Appeal Case Summaries

Appeal Summaries February 2024

COURT OF APPEAL DECISIONS

Secretary, Department of Education v Dawking [2024] NSWCA 4

WORKERS COMPENSATION – Proceedings before Personal Injury Commission – Appeal against decision of presidential member in point of law – Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker – Where worker suffered psychological injury – Where Member determined that employment was the main contributing factor to injury – Whether Deputy President erred in implicitly deciding there was evidence capable of supporting the Member’s factual finding – Whether Deputy President erred in implicitly deciding the Member did not misapply or misapprehend relevant legal principles on causation of injury – Whether Deputy President constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument

Fisher v Nonconformist Pty Ltd [2024] NSWCA 32

APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision of the presidential member – failure to recognise error of law generally an error of law

WORKERS’ COMPENSATION – entitlement to compensation following death of worker – Workers Compensation Act 1987 (NSW) s 9A – alleged misdirection as to proper legal test – alleged constructive failure to exercise jurisdiction – alleged failure to give adequate reasons – limits of judicial review – causation involves evaluative question of fact – no constructive failure to exercise jurisdiction – no failure to give adequate reasons

CAUSATION – meaning of “substantial contributing factor” in s 9A of Workers Compensation Act 1987 (NSW) – s 9A a more stringent causation test than “arising out of employment” in s 4(a) – Member found that causation not made out – issue of substantial contribution did not arise – requirement that risk “came home” – similarity to the position in tort – increase in risk insufficient of itself to establish causation for purposes of s 9A – meaning of “common sense” causation – common sense causation connotes a number of ideas – no error in use of common sense causation here

PRESIDENTIAL DECISIONS

Millennium Security Specialist Services Pty Ltd v Dimian [2024] NSWPICPD 5

WORKERS COMPENSATION – Failure of Transcript – Wyong Shire Council v Paterson [2005] NSWCA 74 considered – duty of lawyers, including solicitors, to take notes of proceedings – Dillon v Boland; Dillon v Cush [2012] NSWCA 364 applied

Iqbal v Hotel Operations Solutions Pty Ltd [2024] NSWPICPD 6

WORKERS COMPENSATION – Section 32A of the 1987 Act and clause 2 of Schedule 8 to the 2016 Regulation – worker with highest needs – worker assessed by a Medical Assessor as having 31% whole person impairment in a Medical Assessment Certificate dated 2 March 2022 – whether the worker was entitled to payment of compensation at the rate applicable to a worker with highest needs prior to the assessment – Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113 distinguished; Meat Carter Pty Ltd v Melides [2020] NSWCA 307 considered and applied

Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos [2024] NSWPICPD 7

WORKERS COMPENSATION – Fresh evidence on appeal – s 352(6) of the 1998 Act; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – journey provisions – s 10 of the 1987 Act – statutory construction – Second Reading Speech considered – Saeed v Minister for Immigration and Citizenship [2010] HCA 23; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41 applied

Burwood Council v Scott [2024] NSWPICPD 8

WORKERS COMPENSATION – leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; the scope of an appeal pursuant to s 352(5) of the 1998 Act – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether injury consists in the aggravation of a ‘disease’ – application of Rail Services Australia v Dimovski [2004] NSWCA 267, s 60 of the 1987 Act – application of Diab v NRMA Ltd [2014] NSWWCCPD 72; obligation to give reasons

Corestaff Australia NSW Pty Ltd v Lashbrook [2024] NSWPICPD 9

WORKERS COMPENSATION – it is not always necessary to precisely identify the pathological nature of the injury – Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 discussed – a delay in report of symptoms is not generally of itself determinative – Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 – appeal from a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 discussed and applied

BHK v Secretary, Department of Education [2024] NSWPICPD 10

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – action taken by an employer in respect of discipline held to be reasonable action – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered

State of New South Wales (NSW Police Force) v Plant [2024] NSWPICPD 11

WORKERS COMPENSATION – Section 11A of the 1987 Act – reasonableness of actions of employer with respect to discipline/transfer – onus of proof – absence of statement evidence and policies before the Commission determining whether actions of the employer were reasonable – costs

Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12

WORKERS COMPENSATION – injury – whether Member proceeded on erroneous basis there were conceded consequential conditions – referral of lumbar spine to a Medical Assessor to assess whole person impairment where independent medical examiners assess 0% whole person impairment – Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 discussed and applied – Skates v Hills Industries Limited [2021] NSWCA 142 discussed

Cayir v Woolworths Group Ltd; Woolworths Group Ltd v Cayir [2024] NSWPICPD 13

WORKERS COMPENSATION – the ‘disease’ provisions – sections 15 and 16 of the 1987 Act – the need to prove ‘injury’ within the meaning of section 4(b) of the 1987 Act, application of Crisp v Chapman [1994] NSWCA 73; (1994) 10 NSWCCR 492 and associated authorities

Summaries

Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos [2024] NSWPICPD 7

WORKERS COMPENSATION – Fresh evidence on appeal – s 352(6) of the 1998 Act; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – journey provisions – s 10 of the 1987 Act – statutory construction – Second Reading Speech considered – Saeed v Minister for Immigration and Citizenship [2010] HCA 23; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41 applied

Phillips P

6 February 2024

Facts

The respondent commenced employment with the appellant, a labour hire company, in 2017 as a casual on-hire employee. He was assigned by the appellant to work as a bus driver for Keolis Downer Northern Beaches Pty Limited (Keolis).

On 11 April 2022, after finishing his shift at Keolis and walking to his car, the respondent sustained injuries to his right hip and right shoulder after tripping over a bumper stopper within a car park located at the same address as Keolis. There were several lots at this location, of which Keolis leased an office and some 12 parking spaces. The area in which the respondent tripped was within the same lot as the office and 12 parking spaces, but not within the office or car park spots specifically leased by Keolis.

The impact of the fall was so significant that the respondent required hospitalisation and surgery by way of a total right hip replacement and correction of a right rotator cuff repair. A claim for workers compensation was provisionally accepted but subsequently denied by the appellant. The appellant believed the respondent was on a journey at the time of his injury, which was not compensable because there was no real and substantial connection between employment and his accident, a requirement under s 10(3A) of the 1987 Act. The appellant denied that the circumstances of the fall were related to employment, as it had occurred in a public space which neither it nor Keolis had any control over.

The issues before the Member in the Commission for determination were whether the respondent was on a journey at the time of injury and if so, whether there was a real and substantial connection between the employment and the accident in accordance with s 10(3A) of the 1987 Act; if not, whether the injury arose out of, or in the course of employment (s 4) and whether employment was a main contributing factor (s 9A). Pending this, the Member was tasked with determining the extent of the respondent’s entitlement to weekly compensation and medical expenses.

The Member did not accept the appellant’s dispute. The Member determined that the respondent’s injury did not occur during a journey; rather, finding that it arose out of or in the course of employment, which was a substantial contributing factor to his injury pursuant to ss 4 and 9A of the 1987 Act. The Member awarded weekly compensation and medical expenses, finding that the respondent had no current work capacity. The appellant appealed the Member’s decision.

The issues on appeal were raised in the following grounds of appeal:

(a) the finding that the respondent’s journey had not commenced at the time he was injured was wrong in fact and in law (error of fact and law) (Ground 1);

(b) the finding that the respondent’s journey had not commenced at the time he was injured was against the weight of the evidence (error of law) (Ground 2);

(c) the finding and reasons given for the finding that the employment with the appellant arose out of or in the course of employment were wrong in fact and in law (error of fact and law) (Ground 3);

(d) the finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was wrong in fact and in law (error of fact and law) (Ground 4);

(e) the finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was against the weight of the evidence (error of law) (Ground 5);

(f) the Member misunderstood the test to be applied in determining if the employment with the appellant was a substantial contributing factor to the respondent’s injury, and applied the wrong criteria (error of law) (Ground 6);

(g) the finding that the respondent was incapacitated from 23 January 2023, or at all, was wrong in fact and in law (error of fact and law) (Ground 7), and

(h) the finding that the respondent was incapacitated from 23 January 2023, or at all, was against the weight of the evidence (error of law) (Ground 8).

Held: The Certificate of Determination dated 7 February 2023 was confirmed.

