A1 Granny Flats v Workers Compensation Nominal Insurer (icare) - [2023] NSWPICPD 69

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	A1 Granny Flats v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 69
APPELLANT:	A1 Granny Flats
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Todd Martin
FILE NUMBER:	A1-W2524/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	6 November 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 9 December 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – proceedings concerning the Commission’s determination of an uninsured employer’s liability for reimbursement pursuant to section 145 of the Workers Compensation Act1987 – employer bears the onus of proof in challenging a section 145 notice – Raniere Nominees Pty Limited v Daley [2005] NSWCA 121 applied – nature of s 145 proceedings is not “inquisitorial”– South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 applied – deemed date of injury affixed by s 15(1)(a) of Workers Compensation Act 1987 –Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 – previously unnotified matters to be considered in context of guiding principle, s 42 of the Personal Injury Commission Act 2020 – elements of section 11A of the Workers Compensation Act 1987 to be broadly approached – provision of employment benefits – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255 and Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 applied – practitioner’s obligation to clearly identify error in grounds of appeal – Kowalski v Repatriation Commission [2011] FCAFC 43 and Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
First Respondent:
Mr S Grant, counsel
Hall & Wilcox
Second Respondent:
Mr J McEnaney, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms K Haddock
DATE OF SENIOR MEMBER’S DECISION:	9 December 2022

INTRODUCTION

A1 Granny Flats, the appellant, employed Mr Todd Martin (the second respondent) as a salesman. Mr Martin claimed to sustain a psychological injury during the course of this employment, with a deemed date of injury of 13 August 2020. The claim for workers compensation was made on 2 September 2020. At the relevant time for the purposes of this application, the appellant did not hold a policy of workers compensation insurance. Accordingly, icare NSW, on behalf of the Workers Compensation Nominal Insurer (the first respondent, hereafter referred to as the Nominal Insurer) responded to Mr Martin’s claim and made payments to him for weekly compensation and medical treatment relating to his psychological injury.
The Nominal Insurer subsequently sought reimbursement from the appellant of these payments made to Mr Martin, totalling $110,766.81, by way of a notice issued pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act), on the basis the appellant was the employer liable at the time to pay Mr Martin workers compensation.[1] The appellant disputed its liability to pay this reimbursement in the Personal Injury Commission (Commission) by way of a Miscellaneous Application (the Application) under s 145 of the 1987 Act, seeking orders that the amount sought by the Nominal Insurer was not recoverable, or in the alternative, that the amount be reduced. The Application was heard and dismissed by Senior Member Haddock, who ordered the appellant to reimburse the Nominal Insurer in the sum claimed.[2]
[1] Section 145 notice dated 6 April 2022, Miscellaneous Application, pp 1–10.
[2] A1 Granny Flats v Workers Compensation Nominal Insurer (icare) & Ors [2022] NSWPIC 707 (reasons).
This appeal is made against the Senior Member’s decision on the basis that it contained a number of errors of fact, law, and discretion.

BACKGROUND

Mr Martin’s employment commenced on 12 June 2019. As a salesman, he says he was required to generate leads for the business, respond to enquiries, manage site visits and inspections and finalise sales, for which he received commissions. Over time, issues arose. The appellant was late paying commissions, Mr Martin’s phone/email accounts were cut off intermittently, and there were licensing issues which impacted him signing contracts. He says the appellant did not communicate with him well, and he was promised to be made a sales manager which did not eventuate. Mr Martin had to regularly chase his commissions, impacting his personal finances.[3]
[3] Mr Martin’s statement dated 2 September 2020, First Respondent’s Reply, pp 12–22.
On 27 March 2020, changes were proposed to his contract which would delay the payment of commissions. Mr Martin did not believe the appellant could do this without his consent.
In the leadup to 13 August 2020, the appellant informed Mr Martin that it would be recovering $3,000.00 from a commission he was paid because a customer cancelled a contract. Mr Martin did not believe this was legal.
On 13 August 2020, Mr Martin called in sick, and whilst informing the appellant it was due to cold like symptoms, he says he in fact visited his general practitioner, Dr So and then Dr M Khan, the following day to explain his anxiety and stress from these work issues described.[4] On 13 August 2020, Messrs Stefan and Anton Dimov, company directors of A1 Granny Flats, tried to schedule a meeting with Mr Martin, but he did not attend. The appellant says the meeting was scheduled to discuss their concerns, the issues regarding commissions, a restructure of the company and a possible redundancy (of which Mr Martin had not yet been informed).[5]
[4] Dr Khan’s clinical records, Second Respondent’s Reply, p 141.
[5] Statements of Stefan and Anton Dimov, First Respondent’s Reply, pp 26–32 and 36–40.
Mr Martin did not return to work, and a back and forth ensued with the appellant as to the payment of his owed commissions.
On 1 September 2020, Mr Martin provided the appellant a document outlining the issues which had caused his stress and anxiety as a result of his employment. In his undated workers compensation claim form, 27 March 2020 is nominated as the date of injury, but 13 August 2020 is nominated as the date he first became aware of his condition and stopped work.[6]
[6] First Respondent’s Reply, pp 48–56.
He resigned on 18 September 2020 due to “health issues”. In his resignation letter, he thanked the respondent for the opportunities provided during his employ.[7] He subsequently commenced work with Five Star Granny flats from 21 September 2020 to 25 November 2020, and continued casual employment he had retained for some six and half years at Life Without Barriers, but this was not disclosed to the Nominal Insurer for some time and resulted in overpayment of his benefits.[8]
[7] Miscellaneous Application, p 89.
[8] Mr Martin’s Statement dated 3 April 2021, Second Respondent’s Reply, pp 3–4.
Shortly after the claim was made, the Nominal Insurer obtained statements from the appellant’s directors. In these statements dated 3 September 2020, they assert they were unaware of any injury when Mr Martin ceased work on 13 August 2020 as Mr Martin’s medical certificate did not indicate a work injury, nor was an injury reported per their policies. They recalled issues with Mr Martin’s performance and attitude, the problems with commissions being of his own making, and his use of a company car which contained a tracking device which indicated personal use. They confirmed they did not have a policy of workers compensation insurance as at 13 August 2020 as they were unaware this was required.[9] A statement was also obtained from Ms Alexandra Hazelman, account manager, dated 4 September 2020, confirming Mr Martin’s interactions with her related mostly to issues with his commissions and advising how she dealt with these.[10]
[9] Statements of Stefan and Anton Dimov, First Respondent’s Reply, pp 26–32 and 36–40.
[10] First Respondent’s Reply, p 41.
Mr Martin received regular treatment with Dr Khan and his psychologist, Ms Margueritte Gossayn, from 14 August 2020 and into 2022, and the detail surrounding these visits were summarised by the Senior Member at reasons [180]–[211] and at [227]–[224]. They recount psychological symptoms and stress as a result of the events occurring with the appellant. He was diagnosed by Dr Graham George, independent psychiatrist for the Nominal Insurer, with adjustment disorder with mixed anxiety and depressed mood or major depression with anxiety, predominantly caused by the employer’s action in relation to the provision of employment benefits.[11] He was diagnosed by Dr Abdal Khan, Mr Martin’s independent psychiatrist, firstly in 2021 and again in 2022 with major depressive disorder with anxious distress. Dr Abdal Khan disagreed with Dr George’s opinion that the predominant cause was the provision of employment benefits. Instead, Dr Abdal Khan was of the opinion that the issue was merely a perpetuating factor for Mr Martin’s mental state, which started to deteriorate four months after commencing employment.[12]
[11] Dr George’s reports, First Respondent’s Reply pp 173–181.
[12] Dr Abdal Khan’s reports, Second Respondent’s Reply, pp 55–63 and 65–71.
The s 145 notice was issued to the appellant on 6 April 2022, and proceedings were initiated in the Commission on 22 April 2022.
At the commencement of the proceedings before Senior Member Haddock, Mr Martin was not named as a respondent. The Senior Member thus directed that Mr Martin be joined to the proceedings, noting the impact the proceedings may have on his entitlements.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant has asserted that this matter requires an oral hearing. The respondents do not agree. The appellant says that the question of the joinder of the second respondent, the argument which is pursued in Ground G only, is one that should be “fully ventilated” before a Presidential member given that it could impact other matters before the Commission. This issue is relatively confined, it is articulated in the written submissions and is really a matter going to practice and procedure.
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. Ground G is sufficiently formulated such that the matter can be dealt with without an oral hearing. There is no suggestion that the remaining Grounds A–F require an oral hearing.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE SENIOR MEMBER’S REASONS

