Australian Nursing Home Foundation Ltd v Xu - [2023] NSWPICPD 68

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	AUSTRALIAN NURSING HOME FOUNDATION LTD v Xu [2023] NSWPICPD 68
APPELLANT:	Australian Nursing Home Foundation Ltd
RESPONDENT:	Zili Xu
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W5381/21
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	3 November 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 9 August 2022 is revoked. 2. The matter is remitted to another non-presidential member for determination in accordance with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – assessment of the evidence – consideration of the entirety of the evidence – credibility – whether the Member considered all of the relevant evidence – Raulston v Toll Pty Limited [2011] NSWWCCPD 25 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Kim, solicitor
Gair Legal
Respondent:
Mr G Young, counsel
Longton Legal
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	9 August 2022

INTRODUCTION

Zili Xu (the respondent) lodged an Application to Resolve a Dispute (ARD) in this Commission, ultimately claiming medical, hospital and like expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act). He bases the claim on an allegation of injury to his left shoulder, cervical spine and lumbar spine in the course of his employment with Australian Nursing Home Foundation Ltd (the appellant) on 25 February 2021. The appellant operates an aged care business. Mr Xu worked as a disability carer between February 2019 and 25 February 2021.
The main issue identified by the parties and the Member was as to whether Mr Xu suffered the above injuries in the manner alleged (the injury issue). There was a further issue as to whether proposed left shoulder surgery is reasonably necessary (the surgery issue).
In a Certificate of Determination with a Statement of Reasons on 9 August 2022,[1] the Member found in favour of Mr Xu with respect to both issues. This appeal is against that certificate and the reasons.
[1] Xu v Australian Nursing Home Foundation Ltd [2022] NSWPIC 449 (reasons).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 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.”
Noting Procedural Directions PIC2 and WC3; the documents before me, and the position of both parties that the appeal can be determined on the basis of these documents, I am satisfied 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.

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 the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), have been met.

THE EVIDENCE

The appellant relied upon material in an Application to Admit Late Documents (AALD) dated 13 January 2022 and an AALD dated 29 June 2022. Mr Xu relied upon material in his ARD.
Both parties also relied upon:
(a)    The oral evidence of Mr Xu on 5 July 2022, given through or with the assistance of a Mandarin interpreter. There was no issue about the interpreter’s credentials. A transcript (T) of that evidence has been obtained and provided to the parties.
(b)    A Medical Assessment Certificate (MAC) by Medical Assessor Dr Kuru dated 14 April 2022.
(c)    A document described as a “Worker Visit List” (WVL) which was admitted into evidence without objection and marked Exhibit 1.
It is otherwise unnecessary to further detail a summary of the evidence in circumstances where I have found it appropriate to deal with that evidence in the context of noting the reasons, the submissions for each party and in the discussion/findings.