Fresh evidence

1. The appellant sought leave under s 352(6) of the 1998 Act to lead six pieces of evidence. The appellant’s application, insofar as it relied upon the first threshold in s 352(6) of the 1998 Act, was not established. In relation to the second threshold; whether the failure to grant leave would cause a substantial injustice in the case, the President found that this limb had not been established. His Honour declined the appellant’s application for leave to rely upon the fresh evidence. ([55]–[67])

   (CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied)

Grounds 1 and 2

2. Before the Member, the appellant argued that Chawla v Transgrid, Compensation Court of NSW, Burke ACCJ, 11 June 2002, unreported (Chawla) was decided before the 2012 Amendments which, for relevant purposes, inserted s 10(3A) into the 1987 Act, and that reliance on Chawla should be rejected, and by implication so should Green v Secretary, Department of Education and Communities [2014] NSWWCCPD 71 (Green) as it applied Chawla to the extent of ascertaining the place of employment for the purpose of when a journey begins or ends. The appellant pointed the Member to the Second Reading Speech which it said mandated a requirement for there to be control by an employer. The President confirmed that although Chawla was most definitely decided before the 2012 Amendments (it was decided in 2002), Green was a 2014 decision which considered the journey provisions following the 2012 Amendments. ([75])
3. Part of the argument on appeal was put differently to what was argued before the Member. The appellant asserted on the appeal that Chawla and Green were not decided correctly. The President carefully reviewed both of the written submissions relied on by the appellant before the Member and found this argument was not put to the Member. By definition, the Member was thus not called upon to decide whether Chawla and Green were correctly decided. There is no error in not dealing with an argument that was not put. To the extent that this ground relied upon an assertion that was not put to the Member, namely that the two cases were not correctly decided, this ground could not succeed. ([76])

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

4. The appellant’s essential argument that was put to the Member was that Chawla, and by implication Green, were superseded by the intention behind the insertion of s 10(3A) into the 1987 Act by the 2012 Amendments and thus ought not be followed. The appellant’s submissions both before the Member and on appeal placed extensive reliance on the Second Reading Speech for the 2012 Amendments in the Legislative Assembly on 19 June 2012. ([77]–[78])
5. The President noted that a Second Reading Speech is extrinsic material and “cannot be relied upon to displace the clear meaning of the text. That remains so even if the secondary material suggests that, through oversight or inadvertence, the intention of the Parliament has not been translated into the text of the law.” ([79]–[80])

(Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 applied)

6. The Second Reading Speech had been deployed to attack the Member’s finding (based on the application of Chawla and Green) that the area wider than the leased area was the respondent’s ‘place of work’, particularly an area which was not within the host employer’s control. The Member dealt with this argument. ([81])
7. Noting that statutory construction is a textual exercise, the President noted that there was no submission that s 10(3A) of the 1987 Act was either ambiguous or unclear such that recourse to the Second Reading Speech was necessary to divine its true intended meaning. His Honour did not accept that the Member was in error in failing to give primacy to the Second Reading Speech. This argument was not established. It was simply insufficient to point to the Second Reading Speech and ascribe to it the character of a binding legislative obligation. ([82]–[83])

(Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 applied)

8. The President concluded that in this case the Member was obliged to apply Chawla and Green if the Member was of the view that these decisions were applicable to the facts presented in this case. There was no error in this approach. In following these authorities, the Member was not in error in finding that the area outside of the leased area was the respondent’s ‘place of employment’. The appellant had not shown how the Member was in error in reaching this decision based on the authorities relied upon. Grounds 1 and 2 were dismissed. ([86]–[87])

Ground 3

9. The appellant asserted that the Member misdirected himself as to the test to be applied to prove injury under s 4 of the 1987 Act. The appellant said that for s 4 to operate the injury must occur at a ‘workplace’. The appellant also submitted that the Member had conflated the notions of ‘land’ and ‘workplace’ in s 10 of the 1987 Act, and injury must occur at the ‘workplace’. This appeal ground had not been advanced in a very helpful manner and did, to some extent, suffer from the vice identified in Kowalski v Repatriation Commission [2011] FCAFC 43, at [21]. Intervention on appeal requires the identification of error, hence the necessity for the asserted error to be identified in “a meaningful way”. ([88]–[91])
10. The President stated that whether the respondent suffered injury at the time and place alleged was not in issue. What was in issue was whether he had commenced his journey and the appellant took issue with the place where the injury occurred as not being under its control. Factually the Member found that at the time of the injury, the respondent was “still in the course of his employment with the [appellant] – with Keolis.” For both s 4(a) and s 10 of the 1987 Act, this was a relevant finding that had to be made. His Honour stated that reading the decision as a whole revealed that the ‘conflation’ argument fell away. The President concluded that no error as alleged has been established. Ground 3 was dismissed. ([93]–[96])

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

Grounds 4, 5 and 6

11. These grounds primarily dealt with the Member’s findings in respect of s 9A of the 1987 Act. ([103])
12. The President noted that the Member, in his decision, was exercising a broad evaluative judgment in relation to various matters of contention, not the least of which involved the consideration of the address in Warriewood, the area leased by Keolis, the common area of the property where the respondent’s injury occurred, the circumstances of his employment which led the respondent to park where he did and to take the path he did. ([109])
13. The appellant focused upon the term “workplace” in [116] of the reasons and said that it had no part in the s 9A consideration. The President did not accept that the error in this respect had been established. The appellant also asserted that if [116] of the reasons was the s 9A decision, then the reasons were inadequate. The President did not find that the Member’s reasons, when the decision was read as a whole and [117] of the reasons was taken into account, were inadequate. The appellant had not stated how the finding under s 9A was wrong in law. As it was not particularised, this assertation failed. ([111]–[113])
14. In terms of the appellant’s assertion that the findings at [121(a), (b) and (d)] were against the weight of the evidence, it is generally not helpful for that submission to be made without directing attention to the other evidence which was said to constitute “the weight of the evidence”. Absent such identification of the evidence said to be the “weight of the evidence”, this submission failed. The finding at [121(a)], when read in context, was unremarkable and consistent with earlier evidentiary findings. In terms of what was said about reasons [121(b)], there was an assertion that it misunderstood the facts, but did not say how. It also asserted that Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) was misapplied. Again, no submission was made as to the alleged error the Member was said to have made in applying Badawi. As a consequence, neither of these submissions was established. ([127]–[129])
15. The President concluded that the appellant had not been able to establish error in these three grounds. Each ground was dismissed. ([132])

Grounds 7 and 8

16. These two grounds, being a challenge to the Member’s findings of incapacity, were advanced on the assumption that the appellant’s application for fresh evidence will be granted. As a consequence of the President declining to grant leave to the appellant to rely upon the fresh evidence, Grounds 7 and 8 failed. ([133]–[135]).

Burwood Council v Scott [2024] NSWPICPD 8

WORKERS COMPENSATION – leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; the scope of an appeal pursuant to s 352(5) of the 1998 Act – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether injury consists in the aggravation of a ‘disease’ – application of Rail Services Australia v Dimovski [2004] NSWCA 267, s 60 of the 1987 Act – application of Diab v NRMA Ltd [2014] NSWWCCPD 72; obligation to give reasons

Snell DP

7 February 2024

Facts

The worker was employed by the Council as a swimming instructor. He alleged that he suffered injury to his lumbar spine on 28 February 2020 when he tripped on an underwater platform while instructing a student in the course of his employment. The worker claimed weekly benefits from 28 February 2020 on a continuing basis together with the estimated cost of spinal decompression surgery.

Before the Commission, the Council said the incident in the pool was conceded but not the date on which it occurred. It described the primary issue as one of causation, disputed that surgery was reasonably necessary and disputed the worker’s pre-average weekly earnings (PIAWE).

The Senior Member made an ongoing award for weekly compensation from 4 March 2020 pursuant to ss 36 and 37 of the 1987 Act, and ordered the Council to pay the costs of spinal decompression surgery as recommended by Dr Siu pursuant to s 60(5) if the 1987 Act. The Senior Member put a timetable in place for submissions regarding the worker’s PIAWE in the event the parties were unable to reach agreement.

The parties lodged further submissions with respect to the PIAWE. Those submissions dealt with the worker’s entitlements under ss 37 and 38 of the 1987 Act.

The appellant lodged an appeal.

The issues on appeal were raised in the following grounds of appeal:

(a) the Senior Member failed to consider and determine whether employment was the main contributing factor to the worker’s injury (Ground 1);

(b) if the Senior Member did find that employment was the main contributing factor to the worker’s injury, the Senior Member failed to give adequate reasons for that finding (Ground 2);

(c) the Senior Member erred in finding that the worker remained wholly incapacitated for work as a result of his injury, as there was no evidence to support that finding (Ground 3);

(d) the Senior Member failed to give adequate reasons for finding that the worker remained wholly incapacitated for work as a result of his injury (Ground 4);

(e) the Senior Member erred in finding that the proposed lumbar microdiscectomy was reasonably necessary treatment, as there was no evidence to support that finding (Ground 5), and

(f) the Senior Member failed to give adequate reasons for finding that the proposed lumbar microdiscectomy was reasonably necessary treatment (Ground 6).