In the Application, the dispute pleaded for determination by the Senior Member included “injury”, “notice of injury”, “substantial/contributing factor”, “causation”, “section 11A”, “capacity”, “reasonable necessity of section 60 expenses” and “amount of payments”.[13] Particulars of this dispute were also attached to the Application, raising issue as to the deemed date of injury of 13 August 2020, and clarifying the s 11A defence in that the injury was wholly and predominantly caused by the provision of employment benefits. Further, it was pleaded that the appellant was not Mr Martin’s last employer for whom he carried out work to the nature of which the “disease” was due, noting that he had engaged in subsequent employment, and that Mr Martin had current work capacity at all relevant times and thus should not have been paid compensation (or should have been paid a lesser rate).[14]
[13] Miscellaneous Application Form, p 2.
[14] Miscellaneous Application, p 13.
At the conciliation/arbitration hearing on 6 September 2022, the appellant sought to raise another defence under s 11A on the basis that the injury was caused by reasonable action taken by the appellant in respect of promotion/demotion. The Senior Member determined that the appellant required leave, treating it as an application to raise a previously unnotified matter in accordance with s 289A(4) of the 1998 Act. Leave was not granted.[15]
[15] Reasons, [19]–[27].
The Senior Member rejected the appellant’s argument that Mr Martin’s claim should fail as he did not give notice of the injury to his employer as soon as possible after the injury happened as required by s 254 of the 1998 Act. The Senior Member considered the appellant would have been aware that an injury was claimed, and of the details of this injury, just two weeks after the injury when they provided statements to the Nominal Insurer who was investigating the circumstances surrounding Mr Martin’s claim. The Senior Member did not accept that, even if notice of injury had not been given, the appellant was prejudiced as it was able to address the assertion of injury and provide evidence in response to the claim shortly after the alleged date of injury of 13 August 2020. The Senior Member also rejected the appellant’s argument that Mr Martin ought to have known of the notice requirements under s 254 as he had a workers compensation claim ten years prior, particularly in the absence of any evidence as to how notice of that prior injury was made and whether it was in fact made by Mr Martin, or his employer.[16]
[16] Reasons, [363]–[371].
The Senior Member was satisfied that Mr Martin had sustained a psychological injury arising out of, or in the course of, his employment, as all of the medical evidence from treaters and the independent medical experts was “one way”. Other than attacks on the appellant’s credit, the argument that Mr Martin was simply dissatisfied and had not complained of stress, psychological or psychiatric injury,[17] the appellant had no medical evidence to refute injury.[18]
[17] Reasons, [266]–[267].
[18] Reasons, [373]–[375].
In disputing the deemed date of injury of 13 August 2020, the appellant referred to the claim form and certificates of capacity which referred to the date as 27 March 2020. The appellant relied on Inghams Enterprises Pty Ltd v Thoroughgood[19] to assert that the date of injury would be determined by reference to the first period of incapacity for which compensation is claimed pursuant to ss 15 and 16 of the 1987 Act, and thus, would not be 13 August 2020.
[19] [2013] NSWWCCPD 29 (Thoroughgood).
It argued that if the Commission was not satisfied there was an injury on 13 August 2020, being the injury for which compensation was paid and the only date for which the appellant was not insured, then it was not liable for recovery.[20]
[20] Reasons, [263]–[265].
In considering Thoroughgood, the Senior Member referred to Deputy President Roche’s reliance on Alto Ford Pty Ltd v Antaw[21] where Sheller JA said at [15] in regard to s 15(1)(a)(i) of the 1987 Act that “ … the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity …” (emphasis added by Roche DP). At [55], Roche DP held this circumstance could be distinguished from Mr Thoroughgood’s situation as he had no economic loss arising from his incapacity and had not claimed weekly compensation.[22] The Senior Member considered that the situation in Antaw was analogous to Mr Martin’s, as he was unable to work when issued with a medical certificate and the incapacity resulted in economic loss, thus, “by operation of s 15(1)(a), [Mr Martin’s] injury is deemed to have occurred on 13 August 2020” when the appellant was uninsured.[23] The Senior Member also noted there was no other evidence to indicate the appellant was insured at any other date.
[21] [1999] NSWCA 234; 18 NSWCCR 246 (Antaw).
[22] Reasons, [381]–[382].
[23] Reasons, [383]–[384].
The Senior Member rejected the appellant’s argument that Mr Martin’s subsequent employment with Five Star “was employment to the nature of which the disease was due”, as it was clear from medical evidence that Mr Martin had already sustained injury with the appellant and struggled to maintain his employment with Five Star. There was no medical evidence indicating Five Star was causative of his condition.[24]
[24] Reasons, [385]–[387].
The appellant’s s 11A defence was that its reasonable action with respect to the provision of employment benefits (specifically, payment of commissions) had wholly or predominantly caused Mr Martin’s injury. The appellant relied on Dr George’s opinion.[25] It was the Nominal Insurer’s and Mr Martin’s submission that neither failing to pay commissions on time or changing his contract could be said to fit the requirement of s 11A.
[25] Reasons, [270]–[272].
The Senior Member was not convinced that commissions comprising part of remuneration may be classified as employment benefits, “in the same as perhaps a discretional bonus may be so classified”.[26]
[26] Reasons, [392].
If it was, the Senior Member nevertheless proceeded to determine that Mr Martin’s injury was not wholly or predominantly caused by the provision of employment benefits in any event. The Senior Member referred to evidence of other issues being causative of his injury, in addition to commissions, such as the delay in preparation of contracts, mobile phone and email bills not being paid resulting in his services being cut off, hiring a new manager, the reversal of $3,000.00 commission he had already been paid, and the unilateral change to his contract on 27 March 2020 (which Dr Abdal Khan found to also be causative). The Senior Member thought Dr George’s opinion on the “predominant cause” was unclear, as Dr George was given a history of several stressors but did not clarify which specific action he was referring to. Dr Abdal Khan, on the other hand, provided a “detailed and balanced report.” As s 11A did not apply, the Senior Member did not need to decide whether the appellant’s actions were reasonable.[27]
[27] Reasons, [392]–[400].
The Senior Member dealt with the dispute in respect of Mr Martin’s capacity for work by firstly addressing the appellant’s attack on his credit. The appellant argued that Mr Martin’s evidence should not be accepted due to a “litany of lies” and his attempt at deceiving not only the Nominal Insurer but also his treating practitioners, by failing to inform them of his employment at Life Without Barriers. The appellant refers to Mr Martin’s letter of resignation which expressed appreciation for the appellant, and submitted that it was Mr Martin’s intention to “fill in a fake claim for compensation” and “lie” about his employment status to claim benefits.[28] The appellant submitted that Mr Martin would be able to work in another job in addition to Life Without Barriers, where he worked for “10 hours and get paid for 50 hours”.[29]
[28] Reasons, [275]–[279].
[29] Reasons [283].
Despite making these allegations, the appellant submitted that there was no need for cross examination as it would not be appropriate where the only issues in dispute were between the appellant and the Nominal Insurer; the appellant had no need or desire to have Mr Martin involved – it was the Nominal Insurer’s “forensic decision” to involve Mr Martin.[30] The Senior Member rejected this submission, as the appellant had made a direct and sustained attack on Mr Martin’s credit.[31]
[30] Reasons, [298]–[300].
[31] Reasons [407].

Mr Martin submitted that the allegations of dishonesty must be rejected on procedural fairness grounds. This argument largely relied on undermining his history based on uninterrogated doctor’s notes which fell at odds with Mason v Demasi[32] which required careful treatment of medicine as to a person’s credit. Mr Martin also referred to Acting Deputy President Parker’s decision in Finney Pty Limited t/as Cut Price Car Rentals v Chequer,[33] arguing it was necessary for these matters to be put to him directly in cross examination to allow him to defend himself.[34]
[32] [2009] NSWCA 227.
[33] [2021] NSWPICPD 13 (Finney).
[34] Reasons, [330]–[337].
At reasons [403]–[406], the Senior Member considered both Finney and New South Wales Police Force v Winter[35] in respect of the issues of cross-examination and procedural fairness, with specific reference to Winter at [84] as authority for the proposition that a party is to be given notice of the case against it and afforded a reasonable opportunity to put evidence and submissions to the tribunal determining that case.
[35] [2011] NSWCA 330 (Winter).
Although the Senior Member accepted that the appellant did not give Mr Martin precise notice of the case against him in the Winter sense, he would have been aware that the issue of failing to supply his treaters and the Nominal Insurer with correct information regarding capacity for work may be raised. Mr Martin also had reasonable opportunity to put evidence and submissions before the Commission concerning the case against him. Notwithstanding, the Senior Member was not inclined to make any adverse findings to Mr Martin’s credit, as he had explained how the Nominal Insurer and his treaters “mischaracterised” the nature of his employment at Life Without Barriers. No adverse inference could be drawn from the assertion that he only disclosed this when he obtained legal advice, nor could such an inference be drawn from his letter of resignation. The Senior Member stated it was not unusual for a resignation letter to be polite in an effort ensure no bridges were burnt, despite employees having unpleasant experiences with an employer. The Senior Member also did not accept that Mr Martin had attempted to mislead when signing his certificates of capacity - he was dyslexic and gave evidence he did not read everything relating to his claim.[36]
[36] Reasons, [408]–[415].
The Senior Member accepted Mr Martin’s evidence in respect for capacity for work, as the appellant failed to provide meaningful submissions on the matter, file a wages schedule, or supply any medical evidence to suggest Mr Martin has greater capacity than he was exercising. The same could be said in respect of the lack of evidence to succeed on the argument that the medical treatment Mr Martin received was not reasonably necessary.[37]
[37] Reasons, [416]–[420].
The appellant therefore failed to establish that it was not liable for Mr Martin’s claim, and the Senior Member made the following orders in the Certificate of Determination of 9 December 2022:
“1. The Application is dismissed.
2. The [appellant] is to reimburse the first respondent the sum of $110,766.81 in accordance with the notice issued pursuant to section 145 of the Workers Compensation Act 1987. “

GROUNDS OF APPEAL

The appellant pursues seven grounds of appeal. They are:
Ground A – Error of law in determining the deemed date of injury.
Ground B – Error of law in determining the matter on a basis not put by or to the parties.
Ground C – Error of law and fact in the determination of capacity.
Ground D – Error of discretion in declining the appellant the opportunity to rely on ‘promotion’.
Ground E – Error of fact and law regarding the section 11A defence relating to the provision of employment benefits.
Ground F – Failure to give adequate reasons.
Ground G – Error of law and of discretion in the decision to join the second respondent as a party.