THE MEMBER’S REASONS

The Member noted the documentary evidence in the ARD, Reply, AALD 13 January 2022, AALD 29 June 2022, and the MAC by Medical Assessor Dr Kuru dated 14 April 2022. He also noted the oral evidence including Mr Hanrahan’s (counsel for the appellant before the Member) cross-examination of Mr Xu. He noted that it became apparent that Mr Xu had drafted his first statement dated 10 August 2021 (first statement) with the use of a translating app on his mobile phone – and in this way attempted to render his Mandarin into English. The Member then stated that:
“Given the language difficulties and the manner in which [Mr Xu] had drafted his statement, it is … understandable there was some confusion regarding the history of the alleged injury”.[2]
[2] Reasons, [11].
Importantly, the Member then found Mr Xu:
“… did his best to assist while giving evidence. He maintained that the injury … occurred while he was assisting a client located in the Waterloo area on 25 February 2021.”[3]
[3] Reasons, [12].
The Member said Mr Hanrahan suggested to Mr Xu that he was misleading the Commission “as to which clients he visited, suggesting [Mr Xu] was in fact working with a co-worker [another employee of the appellant, Jia Ying Zhao, also referred to in the evidence as Jai Zing Zhao (Ms Zhao)] on the alleged date of injury and [Ms Zhao] was responsible for removing and replacing the client’s walker which [Mr Xu] alleged he was manoeuvring when he suffered his injury”. The Member then noted:
“However, a Worker Visit Sheet [the WVL] … which was produced by [the appellant for 25 February 2021] … revealed [Ms Zhao] was only with [Mr Xu] in the morning …, not in the afternoon at Waterloo which was where [Mr Xu] insisted his injury had taken place”.[4]
[4] Reasons, [14].
The Member also noted cross-examination of Mr Xu in relation to the history he provided on 25 February 2021 to his general practitioner (GP), Dr Huang, suggesting he had only told Dr Huang that he had injured the left side of his back. The Member records that Mr Xu denied this and said he told Dr Huang that he had injured the whole left side of his body including his shoulder; and that there was a record of him complaining of his left shoulder and back pain when he saw Dr Huang on 6 March 2021.
The Member also noted Mr Hanrahan suggested to Mr Xu that he told another GP, Dr Tan, on 20 May 2021, that he hurt his left shoulder after lifting a patient – and that Mr Xu denied this, maintaining that his “left shoulder issues arose after lifting and manoeuvring the patient’s walker on 25 February 2021, as did his neck and back injuries”.[5]
[5] Reasons, [17].
The Member then turned to his findings and reasons on the question of “whether [Mr Xu] sustained injuries as alleged”, observing firstly that while there was no issue about him “having issues in” his cervical and lumbar spine and left shoulder, the appellant’s “challenge is to the circumstances of the [alleged] injury”. He also noted there was no issue about Mr Xu having had “prior issues” with his back – but that there was no issue that these had resolved before he started work with the appellant.[6]
[6] Reasons, [18]–[19].
The Member noted the appellant’s submission that he “would not be satisfied [Mr Xu] had discharged his onus of proof in circumstances where he was mistaken as to when he was seeing the client at Waterloo”; and because the evidence of Ms Zhao – that Mr Xu did not leave his car between 9 am and 12 pm on 25 February 2021 – should be accepted.[7]
[7] Reasons, [20].
The Member noted the appellant’s submission that Mr Xu’s evidence about the alleged injury should not be accepted as his version was so confusing. The Member did not accept that submission because:
“… regardless of the time of day … [Mr Xu] has been consistent in asserting the injurious event complained of occurred at Waterloo. It is apparent from [the WVL] that [Mr Xu] went to Waterloo to see the client there in the afternoon of 25 February 2021, after Ms Zhao had left. The fact [sic] Ms Zhao did not see [Mr Xu] leave his vehicle in the morning is, in my opinion, irrelevant given [Mr Xu] states his injury took place while assisting the client at Waterloo. When he was doing so, [Mr Xu] was working alone”.[8]
[8] Reasons, [21].
The Member noted Mr Xu saw Dr Huang about 4 pm on 25 February 2021, stating this was “a time consistent with his evidence that he finished his shift on the date of injury”, and that the clinical note includes:
“Putting a wheelchair inside a car at work today.
Sudden onset of pain on his left side of back
…”.
The Member also stated that he did “not place great store” in the history recorded on 20 May 2021 by another GP, Dr Tan, who recorded this: “He sustained his L shoulder injury after lifting patient”. The Member did not “accept that the injury to the left shoulder occurred in such a way”. He then noted the reference to, amongst other things, left shoulder pain when Mr Xu saw Dr Huang on 6 March 2021, and a history taken by Dr Huang on 8 March 2021 that the left shoulder pain “appear[ed] a few days later, with pain when lift [sic] his arm above his shoulder”. The Member commented that these histories were consistent with Mr Xu’s version “that his whole left side was sore on and from the date of injury and as a result of it”.[9]
[9] Reasons, [23]–[28]
The Member referred to authorities for the proposition that “precise corroboration in clinical records of treating practitioners is not determinative of whether a worker suffered an injury as alleged”,[10] including Baker v Southern Metropolitan Cemeteries Trust.[11] He then referred to the forensic opinion from Dr Berry (engaged by the respondent), in the context of considering reports of an MRI of Mr Xu’s left shoulder on 11 March 2021, and Prof George Murrell, the treating orthopaedic surgeon. He also noted the report of Dr Damodaran, a neurosurgeon consulted by Mr Xu, and a rehabilitation expert, Dr Peck, noting that such material was consistent with “the method of the alleged injury provided by [Mr Xu]”.
[10] Reasons, [26], [31].
[11] [2015] NSWWCCPD 56 (Baker).
The Member also considered a forensic report (dated 28 April 2021) from Dr Phil Allen, engaged by the appellant, who opined that the left shoulder injury was not likely a result of the alleged injury, nor was there sufficient evidence to find that such injury caused or aggravated the pathology in Mr Xu’s cervical and lumbar spine.
The Member stated: “On balance, I find the incident in the course of his employment on 25 February 2021 was the main contributing factor to the aggravation to [Mr Xu’s] cervical and lumbar spines.”[12] He continued to state “there will be a finding that [Mr Xu] suffered injury to his cervical spine, lumbar spine and left upper extremity (shoulder) in the course of his employment with the [appellant] on 25 February 2021”.[13]
[12] Reasons, [45].
[13] Reasons, [48].
As to the surgery issue, the Member noted both Dr Berry and Prof Murrell thought the surgery was reasonably necessary, and that the appellant “makes no attack on the potential effectiveness”, or appropriateness, of the surgery. The Member opined that the issue was rather based on the availability of a steroid injection as an alternative. He also rejected a submission by Mr Hanrahan that there was no evidence as to why the surgery was reasonably necessary, noting Prof Murrell’s opinion that there was “impingement in the left shoulder”. He also noted that Dr Berry detailed the same findings on examination as did Prof Murrell, and recommended surgery as reasonably necessary.[14]
[14] Reasons, [56]–[58].
The Certificate of Determination issued on 9 August 2022 records:
“1.     Leave is granted to amend the [ARD] to add to the injury description after the word ‘walker’ the following:
‘In the alternative, [Mr Xu] suffered an injury by way of aggravation to the claimed body parts pursuant to section 4(b)(ii)’.
2.     The claim for weekly benefits is discontinued.
3.     The claim for injury to the left arm, left leg and left hip are discontinued.
4.      [Mr Xu] suffered injury to his cervical spine and lumbar spine in the course of his employment with the respondent on 25 February 2021, to which his employment was the main contributing factor to aggravations of underlying pathology in [Mr Xu’s] cervical and lumbar spines.
5.      [Mr Xu] suffered injury to his left upper extremity (shoulder) in the course of his employment with the [appellant] on 25 February 2021, to which his employment was a substantial contributing factor.
6.      The [appellant] is to pay [Mr Xu’s] reasonably necessary medical and treatment expenses in relation to the above injuries.
7.      The proposed left rotator cuff repair and arthroscopy as set out in the quote of Prof Murrell … is reasonably necessary as a result of the injury to the left shoulder.
8.      The [appellant] is to pay the costs of and incidental to the proposed surgery.”

GROUNDS OF APPEAL

Ground One – an error of fact in finding the worker’s injury occurred during the afternoon shift, and an error of law by failing to adequately consider the available evidence to the contrary.
Ground Two – error in disregarding the evidence of Ms Zhao as being irrelevant.
Ground Three – error of fact and law by finding the worker sustained injury pursuant to ss 4(a) and/or 4(b)(ii) of the 1987 Act.

