Barden v Walgett Shire Council
[2023] NSWPICPD 80
•14 December 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Barden v Walgett Shire Council [2023] NSWPICPD 80 |
APPELLANT: | Christopher Barden |
RESPONDENT: | Walgett Shire Council |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A1-W585/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 14 December 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to raise an additional ground of appeal is granted. 2. The Member’s Certificate of Determination dated 8 December 2022 is amended to revoke determination [4] and to revoke the orders [7], [8] and [9]. 3. For the reasons provided in Walgett Shire Council v Barden [2023] NSWPICPD 81 the Member’s Certificate of Determination is otherwise confirmed. 4. The matter is remitted to a different non-presidential member for re-determination of the appellant’s claim for weekly payments of compensation. |
CATCHWORDS: | WORKERS COMPENSATION – acceptance and rejection of evidence – inconsistent reasoning constituting error – denial of procedural fairness by failing to afford a party the opportunity to make submissions before evidence rejected |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Stockley, counsel | |
| Carroll & O’Dea Lawyers | |
| Respondent: | |
| Mr R Hanrahan, counsel | |
| Bartier Perry Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr G Whiffin |
DATE OF MEMBER’S DECISION: | 8 December 2022 |
INTRODUCTION AND BACKGROUND
This appeal concerns a determination made by a Member of the Commission in respect of weekly payments entitlements for an injured worker, Mr Christopher Barden (the appellant), who was employed by Walgett Shire Council (the respondent) as an urban maintenance worker. The appellant brought proceedings in the Commission asserting that he had suffered a psychological injury in the course of his employment for which he was entitled to weekly payments and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The respondent disputed the injury and, in the alternative, contended that any injury suffered by the appellant resulted wholly or predominantly from reasonable action taken by the respondent with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the 1987 Act. The respondent further disputed that the appellant was incapacitated for work as result of any injury. After some protracted procedural delays, the matter proceeded to arbitration, the appellant was cross-examined and written and oral submissions were made. The Member issued a Certificate of Determination on 8 December 2022.[1] The Member determined that the appellant was injured as alleged and that the respondent had not satisfied its onus in establishing that the injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of the actions relied upon. The Member ordered the respondent to pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act and awarded the appellant weekly payments of compensation from 14 April 2021 to 17 September 2021. He entered an award for the respondent in respect of the weekly payments claim for the period beyond 17 September 2021 because he was not satisfied that there was sufficient evidence before him to support a claim for incapacity after that date.
[1] Barden v Walgett Shire Council [2022] NSWPIC 706 (reasons).
The respondent appealed the Member’s decision in respect of the finding that the injury was not wholly or predominantly caused by reasonable action taken by the respondent (appeal no A2-W585/22). I issued a decision in relation to that appeal – Walgett Shire Council v Barden[2] – in which I confirmed the Member’s Certificate of Determination in relation to the issues pertaining to injury and s 11A of the 1987 Act.
[2] [2023] NSWPICPD 81.
Prior to the respondent lodging its appeal from the Member’s determination, the appellant lodged this appeal in respect of the Member’s finding that the appellant was not entitled to weekly payments beyond 17 September 2021. Given that both appeals are from the same Certificate of Determination, the appeal decisions are to be read together, where necessary.
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.”
Both parties indicate that they are content for this appeal to be determined on the basis of the documents and their submissions.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to the time for lodging the appeal pursuant to s 352(4) of the 1998 Act has been met. The appellant submits that the monetary threshold to appeal in accordance with s 352(3) of the 1998 Act (of at least $5,000) is satisfied, as the award of compensation in issue, if calculated to the date of the appeal, amounts to a total of $58,444. The respondent is silent as to the whether the threshold is met. I accept that the threshold is satisfied and the appeal can proceed.
THE RELEVANT EVIDENCE
It is not necessary to review all of the evidence relied upon in the proceedings, much of which was relevant to the issues determined in Walgett Shire Council v Barden and is summarised in that decision, as well as in the Member’s reasons for determination.