Held: Leave to appeal pursuant to s 352(3A) of the 1998 Act was granted in respect of Grounds Nos. 1, 2, 5 and 6 of the Grounds of Appeal. Leave to appeal was refused in respect of Grounds Nos. 3 and 4 of the Grounds of Appeal. The Senior Member’s Certificate of Determination dated 24 February 2023 was confirmed. The matter was remitted to the Senior Member to deal with the outstanding issues regarding quantification of the worker’s weekly entitlement.

The grant of leave pursuant to s 352(3A)

1. Deputy President Snell held that the Senior Member’s decision was interlocutory. It required leave pursuant to s 352(3A) of the 1998 Act: is the grant of leave “necessary or desirable for the proper and effective determination of the dispute”. Significant time had already elapsed since the date of the Certificate of Determination. It was desirable that the issues regarding ‘injury’ and the worker’s entitlement to the cost of surgery be dealt with. If leave were refused and the matter returned to the Senior Member, it would be necessary that she determine certain matters that remained outstanding before her. On the issue of a final Certificate of Determination it would be possible for the Council to then raise on a further appeal the issues it now sought to agitate. ([48])

   (Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 applied)

2. The worker submitted it was proper that the appeal be determined, and if the appeal was determined in his favour the matter could then be remitted to the Senior Member to deal with the outstanding issues regarding quantum. This appeared, in a general sense, to be a practical course. It sought to minimise delay. It would permit the worker to promptly access, if otherwise entitled, the treatment which he required. There was currently no specific award in place for the payment of weekly compensation. In Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31; 10 DDCR 174, Roche DP said that exercise of the discretion in s 352(3A) involved “a consideration of the nature of the dispute and the orders sought on appeal”. It was not appropriate that the issues in Grounds 3 and 4 be the subject of leave while other issues about quantum of the weekly entitlement remained outstanding before the Senior Member. The Deputy President was satisfied it was desirable that leave be granted to deal with Grounds 1, 2, 5 and 6. Leave was refused in respect of Grounds 3 and 4. ([49])

Grounds 1 and 2

3. In relation to Ground 1 the Council submitted the pleadings, evidence and submissions were consistent with an allegation of injury pursuant to s 4(b)(ii) of the 1987 Act. It submitted the Senior Member did not refer to the causal test in s 4(b)(ii) – “if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease”. In relation to Ground 2, the Council referred to r 78 of the 2021 Rules and submitted that even if Ground 1 was not made out, the Senior Member’s reasons did not sufficiently expose her reasoning in reaching her conclusion on ‘main contributing factor’. It said the reasons did not reveal the weighing of competing causal factors and there was no express reference to the relevant causal test. ([51], [53])
4. Deputy President Snell held it was implicit in Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski), at [22] and [68], that the ‘disease’ provisions are not necessarily engaged simply on the basis that an injury involves the aggravation of a previous condition. The Council’s submission described the worker’s pleading of injury as “a perfect exemplar of a s 4(b)(ii) injury” and “not, of itself, a frank injury”. On its face, this was contrary to the passages of Dimovski at [22] and [68]. Whilst it would depend on the overall circumstances and medical evidence, a discrete injury “stumbling in the pool”, accompanied by symptoms, would typically involve injury within the meaning of s 4(a) of the 1987 Act. The worker’s case was presented on the basis of this specific incident. ([62])
5. The Deputy President stated the way in which the case was presented on the worker’s behalf, and the expert evidence on which the parties relied, were consistent with an allegation of injury simpliciter. When the reasons were read as a whole, they were consistent with a finding of injury on that basis, rather than as a finding of injury on the basis of the ‘disease’ provisions. The Council’s attack on the decision in Ground 1 was to a significant extent an attack on the adequacy of the Senior Member’s reasons; whether these were deficient on the basis the Senior Member did not go through the process of considering and weighing the contributing factors. There was a single contributing factor, the incident when the worker tripped and fell in the pool on 28 February 2020. Where there was a single contributing factor to be considered, the concept of assessing competing causal factors would be essentially meaningless. ([74]–[76])

(AV v AW [2020] NSWWCCPD 9 applied)

6. Deputy President Snell held that the submission that the degenerative process itself was the main contributing factor to its own aggravation was misconceived. In the circumstances there was a single relevant aggravating factor, the found incident in the pool on 28 February 2020. This was consistent with the evidence overall, including the specialist medical evidence qualified by the parties. The Senior Member’s reasons, when read as a whole, made the basis of the ‘injury’ finding sufficiently clear. Grounds 1 and 2 failed. ([77])

Grounds 5 and 6

7. The Council’s submissions referred to a reference, in the worker’s supplementary statement, to spinal fusion. The Council submitted there was no support in the medical evidence for such a procedure. Deputy President Snell stated this point in the Council’s submissions can simply be left to one side, it was a distraction that was irrelevant to the real issues. ([88])
8. The Senior Member’s order pursuant to s 60(5) of the 1987 Act was in respect of “spinal decompression surgery”. Ground 5 described the surgical procedure as “lumbar microdiscectomy”, which misdescribed the order. The Council in Ground 5 argued there was “no evidence to support the finding that the lumbar microdiscectomy was reasonably necessary treatment”. In support of this it argued there was “simply no evidentiary basis (as opposed to mere assertion) for the contention that nothing short of surgery could improve the worker’s symptoms” (emphasis added). The Deputy President held this submission misstated the test that governs the entitlement to the payment of expenses pursuant to s 60 of the 1987 Act. ([89]–[94])
9. In the context of s 60, the relevant matters, according to the criteria of reasonableness, include, but are not necessarily limited to, the matters noted by Burke CCJ in Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 , namely:

(a) the appropriateness of the particular treatment;

(b) the availability of alternative treatment, and its potential effectiveness;

(c) the cost of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate and likely to be effective. ([88])

10. With respect to point (d), it was noted that while the effectiveness of the treatment is relevant to whether the treatment was reasonably necessary, it was not determinative. The evidence may show that the same outcome could be achieved by a different treatment, but at a much lower cost. Similarly, bearing in mind that all treatment, especially surgery, carried a risk of a less than ideal result, a poor outcome did not necessarily mean that the treatment was not reasonably necessary. As always, each case will depend on its facts. While the above matters are ‘useful heads for consideration’, the ‘essential question remains whether the treatment was reasonably necessary’.” ([89]–[90])
11. The Council’s submissions on this point tended to reargue the point it raised (unsuccessfully) before the Senior Member. It had not successfully identified appealable error. It was insufficient that the Deputy President might prefer a different view of the facts to the Senior Member (which he did not). It was open to the Senior Member to form the view that she did on this point. The Council had not identified error in the fact-finding exercise. Ground 5 failed. ([103])
12. The Council submitted there was doubt regarding the following issues, which the Senior Member failed to address: the proposition that the procedure involved was a lumbar fusion, and the need for surgery given the absence of evidence addressing that issue since 2021. Deputy President Snell stated that the Senior Member’s obligation to give reasons was subject to s 294 of the 1998 Act and r 78 of the 2021 Rules. She specifically said that she relied on the worker’s evidence in reaching her view on the need for surgery. The reasons, read as a whole, sufficiently discharged her duty in this regard. Ground 6 failed. ([104]–[110])

(Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 and Mifsud v Campbell (1991) 21 NSWLR 725 applied)

Corestaff Australia NSW Pty Ltd v Lashbrook [2024] NSWPICPD 9

WORKERS COMPENSATION – it is not always necessary to precisely identify the pathological nature of the injury – Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; Military Rehabilitation and Compensation Commission v May [2016] HCA 19 discussed – a delay in report of symptoms is not generally of itself determinative – Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 – appeal from a factual determination – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 discussed and applied

Wood DP

9 February 2024

Facts

The respondent worker was employed by the appellant as an electrician. The respondent suffered injury in the course of his employment on 26 March 2020 in an electrical explosion that occurred while he was working on the exhaust jet fans located in the tunnel of Sydney’s West Connex road construction. The respondent claimed injuries to both eyes in the form of arc flashing, a right hip injury, and post-traumatic stress disorder. Liability for each injury was accepted by the appellant. The respondent subsequently asserted injury to his cervical spine, lumbar spine and right shoulder. The appellant denied liability for those injuries.

The respondent claimed lump sum compensation in respect of 21% whole person impairment, attributable to the accepted injuries together with the disputed injuries to his cervical spine, lumbar spine and right shoulder. The Member determined that she was satisfied that the respondent suffered injuries to his cervical spine, lumbar spine and right shoulder as alleged and remitted the claim for whole person impairment to the President of the Commission for referral to a Medical Assessor.

The appellant appealed the Member’s determination that the respondent’s cervical spine, lumbar spine and right shoulder were injured in the accident.

The issues on appeal were whether the Member erred in law and fact, in finding that the respondent had suffered injuries to his low back, neck and right shoulder.

Held: Leave to appeal the Member’s decision pursuant to s 352(3A) of the 1998 Act was granted. The Member’s Certificate of Determination dated 17 March 2023 was confirmed.