SUBMISSIONS FOR THE APPELLANT

The appellant says Mr Xu was employed as a carer on 25 February 2021 with two shifts to attend to, “the morning shift” (between about 9 am and 1:15 pm), and “the afternoon shift” (between about 1:30 pm and 4 pm), and that Ms Zhao joined Mr Xu “throughout the entirety of the morning shift”. This involved the care of an elderly client with mobility issues (Mrs Wu) who was also accompanied by her husband, and Mrs Wu required a mobility aid (walking frame or walker or wheelie walker, although in some instances it also appears to be referred to as a wheelchair).
The appellant says that during the afternoon shift, Mr Xu cared for Ms Zhang, of [address redacted] Waterloo, who had no mobility issues and could walk unassisted. The appellant says Mr Xu worked during the afternoon shift unaccompanied by a fellow carer. The appellant noted that the WVL recorded Mr Xu’s attendances on 25 February 2021.
The appellant says the Member made a finding that the injury occurred during the afternoon shift, and that it had not occurred in the presence of Ms Zhao, and “with the exception of the evidence given by [Mr Xu] orally during the hearing on 5 July 2022, the evidence available … overwhelmingly supported a finding that the claimed injury was alleged to have occurred during the morning shift and in the presence of … Ms Zhao”, including two signed statements and an email sent by Mr Xu on the afternoon of 25 February 2021 – translated into English by a nationally accredited translator (NAT),[15] which reads: “While taking the wheelchair for the consumer this morning, I sprained my back.” (emphasis in the appellant’s submission)
[15] Reply, p 103.
The appellant also points to an incident report from Mr Xu, translated into English by a NAT, annexed to a factual investigation report dated 10 May 2021[16] (the incident report) which relevantly states:
(a)    At 9:00 in the morning I arrived at the car park (B1) of the consumer’s building.
(b)    As the consumer had to use a wheelchair [I] went upstairs to pick up the consumer, her family member and a colleague. Three of them got into the car together.
(c)    Since the consumer required assistance in getting into the car, one [of us] had to put the wheelchair in the boot at the back.
(d)    On that day the consumer had to get into and out of the car five times, among which four times involved taking the wheelchair from the car and putting it back.
(e)    During [one of] the four times of taking the wheelchair from the car and putting it back, I might have sprained my back at around 12:45 am (sic) while I was taking the wheelchair for the car and putting it back at [address redacted] Waterloo ….
(f)    Though I felt a strong pain at my waist while getting into the car, I did not say anything so as not to spoil their mood. I then reported to the organisation after finishing work.
[16] Reply, p 104.
The appellant says the incident report includes multiple references to the morning shift – with only one reference which is not exclusively related to the morning shift – the address at [address redacted], Waterloo. The appellant says this is a large community housing complex which was also the address of Ms Zhang, who Mr Xu attended to during the afternoon shift.
The appellant also says Mr Xu’s first statement[17] contains several references to Ms Zhao being present when he allegedly sustained his injury, and that he refers, in paragraph [27] of that statement, to “the last trip before driving the aged client [and her husband] ‘back to them Actual [sic] accommodation’” and him waiting in the driver’s seat for Ms Zhao to load the walking frame into the boot when she called him over to assist.
[17] ARD, p 1.
The appellant says that while the “translation app” used by Mr Xu “resulted in the awkward translation of certain terms”, the narrative stated by him can still be clearly followed, as well as the specific and repeated references to Ms Zhao being present when he allegedly injured himself while handling the walking frame.
The appellant says the Member did not adequately consider the second statement made by Mr Xu on 31 March 2021 (second statement), which was obtained with the assistance of a Mandarin interpreter.[18] It was also noted that Mr Xu initially declined to sign that statement without his solicitor’s approval, but later signed it. The second statement was later signed but the appellant’s submissions refer to these notations: “I don’t know English and the full text is signed without anybody’s translation. Only concern about the timeliness of treatment”.[19]
[18] Reply, p 40.
[19] Reply, pp 76, 86.
The appellant says it is likely Mr Xu signed the second statement after reviewing it with his solicitor, but that in any event,
“… the number and specificity of the references to the alleged injury occurring during the morning shift and with Ms Zhao present make it improbable that the worker’s evidence was ‘lost in translation’ and [Mr Xu] meant to state that he was injured during the afternoon shift”.[20]
[20] Appellant’s submissions, [41].
The appellant submits that the second statement shows that Mr Xu went to a further job in the afternoon, and that this client did not require a mobility aid (and “could walk and didn’t need my help”). The appellant says the Member’s finding that Mr Xu injured himself during the afternoon shift while handling a walking frame is inconsistent with such evidence.
The appellant submitted that the Member’s finding that Mr Xu’s evidence about the incident “on 25 February 2021 at Waterloo is uncontested” overlooks the above evidence – which is “so preponderant” that the said finding is erroneous.
As to Ground Two, the appellant submits the Member erred in dismissing Ms Zhao’s evidence, that she did not observe Mr Xu performing any activities with a walking frame during the morning shift, as being irrelevant.
As to Ground Three, the appellant says the finding that Mr Xu sustained an injury under ss 4(a) and/or 4(b)(ii) of the 1987 Act is erroneous because of the errors alleged in Grounds One and Two.

SUBMISSIONS FOR THE RESPONDENT

Mr Xu says the appellant submits that Mr Xu’s “statements and some of the correspondence in evidence suggested” the injury was during the morning shift, but “it was clear that [Mr Xu] was a poor historian [and] maintained that he sustained injury whilst assisting a client named Ms Zhang at [address redacted] Waterloo”.