The appellant’s statement evidence
The appellant provided a statement dated 15 November 2021.[3] He stated that since he had ceased work on 14 April 2021, he had continued to see his general practitioner, Dr Julian White, and also a psychologist, Mr Williams, and he had once spoken to a psychiatrist through telehealth but could not recall the psychiatrist’s name. He said he had been prescribed anti-depressant medication and sleeping tablets and currently felt incapable of performing any work.
[3] Application to Resolve a Dispute (ARD), pp 17–18.
The appellant provided a supplementary statement dated 24 March 2022.[4] He stated that his medical condition had not changed since his previous statement. He said he continued to feel depressed, felt worthless, had lost motivation, experienced difficulties concentrating and sleeping, and avoided interactions with people. He did not feel that he could retain work for any period of time. He explained that it was difficult in Collarenebri to access medical treatment and his general practitioner had been unable to return from New Zealand for some time, which meant that he could not obtain a medical certificate throughout late 2021 and early 2022.
[4] Application to Admit Late Documents (AALD) dated 22 April 2022, pp 4–5.
Dr Frank Chow, psychiatrist
The appellant was assessed by Dr Frank Chow via telehealth consultation at the request of the appellant’s legal representatives on 29 September 2021. Dr Chow provided a report dated 14 October 2021.[5] Dr Chow noted that the appellant was taking Effexor in the morning and Quetiapine at night. He recorded that the appellant complained of anxiety, fluctuating low mood, sleep disturbance, loss of appetite, poor motivation and loss of interest in activities.
[5] ARD, pp 42–46.
Dr Chow diagnosed the appellant as suffering from an adjustment disorder and was of the view that the appellant required ongoing psychological and psychiatric treatment. He opined that the appellant had no capacity for work, and that the appellant’s condition was likely to remain and continue.
Dr Julian White, general practitioner
Dr White provided a report dated 14 May 2021[6] in response to queries posed by the respondent. He diagnosed the appellant as suffering from a major depressive disorder, and said he was prescribed medication and was receiving counselling. He indicated that he had initiated a mental health care plan for the appellant and advised that the appellant was unfit to work.
[6] Reply to Application to Resolve a Dispute (reply), pp 183–185.
Dr White also provided a short report dated 29 July 2021.[7] He advised that the appellant was suffering from severe anxiety and depression with symptoms of poor sleep, difficulties with memory and concentration and was withdrawn. He said that the appellant’s treatment consisted of rest, counselling, and medication. He considered that the appellant was certainly not fit to return to work as a result of his condition and he was unsure as to whether the appellant would be fit to return to work again.
[7] ARD, p 47.
RaRMS Health records
The appellant attended RaRMS Health clinic over a number of years. The clinical notes commenced from 2004.[8] The appellant consulted the practice in respect of anxiety and depression from 28 January 2021 until the last entry in the clinical notes on 18 August 2021. Workers Compensation Certificates of capacity were issued, including at the consultation on 18 August 2021. Certificates of capacity certified the appellant as having no capacity from work from 17 May 2021 to 17 September 2021.[9] A further Certificate of Capacity, signed by Dr White, was issued on 19 April 2022.[10] The certificate indicated that there had been no doctor in Collarenebri so that the appellant required a (backdated) certificate from 11 November 2021. Dr White certified the appellant as having no capacity for any work from 11 November 2021 to 3 March 2022.
[8] ARD, pp 49–69.
[9] ARD, pp 186–195.
[10] Application to Admit Late Documents (AALD) dated 22 April 2022, pp 1–3.
Dr Jeff Bertucen, psychiatrist
Dr Jeff Bertucen was asked by the respondent to assess the appellant and provide his opinion in respect of the claim. He interviewed the appellant via Face Time on 6 July 2021 and provided a report dated 20 July 2021.[11] He described the appellant’s presentation as moderately depressed and anxious. Dr Bertucen was requested to ask the appellant as to whether the appellant felt that his condition had improved with treatment. Dr Bertucen responded:
“[The appellant] maintains that he is still experiencing symptoms of depression and anxiety, slightly remitted since leaving the workplace environment, but not resolved. He also maintains that his anxiety is partially due to a sense of embarrassment and self-consciousness, believing that his reputation has been traduced, and that he is unable to go into Walgett as ‘his name has been slandered’.”[12]
[11] Reply, pp 186–193.
