Burke v Suncorp Staff Pty Ltd - [2021] NSWPICPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6
APPELLANT:	Belinda Burke
RESPONDENT:	Suncorp Staff Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3872/20
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	20 October 2020, amended 27 October 2020
DATE OF APPEAL DECISION:	23 April 2021
CATCHWORDS:	WORKERS COMPENSATION – section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998, failure to make a claim “occasioned by ignorance, mistake, absence from the State or other reasonable cause”, alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Ross, solicitor
Monaco Solicitors
Respondent:
Mr J Callaway, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. To the extent that it is necessary, the identity of the respondent is amended from “Asteron Life” to “Suncorp Staff Pty Ltd”. 2. The decision in the Amended Certificate of Determination dated 27 October 2020 is confirmed.

INTRODUCTION AND BACKGROUND

As a matter of housekeeping it should be noted that, at the arbitration hearing in this matter on 9 September 2020, the identity of the employer was amended by consent to be “Suncorp Staff Pty Ltd” in substitution for “Asteron Life”.[1] This was reflected in the written orders issued by the Commission. The documents subsequently lodged in this appeal did not reflect the amendment. To the extent that it is necessary, the employer’s identity in this appeal is amended to “Suncorp Staff Pty Ltd”.
[1] Transcript of arbitration hearing, 9.9.20, (T), T 32.18–20.
Belinda Burke (the appellant) commenced working with Suncorp Staff Pty Ltd (the respondent) from about 28 July 2008. She was employed full-time as a claims support officer with the respondent’s ‘First Response Unit’. Her duties were mainly administrative and customer service. She answered telephone calls, prepared and opened new claims and entered information into a database.[2] She stated she was given an additional responsibility of training a new recruit, who she described as “Prianka” (she was unsure of the spelling of the name). The appellant said she had to work harder to accommodate Prianka’s mistakes. The appellant fell behind with her own work. The appellant sought treatment for anxiety. She suffered from panic attacks when commuting to work by train.[3] She collapsed at home on the night of Sunday, 6 September 2009 and did not work thereafter. She received sick leave, annual leave and unpaid leave. She made a claim for income protection benefits which was accepted, and she was paid income support by that insurer.[4]
[2] Statement of Jamahl Wesser, 9.3.15, Reply, p 25; statement of appellant, 7.9.15, [10], [12], Application to Resolve a Dispute (ARD), p 2.
[3] Appellant’s statement, 7.9.15, [14]–[19], ARD pp 3–4.
[4] Appellant’s statement 7.9.15, [24]–[26].
The appellant lodged a workers compensation claim form dated 22 October 2014 in respect of the alleged psychological injury.[5] The relevant insurer, on 19 February 2015, advised that the claim was reasonably excused.[6] It declined liability in a notice dated 24 March 2015.[7] This was confirmed in further notices dated 21 December 2016, 4 August 2017, 21 February 2020 and 19 May 2020.[8] The insurer disputed the occurrence of injury and substantial contributing factor, and it additionally asserted a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). It raised an issue pursuant to s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[9] It disputed a claim made by the appellant for lump sum compensation pursuant to s 66 of the 1987 Act.[10]
[5] ARD, pp 32–35.
[6] Reply, pp 28–30.
[7] Reply, pp 31–34.
[8] Reply, pp 35–41, 49–59.
[9] Reply, p 50.
[10] Reply, pp 54–59.
The current proceedings were commenced on 14 July 2020. They plead psychological injury due to the nature and conditions of the appellant’s employment from “about July 2008 to September 2009”. The claim is for lump sum compensation of $49,300 in respect of 19 per cent whole person impairment in respect of the psychological injury. The matter was listed for arbitration hearing on 9 September 2020. Mr Stockley appeared for the appellant and Mr Callaway appeared for the respondent. Neither party sought to call oral evidence or to cross-examine. Both counsel addressed and the Member reserved his decision.
A Certificate of Determination was issued on 20 October 2020, and an Amended Certificate of Determination on 27 October 2020.[11] References to the “reasons” in this Presidential decision are to the Amended Certificate.
[11] Burke v Asteron Life [2020] NSWWCC 358 (the reasons).

TRANSITIONAL MATTERS

After the current appeal was lodged, the Workers Compensation Commission was abolished.[12] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[13] The 2020 Act amended certain parts of the 1998 Act. Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[12] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[13] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“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 without holding any conference or formal hearing.”
Neither party seeks an oral hearing. Having 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 requirements as to time pursuant to s 352(4) of the 1998 Act and the monetary thresholds in s 352(3) of the 1998 Act are satisfied.

LEGISLATION

The outcome before the Member turned on s 261 of the 1998 Act. It is convenient to set out that provision to assist in an understanding of the Member’s reasons. The section relevantly provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b)the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.”