The respondent noted an “admission” by the appellant that “Ms Zhao’s evidence was irrelevant to whatever happened” while Mr Xu was assisting Ms Zhang during the afternoon shift and that there was no need to cross-examine Ms Zhao “as [Mr Xu] maintained that he sustained injury whilst caring for” Ms Zhang in the afternoon.
Mr Xu then put that he first sought treatment for the injury from Dr Huang at 4 pm, 25 February 2021. The respondent also says that the only challenge to his allegation of injury is that it did not occur during the morning shift, and that “at no stage was it put to the worker that he did not sustain injury during the ‘afternoon shift’”.
Mr Xu says the Member referred to “objective evidence”, identifying the “afternoon shift” at Waterloo, and the time of treatment once Mr Xu’s shift ended at 4 pm; and that “much of the confusion in the evidence was based on the incorrect reference to the injury occurring in the ‘morning’ and Ms Zhao’s evidence being limited to the morning shift”.
Mr Xu pointed to “the challenges he had reporting the injury to the appellant”.[21] He then put that the Member did not fall into error “as there was no evidence to dispute what the worker said happened at [address redacted] Waterloo. An injury at that location must have occurred during the ‘afternoon shift’”. Ms Zhao was not then present “and the timing of the treatment at 4 pm matched the end of the afternoon shift”.
[21] Referring to T 25.11.
The submissions for Mr Xu as to Ground Two feed into his position as to Ground One: the relevance of Ms Zhao’s evidence “depends on a finding that the worker could only have been injured during the morning shift on 25 February 2021”, and despite his confusion on whether he sustained injury during the morning “he steadfastly maintained that the injury occurred at [address redacted] Waterloo”.
Mr Xu’s submissions as to Ground Three flow from his submissions and position as to Grounds One and Two, also noting that Dr Kuru accepted Mr Xu sustained a work-related aggravation of a degenerative disease in the cervical and lumbar spines and left shoulder.

APPELLANT’S SUBMISSIONS IN REPLY

The appellant said it “understands”, amongst other things, Mr Xu “asserted that his claimed injury took place during the afternoon shift”, and that it was “acknowledged there is evidence that [he] had instead injured himself during the morning shift”.
The appellant says the respondent “appears to have made a forensic decision not to cross-examine … Ms Zhao on two bases; [first, that she] did not directly observe any of [Mr Xu’s] activities during the afternoon shift, and [secondly] it was assumed it would be found the injury had occurred during the afternoon shift”. The appellant says it strongly disagrees with Mr Xu’s assertions that it conceded an injury occurred during the afternoon shift.
The appellant says the Member failed to properly consider evidence showing Mr Xu was alleging his injury occurred while handling a mobility aid, in the presence of Ms Zhao, during the morning shift. The appellant points to “material evidence”, said to include Mr Xu’s 25 February 2021 email at 4:46 pm[22] and the incident report.[23]
[22] Reply, p 103.
[23] Reply, p 104.
The appellant then referred to detail in Mr Xu’s second statement as to how the incident occurred,[24] making the point that such detail could only relate to the morning shift. The appellant then notes Mr Xu stating “about 10 minutes later I drove to the next client’s house. I knew the next job was a simple one and I wanted to finish. That client was in Waterloo and I had to drive the client to one place. That client could walk and did not need my help.”
[24] Reply, pp 40, 76–84.
The appellant submits that almost all of the facts contained in this evidence relate exclusively to the morning shift, with the only other reference being the address where Ms Zhang lived, [address redacted] Waterloo. The appellant says this was the same address where Mrs Wu, the morning shift client, had an apartment, and although she was living in Enfield at that time, Mr Xu drove her to that complex in Waterloo for a visit. The appellant says that at least the main reason the Member found the alleged injury occurred during the afternoon shift was that Mr Xu had been consistent in his evidence about the injury occurring at the address at Waterloo,[25] and the Member’s reasoning assumed that only one client – the one in the afternoon – has a property at [address redacted] Waterloo.
[25] Reasons, [21].
The appellant submits the Member erred by placing too much weight on the consistency of Mr Xu’s evidence in relation to one fact only, the Waterloo address, instead of “the weight he afforded to the totality of the available evidence which preponderantly supports findings contrary to those made …”.
The appellant says Mr Xu’s evidence is that he was injured as a result of forcefully pushing on a walking frame to make it fit into the boot of his car, but there is no evidence of Ms Zhang using any mobility aid; to the contrary, he states she “could walk and did not need my help”.
The appellant says that Mr Xu’s position that the attendance on Dr Huang at 4 pm on 25 February 2021 was objective evidence of a causal relationship between the afternoon shift and the alleged incident is incorrect and refers again to his statement evidence that he injured himself during the morning shift but endured and completed his afternoon shift before attending his GP.[26]
[26] Reply, pp 83–84.
In disagreeing with Mr Xu’s submission that “at no time was it put to the worker that he did not sustain injury during the ‘afternoon shift’”, the appellant refers to pp 24–25 of the transcript where, it is submitted, Mr Hanrahan “suggests to the worker” that he was “misleading the Commission and not telling the whole truth ... [a]s to what happened on that day on the 25th of February 2021 about who you were visiting on that day”. The appellant also refers in this regard to the oral evidence at pp 32–36 of the transcript where, it is submitted, it was put to Mr Xu that he had “given inconsistent versions of how his alleged injury occurred based on the various histories recorded in his medical records”. The appellant also submits that Mr Hanrahan[27] “submits to the worker that he did not manually handle the wheeled walking frame … during the morning shift at any time as he alleges”, and that Mr Xu denied such proposition. The appellant submits that it was also put to Mr Xu that it was not him who manually handled the walking frame every time the client needed to get in and out of a car during the morning shift, but rather, Ms Zhao did that; and that Mr Xu denied that as well.
[27] At T 40.
The appellant says the Member erred in fact by finding the alleged injury occurred during the afternoon and not in the presence of his colleague; and erred in law by placing undue emphasis on the consistency of Mr Xu’s evidence regarding an address in Waterloo while failing to adequately consider the totality of the evidence which preponderantly indicated his allegation of injury was in the context of the morning when Ms Zhao was present.