[12] Reply, p 190, [3].
He opined that the appellant suffered from an adjustment disorder with depressed mood and anxiety, which was substantially caused by his perception of being targeted in the workplace. He recommended that the appellant undergo at least five to six sessions with the psychologist from the employee assistance program, review by his general practitioner on a regular basis and continuing antidepressant medication for four to six months. Dr Bertucen was of the view that the appellant was not incapacitated for work but had chosen not to return to work in order to avoid termination of his employment. He considered that the appellant was fit for his full time pre-injury duties, or for alternate employment.
Earning capacity assessment
An assessment of the appellant’s earning capacity was conducted at the request of the respondent. The report dated 15 September 2021 was issued by Ms Ines Pasic, rehabilitation counsellor and vocational assessor.[13] She reported that the appellant’s psychological condition had not improved since ceasing work and noted that the appellant was receiving counselling, and prescribed antidepressant medication and sleeping tablets. She reviewed the appellant’s past work history and the report provided by Dr Bertucen. Ms Pasic concluded that her findings following the vocational and psychological assessment disclosed that the appellant was fit for full time alternate employment. She said that there were numerous jobs in the open labour market that the appellant could perform, and suggested work as a farm worker, garden labourer or product assembler.
[13] Reply, pp 194–219.
THE MEMBER’S REASONS
Following his determination in favour of the appellant in respect of the question of injury and whether the injury resulted wholly or predominantly from reasonable action taken by the respondent in respect of the respondent’s liability to pay compensation, the Member turned to the question of whether, and to what extent, the appellant was incapacitated for work as a consequence of the injury. He remarked on the inadequacy of the medical evidence as to the appellant’s capacity for work, describing the evidence as “scant”, and noted that the appellant bore the onus of proving an entitlement to weekly compensation.
The Member referred to the certificates of capacity provided by Dr White for the period up to 17 September 2021, which certified the appellant as having no current work capacity. He noted that the appellant had explained that there was some difficulty in obtaining medical certification during late 2021 and early 2022 because Dr White had been overseas. The Member remarked that the appellant did not explain why he could not consult another doctor during that period in order to obtain the certificates.
The Member noted that Dr White did issue a further certificate of capacity on 19 April 2022, which was back-dated to 11 November 2021, which left the period from 17 September 2021 to 11 November 2021 unexplained and did not provide an opinion as to the appellant’s incapacity in respect of the date the certificate was issued. The Member concluded that the certificate did not assist him in consideration of the appellant’s capacity. He added that this was particularly so because the certificate also referred to the appellant as having first attended the surgery in respect of his condition on 11 November 2021, and the doctor had indicated “no” to the query as to whether the injury related to work or a motor vehicle accident.
The Member referred to the reports of Dr White dated 14 May 2021 and 29 July 2021 in which Dr White was of the opinion that the appellant was not fit for work. The Member observed that, otherwise, Dr White’s evidence was of no assistance.
The Member turned to the evidence from Dr Chow, and described Dr Chow’s assessment of the appellant’s capacity, in which Dr Chow considered that the appellant remained totally unfit for work, as “the briefest answer”, and lacking in explanation. The Member observed that Dr Chow did not explain the lack of capacity in the context of the history recorded by him that (as summarised by the Member) the appellant:
“was able to shower, grocery shop, drive around by himself, fish, take his children to activities, and maintain contact with family and friends; and even though [Dr Chow’s] only findings on mental state examination … were reports of low mood, anxiety, sleep disturbance, reduced appetite, reduced interest in activities, and poor motivation and energy – otherwise, he was neat, his speech was normal, he was cooperative, there was no evidence of thought disorder or psychotic symptoms or melancholic features, he was cognitively intact, he had insight into his condition, and there was no evidence of suicidal ideation.”[14]
[14] Reasons, [288].
