjust. ([203])

12. She concluded that the Member did not err by declining to determine whether the Commission had the power to make orders or awards in respect of a different assertion of injury and did not err by failing to determine that “alternate” injury. It followed that both Ground A and Ground D of the appeal failed. ([204])

Ground B

13. The minimum standard that a decision of a Member of the Commission must reach in providing adequate reasons is defined by the duty imposed in the Commission’s statutory framework. Section 294(2) of the 1998 Act provides that a Member is to provide a brief statement setting out the Commission’s reasons for the determination. Rule 78(2) of the 2021 Rules requires the Member’s reasons to set out:

    (a) his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based;

    (b) the Member’s understanding of the applicable law, and

    (c) the reasoning processes that led to the Member’s conclusions.

    Further, in accordance with r 78(3), the Member’s reasons must be sufficient to make the parties aware of the Member’s view of their case. ([205]–[207])

    (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied)

14. Where there are credit issues to be dealt with (as was clearly apparent in this case), it is necessary to explain why one party’s evidence is to be accepted over the other. Put simply, the reasons provided must establish the steps taken in arriving at the primary decision maker’s ultimate conclusion. ([208])

    (Palmer v Clarke (1989) 19 NSWLR 158 applied)

15. The appellant asserted that the Member failed to properly analyse and reconcile the competing evidence between Mr Terkalas and the appellant and only briefly “dealt with” that evidence. The appellant further asserted that the Member failed to provide an explanation for either accepting or rejecting that evidence. ([209]–[214])
16. Deputy President Wood found that the Member gave clear reasons as to why she considered that the lay evidence was unreliable. In doing so, the Member also referred to those parts of the evidence that pointed to the common facts in favour of the appellant having suffered the injury alleged. The Member explained why she did not accept the ex post facto evidence of Dr Vinh (treating general practitioner) that the symptoms were attributable to an injury on 12 February 2019. She identified further conflict in the lay evidence as to whether the appellant continued to perform his full duties for the year that followed the alleged injury, or whether he was performing selected duties. The Member recorded surprise at the level of detail recalled by the appellant in his statement, which was a recollection made more than three years after the event. After referring to relevant authorities about the weight to be afforded to inconsistent evidence, the Member turned to the contemporaneous medical evidence for assistance in resolving those inconsistencies. She determined that the medical records were more reliable than the recollections recorded some 12 months after the alleged event. Such a conclusion was open to her. ([215]–[216])
17. The Deputy President concluded that it was abundantly clear that the Member appropriately engaged with the evidence and reached conclusions that were open to her after weighing the inconsistencies in the lay evidence. The Member did not take a “cursory” approach to the lay evidence or any other evidence and her analysis of the evidence extended well beyond the four paragraphs of her reasons, contrary to the assertion made by the appellant. The Member patently discharged her obligation to give adequate reasons. It followed that Ground B of the appeal failed. ([217]–[218])

Ground C

18. The appellant asserted that the Member determined the question of causation on the basis of the contemporaneous medical evidence alone. That assertion was rejected by the Deputy President. The Member’s extensive reasons disclosed that she took into account all of the evidence and determined the matter in favour of the employer on the basis of numerous aspects of the case. She noted the facts that formed the basis of her conclusion such as the delay in lodging a claim, the inconsistent description of the mechanism of injury, for example that the injury may have resulted from heavy lifting, the inconsistent histories of the date of injury and the chronicity of complaints. As the employer pointed out, the Member also took into account the opinion and diagnosis provided by Dr Kuru (spinal surgeon qualified by the employer) and the diagnoses given by Dr Bentivoglio (neurosurgeon qualified by the Nominal Insurer) and Dr Darwish (neurosurgeon qualified by the appellant). ([219])
19. Wood DP found that the Member determined the matter on the basis of the whole of the evidence before her and provided sufficient reasons for accepting or rejecting that evidence. The appellant made no persuasive submissions to support this ground of appeal and the ground failed. ([225]–[226])

Voudouris v TDV Constructions Pty Ltd [2023] NSWPICPD 53

WORKERS COMPENSATION – whether injuries with 0% permanent impairment can be included in a referral to a medical assessor – medical assessment for the purpose of s 39 of the 1987 Act – principles regarding a ‘claim’ and ‘medical dispute’ considered – s 319 of the 1998 Act – Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18 discussed – Skates v Hills Industries Ltd [2021] NSWCA 142 applied

Phillips P

31 August 2023

Facts

The appellant was a builder and sole director of the respondent. He sustained multiple injuries in the course of his employment on 26 July 2016, when he fell several metres through a void in a building he was working in. He received workers compensation benefits for his injuries, including payment of weekly compensation and medical or related treatment expenses.