THE NATURE OF AN APPEAL UNDER SECTION 352 OF THE 1998 ACT

THIS APPEAL IS GOVERNED BY S 352 OF THE 1998 ACT WHICH RELEVANTLY PROVIDES:
“(5) 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.”
IN RAULSTON V TOLLPTY LIMITED[28] ROCHE DP NOTED THIS ABOUT S 352:
“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 … ARE RELEVANT …:
(A)    [A MEMBER], 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 [MEMBER] THAT IT CAN BE SAID THAT HIS [OR HER] CONCLUSION WAS WRONG’.
(B)    HAVING FOUND THE PRIMARY FACTS, THE [MEMBER] MAY DRAW A PARTICULAR INFERENCE FROM THEM. EVEN HERE, THE ‘FACT OF THE [MEMBER’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 [MEMBER] WAS WRONG.
(C)    IT MAY BE SHOWN THAT [A MEMBER] 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 [MEMBER] IS SO PREPONDERANT … THAT THE [MEMBER’S] DECISION IS WRONG’.”[29]
[28] [2011] NSWWCCPD 25 (RAULSTON).
[29] Raulston, [19].
IN MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V YUSUF,[30] MCHUGH, GUMMOW AND HAYNE JJ RESTATED THE FOLLOWING PASSAGE IN CRAIG V SOUTH AUSTRALIA[31] (RELEVANT TO THE IDENTIFICATION OF ERROR IN THE PRESENT CASE):
“… IDENTIFYING A WRONG ISSUE, ASKING A WRONG QUESTION, IGNORING RELEVANT MATERIAL OR RELYING ON IRRELEVANT MATERIAL IN A WAY THAT AFFECTS THE EXERCISE OF POWER IS TO MAKE AN ERROR OF LAW [AND] DOING SO RESULTS IN THE DECISION-MAKER EXCEEDING THE AUTHORITY OR POWERS GIVEN BY THE RELEVANT STATUTE”.
[30] [2001] HCA 30; 206 CLR 323 (YUSUF), [82].
[31] [1995] HCA 58; 184 CLR 163, [14].