The Member considered that Dr Bertucen’s opinion as to the appellant’s capacity was less than helpful, although Dr Bertucen did provide more useful commentary in support of his view that the appellant was fit for work performing his pre-injury duties as well as other full-time work in the wider community. The Member pointed out that the appellant was able to coach and umpire in rugby league and perform recreational activities such as fishing. The Member observed that the main concern with Dr Bertucen’s opinion was that the appellant had made a conscious decision to avoid returning to work. The Member was of the view that Dr Bertucen had not obtained a correct history of the interactions between the appellant and both Mr Raju Ranjit (the respondent’s director) and Mr George Masoudi (the appellant’s supervisor). He explained that the opinion would have carried more weight if Dr Bertucen had fully understood the interpersonal conflict that existed between Mr Masoudi and the appellant and said that Dr Bertucen needed to consider that a return to pre-injury duties would require the appellant to work closely with Mr Masoudi.
The Member concluded that he accepted the evidence of Dr White up until 17 September 2021 but considered that the evidence of Dr White in the subsequent certificate of capacity, together with the evidence of Dr Chow was unreliable, particularly in the context of Dr Bertucen’s opinions and in the light of no recent evidence from Dr White. He said that he was not satisfied that the appellant had discharged his onus of proving incapacity beyond 17 September 2021.
The Member proceeded to consider and determine the appellant’s entitlement to treatment expenses pursuant to s 60 of the 1987 Act.
The Certificate of Determination issued on 8 December 2022 records:
“The Commission determines:
1. The [appellant] contracted a ‘disease’ injury pursuant to s 4(b) of the Workers Compensation Act 1987 (the Act), in relation to which his employment with the respondent was the main contributing factor. The injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with s 15(1)(a)(i) of the Act.
2. The respondent has failed to establish (pursuant to s 11A of the Act) that the [appellant’s] psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits.
3. The [appellant] was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021. During that period, he had no current work capacity.
4. The [appellant] has otherwise failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021.
5. In accordance with the agreement between the parties, the [appellant’s] pre-injury average weekly earnings is $1,123.92.
6. The [appellant] is entitled to have his reasonably necessary medical and treatment expenses pursuant to s 60 of the Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April 2021.
The Commission orders:
7. There will be an award that the respondent pay the [appellant] weekly compensation pursuant to s 36(1) of the Act from 14 April 2021 to 13 July 2021, at the rate of $1,067.72 (as adjusted if necessary to apply relevant indexing) per week.
8. There will be an award that the respondent pay the [appellant] weekly compensation pursuant to s 37(1) of the Act from 14 July 2021 to 17 September 2021, at the rate of $899.14 (as adjusted if necessary to apply relevant indexing) per week.
9. There will be an award for the respondent in relation to the [appellant’s] claim for weekly compensation payments from 18 September 2021.
10. There will be an award that the respondent pay the [appellant’s] reasonably necessary medical and treatment expenses pursuant to s 60 of the Act.”
PRELIMINARY MATTER
In the Appeal Against Decision of Member (the appeal), the appellant cited five grounds of appeal. The appeal was accepted on the Commission’s electronic lodgment portal and the Commission set a timetable for lodgment and service of the Notice of Opposition (the opposition) and any submissions in reply to the opposition. On 23 December 2022, the parties were provided with a copy of the transcripts of the proceedings before the Member and the appellant was given the opportunity to make further submissions in respect of the transcripts by 20 January 2023.
The appellant did not file further submissions until 1 February 2023. The submissions were accompanied by an application brought by the appellant for an extension of time to file further submissions and to raise a new (sixth) ground of appeal. On 2 February 2023, the respondent advised the Commission that it consented to the application for an extension of time provided that it was afforded the opportunity to respond to the additional ground of appeal.
The Commission issued a Direction providing the respondent with the opportunity to lodge its further submissions in respect of the additional ground of appeal by 16 February 2023 and giving the appellant the opportunity to respond to those submissions by 2 March 2023.