PRINCIPLES ON APPEAL

Given the way the appellant has pursued this appeal, it is necessary to set out some principles which govern how appeals are considered. For the appellant to succeed, error must be identified in a meaningful way and established. Section 352(5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The approach to dealing with appeals under this provision has been the subject of a number of decisions at Presidential level. Deputy President Roche in Raulston v Toll Pty Ltd[38] (since 1 March 2021[39] applying to a ‘member’ rather than an ‘arbitrator’) said as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[38] [2011] NSWWCCPD 25 (Raulston), [19].
[39] The date of relevant commencement of the 2020 Act.
The practice and procedure for appeals in the Commission is governed by Procedural Direction WC3. Paragraph [24] of this Procedural Direction requires that the grounds of appeal identify the respects in which an error of fact, law or discretion is alleged to have occurred. Paragraph [25] continues:
“It is not acceptable to merely allege that the member erred in law, fact, or discretion, or that the decision is against the evidence or the weight of the evidence.”
In Kowalski v Repatriation Commission,[40] the Full Federal Court said this about appeals:
“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”.[41]
[40] [2011] FCAFC 43 (Kowalski).
[41] Kowalski, [21].

LEGISLATION

Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Section 145 of the 1987 Act provides:
“145 Employer or insurer to reimburse Insurance Fund
(cf former s 18C (21)– (26))
(1)     The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was—
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2)     The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that—
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3)     A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4)     The Commission may hear any such application and may—
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned,
as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5)     In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that—
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6)     The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 59 of the Personal Injury Commission Act 2020.”
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.

DISCUSSION

As to Ground A – Error of law in determining the deemed date of injury

Submissions

The appellant says the following in support of this appeal ground:
“The Appellant submits that the Commission Member is in error in the determination of the deemed date of injury as being 13 August 2020. The basis of the [Member’s] determination in this regard is that this is the first period of incapacity however the Appellant says that the Commission Member has not applied the correct test. That test is most clearly set out in the decision of Deputy President Roche in [Thoroughgood] in which the Deputy [President] specifically dealt with the question of the meaning of ‘incapacity’ for the purpose of sections 15 and 16 of the Workers Compensation Act 1987.
The focus of the Commission Member was on a consideration of the first period of incapacity however the correct consideration relates to the first period of incapacity for which compensation is claimed (Throughgood paragraphs 41 and 44).
The Appellant notes that the Commission Member has directed attention to paragraph 55 of Throughgood but firstly has not had regard to the last part of the paragraph quoted which states ‘... and has not claimed weekly compensation’ and secondly has had no regard to paragraph 58 of Throughgood which again clarifies the decision under consideration. In short the consideration is not whether there is incapacity but rather whether there is incapacity for which weekly compensation is claimed.
In the present matter it is common ground that no weekly compensation is claimed from the 13th of August 2020 and this date therefore cannot be the deemed date of injury.”[42]
[42] Appellant’s submissions, [7]–[10].
In response, the first respondent argues the following:
“The First Respondent submits that this submission [is] incorrect and that the Member (in [reasons] paras 373 to 387) accurately stated what the correct law is and how it should be applied to this matter given the findings that she made.
The First Respondent further submits that the Appellant’s argument in this ground of appeal is misconceived in any event for two reasons being:
(a) Thoroughgood concerned a claim for lump sum compensation whereas the present matter relates to reimbursement for payments made by the First Respondent; and
(b) The worker in Thoroughgood after injury left Inghams suffered no incapacity (or incapacity for which he was entitled to claim weekly payments) whereas in the present matter the Second Respondent was found to be incapacitated from 13 August 2020.
That is to say, in Thoroughgood there was no trigger for a deemed date of injury based on incapacity but rather the trigger was the making of the claim for lump sum compensation whereas in this matter the Second Respondent was found by the Member to be incapacitated from 13 August 2020 thus triggering the deeming provisions of section 15(1)(a)(i) [of the 1987 Act] affixing 13 August 2020 as the deemed date of injury.
In support of this submission the First Respondent further submits that incapacity has been long held to mean incapacity for which weekly compensation is, or is entitled to be, claimed (see [P&O] Berkeley Challenge Pty Ltd v Alfonzo (Berkeley) [2000] NSWCA 214 and Stone v Stannard Bros Launch Services Pty Ltd [2004] NSWCA 277).
Clearly the Second Respondent could have claimed compensation from 13 August 2020 which the affixes the deemed date of injury being that date.”[43]
[43] First respondent’s submissions, [3]–[6].
The second respondent has adopted the first respondent’s submission in this ground.

Consideration

The appellant’s proposition based on Thoroughgood was put to the Senior Member in the appellant’s reply submissions dated 8 November 2022. This argument was accurately recounted by the Senior Member at reasons [289]. In short, it was the appellant’s submission, based on Deputy President Roche’s decision in Thoroughgood, that “[i]f date of injury is deemed by reference to incapacity, it is only by reference to incapacity for which compensation is claimed.”[44] The appellant submitted that this date was 18 September 2020.[45] The Senior Member dealt with the whole question of “injury” at reasons [372] to [387]. The relevant sections of the decision dealing with Thoroughgood are reasons [379] to [383] which I set out below:
[44] Reasons, [289].
[45] Appellant’s submissions in reply, 8 November 2022, [21]–[22].
“379. The [appellant] relies on Thoroughgood, maintaining that, in s 15 (and s 16) of the 1987 Act, the date of injury is determined by reference to the first period of incapacity for which compensation is claimed.
380. In Thoroughgood, Deputy President Roche referred to s 16(1)(a) of the 1987 Act, which provides that the deemed date of injury is the time of the worker’s death or incapacity, or if death or incapacity has not resulted, the time at which the worker made a claim.
381. Roche DP referred to [Antaw], in which Sheller JA said at [15]:
‘Section 15(4) [which is in the same terms as s 16(3)] provides that in s 15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; see s 66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and subs (4) means that the condition for the application of subs (1) of s 15 is met. The respondent suffered an injury within the meaning of s 15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the injury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity; s 15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s 66, in 1992 and for the purpose of s 66 in 1996.’ (emphasis added by Roche DP).
382. Roche DP said at [55]:
‘Critically, the incapacity in 1992, when Mr Antaw found he was unable to work on motor vehicles, was an incapacity that resulted in an economic loss. This is to be contrasted with Mr Thoroughgood’s situation where, accepting that he has an incapacity in the Arnotts Snack Products Pty Ltd v Yacob[1985] HCA 2; 155 CLR 171 (Yacob) sense, he has no economic loss from his incapacity and has not claimed weekly compensation.’
383. The same may be said of the second respondent as was said of Mr Antaw. When he was issued with the [certificate of capacity] on 14 August 2020, he was unable to work (at all) and the incapacity therefore resulted in economic loss.”
Pausing here, I would remark that Deputy President Roche’s decision in Thoroughgood was appealed to the Court of Appeal.[46] The appellant has made no reference to this Court of Appeal decision either at first instance or on this appeal. It is the duty of practitioners to provide assistance to Commission members, both at first instance and on appeal, when citing authorities. At best it is a failure to comply with this duty to make reference to a decision and not to its subsequent appellate consideration. Needless to say, to the extent that the Court of Appeal decision deals with the matters raised by the appellant, that determination is binding on a Presidential member.
[46] Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 (Thoroughgood No 2).
Distilling the appellant’s complaint requires this relatively confined proposition to be determined. The appellant states that the Senior Member erred in deeming the injury date from the date incapacity arose (13 August 2020) instead of the date that compensation was actually claimed (18 September 2020). This, the appellant states, is the effect of Thoroughgood per Deputy President Roche.

In Thoroughgood (No 2), Basten JA (Meagher and McColl JJA concurring) said that “incapacity had the same meaning in ss 15 and 16”[47] before going onto state the following:
“… the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.”[48]
[47] Thoroughgood No 2, [42], referring to P&O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214 per Priestley JA.
[48] Thoroughgood No 2, [46].
I would also note that in Stone v Stannard Brothers Launch Services Pty Limited,[49] Handley JA said that:
“The evident purpose of s 16(1)(a) is to fix a precise date for a s 16 injury. Where the worker claims or could claim weekly compensation for incapacity the section enables this to be done.”[50] (emphasis added)
[49] [2004] NSWCA 277 (Stone).
[50] Stone, [7].
Consequently, the Senior Member was not in error in determining the deemed date of injury as being the first date the second respondent’s incapacity arose, being 13 August 2020. An incapacity arose on this date for which compensation could be claimed.[51] This date is consistent with the factual findings made.[52] I would also remark that the factual finding fixing 13 August 2020 as the date that incapacity arose has not been challenged on this appeal.
[51] Stone, op cit.
[52] Reasons [373]–[376], [384].
This date is also consistent with the approach set out in Thoroughgood No 2, Stone and Antaw. As was said in Thoroughgood No 2, the approach to incapacity in s 15 and s 16 is the same.
No error has been established. Ground A is dismissed.

As to Ground B – Error of law in determining the matter on a basis not put by or to the parties

Submissions

The ground of appeal pursued by the appellant is framed in the following manner:
“The Appellant submits that the determination by the Commission Member has been made in part by reference to matter [sic] not put by or to the parties and says that this amounts to a denial of procedural fairness. In this regard the Appellant relies firstly on what is set out in paragraph 367 and following in respect of the issue of Notice and again from what is set out in paragraph 414 and 415. As these matters were relevant considerations by the Commission Member in the determination of the issues in the case and of the evidence failure to raise these matters with the parties constitutes a denial of procedural fairness (see, for example, Zurawski v Remondis Australia PtyLimited [2022] NSWPICPD 28).”[53]
[53] Appellant’s submissions, [11].
The first respondent points to the appellant’s submission where it is said that the “determination by the Commission Member has been made in part by reference to [a] matter not put by or to the parties ...”. The first respondent says that the appellant fails to explain what it means by “in part” and fails to enlarge on what the “part” is that is said to have led to the error. The first respondent points to reasons [367], where one of the appellant’s submissions is dealt with and rejected. This, the first respondent says, was the Senior Member deciding the matter on the basis of the issues raised. In answer to the whole ground, which the first respondent says is “cryptic”, it is submitted that the issues were raised by the appellant during submissions before the Senior Member, and are dealt with by the Senior Member in the offending paragraphs of the reasons, which are simply the Senior Member’s response to those arguments. No denial of procedural fairness thus arises.[54]
[54] First respondent’s submissions, [8]–[13].
The second respondent says that the appellant has failed to articulate precisely what the matter is that was not put by or to the parties and why this amounts to denial of procedural fairness. The second respondent says this ground of appeal must fail because it fails to articulate an error of fact or discretion.[55]
[55] Second respondent’s submissions, [10]–[12].