On 14 December 2021, the appellant ceased receiving weekly compensation by operation of s 39 of the 1987 Act, on the basis that his injuries did not result in permanent impairment of more than 20% for an entitlement to weekly compensation beyond 260 weeks. In ceasing his weekly compensation, the respondent’s insurer relied on an independent medical report of Dr Rimmer, orthopaedic surgeon, dated 27 April 2021. In this report, Dr Rimmer assessed the appellant with a combined 8% whole person impairment (WPI), comprised of 2% WPI in respect of the right elbow and 6% WPI in respect of the left wrist. Dr Rimmer also found there to be nil impairment (0%) to the right femur and right knee.

On 24 February 2022, the appellant sought a review by the respondent’s insurer of the decision to terminate his weekly payments under s 39 of the 1987 Act. The appellant attached an independent medical report of Dr Pillemer, orthopaedic surgeon, who assessed the appellant with a combined 33% WPI. This assessment was comprised of 20% WPI in respect of the right lower extremity (knee), 1% WPI in respect of the right upper extremity (elbow), 14% WPI in respect of the left upper extremity (wrist), and 2% WPI in respect of scarring on the wrist and forearm. Dr Pillemer also assessed the appellant’s lumbar spine, but found there to be nil (0%) impairment, noting that the appellant fell into DRE Category I.

The respondent’s insurer, on 10 March 2022, clarified that the notice ceasing payments was not a dispute notice issued pursuant to s 78 of the 1998 Act, and rather, notification of the operation of s 39 ceasing his payments as he had not reached the requisite threshold. The letter noted, nonetheless, that there were now two competing opinions on the assessment of permanent impairment, and they did “not concede” that the appellant had an entitlement to ongoing weekly compensation.

The appellant commenced proceedings in the Commission making an Application for Assessment by a Medical Assessor, to assess whether the degree of permanent impairment is more than 20% pursuant to s 39 of the 1987 Act. The Application identified the following body parts for assessment: the face (right maxillary sinus and orbital nasal fracture), right elbow, left wrist, right leg, right knee, left index finger and the lumbar spine. The additional body system of scarring was later added by consent.

In support of the Application, the appellant relied on the reports of Dr Pillemer and Dr Curtis, oral and maxillofacial surgeon, who found there to be nil (0%) impairment in respect of orofacial injuries sustained.

In proceedings before the Member, a preliminary issue was raised as to whether a body system assessed at 0% WPI could be referred to a medical assessor for an assessment, being the face and lumbar spine. The Member issued directions for written submissions in respect of this preliminary issue. The Member was ultimately satisfied that these injuries could not be included in the referral for medical assessment. It was against this finding the appellant appealed.

The issue on appeal was raised in the sole ground: “the Member erred in refusing to refer the lumbar spine and orofacial injuries to a Medical Assessor, thereby disregarding the Presidential Decision in Shankar which he was bound to follow”.

Held: The appellant’s application for leave to appeal pursuant to s 352(3A) of the 1998 Act was declined. The Certificate of Determination dated 25 October 2022 was confirmed. The matter was referred to a medical assessor in accordance with the terms of the Certificate of Determination dated 25 October 2022.

Threshold – first issue – quantum

1. The respondent asserted that the monetary threshold was not met. The President was of the view that the threshold was surpassed. This matter was also a decision not involving an award of compensation. The respondent’s submission had concentrated on the two body parts which bear a 0% assessment. Whilst these two body parts were in contest, the appellant’s “claim” was broader than just these two issues. The appeal had the capacity to affect an amount over $5,000. His Honour found that the threshold was exceeded. This threshold challenge was not successful. ([29]–[34])

   (Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7; Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; Trustees for the Roman Catholic Church for the Diocese of Maitland-Newcastle v Barrett [2010] NSWWCCPD 62 , and Ausgrid v Parasiliti [2020] NSWWCCPD 51 applied)

Threshold - second issue - interlocutory

2. The respondent to the appeal asserted that the Member’s decision was interlocutory. The appellant accepted that this was “likely” to be the case. The President held the decision was clearly interlocutory. In no way could the Member’s determination be said to have finally determined rights. Consequently, the appellant required leave to appeal under s 352(3A) of the 1998 Act. ([35]–[36])

   (Licul v Corney [1976] HCA 6 applied)