Consideration of the application for extension of time to file submissions on the transcript and raise a new ground of appeal
By letter dated 1 February 2023, the appellant’s solicitor explained that both he and the appellant’s counsel were on leave until mid-January 2023, the transcript was only provided to them on 23 December 2022, and the respondent had been granted an extension of the time for filing its submissions, which were filed on 17 January 2023. The appellant submits that he was therefore given less time within which to reply to the respondent’s submissions.
The further ground of appeal asserts error on the part of the Member by failing to afford the appellant procedural fairness. The failure to afford procedural fairness was said to have been occasioned by the Member concluding that there had been a change to the appellant’s capacity on 17 September 2021 and the Member having speculated as to why the appellant did not consult a different doctor in Dr White’s absence. The appellant submits that the matters taken into account by the Member ought to have been put to the appellant when he gave oral evidence and that the appellant was deprived of the opportunity to make relevant submissions and/or explain those matters.
The issues raised in the additional ground of appeal arise from the Member’s reasons issued on 8 December 2022. It can be inferred from the appellant’s submissions that it became apparent from the reading of the transcript that those matters were not identified by the Member in the course of the proceedings or put to the appellant in cross-examination. The absence of the transcript at the time of drafting an appeal is generally not an excuse for failing to raise an issue on appeal and practitioners are expected to take sufficient notes of what occurs in the proceedings.[15] The fact that the respondent was granted an extension to file its submissions in response to the appeal is not relevant, because the appellant’s opportunity to reply to the respondent’s submissions is limited to just that – the ability to respond to new issues raised by the respondent.
[15] Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287, [15].
The ground of appeal should have been pleaded in the original appeal document. However, having read the grounds of appeal and submissions, it appears that the new (sixth) ground of appeal is somewhat interrelated with Grounds Two, Three and Four of the appeal. I note also that the proceedings followed a convoluted course, in that technical difficulties arose, and the matter involved two arbitrations and oral evidence was taken. I further note that the respondent has had the opportunity to address the new ground and has made submissions in response to the ground of appeal. The respondent does not expressly raise any objection to the new ground of appeal being raised. Additionally, the late raising of the ground has not delayed the proceedings. I therefore extend the time for the appellant to lodge submissions in relation to the transcript to 1 February 2023 and grant leave for the appellant to raise the sixth ground of appeal.
GROUNDS OF APPEAL
The appellant brings the following grounds of appeal:
(a) Ground One: Having rejected Dr Bertucen’s opinion on incapacity, the Member erred in law in giving it consideration in his assessment of the evidence of Dr White and Dr Chow;
(b) Ground Two: The Member erred in affording no weight to the appellant’s medical certification dated 19 April 2022 provided by Dr White;
(c) Ground Three: The Member erred in asking himself why the appellant did not see a different doctor during that period, in order to obtain certificates of capacity if he was in fact incapacitated;
(d) Ground Four: Having asked himself why the appellant did not see another doctor, the Member erred in failing to answer the question;
(e) Ground Five: Having found that the appellant was a truthful witness, the Member erred in failing to take account of his own evidence as to capacity, and
(f) Ground Six: The Member erred in law in failing to afford the appellant procedural fairness.
SUBMISSIONS
It is convenient to deal with Grounds One and Six prior to any necessary consideration of the remaining grounds of appeal.
As to Ground One
The appellant’s submissions
The appellant points out that he was certified as having no capacity by Dr White for the period 27 January 2021 to 17 September 2021 and the Member accepted that evidence, despite Dr Bertucen’s opinion that the appellant was not incapacitated psychologically during that period. The appellant asserts that, having made an award of weekly compensation well beyond the date Dr Bertucen expressed that opinion, the Member effectively rejected that opinion. The appellant says that it is difficult to reconcile how the Member could then accept that opinion in respect of the capacity for work at a later time.
The appellant submits that the Member’s observation that Dr Chow and Dr White did not “deal with” Dr Bertucen’s opinion was beside the point and had Dr Bertucen’s opinion been accepted, it would have supported a finding on no incapacity from the date the opinion was expressed, that is, 7 July 2021. The appellant submits that, in relying upon an opinion that he had rejected, the Member committed an error of law, an error of fact, or both.