Whether the decision appealed against was interlocutory in nature

1. Deputy President Wood noted that, in DGL (Aust) Pty Ltd v Martino [2023] NSWPICPD 30 (Martino), she reviewed a number of authorities relevant to a consideration of the question of whether a Member’s decision made in such circumstances was a final determination or interlocutory in nature. She determined that the decision was in fact an interlocutory decision and leave to appeal pursuant to s 352(3A) of the 1998 Act was required. ([11])
2. The appellant offered no persuasive argument as to why the decision in Martino was wrong. As the respondent submitted, the decision had been followed in other Presidential decisions. Additionally, the appellant’s position was contrary to the observations of McColl JA (with Tobias JA agreeing) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, which involved an appeal from a decision in favour of the worker that the worker had suffered lumbar and left knee symptoms as a result a right knee injury. McColl JA noted that the worker had not yet undergone an assessment of her permanent impairment. Her Honour determined that leave to appeal was required because the decision was interlocutory in nature. ([16])
3. Deputy President Wood did not accept that Martino was wrongly decided. The appellant therefore needed leave to proceed with the appeal in accordance with s 352(3A) of the 1998 Act and, in order to grant leave, the Deputy President needed to be of the opinion that determining the appeal from the interlocutory decision was necessary or desirable for the proper and effective determination of the dispute. ([17])
4. The referral to the Medical Assessor included a request for the assessment of the disputed alleged injuries. If the appeal did not proceed at this interlocutory stage, those assessments would take place and a Medical Assessment Certificate would be issued. If the appeal was then lodged and succeeded, the Medical Assessment Certificate would require amendment which would involve further procedures taking place in the Commission. The Deputy President was of the view that it was desirable to grant leave to appeal as it was the more efficient and effective manner in which the dispute could be determined. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act was granted. ([18]–[20])

Consideration

5. The appellant’s case was firstly reliant upon the absence of contemporaneous evidence that the disputed body parts were injured in the incident. Secondly, there was an unexplained delay on the part of the respondent in reporting his respective symptoms in the context of the respondent having had the opportunity to complain, particularly to treatment providers, about his symptoms. The appellant contended that:

   (a) there was no evidence of a physiological change that would support a finding of injury;

   (b) the medical opinions accepted by the Member were not based on a correct history of a lack of contemporaneous complaints and were thus flawed;

   (c) there was no “strong” reason for the Member to accept the allegations of injury, and

   (d) there was no evidence-based explanation to explain the delay in reporting. ([86])

6. Deputy President Wood held that the respondent clearly displayed symptoms in his low back, cervical spine and right shoulder when examined by Dr Bodel (orthopaedic surgeon) and by Dr Robinson (orthopaedic surgeon qualified by the appellant), symptoms related to his neck were recorded in the clinical notes of Ormeau Family Practice on 1 June 2020 and he was treated for low back pain by his physiotherapist on 6 November 2020. There was no suggestion that the respondent was feigning those symptoms, or the right shoulder symptoms which eventually came to light. Dr Robinson had specifically excluded an abnormal illness behaviour. Dr Robinson diagnosed the injuries as soft tissue injuries resulting from the incident on 26 March 2020. The proposition that the Member was in error because there was no evidence of a physiological change that would support a finding of injury was rejected. ([90]–[91])
7. It is well established that the mere passage of time between an injurious event and the record of complaints is not of itself determinative of the question of causation of the injury. ([92])

(Taylor v J & D Stephens Pty Ltd [2018] NSWCA 267 applied)

8. The Deputy President stated that it could not be concluded that the medical opinions of Dr Bodel and Dr Robinson were flawed and the Member was not in error in accepting those opinions. ([96])
9. The appellant asserted that there was no “strong” reason for accepting the disputed allegations of injury. The Member was required to determine the dispute on the balance of probabilities and not on any higher basis. She acknowledged that there was a delay in the respondent complaining of the disputed injuries despite having the opportunity to do so. Wood DP found that the Member’s reasoning followed a comprehensive path through the whole of the available evidence and involved an evaluative and a commonsense assessment of that evidence. The approach taken by the Member was open to her and supported her conclusion that the respondent suffered the injures alleged. While direct evidence from the respondent as to his explanation for the delay would have been of great assistance, in the circumstances of this case the Member did not require a medical explanation for the delay and the matters taken into account by her could readily be inferred from the factual evidence upon which she relied. The appellant’s assertion that there was no evidence-based explanation to explain the delay in reporting the disputed injuries was not made out. ([98])
10. It could not be said that there were other probabilities that outweighed those chosen by the Member, or the facts upon which the Member relied in drawing her inferences were wrong, or that the Member overlooked or gave undue weight to any of the evidence. It could not be said that there was as an opposite inference that was so preponderant that it showed that the Member was wrong. It followed that the appellant had failed to establish that the Member erred in the manner required and the Member’s Certificate of Determination was confirmed. ([99]–[100])

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

11. Deputy President Wood noted that the respondent sought a costs order in his favour. Section 341 of the 1998 Act provides that the Commission has no power to order costs. ([101])

BHK v Secretary, Department of Education [2024] NSWPICPD 10

WORKERS COMPENSATION – psychological injury – section 11A of the 1987 Act – action taken by an employer in respect of discipline held to be reasonable action – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered

Phillips P

15 February 2024

Facts

The appellant commenced employment with the respondent in 2020 teaching at various high school campuses in the north of New South Wales. On 8 December 2021, the appellant was informed by letter of a complaint made against him asserting various inappropriate interactions with students. Particulars of the complaint were not provided to him due to the ongoing investigation, but the appellant was directed to maintain professional conduct with students, amongst other things, until investigations were completed. He was advised that further inappropriate conduct may result in additional action being taken against him, and that he would have an opportunity to respond once the allegations were investigated and put to him.

The appellant, despite being distressed about the notification, continued to work, and in 2022, began working at another high school campus within the same district. Between December 2021 and March 2022, interviews took place with the stakeholders. During this time, further allegations of seriously improper and sexualised comments to students were made against the appellant. Accordingly, on 4 April 2022, the appellant was issued with a letter dated 29 March 2022 which informed him that his permission to work in any NSW Department of Education school or facility was temporarily withdrawn, and he was placed on a list of people who were not to be employed in any capacity. The appellant was reminded of the directions given in the prior letter. He was informed that investigations would continue and evidence would be gathered, and that he would be given a breakdown of the allegations in due course. He was verbally informed that a timeframe could not be guaranteed, particularly as some of the children and families involved in the allegations were affected by the floods which had devasted Northern NSW at that time. On 13 September 2022, the allegations against the appellant were particularised in a detailed letter. The appellant remained an employee of the respondent as of the date of the Senior Member’s decision.

Before receiving these allegations, the appellant made a claim for workers compensation for a psychological injury arising from alleged unfair treatment by the respondent. The claim was made on 13 April 2022. The claim was denied on 17 May 2022 and the respondent disputed that the appellant had any entitlement to workers compensation, as his injury was caused by reasonable action taken or proposed to be taken by the employer, a defence under s 11A of the 1987 Act.

Before the Commission, the Application to Resolve a Dispute pleaded a disease injury with a deemed date of 4 April 2022 due to alleged bullying and harassment, interpersonal differences and unfair treatment by the respondent. The deemed date of injury of 4 April 2022 was affirmed to be the last date the appellant worked and the first date of the claim for weekly compensation. The matter proceeded on the premise that there was no dispute as to whether the appellant had sustained an injury within the meaning of s 4 of the 1987 Act; rather, the only issue for determination was whether there was a defence available to the respondent pursuant to s 11A of the 1987 Act.

The Senior Member determined the matter in favour of the respondent, being satisfied that the appellant’s injury was caused by reasonable action taken in respect of discipline. Accordingly, the appellant was not entitled to any workers compensation benefits. The appellant appealed.

The issues on appeal were raised in the following grounds of appeal:

Errors of law

(a) “Should the Commission disregard any events relevant to causation of injury that post date the ‘deemed’ date of injury in terms of whether the injury arises ‘wholly or predominantly’ out of a disciplinary matter” (Ground 1);

(b) “Should the Commission disregard any events that post date the ‘deemed’ date of injury when considering ‘reasonableness’ for s 11A of that disciplinary matter” (Ground 2);

Errors of fact

(c) “The [Senior Member] erred in finding the respondent’s disciplinary action on or up to 4/4/22 ‘reasonable’” (Ground 1), and

(d) “The [Senior Member] erred in failing to consider the causes of injury beyond the deemed date of injury 4/4/22” (Ground 2).

Held: The Certificate of Determination dated 17 April 2023 was confirmed.