3. The appellant sought leave to appeal, submitting there was a need for the Commission to resolve what the appellant said were apparent “inconsistent decisions” on the issue of whether a 0% assessment of a body part can be referred to a medical assessor. This submission substantially mirrored the arguments made by the appellant in support of his single ground of appeal, which stated “there is presently substantial tension in the various cases handed down by Members and Presidential Members in relation to what constitutes a ‘dispute’.” The appellant stated that the Member was bound to follow the Presidential decision of Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD 18 (Shankar), relying upon the doctrine of stare decisis. The appellant relied extensively upon the Acting Deputy President’s reasoning in that matter in support of his submissions. Notably, the appellant had made no submission in relation to the effect that the Court of Appeal decision in Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) may have upon this matter. ([37]–[38])
4. The President observed that the dispute between Mr Skates and the insurer was crystallised by the correspondence attached to Mr Skates’ application; indeed, it was why the documents setting out both sides’ claims were attached. That was the dispute which was referred to the Commission pursuant to s 288. It was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of doing so was to resolve the dispute. ([46])
5. The President commenced by dealing with the argument pertaining to Skates. The “fundamental legal concept is a dispute.” In this case, just as his Honour described the process in Skates at [45]–[46], the dispute was crystallised by the exchange of material between the parties, principally the exchange of medical opinions and the appellant’s application for review of the insurer’s decision based on Dr Pillemer’s opinion and his 33% WPI assessment, that included the 0% assessment for the lumbar spine. The various WPI assessments were clearly ascertainable from a review of the material. The assessments provided with respect to the two body parts in question were 0%. The respondent provided no medical opinion or notice which took issue with either 0% WPI assessment. Axiomatically there was no medical dispute with respect to either the orofacial injury or the lumbar spine. The condition precedent for the exercise of the Commission’s power with respect to a medical dispute had never arisen in relation to these two body parts. As a consequence, the President was of the opinion that the grant of leave was neither necessary or desirable for the proper and effective determination of this dispute. It would not be proper or effective to facilitate a medical assessment of matters which are not in dispute. ([49])
6. In dealing with whether the claim in relation to the orofacial injury and the lumbar spine was a valid claim, the President held that a valid claim, amongst other things, involves a claim for compensation. In this matter the dispute about whether the appellant surmounted the s 39 threshold, his Honour accepted, was a claim for compensation. But the constituent parts of the claim were made up of the various WPI assessments, including two assessments of 0%. The individual assessments of 0%, by definition, cannot form part of the claim for compensation as neither contributes to the WPI percentage necessary to surmount the s 39 threshold. As a result, neither was a valid claim. ([50])
7. It would not be proper or effective for the determination of this dispute to permit a claim which was not valid to proceed to a medical assessment. By claim, the President referred to the orofacial and lumbar spines only. The balance of the appellant’s claims pursued in this matter were valid claims. The President declined to grant the appellant leave to appeal pursuant to s 352(3A) of the 1998 Act. ([51]–[52])

Ground 1

8. The President noted that he had declined to grant the appellant leave to appeal the Member’s interlocutory decision. For the reasons that his Honour declined leave to appeal, this also had the effect of dismissing ground 1. However, this ground raised an issue about what was described by the appellant as apparent inconsistencies and ‘substantial tension’ in various Commission decisions as to whether a 0% WPI assessment is capable of referral to a medical assessor. The tension as described by the appellant was between the Presidential decision in Shankar on one hand and on the other a number of other cases, namely Abou-Haidar v Consolidated Wire Pty Ltd [2010] NSWWCCPD 128, Woolworths Limited v Stafford [2015] NSWWCCPD 36, Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459 , Skates and Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190. The appellant asserted that the Member in this case was bound to follow Shankar, as it was a Presidential decision and the doctrine of stare decisis required the Member to follow Shankar. ([54])
9. The President held it was beyond doubt that the Commission’s members, both presidential and non-presidential, are bound to follow decisions of the Court of Appeal. At the time the Acting Deputy President decided Shankar, the Court of Appeal’s decision in Skates had not yet been delivered. The Acting Deputy President decided Shankar, for the purposes of this discussion, principally on the basis of a construction of s 319 of the 1998 Act. Whilst there were some similarities in the approach taken by the Acting Deputy President and that of the Court of Appeal in Skates, the principal difference was this. The Acting Deputy President noted that the dispute as framed by the claimant in that matter had been disputed in full in the s 78 notice and that the dispute as framed, which included all body parts, even those with a 0% assessment, could only be resolved by the medical assessor (then termed an approved medical specialist). In Skates, Leeming JA went further and found “[i]t was a ‘medical dispute’ because the parties had made different claims about the degree of permanent impairment suffered by Mr Skates as a result of the injury. It was therefore apt to be referred for medical assessment. The point of so doing was to resolve the dispute.” In this case there was no dispute at all inter partes about the orofacial injury and lumbar spine. This fact was directly affected by the decision in Skates. ([58]–[59])
10. Once Skates was decided, Commission members were bound to follow that authority and to not follow Presidential authority (Shankar) which is contrary to a decision of the Court of Appeal. By the time Apps was decided, the Member, consistent with the principle of stare decisis, was bound to apply Skates and not Shankar where the two decisions relevantly diverged. Looked at in this manner, there were no inconsistent decisions as asserted by the appellant. Rather, the doctrine of stare decisis was meticulously observed and applied. There was no error on the Member’s part in that regard. Ground 1 was dismissed. ([60]–[61])