Consideration

The manner in which this appeal ground has been drafted is unsatisfactory. I have set out the principles associated with appeals above. In particular, the extract that I have recounted from the Full Federal Court’s decision in Kowalski is completely apposite to this ground. It is unsatisfactory for the appellant to point to several paragraphs of the Senior Member’s decision and make a broad assertion of error without identifying the error with precision. Even the paragraphs referred to are imprecisely identified, for example “paragraph 367 and following …” is how this section of the decision under challenge is identified.
Reading the decision as a whole, the Senior Member at reasons [367] is in the middle of her reasoning with respect to the argument about the second respondent’s failure to give prompt notice of injury to the appellant. This reasoning starts at reasons [364] and concludes at [371]. I set these paragraphs out below:
“364. The [appellant] maintains that the second respondent failed to give notice of the injury within the time required by s 254 of the 1998 Act.
365. As the first respondent submitted, the [appellant] was provided with a medical certificate, which Stefan described as an ordinary medical certificate, on 13 August 2020. He was obviously aware that the second respondent claimed to have sustained injury, in the [appellant’s] employ, and the details of the injury, at least by 3 September 2020, when both he and Anton provided statements to the investigator retained by iCare.
366. The second respondent has given evidence that at first, he did not intend to claim compensation but this changed when his psychologist advised what was wrong with him. He also said he did not know the requirements for claiming compensation. The claim form states that he became aware of the injury on 13 August 2020.
367. I do not accept the [appellant’s] submission that, because the second respondent had made a previous claim for compensation, it must be assumed he was aware of the notice requirement. His evidence is that he made a claim about 10 years before 2 September 2020, when he made his first statement. The claim may have been made on his behalf by his employer, it may have been the employer who first gave notice of the claim, or notice may have been given late, but the point was not taken by the insurer. It is simply impossible to know the circumstances in which it was notified to the insurer.
368. I also do not accept that, even if notice had not been given earlier than 2 September 2020, the [appellant] was prejudiced by a failure to give notice earlier. It has provided no evidence of prejudice. As I have noted, by 2 September 2020, both Stefan and Anton had provided statement evidence. Ms Hazelman and Ms Ellison provided statements dated 4 September 2020, and the letter from CA Hill & Associates is dated 28 August 2020, suggesting that the [appellant] was obtaining evidence to meet the claim as early as about two weeks after the claimed date of injury.
369. The [appellant] submitted at the hearing that it had been prejudiced because it did not have the opportunity to address the assertion of injury. It has done that in the evidence I have referred to above. It also submitted that it had not had the opportunity to discuss providing alternative employment. There is no evidence that it would have considered this. It appears to have accepted the worker’s resignation on 18 September 2020 without demur. There is no evidence that it sought at that stage or at any stage to provide him with alternative employment or suitable duties.
370. I accept that the second respondent was ‘ignorant’ of the requirements of the legislation regarding giving notice of the claim. In any event, I do not accept that the [appellant] was prejudiced by any failure to give notice.
371. The second respondent was not precluded by s 254 of the 1998 Act from recovering compensation.”
The appellant also points to reasons [414] and [415] in this ground as containing matters which were not argued. These two paragraphs refer to the Senior Member’s finding on the discrete issue of the second respondent’s resignation from his employ with the appellant. I set these two paragraphs out in full below:
“414. I do not draw any inference against the second respondent from the terms of his resignation letter. It is hardly unusual, and perhaps the norm, for workers resigning their employment to write a polite letter to their manager, and not ‘burn any bridges’, even if they have had an unpleasant experience in the workplace and are happy to leave it.
415. It is also not unusual, in my view, that the second respondent accepted other employment in his field and did not feel the necessity to tell the [appellant] about it. He may well have hoped that, in a new workplace, he would not face the same difficulties he faced with [the appellant] and could make a fresh start.”
Consequently, by reviewing the decision and the appellant’s rather brief submissions, I think that it is apparent that this ground essentially takes issue with the Senior Member’s reasoning on two issues. The first being notice of injury and the second being how the second respondent’s resignation was dealt with. The assertion is that these matters were not put “by or to the parties”, suggesting that the Senior Member has decided these two discrete issues without giving the parties an opportunity to be heard on them, hence the allegation of a denial of procedural fairness made by the appellant.
Before dealing with each issue in turn, it is timely to remark on what happened at the hearing. The hearing commenced before the Senior Member on 6 September 2022. Mr Macken, solicitor for the appellant, made extensive oral submissions on behalf of his client on that day. The matter was unable to finish in the allotted time and the two respondents were ordered to reduce their submissions to writing, which they did.
In terms of the first issue, Mr Macken dealt with the appellant’s extensive complaints about the second respondent’s failure to give notice of his injury. This submission is as follows:
“In terms of notice of injury, no notice of injury was given at all by the [second respondent]. No, none at all. In fact, to this day the only notification of an alleged injury to the employer has come from iCare, and you’ll see from the statements of the employer, the first time there was any suggestion of any injury of any kind to the [second respondent] was when iCare contacted them. Now, the Act precludes the payment of compensation where notice of injury is not given as soon as possible - that’s the words in section 254 - and before the person ceases employment. That simply has not happened so prima facie, by reason [of] the failure to give notice of injury, compensation is not payable. Now, if it is suggested that that’s a situation that did [not] result in prejudice to the employer well, with respect, that’s wrong. The employer has had no opportunity to address, at any time, the assertion of injury. Has had no opportunity to consider providing employment assistance as it had available to its employees. Has had no opportunity of discussing the provision of alternative employment and is, therefore, clearly and unequivocally prejudiced by the late notification of injury, and on that basis, again, no compensation should have been paid at all, none.”[56]
[56] Transcript (T) 6 September 2022, T 31.5–27.
This submission was responded to by the first respondent in its written submissions dated 4 October 2022. I set out the paragraphs of the submission dealing with this issue.
“26. It is clear from the evidence that the Second Respondent first became incapacitated on 13 August 2020, this being the day after he had had a conversation with Stefan Dimov concerning the payment of outstanding commissions referred to above.
27.    The following day he first sought medical attention from Dr So and was given a medical certificate certifying him unfit for work.
28.    Further, 13 August 2020 is the date on which he was referred to Dr Khan who also provided a certificate certifying him unfit due to anxiety/depression and stress, with work being the cause …
29.    It is known that a certificate was provided to the [appellant] employer certifying the Second Respondent as being unfit for work but this may have been the certificate that Dr So provided. (See statement of Stefan Dimov para 25). It is not clear when the certificate of Dr Khan dated 14 August 2020 was provided but it is reasonable to assume that this was on a date before 2 September 2020 when Stefan Dimov provided a statement in which it is clear that, at that time, he was aware that the Second Respondent was claiming compensation and by which time he was acknowledging that the company did not hold workers compensation cover.
30.    The Second Respondent said in a second statement dated 3 April 2021 that at first he had not intended to claim workers compensation but this changed when he was informed by his psychologist what was wrong with him. He said in this statement that he did not know what the requirements for claiming compensation were …
31.    The Second Respondent resigned from the [appellant’s] employ on 18 September 2020 and therefore it is clear that that the [appellant] knew that the Second Respondent was alleging that he had suffered an injury in its employ. That is, it can be reasonably assumed is that the Second Respondent had provided notice of injury before he resigned from its employ.
32.    In any event, the Second Respondent because of his lack of knowledge as to the requirements of giving notice, had available to him special circumstances to excuse his giving notice, being ignorant of the requirements of the legislation. (section 254 (2) and (3)(b) [of the 1998 Act]).
33.    Finally, the [appellant] had notice of the Second Respondent claiming compensation at least by 2 September 2020 and therefore it cannot be said to be prejudiced by failure to give notice assuming of course that notice had not been given which is not admitted. (Sec 254 (3)(a) [of the 1998 Act]). In any event there is no evidence of prejudice provided by the [appellant].”
The appellant filed written submissions in response dated 8 November 2022 and dealt with this issue as follows:
“30–31. The [appellant] says firstly that the Second Respondent clearly was aware of the requirements for claiming compensation as he had had a previous claim for workers compensation resulting in his taking three weeks off work (First Respondent's Reply page 22). Further, it is incorrect to say that it could be assumed that the Second Respondent provided notice of injury before he resigned employment as this is simply not consistent with the facts. Indeed, the terms of the resignation are completely inconsistent with any suggestion of injury.
32. The [appellant] again says that the suggestion of any lack of knowledge is incorrect having regard to the previous claim.
33. The prejudice to the [appellant] was addressed in submissions at the Arbitration.”
As can be seen from the appellant’s submissions (both oral and written) which I have outlined above, the second respondent’s asserted failure to give notice was pursued as a complete defence to the recovery claim by the appellant. In short, it was quite an important point for the appellant to pursue. The first respondent responded to these submissions and thus the issue was clearly before the Senior Member for decision. It is factually incorrect for the appellant to state on this appeal that it was denied procedural fairness on this issue. It was an issue raised by the appellant fairly and squarely. The appellant was not inhibited in any way from putting any argument to advance its case on this point, either in chief or in reply, and the issue was one requiring a decision by the Senior Member.
The allegation that this matter was “not put by or to the parties” is without basis.
The allegation that the appellant was denied procedural fairness on this issue is without basis. This aspect of Ground B is dismissed.
I now turn the second issue raised in this ground, that is the second respondent’s resignation.
The appellant submitted at length on this issue before the Senior Member. The relevant extracts from the transcript are these:
“Now, I’ve referred to taking you to his resignation. I should take you to that to show you the marked inconsistency between the allegations he now makes and, in fact, made shortly, relatively shortly after ceasing employment and what he said at the time, the contemporaneous records about it, and that is, as I say, I think it’s at 160 of the second respondent’s Reply. … This is to serve as - he’s resigning on the 18th of September. Bear in mind when he’s starting with Five Star Granny Flats, he’s about to start his employment with Five Star Granny Flats, who put together the contract dated the 31st of August.
‘This is to serve as my resignation effective from the 25th of September.’
He’s actually working, but another employer, of course.
‘I’m regretfully resigning due to a health issue.’
Well not a health issue that stopped him working for Five Star in precisely the same job, so who knows what health issue that is.
‘This includes stepping down from my duties at A1 Granny Flats. I am unable to meet the expectations as sales consultant while struggling with this illness.’
So, he goes to get a job as a sales consultant with a different employer in exactly the same business as Granny Flats.
‘I would like to thank you for the opportunities I’ve had to grow and make friends during my time at A1 Granny Flats. It’s my hope that my departure does not cause undue stress or inconvenience. I would like to thank you for your support during my employment.’
Your support during my employment.
‘Feel free to let me know how I can assist with making the transition as smooth as possible. I wish you and A1 Granny Flats the absolute best in the future.’
And now I’m going to go and fill in a fake claim for compensation, lie about my employment status and claim workers compensation benefits based on a psychological injury. Please. Please. Nothing the second respondent has to say should ever be believed in any respect. And when I come back to the question of injury, you know, injury is, is dependent, firstly, on your accepting that any of the things that the worker complains about happened adverse to him in the way suggested. And bear in mind there are statement after statement after statement contradicting him on the employers, and I haven’t taken you to them. I can take you to them if you wish but it’s probably completely unnecessary. Stefan and Anton Dimov, Alexandra Hazelman, who dealt also with this terrible terrible failure to pay commissions and went through it in chapter and verse explaining why the commissions were paid in a timely way, save for when the worker himself precluded that from happening. Laura Ellison who he specifically contradicts saying that he was doing things inappropriately on the job and then abusive of her and standing over her like a bully.
And then we get to his undated claim form, at page 48. He’s just resigned from his employment singing glowing praises about his employer, wishing them all the best and offering to help with the transition and then he says, right, now I’m going to claim compensation. Please. You just would not accept anything he says, either as to injury, as to causation, as to work, in any way shape or form.”[57]
[57] T 47.10–49.29.
As can be seen from these submissions, the terms of the second respondent’s resignation were deployed by the appellant as part of a significant attack upon the second respondent’s credit.
The second respondent answered these submissions in his written submission dated 16 October 2022 in the following manner:
“32. In the worker’s letter of resignation dated 18 September 2020 … the worker stated, ‘I am regretfully resigning due to a health issue’.
33.    Following his resignation from his employment with the [appellant], the worker commenced a short-lived term of employment with Five Star Granny Flats Pty Ltd. However, he could not continue in the role due to the psychological injury he had incurred through his employment with the [appellant]. Dr Abdal Khan in his report dated 27 May 2021 stated that he was not coping with his new employment position due to his unstable mental state.
34.    The [appellant] submitted that ‘resigning due to a health issue’ was a falsehood due to the fact the worker commenced subsequent employment. This is yet another instance in which the [appellant], having failed to exclude other reasonable explanations for a particular event, instead encourages the Commission to find that Mr Martin has lied.
35.    It is obviously a possibility that Mr Martin attempted to be civil and courteous in his resignation letter, regardless of his mental health symptoms. It is to be noted that Mr Martin has already explained [in] his statements that he did not lodge a claim immediately with his employer, and not until he had spoken to his psychologist about what had ‘happened to him’, and in that context his letter is explicable.
36.    In any event, it is yet another assertion by the [appellant] that should have been put to Mr Martin in cross-examination.”