Error of law – Ground 1

1. The appellant relied upon the Court of Appeal authorities of Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) and Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair). The appellant argued that while “reasonableness” for s 11A purposes is to be judged at the time of injury, the entire process needs to be examined when deciding causation. This, the appellant argued, is a wider period going beyond the deemed date of injury of 4 April 2022. The appellant said that the Senior Member was in error for failing to consider events beyond the deemed date of injury, contrary to Heggie and Sinclair. ([35])
2. The appellant had not directed the President’s attention to any particular aspects of the Senior Member’s decision where the error asserted in this ground was said to have arisen. A fair reading of the decision would lead to the conclusion that the offending section of the decision was that appearing at [232]–[239] of the reasons, where the Senior Member specifically made findings in respect of what action wholly or predominantly caused the appellant’s injury. ([37])
3. The President stated that the claim as particularised did not rely on matters beyond 4 April 2022. However, given the Commission’s statutory mandate, this would not ordinarily be fatal to the claim. Secondly and more importantly, the Senior Member had not disregarded events that post-date the injury, contrary to the particular passages from Sinclair relied on by the appellant. ([39]–[40])
4. His Honour held that the Senior Member’s findings did not amount to a misapplication of either Heggie or Sinclair. The Senior Member had not held that as a matter of law, all events said to have occurred after the deemed date of injury were to be disregarded. Rather the Senior Member made factual findings that were open and available upon an evaluation of the evidence. The application was both pleaded and argued in a particular way, this could not be altered on appeal. No error had been established and this ground was dismissed. ([41]–[43])

Error of law – Ground 2

5. The appellant’s complaint in this ground was a derivation of that pursued in Ground 1. The appellant said that the Senior Member had to examine the entirety of the disciplinary process and not disregard events which occurred after the injury was suffered. This, it was argued, was not consistent with the authorities of Sinclair and Heggie. ([44]–[45])
6. The President stated that, as was the approach in Ground 1, the appellant had not stated specifically where in the decision that the asserted error was made. In addition to asserting that the Senior Member failed to consider the “entire process”, this ground took issue with the Senior Member’s assessment of the “reasonableness” (for s 11A purposes) of the respondent’s actions. The Senior Member dealt with the issue of reasonableness at [240]–[262] of the reasons. ([47])
7. The appellant argued that the Senior Member disregarded disciplinary steps leading up to the deemed date of injury. This submission had not been made out – the Senior Member clearly considered these at [261] and rejected them for the reasons set out therein. In any event, reading the decision as a whole, it was clear that the Senior Member was satisfied of the facts which caused the injury on 4 April 2022, and was not satisfied of the involvement of matters before that date, rejecting the appellant’s arguments. In many respects this finding was an acceptance of the case as pleaded by the appellant, and was also reflective of the medical opinions before the Senior Member. This was an available construction of the evidence. ([50])

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

8. The appellant argued that what occurred after the deemed date of injury was also disregarded and that this was an error. The Senior Member stated at [262] of the reasons that these matters were not relevant to this issue of injury. The President agreed with this approach and it accurately reflected the state of the law as described in Heggie. ([51])
9. His Honour stated that whilst the facts in Heggie were different, they were broadly analogous to those present in this case. For the reasons set out in Heggie, the relevant time when reasonableness is considered is the time when the action is taken. In this case, that was 4 April 2022 when the appellant was suspended and advised that he was to be placed temporarily on the not to be employed list. The Senior Member was not in error. To the contrary, the Senior Member correctly applied this aspect of Heggie. This ground was dismissed. ([52]–[53])

Error of fact – Ground 1

10. The appellant argued that he was not afforded procedural fairness by the respondent, asserting that procedural fairness was not afforded “on or up to 4/4/2022”. He said he was not afforded procedural fairness before being stood down and placed on the not to be employed list on 4 April 2022. The appellant also said that the disciplinary process was not reasonable as the respondent failed to provide information as to the progress of the investigation prior to 4 April 2022. ([54]–[56])
11. The President stated that, having carefully read the appellant’s submissions in this ground, nowhere had the appellant, in terms, identified the error that the Senior Member was said to have made. Nowhere was there any argument to show how the Senior Member was wrong in failing to find that the appellant was not afforded procedural fairness. Rather the submissions read in the manner of submissions that would usually be made at first instance. An appeal is not a review or new hearing. ([58]–[59])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied)

12. Having read the transcript of the proceedings before the Senior Member, the President observed that the appellant did not complain about delay in being provided with the details of the allegations, about being stood down, and about being reported to the Children’s Guardian and being placed on the not to be employed list, which was described as “pre-emptive”. The Senior Member ultimately found that in weighing this up, the respondent was reasonable in its action, to remove the appellant from teaching whilst investigations continued before the allegations were particularised for his response. The President observed that the appellant had not argued, let alone shown, how the Senior Member was in error in this reasoning or conclusion. ([60]–[61])
13. In relation to the central complaint in this ground, namely that the appellant was not afforded procedural fairness, there were a number of answers to that assertion. The respondent said that this argument was not made before the Senior Member and axiomatically could not be pursued on appeal. His Honour had read the transcript and could see the force in this argument. No such argument was put to the Senior Member in the terms in which it was sought to put on appeal. ([62])
14. The President ultimately accepted the respondent’s submission that procedural fairness was not argued. It was certainly not argued in the manner in which it had been put on appeal. It is not an error to fail to deal with a submission that was not made. Even if his Honour was wrong on this matter and the point was raised, if the submissions were read in a way which was beneficial to the appellant, the appellant had not shown how the respondent failed to afford procedural fairness to the appellant and how the Senior Member was wrong in not so finding. On appeal, the appellant was bound to show why the Senior Member was wrong in accepting the evidence of Ms Lord (Investigator – Professional and Ethical Standards Directorate – Department of Education). This had not been done. As a result, error had not been established and this ground was dismissed. ([64])

Error of fact – Ground 2

15. The appellant alleged that the Senior Member made errors of fact in failing to consider facts and evidence beyond 4 April 2022, or the actions beyond the remit of discipline which he said were causative of injury, including accusations by students, being unable to defend himself, and being the “victim of false declarations”. The appellant submitted that when it comes to [the] cause of injury the [Senior Member] should consider the full evidence and facts that relate to that question.” The appellant relied on the list of “stressors” outlined by Mr Huxter (the appellant’s psychologist) in his report of 27 October 2022. ([66]–[67])
16. The President remarked that Mr Huxter said in the paragraph appearing immediately after the list of stressors: “In my opinion, the above stressors have arisen in the workplace and in relationship to the workplace”. The appellant stated that there were multiple causes of injury, and only two of the stressors in Mr Huxter’s list related to unreasonable actions by the respondent, namely removing him from class and placing him on the not to be employed list, and not being given detailed information about the accusations for him to respond to. ([68]–[69])
17. The President stated that apart from the last dot point in Mr Huxter’s list, the matters under consideration by the Senior Member were the same. In terms of the last dot point, the only submission put to the Senior Member which came close to this point was at T20.22 of the transcript, where the appellant referred to “financial pressures”. But the submission was not put in the way it was put on appeal, rather it read as merely a statement which did not require the Senior Member to consider or deal with it. The President therefore did not need to be concerned with any omission in dealing with that discrete issue. Having considered these matters, the Senior Member accepted Dr Young’s (psychiatrist qualified by the respondent) opinion, an opinion actively embraced by the appellant, in deciding the cause of the appellant’s injury. Having made this finding, which dismissed any events post 4 April 2022 as being causative of injury, the Senior Member then proceeded to decide the balance of the matter consistent with that finding. Again, the findings at [261]–[262] of the reasons relied upon by the respondent revealed consideration by the Senior Member of events post 4 April 2022. ([72])
18. The submission that the Senior Member failed to consider the events said to have occurred after 4 April 2022 as causes of injury could not be substantiated. The President found that it was clear that the Senior Member examined those matters before deciding that such events were not relevant. The Senior Member did this by accepting Dr Young’s opinion in the knowledge of the appellant’s acceptance of that expert opinion. It was not appropriate on appeal to invite an approach contrary to that concession. ([73])
19. The appellant had failed to prove why the Senior Member was in error in terms of failing to consider events (or “stressors”) post 4 April 2022. The Senior Member clearly considered them and rejected their relevance for the reasons set out in the decision. The allegation that they were not considered was incorrect. No error on the part of the Senior Member had been established and this ground was dismissed. ([74]–[75])

State of New South Wales (NSW Police Force) v Plant [2024] NSWPICPD 11

WORKERS COMPENSATION – Section 11A of the 1987 Act – reasonableness of actions of employer with respect to discipline/transfer – onus of proof – absence of statement evidence and policies before the Commission determining whether actions of the employer were reasonable – costs

Parker SC ADP

19 February 2024

Facts

This was an appeal by the State of New South Wales (NSW Police Force) against a determination in favour of the respondent worker.