The respondent’s submissions
The respondent refers to the Member’s comment that Dr Bertucen’s opinion about the appellant’s incapacity was “not much more helpful” than those of Dr Chow and Dr White but found it more helpful in the context of the appellant’s evidence which consisted of limited opinions, gaps in the periods, and a vague opinion from Dr Chow, with no evidence from a treating psychologist or psychiatrist.
The respondent submits that the Member took into account the fact that the appellant was engaging in various activities while off work, which indicated that Dr Bertucen’s opinion that the appellant could perform a wide variety of alternate work had merit. The respondent asserts that the Member accepted the evidence of the general practitioner when that evidence was persuasive, but there was an absence of valid contemporaneous evidence after 17 September 2021. The respondent contends that there is no principle of law that says that if one aspect of an expert’s evidence is rejected then other aspects could not be accepted. The respondent submits that the Member was entitled to consider the evidence from Dr Bertucen and weigh that evidence against all of the other evidence.
As to Ground Six
The appellant’s submissions
The appellant submits that the Member erred, firstly, in finding that there had been a change in the appellant’s work capacity from 17 September 2021, and secondly, in asking himself why the appellant did not consult a different doctor when Dr White was overseas. In respect of the first proposition, the appellant submits that it was not:
(a) an issue that had been raised in a dispute notice;
(b) based on a medical opinion to that effect;
(c) put to the appellant when he was cross-examined, and
(d) put to the appellant’s counsel when submissions were made.
The appellant asserts that, as a result of the Member querying why the appellant did not consult a different doctor in Dr White’s absence, the appellant was deprived of the opportunity to produce evidence or make relevant submissions about that question. The appellant says that the case he had to meet was Dr Bertucen’s opinion that he was not incapacitated for work from a psychological perspective, not that his incapacity had ceased on 17 September 2021.
The appellant says that, if the Member’s question was relevant (which the appellant denies), it was a matter that either the Member or counsel for the respondent should have put to the appellant when he was giving evidence.
The respondent’s submissions
The respondent provides a fair overview of the Member’s extensive efforts to provide procedural fairness to the appellant. The respondent submits that the Member was not required to put the appellant on notice of any perceived omission in his evidence or to require the appellant to present a perfect case. The respondent says that the Member provided balanced and extensive reasons based on the available evidence. The respondent asserts that the Member’s conduct did not, in any way, disregard the principles of natural justice.
The respondent contends that the dispute notices issued by it did raise issues in respect of capacity for work. The respondent asserts that the Member, while observing that Dr Bertucen’s opinion was not of much more assistance, came to a balanced view about that evidence. The respondent refers to the paucity of evidence adduced by the appellant and the Member’s observation that there was an absence of evidence from a treatment provider about the appellant’s capacity despite the appellant giving evidence that he continued to seek treatment. The respondent submits that the Member accepted the opinions from the appellant’s general practitioner and Dr Chow only to the extent that their evidence was persuasive.
The respondent submits that the gap in medical certification was obvious, it disclosed a significant defect in the appellant’s case and it was unexplained. The respondent points to the Member’s adverse findings in respect of the back-dated medical certificate. The respondent asserts that it had submitted that the appellant was able to work, notwithstanding his purported difficulties with Mr Masoudi (his supervisor).
The respondent asserts that the appellant was not caught by surprise, in that the respondent provided written submissions to the Member dealing with the issue of capacity and the Member considered and addressed those submissions. The respondent says that the Member’s finding of no incapacity at any time on or after 6 July 2021 was supported by the evidence from Dr Bertucen and the appellant should have anticipated that such a finding was open to the Member. The respondent adds that the Member was entitled to reject parts of the evidence from Dr Bertucen, while accepting other parts. The respondent contends that the Member’s conclusion was unassailable.