The appellant filed written submissions in response dated 8 November 2022. In those submissions the following is put in respect of [34]–[45] above:
“34–35. These issues were addressed at the Arbitration. The [appellant] says further that as the Applicant [sic, second respondent] had voluntarily left employment (resigning on good terms) and commenced employment with Five Star the evidence is more consistent with his employment with Five Star being a substantial contributing factor to injury and the main contributing factor to any disease.”
Consideration of the resignation letter was an issue which was framed and pursued by the appellant. There is no basis for the suggestion that this was decided without the parties’ knowledge. As can be seen, the second respondent submitted that he was attempting to be “civil and courteous” in the resignation letter, an explanation that was accepted by the Senior Member at reasons [414].
There is no basis for the appellant’s submission that this issue was decided in circumstances where it was “not put by or to the parties.” This is plainly incorrect. As a consequence, the allegation that there was a denial of procedural fairness falls away. This second aspect of Ground B also fails.
Ground B is dismissed.

As to Ground C – Error of law and fact in the determination of capacity

Submissions

The appellant challenges the Senior Member’s findings with respect to the second respondent’s earning capacity. This challenge, the appellant notes “was one which was in part connected to the consideration in respect of the second respondent’s credit.”[58]
[58] Appellant’s submissions, [12].
The appellant frames this challenge in the following manner:
“As to the issue of his capacity for work the Commission Member has not sought to explain how it could be said that he was being correctly paid but rather simply sought to adopt Submissions made by the Respondents without engaging with the detailed Submissions made on behalf of the Appellant as to why his earning capacity should be considered to preclude of him being paid weekly compensation at all.
Further the Commission Member has appeared to have regard only to payslips and his PIAWE (paragraph 417) rather than having regard firstly to the statutory maximum and secondly and more particularly to the question of the second Respondent's earning capacity. That earning capacity is determined by reference to the greater amount of what he is able to earn in suitable employment or his current weekly earnings (see for example section 35(1)E of the Workers Compensation Act 1987). Further the suggestion in paragraph 417 that the Appellant (the Applicant below) had not taken issue with these considerations as to capacity is quite plainly wrong. If this was meant to be a reference to the first Respondent, then it is also wrong firstly because the first Respondent was required to seek a recovery of overpayments made to the second Respondent and secondly because it cannot simply be assumed that the first Respondent was assessing these matters correctly in any event. The Appellant made Submissions at length as to why a calculation resulting in any weekly compensation payments was not correct.”[59]
[59] Appellant’s submissions, [14]–[15].
The appellant challenges the Senior Member’s finding at reasons [418], stating “that detailed and meaningful Submissions were made concerning this issue (see transcript from pages 50 to 52)”. The appellant further complains that there was no suggestion that it was required to file a wage schedule, and that in any event that was a matter for the first respondent and not the appellant. This, the appellant says, was an error as was the finding that the appellant bore the onus of proof. The appellant submits that these proceedings are “essentially inquisitorial in nature”. The appellant further submits that it had no role in the management of the workers compensation claim and any onus was “squarely on the first Respondent and it would certainly not require the Appellant to carry any onus of any kind.”[60]
[60] Appellant’s submissions, [17].
In reply, the first respondent notes that the complaints made by the appellant under this ground are numerous. The first respondent notes the appellant’s argument that the Senior Member failed to engage with detailed submissions, referring to the Senior Member’s approach to the attack upon the second respondent’s credit. The first respondent states:
“A reading of the Member’s reasons at … para 413 reveals why she accepted the evidence of the Second Respondent which was an approach she was entitled to take.
It is submitted that it is of course not an error of law or fact simply because the Member did not accept the submissions of the Appellant despite them being extensive.”[61]
[61] First respondent’s submissions, [22]–[23].
In terms of the capacity issue, the first respondent points to reasons [416]–[417] as having been correctly decided.
In terms of the appellant’s assertion that it did not have to file a wage schedule, and that the Senior Member was in error to so state, the first respondent says had such a schedule been filed, it is possible that its argument might have been supported and that it was appropriate for the Senior Member to note that it has chosen not to do so.[62]
[62] First respondent’s submissions, [28]–[29].
Finally, the first respondent states that the appellant clearly bore the onus of providing evidence and argument as to why it was not liable to pay the first respondent’s demand. The first respondent states that it is erroneous to submit that the proceedings were purely inquisitorial in nature.
The second respondent notes that the appellant raises arguments in this ground regarding credit, capacity, technical error and reversal of the onus of proof.
In terms of credit, the second respondent submits as follows:
“The central findings by the Member regarding credit are these:
a.      Mr Martin gave an explanation which she accepted regarding why his doctors mischaractered [sic] the nature of his employment: at [411];
b.      Mr Martin told ‘Michelle’ from icare that he had another job, which ‘Michelle’ said would not affect his claim, the basis of which informed Mr Martin’s continued conduct thereafter: at [411];
c.      Mr Martin, after becoming aware of legal proceedings in this matter, sought legal advice and upon receipt of that advice acknowledged and accepted that his driving for Life Without Barriers was ‘work’ within the meaning of the workers compensation legislation: at [412];
d.      Mr Martin is dyslexic and did not read everything related to his claim: at [413];
The Appellant has failed to explain why the Member ought not to have made those findings.”[63]
[63] Second respondent’s submissions, [18]–[19].
In terms of responding to the appellant’s capacity argument, the second respondent states:
“… the appellant’s argument simply reads as complaining that the Member prefer[red] the Respondent’s arguments over its own, without explanation as to why this constitutes error requiring appellate intervention.”[64]
[64] Second respondent’s submissions, [22].
The second respondent deals with the issues of technical error and reversal of onus of proof in his submissions paragraphs [23] to [25] which I have considered but do not repeat for the purposes of this decision.