The respondent’s Application to Resolve a Dispute dated 5 September 2022 alleged psychological and/or psychiatric injury as a result of being the subject of bullying and harassment in the workplace. In addition, he alleged that he was exposed to traumatic events and incidents while in the service of the NSW Police Force.

It was not disputed that: the respondent had sustained psychological injury in the course of or arising out of his employment with the appellant as a Police Officer; the respondent was totally incapacitated for employment and had no current capacity for work for all relevant periods of the claim, and in the event that the respondent was successful there would be an award for payment of medical or treatment expenses pursuant to s 60 of the 1987 Act.

The appellant relied on s 11A of the 1987 Act. The appellant’s case was that the psychological injury was wholly or predominantly caused by the reasonable action of the appellant taken or proposed to be taken in respect of discipline and/or transfer.

The Member issued a Certificate of Determination ordering the appellant to pay the respondent’s s 60 expenses on production of accounts and/or receipts. The appellant was further ordered to pay the respondent weekly compensation. The appellant appealed the whole of the Certificate of Determination.

The issues on appeal were whether the Member:

(a) erred in fact in concluding that the action with respect to discipline/transfer was with respect to a complaint from a police officer deemed by the appellant to constitute sexual harassment (Ground 1);

(b) committed a jurisdictional error by taking into account an irrelevant consideration, namely whether or not statements from the complainants, investigators and policies were in evidence being an irrelevant consideration for the purpose of determining reasonableness (Ground 2), and

(c) erred in law in determining that the appellant had not discharged its onus of proof in proving that it acted reasonably pursuant to s 11A of the 1987 Act (Ground 3).

Held: The Member’s Certificate of Determination was confirmed. The appellant was ordered to pay the respondent’s costs.

Ground 1

1. The appellant submitted that the Member did not consider the full range of “comments” the respondent was alleged to have uttered. The submission was that in a work context, such comments were unacceptable. The appellant argued the Member was required to consider these in her determination of reasonableness. The appellant submitted that the Member factually directed herself to the wrong enquiry. She incorrectly assumed the basis of the dispute before her. The evidence disclosed a number of complaints made about the respondent, not just one complaint of sexual harassment from a female police officer alone. The appellant submitted that so much was accepted by the respondent in his numerous statements. It was submitted that an error of fact caused the Member to make the wrong enquiry in terms of assessing the reasonableness of the appellant’s actions. ([47]–[52])
2. Acting Deputy President Parker SC stated that the Member correctly focused on the action giving rise to the psychiatric injury. He stated that the appellant did not, in the oral or the written submissions, refine the precise disciplinary action and/or transfer which it said was causative of the accepted psychological injury and which the Member was required to determine was reasonable. ([60]–[61])
3. The Acting Deputy President found the Member plainly focused on the reasonableness of the action taken by the appellant to that complaint against the respondent. Whether or not there was one complaint or a number of complaints made against the respondent may not matter. It was not disputed that the appellant’s actions were a response to the complaint of sexual harassment made by a female officer. The Member plainly found that the action of the appellant in relation to that complaint by way of discipline and transfer was not reasonable. ([63]–[64])
4. It followed that, even if the Member did not have regard to the other matters, the fact that she found that the action with respect to the particular complaint that she did address was not reasonable meant that the defence under s 11A could not succeed. Parker SC ADP was not persuaded that the Member committed the error alleged by the appellant. Ground 1 of the appeal was dismissed. ([65]–[66])

Ground 2

5. The appellant made the submission that whether or not the relevant action in respect of transfer/discipline or proposed action was reasonable required the Member to direct herself to the statutory language and assess the appellant’s actions by reference to the circumstances known to the appellant at the time. The appellant submitted that it was not required to produce multiple statements from numerous witnesses to flesh out the merits of the complaints that had been made against the respondent. ([67]–[68])
6. Acting Deputy President Parker SC stated that the Member raised squarely the proposition that the appellant had failed to adduce evidence as to the absence of the material relied upon to support the discipline and transfer, as was made clear from the reasons at [117]. ([83])
7. The argument advanced by the appellant was that the Member had not engaged in a merits review but was only concerned with the process. The Member could not discharge the task of determining the reasonableness of the appellant’s action with respect to the respondent without a consideration by her of the material that led the appellant to act as it did during the period 3 August 2020 to October 2021. ([84]–[86])

(Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 applied)

8. There was no authority cited by the appellant for its approach which, in the Acting Deputy President’s view was more consistent with an administrative law assessment. Reasonableness is an objective standard dependent upon consideration of the facts as established by the evidence. ([88])
9. The statutory interrogation required the Member to determine whether the injury was caused by “reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, ... discipline ... .” The employer’s action with respect to the respondent was motivated by the outcome of its investigation into the complaints and the application of the guidelines to those investigations. It was difficult to conceive how the Member could be expected to form an objective view as to reasonableness in circumstances where that which motivated the appellant’s actions was not before the Commission. ([89]–[90])
10. If it was said that the material was privileged and not therefore available to the Commission, then the appellant was required to deal with the Member’s conclusion at [98] of the reasons. The respondent made a key submission, recorded by the Member at [97] and plainly accepted by the Member, that was neither addressed nor rebutted by the appellant, that being that there was no statement evidence from any of the witnesses, with the exception of Chief Inspector Emerton, in evidence. ([91])
11. The Member was entitled to conclude adversely to the appellant that the absence of evidence from the complainant and the other witnesses, together with the results of the investigation reports, meant that the defence of reasonableness could not be sustained. ([92])
12. Finally, the appellant submitted that paragraph [78] of the reasons showed that the Member wrongly concluded the respondent had been left in the dark to speculate as to the precise nature of the allegations. This was to misread paragraph [78] of the reasons. Acting Deputy President Parker SC was not persuaded the Member was in error in her approach. Ground 2 of the appeal was dismissed. ([93]–[94])

Ground 3

13. The appellant submitted that the Member was tasked with looking at two events. Firstly, the making of the allegations themselves and then secondly, the investigation leading to the disciplinary process that took place after those allegations had been made leading up to an outcome. It said that she had to direct herself to the evidence of those who were tasked with issuing the complaint on behalf of the complainants and thereafter the processes that were put in place and the opportunities given to the respondent regarding the allegations made against him. The appellant submitted that the respondent had all of the relevant information, even if the Member did not. It submitted that the process was transparent, objective and open. The appellant argued the Member was required to ask herself whether or not the actions as the evidence disclosed were reasonable, not what hypothetical evidence may or may not show. ([95]–[97])
14. Parker SC ADP agreed with the respondent’s submissions that there was in fact no real difference between this ground of the appeal as developed by the appellant in this submissions and Ground 2 of the appeal. It failed for the same reason. The appellant’s primary proposition, that it was not required to adduce into evidence before the Member details of the substantive evidence that motivated the action of the appellant’s officers, was incorrect. ([100]–[101])
15. Section 11A is an enquiry into reasonableness as a matter of fact. It is not an enquiry exclusively into the reasonableness of the “process” undertaken divorced from an enquiry into the merits of the matter being investigated. Reasonableness extends to the action taken as a consequence of the complaint, the investigations and the process. ([102])
16. In so far as the Member was not provided with evidence as to the veracity of the complaint and the investigations into the merits of the complaint, she was right to conclude no matter how reasonable the process may have been she was not in a position to determine that the disciplinary action and transfer were reasonable. Given the state of the evidence advanced by the appellant, the Member’s conclusion adverse to it was inevitable. Ground 3 of the appeal was dismissed. ([103]–[104])

Transdev NSW South Pty Ltd v Twining [2024] NSWPICPD 12

WORKERS COMPENSATION – injury – whether Member proceeded on erroneous basis there were conceded consequential conditions – referral of lumbar spine to a Medical Assessor to assess whole person impairment where independent medical examiners assess 0% whole person impairment – Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 discussed and applied – Skates v Hills Industries Limited [2021] NSWCA 142 discussed

Parker SC ADP

19 February 2024

Facts

The respondent worker was employed by the appellant as a Team Leader. On 9 May 2017 in the course of her employment she was going down a flight of stairs holding onto the rail. As she stepped down onto one of the lower stairs she slipped and fell sideways landing on her right side. She felt pain in the right foot.

The respondent claimed lump sum compensation pursuant to s 66 of the 1987 Act in respect of injuries to the right ankle, right knee, right foot, lower back, right hip and the nervous system.

The injuries in dispute to be determined by the Member were:

(a) consequential condition in the lumbar spine and activities of daily living (ADLs);

(b) consequential condition in the right knee;

(c) assessable consequential condition in the toes (peripheral nerve condition), and

(d) consequential condition of the lower gastrointestinal tract.