DISCUSSION AND FINDINGS

The Member had the advantage of seeing and hearing Mr Xu’s evidence, including under cross-examination, and found he “did his best to assist while giving evidence”. The Member said there were “language difficulties”, including the way in which Mr Xu drafted his first statement (through the use of a translating app on his mobile phone), and that it was “understandable there was some confusion regarding the history of the alleged injury”. In this context, he emphasised that Mr Xu did maintain “the injury … occurred while he was assisting a client located in the Waterloo area on 25 February 2021”.
The advantage the Member had of seeing and hearing Mr Xu’s evidence, in a case where the analysis of his credit was important, should be taken into account and respected. However, this advantage, including the assessment of demeanour, is only one aspect of the assessment of credit, which also includes assessing the reliability of the evidence. In CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow,[32] Adamson JA (Ward P and Mitchelmore JA agreeing) stated:
“The assessment of credibility [including demeanour in the witness box] at first instance involves a number of factors, which include consistency of the statement with other statements and with the surrounding circumstances, motive and any corroboration which may be available: see generally Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 …”.
[32] [2023] NSWCA 135 (CJZ), [56]–[59].
Appeal Ground One is the essential ground and it informs the analysis of the remaining two grounds. It conflates two points: asserting an error of fact in finding the injury occurred during the afternoon shift and an error of law in failing to adequately consider the available evidence to the contrary. In my opinion, the appellant is plainly correct with respect to the said error of law. However, the failure to adequately consider “the available evidence to the contrary” means, in the circumstances – including the Member’s favourable impression of Mr Xu’s oral evidence and the unresolved “confusion regarding the history of the alleged injury” – there must be a further analysis of the injury issue taking into account all relevant evidence. Until that is done, it is not appropriate for findings of fact to be made about whether or not Mr Xu is able to prove he suffered a compensable injury, except to the extent necessary to support findings in relation to the said error of law. My reasons for those opinions follow.
There was no, at least adequate, consideration of “other statements and with the surrounding circumstances”[33] before the Member found Mr Xu suffered injury to his cervical/lumbar spine and left shoulder on 25 February 2021. I accept the Member did take various aspects of the injury issue into account, firstly including consideration of lay evidence of what happened on 25 February 2021,[34] and secondly, the later expert medical or treating medical evidence including in terms of its consistency with Mr Xu’s case.[35] While most of those reasons deal with the second category, the grounds of appeal essentially attack the first category.
[33] CJZ.
[34] Reasons, [12]–[14], [18]–[21], [46]–[48].
[35] Reasons, [10]–[12], [15]–[19], [22]–[59].
In response to Mr Hanrahan’s suggestion that Mr Xu “was in fact working with [Ms Zhao] on the alleged date of injury and [she] was responsible for removing and replacing the client’s walker which [Mr Xu] alleged he was manoeuvring when he suffered his injury”,[36] the Member said the WVL revealed Ms Zhao was only with Mr Xu in the morning, not the afternoon, at Waterloo “which was where [Mr Xu] insisted his injury had taken place”. The Member makes a similar comment in not accepting the submission that Mr Xu’s evidence should not be accepted as it was “so confusing”, finding that:
“… regardless of the time of day … [Mr Xu] has been consistent in asserting the injurious event complained of occurred at Waterloo … [He] went to Waterloo to see the client there in the afternoon …, after Ms Zhao had left. The fact Ms Zhao did not see [Mr Xu] leave his vehicle in the morning is, in my opinion, irrelevant given [he] states his injury took place while assisting the client at Waterloo. When he was doing so, [he] was working alone”.[37]
[36] Reasons, [13]–[14].
[37] Reasons, [21].
Again, the relevant problem with this reasoning is the rejection of the appellant’s submission without considering or taking into account those aspects of Mr Xu’s statements which did not support (and may have militated against) a finding that the alleged injury occurred in the afternoon shift. This was also relevant given the evidence of Ms Zhao. The fact that she “was only with [Mr Xu] in the morning” and “not in the afternoon at Waterloo” does not fully deal with the appellant’s argument that Mr Xu did not prove his case and “may well be confused about” when and where he injured himself.[38] It also does not necessarily follow, given other evidence, that a compensable injury did occur during the afternoon shift.
[38] T 39.21.
As submitted for the appellant, Mr Xu’s own statements, including his oral evidence, were not adequately considered on the important issue of when and in what circumstances the injury occurred. The first and most contemporaneous account is the email[39] from Mr Xu to Hazel Wong (his team leader/rostering staff[40]) at 4:46 pm 25 February 2021 (the email). It is written in Mandarin but appears to have been translated (bearing a National Accreditation Authority for Translators and Interpreters (NAATI) seal) reading, “Back sprained while at work … While taking the wheelchair (from the car) for the consumer this morning, I sprained my back.” (Emphasis in the original with a note that the emphasised words were “added by the translator for clarity in meaning”.)
[39] Reply, p 103.
[40] Reply, pp 84–89.
This statement from Mr Xu feeds into a statement by Andie Lo, the appellant’s “home care team leader” dated 15 April 2021. She says Hazel Wong came into her office (“late afternoon … 25 February 2021”) and told her Mr Xu “informed [Ms Wong] that he had been hurt while working that day and had pain in his back”, and that Ms Wong forwarded an email from Mr Xu to her. Ms Lo states she then called Mr Xu and:
“… asked him how he hurt his back and he told me he had escorted a client that day to see a doctor, when he put her wheelchair in the boot he’d hurt himself. … was just a simple thing. I asked him whether he was going to put in a Workers Compensation claim and he said he wasn’t sure. I told him the next step is if he wants to make a claim he would need to fill in a report …”.[41]
[41] Reply, p 89.
Ms Lo then states[42] she sent a form to Mr Xu to fill out and return, and the next day she received the incident report from Mr Xu by email. I have fulsomely set out the relevant terms of the appellant’s submissions which summarise the incident report (at [31] above).
[42] Reply, p 90.
There is no issue or complaint about those submissions accurately summarising the email or the incident report and I accept both were properly before the Member. They are both important in the injury issue analysis. As the appellant submits on appeal, there are multiple references to the injury occurring during the morning shift. The reasons do not meaningfully mention either piece of evidence let alone expose how, if at all, either of them were taken into account.
Mr Xu submits that while “statements and some of the correspondence … suggested” the injury was during the morning shift, this could be explained by him being a poor historian and he clearly maintained he sustained injury while assisting Ms Zhang at [address redacted] Waterloo.
This does not assist on the question of whether the Member’s determination is erroneous. While I form no final opinion on the evidence about this, it is sufficient for the purposes of identifying that the error is an operative one, that Mr Xu appears to have attended this address during both the morning and afternoon shifts.[43] The appellant says the morning shift completed at 1:15 pm. That appears undisputed. While the email refers to Mr Xu having “sprained” his back “this morning”, the incident report places the time of this incident “at around 12:45 am [sic, pm]”.
[43] Reply, pp 104, 83 [64], T 19.7–22.
It also appears from paragraphs [25]–[27] of Mr Xu’s 10 August 2021 statement that Ms Zhao may have been present during the alleged event. I form no final opinion on the merits of this either. Contrary to the submission for the appellant, I do not accept that “the narrative [in this statement] stated by [him] can still be clearly followed” – except that it may be said, in my opinion, that this is not clear, and to that extent I do not accept the appellant’s submission in that respect. This was not clarified by Mr Xu’s solicitor (for example, a supplementary statement reconciling any inconsistencies) or either counsel during Mr Xu’s oral evidence.
I agree with the appellant’s submission as to Mr Xu’s 31 March 2021 statement, again only to the extent to find an error of law because the decision does not adequately take the evidence in this statement into account. I do not need to pick through the whole of it to identify what parts were or were not considered. It is sufficient to accept the submission that, contrary to the Member’s implicit finding, it contains detail pointing away from Mr Xu being injured during the afternoon shift. Examples of such detail appear at pp 83–84 of the Reply; where Mr Xu states that after starting work on 25 February 2021 at about 9 am (assisting a disabled elderly client who used a walking frame accompanied by a male family member, and working with another carer), “we finished at the last stop in Waterloo” when the alleged injurious event occurred. This client appears to fit Mrs Wu’s description.
Mr Xu goes on to state that “[w]hile driving back to the client’s place, I felt like I couldn’t sit straight” as a result of “pain down the left side of my body”. He then says he “dropped the client home” and parked on the street to rest. Then, about 10 minutes later he “… drove to the next client’s house. I knew the next job was a simple one I wanted to finish. That client was in Waterloo, and I had to drive the client to one place. That client could walk and didn’t need my help.” That client does not appear to fit Mrs Wu’s description.
These pieces of evidence had the capacity to make a difference to the Member’s decision if they had been adequately taken into account. I say this not for making ultimate findings of fact, but only to support the findings of the error of law alleged in Ground One.