The respondent refers to the appellant’s complaint about the Member querying as to why the appellant did not consult a different doctor in Dr White’s absence. The respondent submits that the Member was required to weigh up the evidence and entitled to conclude that, if the appellant was unfit for work, he needed medical evidence to support an entitlement to compensation. The respondent asserts that the Member did not find that the appellant was a truthful witness but found a lack of plausibility in the appellant’s evidence. The respondent says that the Member accepted the evidence from the general practitioner that he considered credible. The respondent adds that the implausibility of the appellant’s evidence may have been the reason why the Member did not accept the appellant’s own statement evidence about his incapacity.
The respondent submits that the Member’s finding that the appellant did not seek medical treatment when Dr White was away was not speculation but was a finding of fact that was open to the Member on the evidence and supported the Member’s conclusion that the appellant was not incapacitated for work at that time. The respondent asserts that the Member did not err in making this finding.
CONSIDERATION
Ground One: Having rejected Dr Bertucen’s opinion on incapacity, the Member erred in law in giving it consideration in his assessment of the evidence of Dr White and Dr Chow
The Member did not explicitly accept the opinion of Dr Bertucen that the appellant was fully fit for any work, whether with the respondent or in alternate employment. The Member reviewed the medical evidence provided by Dr White and accepted his opinion as to the appellant’s incapacity up until 17 September 2021. He observed that he was thereafter unassisted by the subsequent certificate of capacity because of the various concerns he raised about that evidence. The Member found the evidence from Dr Chow as to the appellant’s incapacity as “unsatisfactory.”
The Member said:
“Dr Bertucen’s opinion … in relation to the [appellant’s] capacity is not much more helpful to me. He does however provide more comment than Dr Chow to support his opinion that when he examined the [appellant], the [appellant] was both fit to work in his pre-injury duties as well as in a wide variety of full-time employment. The doctor also takes an account that the [appellant] was able to coach and umpire a rugby team, as well as engage in recreational activities such as fishing.”[16]
[16] Reasons, [289].
The Member observed that Dr Bertucen’s opinion would have carried more weight if the doctor had appreciated that the appellant’s pre-injury duties would involve interaction with his supervisor and the director, with whom he had difficult interactions. The Member concluded:
“Doing the best that I can with unsatisfactory medical evidence, I am willing to accept the opinions provided by Dr White in his reports and certificates of capacity up to 17 September 2021. He was the [appellant’s] general practitioner and seems to be the only practitioner to have treated the [appellant] during that period. He was certainly in the best position to provide opinions regarding the [appellant’s] capacity during the period.
However, I find the only medical evidence presented by the [appellant] in relation to his capacity after 17 September 2021 (Dr White’s backdated certificate of capacity dated 19 April 2022 and Dr Chow’s report) to be unreliable, especially in the context of Dr Bertucen’s opinions. Neither Dr White nor Dr Chow deal with those opinions, and there is no recent evidence from Dr White despite the [appellant] having said that he was] continuing to consult with him.
In those circumstances, I find that the [appellant] has not discharged his onus of proof to allow me to make any award for weekly compensation payments in his favour after 17 September 2021.”[17]
[17] Reasons, [291]–[293].
It is implicit from the above reasons that the Member, having preferred the evidence of Dr White over that of Dr Bertucen, rejected the opinion that the appellant was fully fit for work when considering the issue of capacity for work up to 17 September 2021. The Member then rejected the appellant’s evidence as to the appellant’s capacity beyond 17 September 2021 and, by expecting that Dr White and Dr Chow were required to counter Dr Bertucen’s opinion, implicitly took Dr Bertucen’s opinion into account when making that assessment.
The respondent contends that it is open to the Member to reject some of the evidence provided by an expert witness but accept other parts of the expert’s opinion. That proposition is undoubtedly correct, however in this case, the Member rejected Dr Bertucen’s opinion that the appellant had made a conscious decision not to work because Dr Bertucen did not have a correct history of the appellant’s difficulties with his supervisor and the appellant’s director. The Member then took that opinion into account when assessing the weight to be afforded to the evidence of Dr White in the back-dated certificate of capacity and the evidence of Dr Chow, who assessed the appellant on 29 September 2021. While the Member ultimately concluded that the appellant had not discharged his onus of proving an incapacity, he did so by assessing the appellant’s medical evidence against that of Dr Bertucen, which he had not earlier accepted.