THE MEMBER’S REASONS

The Member noted the agreed issues were:
“(a) Is the application statute barred by virtue of the provisions of s 261 of the [1998 Act]?
(b) If not, was the applicant’s employment a substantial contributing factor or the main contributing factor to her injury pursuant to s 9A or s 4(b) of the [1987 Act].”[14]
[14] Reasons, [4].
The appellant’s counsel, at the commencement of his submissions at the arbitration hearing, noted the pleaded date of injury in the s 78 notice was November 2009, which coincided with the appellant’s cessation of duties with the respondent. He said “that appears to be the starting point”. He said the claim form dated 22 October 2014 “appears to be the earliest date that any assertion was made of an entitlement under the workers compensation legislation”. He noted this was “outside the six-month period stipulated by section 261(1)”, and also “outside the three years” stipulated by s 261(4)(a). He submitted the way in which the appellant brings herself “back within the fold of the legislation” is by reference to s 261(4)(b), on the basis that injury resulted in serious and permanent disablement. It was additionally necessary that the appellant show “the failure was occasioned by ignorance, mistake, absence [from] the State, or other reasonable cause”.[15] This description accurately described what was necessary if s 261(1) of the 1998 Act was not to act as a bar to the recovery of compensation.
[15] T 3.17–4.8.
The Member summarised the lay and medical evidence, together with the parties’ submissions, in detail. It is unnecessary to refer to that summary for current purposes. The Member referred to the notes of Dr Ciardi. He said these notes, which were lodged by the appellant, “had practically all the consultation dates removed”.
The Member set out relevant parts of s 261. The Member noted that, due to the claim being brought well outside the limitation period, it was difficult to obtain a clear chronology. The Member said the appellant’s principal complaint was that she was unable to deal with Prianka and also complete her own work. The appellant said she was the subject of continual reprimands and performance management. The appellant’s friend, Ms Khoudair, said Prianka was employed by the respondent for at least six months or more, and that Prianka’s employment coincided with the respondent’s move from Chatswood to Sydney. Dr Graham recorded the panic attacks began soon after the workplace relocated, which was in August 2009. Dr Lovric took a history of panic attacks on the train “through 2009”.[16]
[16] Reasons, [122]–[125].
The Member said that the evidence was vague regarding when the appellant became “overwhelmed”. He described it as “in about 2008 or 2009” or similar. He said that, doing the best he could, it was “after August 2009” that the appellant approached Mr Cowley about her problems. The Member did not accept that the appellant suffered panic attacks as early as December 2008, her statements to that effect “appeared to conflate her attendance on Dr Ciardi in late 2008 with the later onset of her panic attacks”. Dr Graham’s evidence suggested it was on 7 September 2009 that the appellant collapsed at home, after which she did not return to work. The Member said the pressure of work did not overwhelm the appellant until “at the earliest, about mid-2009, and probably not until August and 7 September 2009”. The appellant was being treated for depression “from 2008 at least”.[17]
[17] Reasons, [126]–[131].
The Member referred to the state in which the clinical notes of Dr Ciardi were tendered: “Why they had been edited, who by and for what motive is impossible to know”. The Member said that “both Dr Lovric and Dr Smith appear to have had more informative copies of the notes. There is no reason to doubt the observations by the specialists, and it follows that I may rely on that evidence.” The Member noted the caution that is required in reliance on clinical notes, referring to Qannadian v Bartter Enterprises Pty Ltd.[18]
[18] [2016] NSWWCCPD 50 (Qannadian), referred to in reasons, [132].
The Member referred to the note regarding 2006, “remarked on by Dr Lovric and mentioned in Dr Ciardi’s certificate”. The Member said that he had not seen that note but it was “probable, in view of the evidence to which [he had] referred, that there was such an entry”. The date of the entry was 12 November 2007; the Member said the entry in the notes in evidence was 12 November 2007 and said there was a presentation for “skin problems”. Dr Smith’s report referred to a further part of that entry, for “depression”, which “included the detail that a GP mental health plan had been organised”. The Member said the detail had “probative weight as it demonstrates that Dr Smith probably had the full entry before him”.[19]
[19] Reasons, [133]–[134].
The Member said Dr Lovric observed that symptoms first occurred in 2006, although the notes showed that Dr Ciardi first saw the appellant on 26 November 2008. Dr Ciardi’s certificate dated 29 October 2009 (for salary continuance) indicated symptoms first appeared in “06”. Dr Lovric took a history of an onset of anxiety symptoms in December 2008, after a long wait in Dr Ciardi’s rooms waiting for her son to be seen. The Member said that the appellant took escitalopram from that time to early 2010. The Member referred to the evidence of Mr Brink, that the appellant’s psychological problems in 2008 did not involve her work situation. Mr Brink’s report was thorough and identified the immediate causes of the condition. The Member said “[i]f the work situation had been causative at that time it is probable that Mr Brink would have mentioned it”.[20]
[20] Reasons, [135]–[137].
The Member referred also to the appellant’s denial of personal or financial problems in her statement dated 27 February 2015. The Member said this was “hard to explain” in light of Mr Brink’s report and Dr Ciardi’s notes. The Member also noted a reference in Dr Shah’s note in March 2008 to “financial trouble”. He said the appellant was being simultaneously treated by these practices.[21]