Unfortunately, some confusion still appears to exist about whether the injury is alleged to have occurred during the morning or afternoon shift. The Member noted Mr Hanrahan suggested Mr Xu was misleading the Commission “as to which clients he visited, suggesting [Mr Xu] was in fact working with [Ms Zhao, so in the morning] on the alleged date of injury and the co-worker was responsible for removing and replacing the client’s walker which [Mr Xu] alleged he was manoeuvring …”.[44] The Member then immediately stated, “However, a [WVL] … revealed [Ms Zhao] was only with [Mr Xu] in the morning … not in the afternoon at Waterloo which was where [Mr Xu] insisted his injury had taken place …”.[45] While it was appropriate that Mr Hanrahan put this to Mr Xu, given paragraphs [25]–[27] of Mr Xu’s 10 August 2021 statement having the capacity to mean his injury occurred while assisting Ms Zhang in the afternoon, there are multiple confounders (in [27]) to such an assumption. Then the cross-examination reads:
“MR HANRAHAN:
Q. … I’ve asked you why you didn’t put the unit number of [address redacted] of Ms Xiu Li Zhang when it was recorded in the [WVL] and you’ve answered … by referring to an interpreter. I … suggest … you are misleading the Commission and not telling the whole truth. What do you say to that?
A. (INT). What is misleading?
Q. As to what happened on … 25th of February 2021 about who you were visiting on that day.
A. (INT) On that day I got injured and when I was providing service for … Wu Yu Ling [Mrs Wu] (emphasis added).”[46]
[44] Reasons, [13].
[45] Reasons, [14].
[46] T 24.25–25.4.
I have emphasised the final part of the last answer because, contrary to what the Member stated, it is not clear that Mr Xu “insisted” his injury occurred in the afternoon. That evidence was not taken into account by the Member. However, in fairness to him, neither party took him to it in their submissions to him. Similarly, neither party specifically took him to the email, the incident report or the aspects of Mr Xu’s second statement that pointed away from the alleged injury occurring while assisting Ms Zhang in the afternoon.
Still relevant to the “some confusion regarding the history of the alleged injury”, and the Member’s comment that Mr Xu “insisted” the injury occurred during the afternoon, Mr Xu’s cross-examination continued as follows:
“MR HANRAHAN:
Q. … The fact is that you may well be confused about what actually happened on that day [25 February 2021] … would you agree … ?
A. (INT) I was working on the day and if I experienced the pain at my work, surely I know about that.
Q. You were working in the morning between 9.00 and 12.00 with Mrs Yu Ling Wu, do you agree with that?
A. (INT). Yes.
Q. And when you were working with her between 9.00 and 12.00 you had an assistant who was working with you … Ms Jia Ying Zhao, do you agree with that?
A. Yes.
Q. And every time that the client, Ms Yu Ling Wu, needed to get out of the car and use the wheelie walker it was [Ms Zhao] who did that for her and handled the wheelie walker, do you agree with that?
…
A (INT). Not every time.
Q. … at no time between 9.00 and 12.00 on the morning of the 25th of February, while you were attending Ms Yu Ling Wu, did you get out of the car at all and handle the wheelie walker in any way, do you agree with that?
A. No.
A (INT) No.”[47]
[47] T 39.20–40.18.
In re-examination, Mr Young clarified that Mr Xu’s last “No” answer meant he disagreed with the proposition put in the question. Otherwise, the questioning of Mr Xu by either counsel did not sufficiently clarify the evidence for the Member.
Mr Hanrahan submitted that Mr Young appeared to have made a forensic election not to cross-examine Ms Zhao. On the other hand, Mr Young has submitted that “[a]t no stage was it put to the worker that he did not sustain injury during the ‘afternoon shift’ at [address redacted] Waterloo”. In its submissions in reply, the appellant disagreed with that submission, firstly referring to it being put to Mr Xu[48] that he had given inconsistent versions as to how the alleged injury occurred. However, there is nothing, at least nothing clear enough, in those passages that either expressly or implicitly puts to Mr Xu that the injury did not occur during the afternoon shift.
[48] T 31–36.
Then the appellant points to the passages at T 39–40 (see [79] above) in answer to this submission. But again, there is nothing there that, at least clearly enough, puts to Mr Xu that he did not sustain injury during the afternoon shift, whether or not while assisting Ms Zhang. The appellant also says that “[m]oreover … from the outset of the claim, the insurer has responded and proceeded on the basis that [Mr Xu] is alleging an injury during the morning shift … in the presence of his colleague, Ms Zhao”. It is unnecessary to finally determine whether this submission is correct because it also does not, in any event, deal with Mr Young’s submission.
Mr Xu has not put a submission to contest the appellant’s submission of a failure to adequately consider available evidence which was contrary to the finding that the alleged injury occurred during the afternoon shift. This was appropriate given the adequate notice of the prehearing documentary evidence. He was not in a position to do so. But it was submitted for him that while he was a poor historian, he maintained he sustained an injury while assisting a client named Ms Zhang at [address redacted] Waterloo. Mr Xu says the appellant admitted Ms Zhao’s evidence was irrelevant to “whatever happened” while he was assisting Ms Zhang during the afternoon shift. But even if that is correct (noting the appellant does not agree), this does not obviate the errors of law I have identified alleged in Ground One.
Mr Xu’s submission that it was never put to Mr Xu that he did not sustain injury during the afternoon shift does have a basis and I do not accept the appellant’s submissions (in reply) disagreeing with that submission from Mr Xu. The appellant says that this occurred in cross-examination[49] where it was suggested to Mr Xu that he was misleading the Commission in not telling the truth about what happened on the day and who he was visiting. Clearly, that evidence does not deal with Mr Xu’s submission. Next, the appellant says it was put to Mr Xu that he had given inconsistent versions as to how his alleged injury occurred based on various medical histories in the medical records – and that it was put to him that he did not manually handle the wheeled walking frame and it was rather Ms Zhao who did this. This clearly does not answer this submission either.
[49] T 24–25.