That approach discloses an inconsistency in the Member’s reasoning and constitutes error in the process of determining the issue of the appellant’s capacity for work.
Ground Six: The Member erred in law in failing to afford the appellant procedural fairness
The appellant asserts error on the part of the Member by finding that there had been a change in the appellant’s work capacity in the context of there being no evidence to that effect, the appellant was not cross-examined about having recovered from the effects of the injury, and was not asked to submit about that issue. He asserts that he was caught by surprise by the finding. The appellant also submits that the Member, having raised the query as to why the appellant did not consult a different doctor in the absence of Dr White, ought to have given his counsel the opportunity to make submissions on the existing evidence in answer to the query and the appellant ought to have been asked about it when he was giving oral evidence.
The respondent submits that the dispute notice issued by it put in issue the appellant’s capacity and the respondent made submissions to the Member that the appellant could work. The respondent asserts that the Member’s finding that the appellant did not seek treatment while Dr White was overseas was not speculation but was a finding of fact that was open to him.
The Member did not find that the appellant did not seek treatment while Dr White was away, and that was not the appellant’s evidence. The appellant’s evidence was that he continued to consult his treatment providers and his symptoms had not changed. The Member referred to that evidence when assessing the appellant’s medical case for the period from 18 September 2021. The Member found it adverse to the appellant’s claim that that there was no further acceptable evidence from Dr White in circumstances where the appellant’s evidence was that he continued to consult that doctor.
The more compelling complaint from the appellant is that he was surprised by the Member’s reasons for rejecting Dr White’s evidence in the form of the certificate of capacity dated 19 April 2022 and should have been afforded the opportunity to address the Member’s concerns about that evidence. The requirement to afford procedural fairness to a party does not require the Member to provide a running commentary of his thinking process. However, the affected party has a right to have their mind directed to a critical issue or factor upon which the decision is likely to turn in order to deal with it where the adverse conclusion drawn was not an obvious or natural evaluation of the material.[18]
[18] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074, [28]–[29].
I do not consider it obvious or a natural evaluation of the certificate of capacity that the Member would reject the certificate of capacity for the reasons given. The respondent’s submissions to the Member about the certificate were limited to comments that the certificate was back-dated, that there was a lack of certification for some periods, and that the Member ought to prefer the respondent’s medical evidence.[19]
[19] Respondent’s submissions dated 19 July 2022, [80]–[81].
The Member’s rejection of the evidence of the certificate of capacity was critical to the outcome of the appellant’s case and the reasons given for rejecting that evidence were matters that could potentially have been explained, had the appellant been given the opportunity to do so.
I am satisfied that the appellant was denied procedural fairness and that the Member erred in failing to provide the appellant with that opportunity. It follows that the Member erred in his determination of the appellant’s entitlement to weekly compensation.
CONCLUSION
The Member has erred in respect of his reasons for rejecting the appellant’s medical evidence as to his capacity for work. It is not necessary to consider the remaining grounds of appeal and it is not appropriate for me to determine issues as to whether the Member erred in respect of the weight afforded to the medical evidence or the acceptance or otherwise of the appellant’s own evidence as to capacity. The matter requires re-determination of the appellant’s capacity for work and in the circumstances, it is appropriate to remit the matter for re-determination by a different non-presidential member. The Member’s findings involved an evaluation of all of the medical evidence and the Member came to various conclusions about the weight to be afforded to that evidence. The Member’s entire findings and orders relevant to the claim for incapacity are therefore revoked in order to provide the different Member with the ability to make an uninhibited assessment of the evidence.
DECISION
The Member’s Certificate of Determination dated 8 December 2022 is amended to revoke determination [4] and to revoke the orders [7], [8] and [9].
For the reasons provided in Walgett Shire Council v Barden [2023] NSWPICPD 81 the Member’s Certificate of Determination is otherwise confirmed.
The matter is remitted to a different non-presidential member for re-determination of the appellant’s claim for weekly payments of compensation.
Elizabeth Wood
DEPUTY PRESIDENT
14 December 2023
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