The Member determined that the respondent sustained injury to her right ankle and foot on 9 May 2017 and consequential injuries to the lumbar spine, toes of the right foot and digestive system. The Member remitted the matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of whole person impairment. The employer appealed.

The issues on appeal were whether the Member:

(a) erroneously proceeded on the basis the appellant conceded consequential conditions to the toes (peripheral nerve condition) and the Member erroneously determined the respondent suffered consequential condition to the toes (peripheral nerve condition) (Ground 1), and

(b) had fallen into error by referring the lumbar spine for assessment of whole person impairment (WPI) where Dr Gehr has assessed 0% WPI for the lumbar spine (Ground 2).

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

Ground 1

1. The appellant’s submission was that the Member proceeded to determine the matter on the basis of a concession which had not been made. If that submission was made good, there would be a denial of procedural fairness. ([91]–[92])

   (Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 applied)

2. Acting Deputy President Parker SC was of the view that it was open to the Member to conclude that the appellant’s counsel was conceding that, unlike the knee where there was no complaint, there was a symptomatic complaint of numbness in the toes. The Acting Deputy President was also of the view that the Member was entitled to understand the submissions made by the appellant’s counsel as he did. Furthermore, the Member had the advantage of hearing the submissions and discussing their import with the appellant’s experienced and knowledgeable counsel. Parker SC ADP was not satisfied that the appellant had been denied procedural fairness by the understanding of the submissions set out at [76] of the reasons by the Member. ([106]–[111])
3. The appellant had not demonstrated that the opinion of Dr Gehr (orthopaedic surgeon retained by the respondent) failed to comply with r 73 of the 2021 Rules. In the Acting Deputy President’s view, the report of 24 August 2020 was logical and probative and the reasoning process was adequately displayed. The point being made by the Member was that if he accepted that the toes were stiff, that could be explained by damage to the peripheral nerves – a proposition accepted by counsel for the appellant as correct. Ground 1 of the appeal was dismissed. ([116]–[119])

Ground 2

4. The appellant submitted that the Member erroneously relied on the decision of Shankar v Ceva Logistics (Australia) Pty Limited [2021] NSWPICPD 18 (Shankar) without providing proper reasons why the lumbar spine should be referred for assessment where both the appellant’s and respondent’s medical evidence had assessed 0% whole person impairment. The appellant said that the decision of Shankar was contradicted by Skates v Hills Industries Limited [2021] NSWCA 142. ([120]–[121])
5. Acting Deputy President Parker SC held that the Member was obliged to follow Shankar unless it was established that the decision was distinguishable or otherwise not available. ([134])
6. If the appellant wished to make the submission that Shankar was wrongly decided, the appellant was required to take that point before the Member. The appellant not having done so, the point was not available on appeal. ([135])

(Coulton v Holcombe [1986] HCA 33 and Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68 applied)

7. The Acting Deputy President noted the appellate jurisdiction conferred by s 352(5) of the 1998 Act is not engaged unless the Member is shown to be in error. The Member was not in error in following an applicable Presidential decision. The appellant did not argue that Shankar did not apply on the facts to the present matter. It followed the Member was required to apply that decision. Indeed the Member would have been in error to not follow the decision if it was applicable. ([136])
8. To the extent that Skates was thought to conflict with Shankar, the Acting Deputy President made the following observations. Skates concerned an application for leave to appeal a judgment in the Supreme Court. In the event, leave was granted on a very limited basis. The decision of the primary judge was upheld. The issue sought to be raised in the appeal was whether the Approved Medical Specialist to whom the medical dispute was initially referred was “confined to an assessment of the ‘body parts’ specified in the referral form completed by a delegate of the Registrar of the Workers Compensation Commission”. The primary Judge and a majority of the Court of Appeal (Basten JA, Leeming JA agreeing; McCallum JA dissenting) gave that question an affirmative answer. ([138]–[142])
9. Basten JA referred to s 319 of the 1998 Act observing that there was “at least, a ‘medical dispute’” within the meaning of par (c) of the definition of that term in s 319 because it was a claim about “the degree of permanent impairment of the worker as the result of an injury”. It was not necessary for his Honour to further consider the construction of s 319. McCallum JA referred to s 319 at [74] and [76], but as with Basten JA, her Honour did not provide a definitive construction of the provision. ([143]–[148])
10. Acting Deputy President Parker SC made a number of observations about Skates:

(a) There is, with respect to those who may hold a contrary view, no ratio decidendi in Skates addressing the construction of s 319.

(b) The “dispute” or “question” for the purpose of s 319 is between the worker and the insurer, not between the medical referees. The medical assessor forms his own assessment of the degree of impairment, it is not the function of the medical assessor to resolve the disagreement if any between the medical referees qualified by the parties. Agreement or disagreement is irrelevant to the engagement of s 319.

(c) Leeming JA discussed s 319 in detail but the other members of the Court did not. Importantly, the majority of the Court did not express agreement with his Honour’s comments and therefore there is no considered dicta of the Court.

(d) That discussion concerned itself with the subject matter(s) necessary to engage s 319. Leeming JA did not express any view as to the content of the dispute within the defined subject matters.

(e) The Court was not concerned with the content of the “dispute” required to engage s 319 as there was no doubt that s 319(c) among other possibilities was engaged.

(f) Section 319 is not engaged by assessment of body parts. As explained by Basten JA at [32] and [33], “[i]dentification of the extent of impairment by reference to individual body parts and body systems is required by the Guidelines and Guides which the statute obliges the AMS to follow.” But as demonstrated by McCallum JA in her Honour’s dissent at [81], “the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist.” Leeming JA likewise did not limit s 319 to parts of the body, rather he said: “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.”

(g) That the Court was not intending to provide a decision on the construction of s 319 is furthermore clear from the fact that no member of the Court addressed the concluding words in the chapeau “or a question” about any of the subject matters. ([149])

11. Acting Deputy President Parker SC concluded there was no error on the part of the Member in following a previous Presidential decision. Ground 2 of the appeal was dismissed. ([150])

Cayir v Woolworths Group Ltd; Woolworths Group Ltd v Cayir [2024] NSWPICPD 13

WORKERS COMPENSATION – the ‘disease’ provisions – sections 15 and 16 of the 1987 Act – the need to prove ‘injury’ within the meaning of section 4(b) of the 1987 Act, application of Crisp v Chapman [1994] NSWCA 73; (1994) 10 NSWCCR 492 and associated authorities

Snell DP

29 February 2024

Facts

The worker worked with Coles Supermarkets Australia Pty Ltd (Coles) at its Figtree store, in its bakery operations, from 2002. The worker developed left arm symptoms in his employment with Coles. He had surgical procedures carried out on his left wrist, for which Coles accepted liability under the workers compensation legislation. On 16 September 2018 he left Coles and began working with Woolworths Group Ltd (Woolworths), again working as a baker, but in duties he regarded as lighter than those at Coles. He worked in the employment at Woolworths for only a short period of time. After ceasing employment the worker made a claim on Coles for permanent impairment compensation, by letter dated 12 June 2019. He relied on a deemed date of injury of 1 August 2009, being when he first reported a gradual onset of left wrist pain to Coles. Coles rejected the claim, made in respect of the wrists, on the basis the worker was suffering from a disease of gradual onset and it, Coles, was not the last relevant employer.

Proceedings between the worker and Coles were heard in the former Workers Compensation Commission of New South Wales and a Certificate of Determination was issued dated 26 May 2020 (the previous proceedings). The (different) Member in those proceedings, applying s 15 of the 1987 Act, found that the deemed date of injury was the date of claim which was 12 June 2019 (relating to both upper extremities). He found that as at that date the employer was Woolworths, which last employed the worker in “employment to the nature of which the disease was due”. The then Member said that he could not make findings against Woolworths, which was not a party to those proceedings. The worker’s proceedings failed, there was an award in favour of Coles.

The proceedings the subject of the appeal were commenced in the Personal Injury Commission, with Woolworths nominated as the relevant employer. The worker relied on injury to his upper extremities, relying on allegations of ‘disease’ within the meaning of ss 15 and 16 of the 1987 Act.

Ultimately, the Member found that, in relation to the left wrist, the worker suffered “from a disease of gradual onset namely recurrent ganglion and de Quervain’s tenosynovitis”. He found that the disease process was aggravated, accelerated, exacerbated or deteriorated (“aggravated, etc”) in the course of the worker’s employment and that employment was the main contributing factor. The Member found that the worker had not established he suffered “from a disease process in relation to his right wrist as claimed”. The Member was not satisfied that any condition that may exist in the right wrist was permanent. He referred the matter to the President for referral for medical assessment of permanent impairment of the left upper extremity.

Both the worker and Woolworths appealed.

The worker, in matter no. A1-W4121/22, raised the following Grounds of Appeal:

(a) the Member erred in fact by finding that the worker had not established that he suffers from a disease of gradual onset in his right upper extremity (Ground 1), and

(b) the Member failed to give adequate reasons (Ground 2).