Consideration

The starting point for the consideration of this ground is how the appellant itself framed the dispute with respect to capacity. In the Miscellaneous Application at page 13, this issue was particularised as follows:
“6. The [appellant] disputes the quantum of compensation benefits paid and in particular disputes that any medical treatment required is reasonably necessary as a result of injury (if any) and says that the [second respondent] has a current work capacity at all relevant times such that weekly compensation should not have been paid, or in the alternative, should have been paid at a lesser rate calculated in accordance with the Act.”
This ground takes issue with the Senior Member’s findings with respect to the second respondent’s capacity, and does so by pointing to various issues and asserted errors in the Senior Member’s reasoning.

Credit

The first issue the appellant relies on in support of this ground is its attack upon the second respondent’s credit in support of its submission about his work capacity. The Senior Member dealt with the attack upon the second respondent’s credit in the section of the decision entitled “Incapacity” from reasons [401]–[419]. The Senior Member specifically declined to make any adverse findings as to the second respondent’s credit as urged upon the Senior Member by the appellant.[65] I would remark that these findings adverse to the appellant’s case are not challenged in this appeal. As a consequence, this finding remains undisturbed. Therefore, to the extent that this ground relies in part upon the appellant’s attack upon the second respondent’s credit, this aspect of this ground must fail. At the most the appellant has, in its submissions on appeal at paragraph [12], made a number of submissions about various factual issues without identifying how the Senior Member was in error. As I have described above, an appeal requires error to be identified.[66]
[65] Reasons, [411]–[414].
[66] Raulston.
After dealing with the credit issues, the Senior Member reasoned the issue of capacity in the following manner:
“416. As regards the [second respondent’s] capacity for work, I accept the submissions of the first respondent and particularly the second respondent.
417. As the second respondent submitted, the [appellant] has his payslips with [Life Without Barriers], knows his PIAWE, has not taken issue with it, and is possessed of sufficient information to explain why it maintains he has been overpaid.
418. The [appellant] bears the onus in this matter. Apart from asserting that the worker has been overpaid, the overpayments continue, and he has a capacity to earn that is greater than his PIAWE, the [appellant] has not made meaningful submissions on this matter. It has not filed a wage schedule.”[67]
[67] Reasons, [416]–[418].
The appellant complains that the Senior Member did not engage with the “detailed Submissions made on behalf of the Appellant as to why his earning capacity should be considered to preclude him being paid weekly compensation at all” with reference to the Senior Member only having regard to “payslips and his PIAWE (paragraph 417)”.[68]
[68] Appellant’s submissions, [14]–[15].
This aspect of this ground has been advanced in an unsatisfactory manner. The appellant refers to “detailed submissions”[69] apparently not engaged with by the Senior Member but does not say what these submissions were or where they appear. I have read this material. Before the Senior Member, the appellant’s oral submissions started at transcript page 28, line 5 and went to page 52, approximately 24 pages of submissions transcribed. The appellant also responded to both respondents’ submissions in a written reply dated 8 November 2022. Nowhere has the appellant identified with any precision the submission said to have been made by it and not engaged with by the Senior Member. Much of the oral submission was taken up in an assault upon the credit of the second respondent, which for the reasons I have articulated above, does not assist this appeal ground. To the extent that this aspect of the ground of appeal relates to the second respondent’s earning capacity, I think that it is tolerably clear from the decision that the Senior Member was not assisted by the appellant’s failure to lead any evidence on this discrete issue. The Senior Member said that no “meaningful submissions [were made] on this matter.”[70] The appellant takes issue with this aspect of the reasons but, as I record, fails to say what it was that was not engaged with by the Senior Member.
[69] Appellant’s submissions, [14].
[70] Reasons, [418].
In this regard, the Full Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v Quirk[71] has recently stated the obligation on practitioners in pursuing appeals in the following terms:
“There must be a limit upon how far this Court is required to go in dealing with every contention that is floated into the air. Manifesting ingenuity in marshalling as many arguments as possible is no proper aspiration for a barrister: Giannarelli v Wraith (1988) 165 CLR 543 at 556. Counsel have a duty to assist the court 'by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner' …
When it comes to performing the barrister's forensic duty in the context of an appeal, there is a further responsibility to identify with precision the alleged error, understanding its significance in the overall scheme of the controversy between the parties. A point to be advanced in argument should either be considered to be of sufficient merit and significance after considering the nature of the subject matter of the appeal and the need to keep the dispute in proportion to what is ultimately at stake that it is clearly articulated and fully developed, or, if not, it should be put to one side. Where there is a failure to conform to these expectations the Court must, in the interests of efficiency, itself take on the responsibility of confining its consideration to those points which are considered to have sufficient merit or significance that they are appropriately addressed in reasons. Failure by a barrister to perform this responsibility cannot lead to the consequence that the appeal court must nevertheless consider every point. The resolution of appeals would collapse under the weight of a requirement of that character.” (emphasis added)
[71] [2023] FCAFC 163, [441]–[442].
These remarks are completely apposite to this ground. This aspect of Ground C fails for want of appropriate articulation of the error said to have occurred.
Next the appellant complains about the Senior Member’s remark about a wages schedule and finding that the appellant bore the onus of proof. I will deal with each in turn.

Wages schedule

The appellant complains that “there was no suggestion at any time that the Appellant was required to file a wages schedule and this would be inappropriate in any event in circumstances where the management of the claim (such as it was) was in the hands of the first Respondent not the Appellant”.[72] Whilst the appellant has not identified the offending paragraph of the decision, I think it is clear that this complaint is directed to reasons [418], which I have set out in full (at [92] above).
[72] Appellant’s submissions, [16].
Pausing here, a wages schedule, or schedule of earnings, is a document referred to in r 68 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC 5 – Schedule of earnings. Such a document is to be filed where the amount of weekly compensation is in dispute. In this matter the appellant put the amount of weekly compensation paid to the second respondent in dispute.[73] At the hearing, the solicitor for the appellant said as follows:
“We say you shouldn’t have paid anything or you paid too much. You shouldn’t have paid weeklies, that means you should have paid nil. If there’s some suggestion you could have paid more than nil, then we say it should be the minimal possible amount.”[74]
The Rules require such a document to be filed where the amount of weekly compensation paid is in dispute. This the appellant did not do.
[73] Miscellaneous Application, p 13, [6].
[74] T 25.4–8.
In any event, I consider that a fair reading of reasons [418] reveals that the Senior Member’s comment that the appellant “has not filed a wages schedule” is a simple statement of fact. The appellant had challenged the amount paid to the second respondent and led no evidence on the issue. I would remark that the appellant has not made any submission as to why this remark was an error, it was a fact that no such document was filed, despite the requirement in the Rules and Procedural Direction. No error has been alleged, let alone established, on this point.

Onus of Proof

In assessing which party bore the legal, as opposed to the tactical, onus of proof in the proceedings, one firstly needs to examine the nature of the proceedings and how they came about.
The second respondent alleged that he suffered injury at work with the appellant. The first respondent accepted and paid the second respondent’s claim. Consequently, there was no dispute between the first and second respondents on the issues of either injury or incapacity. The first respondent served a s 145 notice on the appellant seeking repayment of the monies paid to and on behalf of the second respondent.[75] The appellant then filed these proceedings in accordance with s 145(3), submitting that it was not liable at all or, in the alternative, that the amount claimed should be reduced. In Raniere Nominees Pty Limited v Daley,[76] Tobias JA reviewed the s 145 scheme with particular regard to how an employer could challenge an amount claimed from it in a s 145 notice. His Honour noted that the certificate issued which sets out the amount paid to the worker and sought to be recovered from the employer “becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act.”[77]
[75] Miscellaneous Application, pp 1–11.
[76] [2005] NSWCA 121 (Raniere).
[77] Raniere, [46].
In short, it is the employer who bears the onus of proof in such circumstances as present in this matter.
Properly characterised, the appellant’s claim seeks to disturb or change the situation in terms of the payments made to the second respondent. It has long been the case that the party asserting a change must prove it.[78] The appellant is clearly the moving party in this dispute who is seeking to disturb a situation where no dispute exists between the respondents.
[78] The Commonwealth v Muratore 141 CLR 296, 302–3; Whittaker v State Forests of NSW [2008] NSWWCCPD 136, [49].
Finally, I note that the appellant asserts that these proceedings are inquisitorial in nature, in aid of its submission that the appellant does not bear the onus of proof. Curiously, the submission then goes on to assert that to the contrary, the onus lay “squarely on the first Respondent”.[79] I say ‘curiously’ because this submission does tend to sit in contradistinction with the suggestion that the proceedings are inquisitorial. I also deal with the submission that these proceedings are inquisitorial in Ground D below. As in Ground D, this assertion is not supported by any submission.
[79] Appellant’s submissions, [17].
In South Western Sydney Area Health Service v Edmonds[80] McColl JA considered the legislative framework of the former Workers Compensation Commission in some detail.[81] Her Honour remarked, “I would merely observe that the features of the adversarial model to which I have referred indicate, in my view, that the Commission cannot be described as ‘inherently inquisitorial’, at least if by that expression, it is intended to connote the ‘pure’ European model of such processes.”[82] The Personal Injury Commission is the statutory successor to the former Workers Compensation Commission. For the purposes of considering this argument, there has been no relevant change to the statutory provisions examined in Edmonds which would affect the applicability of Edmonds to my considerations of this argument.
[80] [2007] NSWCA 16 (Edmonds).
[81] Edmonds, [86]–[96].
[82] Edmonds, [96].
The appellant was the moving party in the proceedings. It was seeking to dispute a series of payments made by the first respondent to the second respondent in circumstances where there was no dispute between these two parties. In practical terms, the onus of proof, whether legal or tactical, resided with the appellant.