Mr Xu’s submission in this regard was not put in the sense that the failure to challenge his account in cross-examination prevented a submission being made to the contrary.[50] That was appropriate given the extent of the prehearing preparation.[51] It was rather put on the basis of evidentiary weight in the context of there being no evidence that he was not injured during the afternoon shift while assisting Ms Zhang, as well as the evidence that the incident occurred while assisting her,[52] and that he maintained the injury occurred at [address redacted] Waterloo. Mr Xu also submitted that this was consistent with the approximate time he received treatment from Dr Huang once his shift ended at 4 pm.
[50] Browne v Dunn (1893) 6 R 67.
[51] New South Wales Police Force v Winter [2011] NSWCA 330, [81].
[52] First statement, [25]–27].
However, again, this submission does not deal with, let alone obviate, the Ground One errors I have identified. In my opinion these errors do, in the circumstances, amount to “ignoring relevant material” in the sense discussed in Yusuf at [82] (see [60] above) and thus constituted an error of law. As also noted at [59] above, referring to Raulston (particularly at [19(c)], it may be shown that a Member was wrong by, amongst other things, “showing that that material facts have been overlooked … in deciding the inference to be drawn”.
I believe the error identified is an operative one in the sense described in Workers Compensation Nominal Insurer v Al Othmani[53] and Akora Holdings Pty Ltd v Ljubicic;[54] that is, if the error was removed from the Member’s conclusions, it is not at all clear that his ultimate conclusion would be the same – or the operative error(s) could reasonably be supposed to have affected the result of the hearing.[55] I so conclude because there is a substantial body of evidence (detailed above in identifying the error) which was not adequately taken into account.
[53] [2012] NSWCA 45, [92].
[54] [2008] NSWCA 339.
[55] Conway v The Queen [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358, [29].
For the reasons given above, Ground One succeeds to this extent: the Member erred in law by failing – before he made the factual finding that the worker’s injury occurred during the afternoon shift – to adequately consider the available evidence which was contrary to such finding. Again, Ground One contains two limbs. The error I have found relates to the error of law limb. That finding is dispositive because it relates to an error which undermines a critical aspect of the finding on the injury issue, with this issue being a substantial underpinning foundation of the decision. This makes it unnecessary to make findings in relation to the error of fact limb of Ground One, and also the complaints in Grounds Two and Three.
In Baker, Roche DP revoked an arbitrator’s determination after finding various errors and then stated:
“In view of the above errors, the Arbitrator’s determination cannot stand and the matter must be re-determined. Because of the credit issues involved, it is not appropriate that I conduct that re-determination and the matter will be remitted to another Arbitrator for that purpose.
It is not my job to prepare the parties’ cases for them, but I note that there were several aspects of the preparation and presentation of the case on both sides of the record at the arbitration that left much to be desired. At the re-determination, both sides will be at liberty to tender such evidence as they consider appropriate and necessary for the proper determination of the matter, subject to compliance with the Rules and any direction that the next Arbitrator may issue”.[56]
[56] Baker, [168]–[169].
While there are some similarities between the present case and Baker, the basic facts are not truly analogous to those in the present case. But in my opinion, in terms of the result and the exercise of power under s 352 of the 1998 Act, the same orders should be made for similar reasons. This is not to adopt the above comment “that there were several aspects of the preparation and presentation of the case on both sides of the record … that left much to be desired”. The present case was a challenging one for the parties and the Member. There was some confusion regarding the history of the alleged injury for the reasons he gave: the language difficulties and the first statement being drafted through a translation app.
However, for reasons given earlier (in particular see paragraph [73], last sentence and paragraph [80] last sentence above), I do not think the preparation for and presentation of the case went far enough to clarify the confusion. Ultimately, I am concerned to minimise the potential for any injustice to occur to either or both parties.
Accordingly, I revoke the Certificate of Determination and remit the matter to another non-presidential member, and at the redetermination, both sides will be at liberty to tender such evidence as they consider appropriate and necessary for the proper determination of the matter, subject to compliance with the rules and any direction that the next member may issue.
Before coming to this view, I have taken into account the appellant’s submission that the determination should be revoked simply with an “Award for the respondent employer on injury” then made. No submissions are expressed in support of this position. However, I assume the appellant implicitly submits that this is appropriate because of the asserted “incontrovertible” and/or “preponderant” facts identified in its submissions on appeal and/or the consequential lack of utility of a redetermination. In my opinion though, on balance, and taking all the circumstances into account, it is more appropriate that the above orders and directions be made.
Mr Xu gave oral evidence under cross-examination and it is clear enough that the Member was impressed and influenced by Mr Xu “while [he was] giving evidence”, in particular that he “maintained that the injury he suffered occurred while he was assisting a client located in the Waterloo area on 25 February 2021”.[57] The advantage the Member had in seeing and hearing Mr Xu’s oral evidence is not to be underestimated. I have nevertheless found error and revoked the decision, but it does not follow that such advantage should be ignored in the context of the terms of and directions relating to correction of the error.
[57] Reasons, [12].
I believe it is appropriate for this case to be re-determined not only because of the oral evidence in the context of credit issues factor – but also given an added layer of complexity – the language difficulties referred to by the Member at least affecting Mr Xu’s first statement.

DECISION

The Certificate of Determination dated 9 August 2022 is revoked.
The matter is remitted to another non-presidential member for determination in accordance with these reasons.

Michael Perry
ACTING DEPUTY PRESIDENT

3 November 2023