Woolworths, in matter no. A2-W4121/22, raised the following Grounds of Appeal:

(a) misdirection as to the identification [of] the issues in the matter to be determined before him (Differently expressed by Woolworths at [11] of its submissions, which reads, “Failing to correctly identify the issues in the matter to be determined before him”) (Ground 1);

(b) failing to correctly apply the test in s 4(b)(ii) (Ground 2);

(c) failing to properly and correct [sic] consider the construction of s 15/16 of the 1987 Act and apply accordingly (Ground 3), and

(d) failing to provide proper reasons considering the evidence (Ground 4).

Held: The Certificate of Determination (as amended) dated 28 March 2023 was revoked. The matter was remitted to a different member for re-determination.

Woolworths’ appeal – Grounds 1, 2 and 3

1. Woolworths on appeal submitted there was no accepted injury with respect to Woolworths. Woolworths submitted the previous proceedings did not involve it. This was true; Woolworths was not a party to those proceedings. It was difficult to see how Woolworths could be bound by a finding of ‘injury’ in proceedings in which it was not a party. The situation would have been different if both Coles and Woolworths were joined as employers in the previous proceedings, but they were not. ([56])
2. Deputy President Snell found that Woolworths’ point, that the statement of issues was erroneous, had merit. The requirement that ‘injury’ be proved was not simply a requirement under ss 15 and 16. The Member reviewed authorities that dealt with proof of a ‘disease’ injury by reference to ss 15 and 16. The Member said it was made clear that the worker’s case was “founded in the disease provisions”, ss 15 and 16. The Member noted that injury pursuant to s 4(b)(ii) of the 1987 Act “includes the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, etc”. ([62])
3. The Deputy President observed that the reasoning went to whether the requirements of section 15 were satisfied, injury “of such a nature as to be contracted by a gradual process”. The worker’s submissions on appeal did not argue that the issue of ‘injury’ within the meaning of s 4(b) was determined. The worker submitted that the test in s 4(b)(ii) never arose. ([64])
4. The worker did not, on appeal, repeat his argument that the Member should have applied the decision of the Member who decided the previous proceedings, on the basis of the doctrine of comity. The finding on ‘injury’ in the previous proceedings was essentially one of fact. In Comino v Kremetis [2023] NSWSC 32 Chen J said of the doctrine: “... the practice is limited to questions of law, and has no application to questions of fact” and “the rule does not override the fundamental duty of the trial judge to decide the case albeit that that process involves consideration of, and proper regard being given to, the previous judgment.” This decision was applied by Wood DP in Secretary, Department of Education v Dawking [2023] NSWPICPD 23. ([65])
5. Deputy President Snell accepted Woolworths’ submission that it was necessary, if the worker were to succeed in the matter, that he establish ‘injury’ within the meaning of s 4. Woolworths was not a party to the previous proceedings. The Member (correctly) did not approach the matter on the basis that any finding or concession of ‘injury’ in the previous proceedings had application in the current proceedings. It was not sufficient to deal with ss 15 and 16 in this regard. The Deputy President accepted Woolworths’ submission that the failure to decide the issue of ‘injury’ in accordance with s 4(b) of the 1987 Act constituted appealable error. It vitiated the Member’s findings on ‘injury’. Grounds 1 and 2 of Woolworths’ appeal succeeded. In the event he was wrong, the Deputy President proceeded to deal with the remaining issues. ([66]–[67])
6. Ground 3 referred to the construction and application of ss 15 and 16 of the 1987 Act. Woolworths did not raise any well-defined issue in this regard. It referred to the need to determine injury pursuant to s 4 before ss 15 and 16 become relevant. On a factual basis, it argued against the proposition that employment with Woolworths was employment to the nature of which the disease was due. This included reference to the worker’s evidence regarding the nature and severity of his symptoms and whether the symptoms changed while the worker was employed by Woolworths. ([68])
7. Woolworths’ submissions directed themselves to “employment to the nature of which the disease was due”. That phrase is employed in s 15 of the 1987 Act. The Member’s reasons referred to the same test and to the difference between the duties at Woolworths as opposed to Coles. The Member referred to “a reduction in heavy tasks and lifting, longer breaks and a less busy stall”. The Member’s reasons said the worker “continued to carry out essentially the same duties, albeit they were somewhat less strenuous in nature”. He made a factual finding that “employment with [Woolworths] was of the same nature to that which he carried out with Coles”. This conclusion was open on the evidence and consistent with authorities such as Commonwealth v Bourne [1960] HCA 26; 104 CLR 32 and Smith v Mann [1932] HCA 30; 47 CLR 426 on which the Member relied. Woolworths had not, in Ground 3, identified error within the meaning of s 352(5) of the 1998 Act. Ground 3 was not made out. ([72]–[73])

Woolworths’ appeal – Ground 4

8. Woolworths submitted the Member erred in failing to consider “over 911 documents” produced by Coles pursuant to a direction. It essentially submitted there was evidence in the documents of the conditions of De Quervain’s tenosynovitis and recurrent ganglion dating from before the employment with Woolworths. As the worker correctly submitted, it was hardly surprising that these conditions were present before the employment with Woolworths. This was consistent with the case brought by the worker. Woolworths otherwise made no meaningful submission of what relevant evidence the Member failed to deal with by not referring to these documents. The Member referred to these documents in his reasons at [30]. He acknowledged that documents, comprising 1,524 pages, were produced a few days prior to the hearing. The Member said he would consider these if they were referred to in addresses or written submissions. Woolworths’ submissions on this ground did not identify submissions before the Member that directed him to any specific part of this voluminous material. Snell DP noted there was a Direction that parties indicate the particular documents, from the voluminous material produced, that was relied on. Woolworths’ submissions did not suggest there was any such specific material that was brought to the Member’s attention and was not dealt with. The Member did not, in those circumstances, err in failing to deal with the material. ([84])
9. Woolworths’ submissions in support of Ground 4 of its appeal failed to identify error involving the adequacy of the reasons. Ground 4 failed. ([86])
10. It followed from the outcome of Grounds 1 and 2 of Woolworths’ appeal that there was error in the fact-finding process, which vitiated the Member’s findings on ‘injury’. The consequence was that the matter requires re-determination. It was appropriate that the Deputy President dealt with the worker’s appeal, in the event that he was wrong in the view he formed regarding the success of Grounds 1 and 2 of Woolworths’ appeal. ([87])

The worker’s appeal – Ground 1

11. Snell DP stated that the worker’s submissions on this ground essentially consisted of an attempt to re-argue the issue of injury to the right arm, on which the worker failed at first instance. There was no meaningful attempt to identify error within the meaning of s 352(5) of the 1998 Act. ([92])
12. The Deputy President held, for the reasons dealing with Grounds 1 and 2 of Woolworths’ appeal, it was necessary that the worker establish ‘injury’ to the right arm within the meaning of s 4 of the 1987 Act. ([97])
13. It would not assist the worker if the Deputy President formed the view that a different result on this issue was preferable. The Member’s finding on this issue was open to him and was explained. The worker’s submissions had not identified relevant error within the meaning of s 352(5) of the 1998 Act. Ground 1 of the worker’s appeal grounds failed. ([98])

The worker’s appeal – Ground 2

14. Deputy President Snell noted the worker sought to re-argue the Member’s factual conclusion on ‘injury’ to the right arm more than to deal with the adequacy of the reasons. The worker submitted it was “unclear how the factual conclusions were properly reached” (emphasis added). The worker challenged the reasoning on ‘injury’ to the right arm – the “right, therefore, should not be treated different [to the left]”. The Member identified points of distinction between the evidence supporting each of the two arms. The arguments the worker raised in this ground were factual, and subject to the limitations in s 352(5) of the 1998 Act. ([101])
15. The fundamental issue in the matter went to whether the worker had succeeded in establishing ‘injury’ to the arms pursuant to the ‘disease’ provisions. The Member set out ss 4, 15 and 16 of the 1987 Act. He quoted from Woolworths’ dispute notice dated 2 December 2021 which outlined the basis of its defence. The Member summarised the submissions and the worker’s statements at some length. He referred to the decisions of Roche DP in State Cover Mutual Ltd v Cameron [2014] NSWWCCPD 49 and of Wood DP in Hay v Commonwealth Steel Co Pty Ltd [2018] NSWWCCPD 31, in which the Deputy President summarised a number of authorities dealing with the ‘disease’ provisions. The Member quoted from the reasons of Dixon CJ in Commonwealth v Bourne [1960] HCA 26; 104 CLR 32. He gave specific reasons for not accepting the worker’s case on ‘injury’ to the right arm. The Member’s approach on this issue was open to him. Ground 2 of the worker’s grounds failed. ([102])

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