Consideration

The Senior Member’s reasoning on the s 11A question appears in a discrete number of paragraphs entitled “Section 11A(1)” commencing at reasons [388] and concluding at [400]. It seems to me that the critical finding made by the Senior Member is to be found at reasons [393] where the following is recorded:
“The difficulty the [appellant] has in establishing that the second respondent’s injury was wholly or predominantly caused by its action with respect to provision of employment benefits is the evidence, much of it unchallenged, that the injury was also caused by matters other than the late payment of his commissions …”. (emphasis added)
Having made this finding, the Senior Member then reviewed the medical evidence before consolidating this view at reasons [399] in the following terms:
“Taking into account the other medical evidence, including that of Dr [Abdal] Khan, who has in my view provided a detailed and balanced report, I am not satisfied that the second respondent’s injury was wholly or predominantly caused by the [appellant’s] actions with respect to provision of employment benefits”.
Both respondents rely on the Senior Member’s approach to deciding the s 11A question of “wholly and predominantly” as a complete answer to this ground. Tellingly, the second respondent notes, with some justification, that this finding has not been challenged on appeal by the appellant.
Notwithstanding these submissions from each respondent, it seems that the appellant’s challenge to this finding rests on the challenge as to how the medical evidence was construed, which only deals with one of the two elements of the Senior Member’s reasoning on this question. It is clear from reasons [393] that the Senior Member was referring to evidence more broadly than the construction of the medical evidence. The Senior Member refers to such evidence at reasons [394] to [396].
In terms of the construction of the medical evidence, the appellant states that the second report of Dr George[105] needs to be read in conjunction with the earlier history taken in Dr George’s first report dated 11 November 2020. The final three paragraphs of this report (in the first respondent’s Reply, page 175) deal with the second respondent’s problems with being paid. Pausing here, I have examined Dr George’s report closely and in particular, the history appearing at page 175 of the first respondent’s Reply. Whilst it is true that on this page a history of the second respondent’s problems with being paid salary and commissions is recorded, these are not the only problems that the doctor has set out in that section of his report. Beneath the heading “Presenting Complaints” is a recount of other complaints, not related to employment conditions. The doctor recorded the second respondent as feeling “both intimidated and bullied by the owner of the company.” Later in the same report of 11 November 2020 Dr George says: “Given the history he presented on the day of assessment, it does appear that his employment has been the main contributing factor to the development of his condition.”[106] Much emphasis is placed by the appellant on the opinion in Dr George’s second report of 9 December 2020. Dr George says: “It does appear that the predominant cause of injury to Mr Martin has related to the actions of his employer in relation to provision of employment benefits.”[107] The Senior Member was not satisfied or persuaded by Dr George’s opinion.[108]
[105] First respondent’s Reply, p 180.
[106] First respondent’s Reply, p 178.
[107] First respondent’s Reply, p 180.
[108] Reasons, [397]–[398].
The appellant has not shown how this approach to Dr George’s opinion was wrong. In Dr George’s initial report of 11 November 2020, the doctor was of the opinion which I have extracted above from the first respondent’s reply, page 178. That opinion was based on the history given on the day of the assessment. This history included complaints about both employment benefits and other matters. In Dr George’s second report of 9 December 2020, there is no path of reasoning which plots the development of Dr George’s opinion from his first report that Mr Martin’s employment generally was the main contributing factor to his condition, to the opinion appearing in the second report which focuses on employment benefits. Part of the problem with Dr George’s opinion in his 9 December 2020 report, apart from the fact that it is not reasoned, is that the doctor was asked a question to which he has responded largely by repeating the terms of the question. The Senior Member did not accord this opinion much weight and no error has been identified in this approach. Having closely read Dr George’s two reports, and how the Senior Member dealt with them, the Senior Member’s decision as to the weight to be accorded to the reports was comfortably within the discretion of the first instance decision-maker. No error has been identified.
Consequently, the appellant has been unable to disturb the Senior Member’s finding at reasons [399] that the Senior Member was not satisfied the second respondent’s injury was “wholly or predominantly caused by the [appellant’s] actions with respect to provision of employment benefits.”
In light of this decision, the Senior Member’s finding that commissions were not part of the second respondent’s employment benefits in any event, is largely redundant. I would note that the meaning of the phrase “employment benefits” is not strictly defined, nor have the parties pointed to any authority on this. In Northern New South Wales Local Health Network v Heggie,[109] the Court of Appeal made the following remarks with respect to the approach to s 11A(1) of the 1987 Act. Sackville AJA said that with respect to the s 11A category of discipline, the following approach was consistent with the language of s 11A and the authorities, in that:
“a broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”[110]
[109] [2013] NSWCA 255 (Heggie).
[110] Heggie, [59].
In Canterbury Bankstown Council v Gazi,[111] I said the following about the approach to construing the various categories in s 11A, consistent with the remarks of His Honour in Heggie:
“Section 11A(1) of the 1987 Act, when properly construed, provides an employer with relief from liability in eight identified categories. Each category is to be viewed through the lens of the words of the section immediately preceding the listing of the eight categories. Namely, was the psychological injury wholly or predominantly caused by reasonable action taken, or proposed to be taken, by or on behalf of the employer with respect to one (or more as the case may be) of the eight listed categories.
The Court of Appeal in Heggie was dealing with the category of ‘discipline’ in s 11A of the 1987 Act and was of the view that a broad approach should be taken to ‘action with respect to discipline’. While the decision in Heggie is factually distinct from Doyle^[[112]]and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There is no warrant to depart from the approach taken in Heggie with respect to the category of ‘transfer’ or the other categories in s 11A. As was said by the majority in Doyle, it is a ‘question of fact and degree’ as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1).”[113] (emphasis added)
[111] [2019] NSWWCCPD 14 (Gazi).
[112] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 (Doyle).
[113] Gazi, [174]–[175].
Consistent with what I found in Gazi, the “broad approach” referred to by Sackville AJA is to be taken with respect to each element in s 11A. In this case the Senior Member has not taken such an approach with respect to the construction of the phrase “employment benefits” and as a consequence was in error. The Member has not explained why she was “not convinced” that a commission was an employment benefit. I would remark that the respondent only became entitled to receive such commissions by virtue of his employment with the appellant, the payment of which was a benefit linked to his performance during employment.
However, the error must affect the result to justify appellate intervention.[114] In light of the decision with respect to “wholly and predominantly” (above) the Senior Member’s error with respect to the finding that a commission was not an employment benefit does not affect the result.
[114] Walshe v Prest [2005] NSWCA 333, [27]; Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339, [17], [20], per Basten JA.
Ground E fails. Ground E is dismissed.

As to Ground F – Failure to give adequate reasons

Submissions

The appellant frames its argument in this ground in the following manner:
“The Employer submits that the Commission Member has failed to give adequate reasons, in particular, in respect of the issue identified in Ground E above (paragraphs 397–399) and in respect of the question of capacity for work (paragraphs 416–419). The relative lack of reasons in this regard needs to be considered against the background of the detailed and lengthy submissions made on behalf the Appellant at Arbitration and the Written Submissions filed in reply.”[115]
[115] Appellant’s submissions, [25].
In response to this submission the first respondent says as follows:
“58. The Personal Injury Commission Rules 2021 … required the Member to provide a brief statement of her reasons which includes a reference to the evidence and other material on which the findings that she made were based. Further the reasons needed to be stated sufficiently to make the parties aware of her views of the case made by the Appellant. (see rule 78).
59.    It should be noted that the Appellant uses the term ‘relative’ which suggests that that it accepts that reasons were given therefore this is not a ground in which the Appellant says that no reasons were given.
60.    The Appellant does not attempt to delineate what it says was revealed in the Member’s decision and what was not.
61.    It is submitted that [on] a fair reading of COD paras 397 to 399 that the Member made reference to the evidence upon which her decision was based and her reasons for doing so, sufficient to make the Appellant aware of her views in regard to this issue.
62.    COD paras 397 to 399 should not be taken in isolation and therefore all of the Member’s findings in regard to this issue should be considered. That is COD paras 416 to 419 raised by the Appellant in support of this ground should not be read in in isolation.
63.    It is therefore submitted that this ground fails to establish an error of law or fact.”
The second respondent adopts the first respondent’s arguments in full.
The two issues raised by the appellant in this ground are s 11A and the second respondent’s capacity for work. On both issues, the Senior Member correctly stated that the appellant bore the burden of proof.

Some principles regarding the adequacy of reasons

As the respondents have quite properly pointed out, the Personal Injury Commission Rules 2021 at r 78 define the obligation of members when giving reasons. This rule reflects the obligation set out in s 294(2) of the 1998 Act which provides: “A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
This statutory mandate to provide reasons does not require reasons to be lengthy or elaborate, but the essential grounds do need to be articulated.[116]
[116] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per McHugh JA.
In Beale v Government Insurance Office (NSW)[117] the following statement of principle was made: “When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole” and that “reasons need not be lengthy or elaborate”. The scope and extent of the obligation depends upon the individual case.[118]
[117] (1997) 48 NSWLR 430 (Beale), 443.
[118] Mifsud v Campbell (1991) 21 NSWLR 725, 728 per Samuels JA.
Additionally, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error.[119] In Roncevich v Repatriation Commission[120] Kirby J said that the courts should “avoid overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
[119] Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167.
[120] [2005] HCA 40, [64].
It is also not necessary for a member to refer to every piece of evidence.[121]
[121] Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156.

Consideration

I have set out above some principles in relation to how appeals are dealt with in the Commission (see [38] to [41]). Above, I have also set out the principles applying to appeal grounds alleging that the reasons were inadequate. In particular, in dealing with this appeal ground, the remarks of the Full Federal Court in Kowalski are completely apposite.
It is unsatisfactory for the appellant to make a broad assertion that reasons are inadequate and merely refer to selected paragraphs in the decision. This is precisely the vice criticised in Kowalski. It is not the function of a Presidential member in deciding an appeal to search for error when none has been meaningfully identified by the appellant. This ground fails, in even the most rudimentary way, to identify how the error in terms of inadequacy of reasons is said to have occurred, let alone how any such error affected the ultimate result. The reader of this appeal ground is left to speculate what the error is or might be.
I would note that in relation to the two subjects referred to in this ground, s 11A and capacity, the paragraphs the appellant refers to are simply portions of larger sections of the decision dealing with each topic. As I have made clear above,[122] the authorities make it plain that reasons need to be read as a whole.
[122] Beale.
In terms of the s 11A issue, paragraphs [397]–[399] are but three paragraphs within a larger series of paragraphs dealing with this issue. The Senior Member commenced her deliberation on s 11A in a section of the decision entitled “Section 11A(1)”. The Senior Member set out s 11A at reasons [388], and thereafter described her task and reasoning in reasons [389]–[400]. I set these paragraphs out below.
“389. The [appellant] has raised the provisions of s 11A(1) in support of its Application. It bears the onus: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) DDCR 206.
390. The phrase ‘wholly or predominantly caused’ has been held to mean ‘mainly or principally caused’. The test of causation to be applied is that described in [Doyle] that whether actions in respect of one of the matters specified in s 11A(1) were the whole or predominant cause of psychological injury was ‘a question of fact and degree, which involves consideration of all the factors which produced (the worker’s) condition’ (at [8]).
391. The [appellant] relies on its reasonable action with respect to ‘provision of employment benefits’, that is payment of commissions.
392. I am not convinced that commissions, which comprised part of the second respondent’s remuneration, may be classified as employment benefits, in the same way as perhaps a discretionary bonus may be so classified. The first respondent submitted that neither failing to pay commissions on time nor the unilateral changing of the second respondent’s contract can be said to fit the requirements of the section. The second respondent adopted its submissions. Notwithstanding my reservations, I will deal with the [appellant’s] reliance on s 11A(1).
393. The difficulty the [appellant] has in establishing that the second respondent’s injury was wholly or predominantly caused by its action with respect to provision of employment benefits is the evidence, much of it unchallenged, that the injury was also caused by matters other than the late payment of his commissions; and while the [appellant] disputes that the commissions were incorrect, and asserts they were delayed due to the actions of the second respondent, it is clear that they were sometimes paid late.
394. Other matters raised by the second respondent in his evidence include the delay in preparation of contracts in December 2019, resulting in delayed payments to him; his mobile phone and email account bills not being paid, resulting in the services being cut off; the employment of Mr McIvor without reference to him; and the reversal of a commission of $3,000 he had already been paid. Much of his evidence about this is confirmed by text messages.
395. A further matter of concern to the second respondent was the unilateral change to his contract in March 2020. It was one of the causative factors recorded by Dr Khan on 14 August 2020.
396. The second respondent’s evidence, which is not traversed by Stefan, is that, when he protested about the change in his contract, Stefan told him, ‘Well that is the way it is going to be’. Anton does not deny having told the second respondent: ‘With what we pay you, you are not on the poverty line’, when he chased up payments because he was having difficulty paying his bills.
397. Dr George has expressed the opinion in his supplementary report dated 9 December 2020 that it appeared the predominant cause of the second respondent’s injury was related to the actions of his employer in relation to provision of employment benefits. He referred in his initial report to the second respondent always having to chase his employer for payment of wages and being told the employer was going to hold back $3,000 that had been paid to him. He also recorded a history of other stressors.
398. It is not to clear to which actions of the employer Dr George was referring in his supplementary report. He emphasised that ‘it is important to appreciate the circumstances’ that led to Mr Martin leaving work, but has not elaborated further, except to say that he had (properly) not commented on the decisions the employer made.
399. Taking into account the other medical evidence, including that of Dr [Abdal] Khan, who has in my view provided a detailed and balanced report, I am not satisfied that the second respondent’s injury was wholly or predominantly caused by the [appellant’s] actions with respect to provision of employment benefits.
400. In the circumstances, it is unnecessary that I decide whether the [appellant’s] actions were reasonable.”
As can be seen from a review of these passages, the key question related to the second respondent’s commissions and his contract. The three paragraphs complained of ([397]– [399]) are part of the overall reasoning on these issues. This is the difficulty with the appellant’s lack of particularity in this appeal ground. One simply cannot divine the actual error complained of and whether it has been dealt with by the Senior Member in these sections or elsewhere in the decision. I accept that the appellant made “lengthy submissions” on s 11A before the Senior Member. But the appellant has not identified the argument that it put and which was not adequately dealt by the Senior Member. It is not appropriate, nor is it my function, to attempt to find this argument from the submissions before the Senior Member, marry that up with the appeal submissions on this ground and then look for error on the part of the Senior Member.
Ground F fails to engage with the principles required to establish error on appeal and does not articulate the error alleged in a meaningful way. Ground F is dismissed.

As to Ground G – Error of law and of discretion in the decision to join the second respondent as a party

Submissions

The appellant complains about the Senior Member’s decision to join the second respondent, the injured worker, as a party to the proceedings stating that this was an error of discretion. The appellant states that the s 145 application can only be between the nominal insurer and the employer upon whom the recovery notice has been served. The appellant further says that s 145 “does not invite any application dealing with the interests of the [second respondent].”[123]
[123] Appellant’s submissions, [26].
The appellant continues to submit that any determination of the Commission in the s 145 application cannot adversely affect the worker’s rights. The joinder, so the argument goes, will enable an insurer to circumvent its requirements under s 78 to give notice of matters in dispute to an injured worker and as a result that injured worker’s rights could be adversely affected.[124]
[124] Appellant’s submissions, [27]–[28].
The appellant concludes by asserting that there is inherent unfairness to employers in the appellant’s position in circumstances where an injured worker is joined, as it gives rise to a situation where “the Nominal Insurer has double representation”.
The first respondent points to Pt 6, r 62 of the Rules which empowers a member to join a party to a proceedings. The first respondent further states that the appellant has not stated in terms how the Senior Member’s discretion to join the second respondent miscarried.[125]
[125] First respondent’s submissions, [65].
Tellingly, the first respondent notes that the second respondent did not oppose being joined in the proceedings and that the appellant has not established how any unfairness by this joinder arose.
The second respondent responds to this appeal ground in the following manner:
“The appellant submits it was an error to join Mr Martin to a dispute in the Commission in which the Appellant employer explicitly sought findings that Mr Martin had not suffered injury, that any such injury if suffered was wholly defensible under section 11A, had been over-compensated and ought not receive any ongoing compensation.
It is difficult in that context to understand how it would not have been an error to not include Mr Martin in the hearing of the case. Basic fairness required Mr Martin be offered an opportunity to be heard.”[126]
[126] Second respondent’s submissions, [34]–[35].
The second respondent concludes that the appellant’s argument that it was unfair the appellant had to face two respondents as a result of the joinder should be rejected. The second respondent notes:
“In almost every other legal jurisdiction, litigation involves defendants with a joint interest in defeating a plaintiff’s claim. That is no barrier to a fair result whatsoever.”[127]
[127] Second respondent’s submissions, [40].

Consideration

This appeal ground can be dispensed with in relatively short terms. Nowhere in the appellant’s submissions has it been identified how the error in joining the second respondent, if indeed it was an error, affected the result. For intervention on appeal, the error must have affected the result.[128]
[128] See Walshe v Prest [2005] NSWCA 333, [27].
I would remark that the appellant, through its solicitor at the hearing, made a significant attack on the second respondent’s credit, describing his story as a “litany of lies”.[129] This attack on the second respondent’s credit can be found thereafter in the transcript from pages 39 to 47. In these pages the appellant says that the second respondent has made “false declarations” and a “lie about his employment”[130] before concluding with a final flourish that “[i]t is, with respect, a complete litany of lies.”[131]
[129] T 39.7.
[130] T 45.22–23.
[131] T 47.2–3.
Given the manner in which the appellant conducted this application and its particularly savage assault upon the second respondent’s credit, it was not an error for the Senior Member to join the second respondent. Indeed, in light of the appellant’s approach, it would have been an error and failure to accord the second respondent procedural fairness had he not been joined. Whilst the appellant argues that a s 145 application does not deal with the interests of the injured worker or could not adversely affect the injured worker’s rights, the Commission may in fact “make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned”, pursuant to s 145(4)(b) of the 1987 Act (emphasis added). The mere nature of the issues pleaded by the appellant for determination by the Senior Member may have necessitated such orders to be made in respect of the injured worker’s entitlement to compensation, if the application succeeded.
In terms of the appellant’s submissions about the first respondent avoiding its obligation to give any notice of dispute to the second respondent under s 78, this submission is without merit. The first respondent had accepted and paid the second respondent’s claim. Axiomatically, there was no dispute between these two parties requiring the issuing of such a notice.
This ground fails to establish discretionary error of the Housev King type. This ground fails to establish how, even if error was proven, such error affected the result. Ground G is dismissed.

DECISION

The Certificate of Determination dated 9 December 2022 is confirmed.

Judge Phillips
PRESIDENT

6 November 2023