[21] Reasons, [138]–[139].
The Member said he was satisfied “the onset of [the appellant’s] psychological condition in December 2008 was not connected with her work place”.[22] The Member noted the appellant’s statement evidence denying that she suffered from depression in 2006. The Member said there was a danger of “inadvertent reconstruction of events as remembered many years later”. The Member found the appellant’s evidence to be “unreliable”. The Member said whilst there was some contemporaneous support, in the evidence of Dr Lovric, for the work being causative of the psychological problems, this related to a later period in time. It also contrasted with the opinion of Dr Graham, who did not take a history of the “difficulties described to Dr Lovric”. Dr Graham referred to “minor issues relating to dealing with customer contact”, but there was no suggestion that “work conditions were causative”.[23]
[22] Reasons, [140].
[23] Reasons, [140]–[143].
The Member referred to the multiple notices issued by the insurer declining liability. The more recent notice dated 4 August 2017 declined liability on the basis that the insurer had insufficient information to accept liability. It referred to five named potential witnesses. The Arbitrator said that the insurer made “no effort” to make contact with these witnesses, who allegedly witnessed the appellant’s distress, pressure associated with her relationship with Prianka, and the pressure of her unmanageable workload. The Member said there was no explanation of the failure to adduce evidence from these people. He drew an inference on the basis of Jones v Dunkel,[24] that evidence of the named witnesses would not have assisted the respondent’s case.[25]
[24] [1959] HCA 8; 101 CLR 298.
[25] Reasons, [147]–[150].
The Member concluded the appellant had made out a prima facie case that experiences in her employment “probably aggravated her pre-existing psychological condition.”[26]
[26] Reasons, [153].
The Member turned to s 261 of the 1998 Act. He accepted Dr Rastogi’s opinion that the appellant had no capacity for work due to the chronicity of her condition, and that this was permanent. He rejected Dr Smith’s opinion that the work caused aggravation had ceased, as the doctor failed to explain how or when it ceased. This was sufficient to bring the appellant within the “exception to the three year rule”, because she had suffered serious and permanent disablement. The Member referred to Jones v Qantas Airways Ltd,[27] in which Keating P dealt with the test to establish serious and permanent disablement, applying Gregson v L & M R Dimasi Pty Ltd.[28] He then turned to whether he accepted the appellant’s “claim of ignorance”.[29]
[27] [2017] NSWWCCPD 11.
[28] [2000] NSWCC 47; 20 NSWCCR 520, [78].
[29] Reasons, [154]–[156].
The Member referred to the appellant’s submission that she failed to make a claim at an appropriate time “because she did not realise that a claim could be made in this jurisdiction for the consequences of a psychiatric injury”. He noted the appellant had been employed by an insurance company in a department that processed claims. She was “successfully assessed under her income protection policy following her psychiatric injury in 2010”. She had previously successfully completed a workers compensation claim in respect of a back injury. The Arbitrator said that the respondent’s counsel expressed “some reservations” about the appellant’s submission on this issue. The Member said: “I share those reservations.” He said he had already found the appellant’s evidence to be unreliable. He found the appellant’s explanation to be inadequate. She said she had not discussed the availability of workers compensation when arranging her income support claim. She did not discuss her consultation with Dr Lovric where the topic was raised twice.[30]
[30] Reasons, [157]–[158].
The Member said “it may very well be that she did not consider her options at that time, not out of ignorance, but because she was receiving weekly payments under her income protection policy and, as she said, did not turn her mind to her rights at workers compensation.” He said this was “a different proposition from being ignorant of the existence of those rights”. The Member referred to the appellant’s history of working as a manager, in a responsible job with David Jones, before she commenced with the respondent. She would have performed her duties as a claims officer in a responsible way also. She was aware of the workers compensation scheme as she had previously made a claim herself. The Member said it was likely she would have been aware of the existence of workers compensation for psychological injuries. The Member said he was not persuaded of the appellant’s ignorance in this regard.
The Member found that the appellant’s failure to make a claim was not occasioned by ignorance. There was an award for the respondent.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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 Toll Pty Ltd,[31] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[32] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[33]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(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 in the opinion of the appellate court that the [member’s] decision is wrong’.”[34]
[31] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[32] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[33] [1996] HCA 140; 140 ALR 227.
[34] Raulston, [19].

In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the [Workers Compensation] Commission”.[35] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[36]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[37]
[35] [2017] NSWWCCPD 5, [67].
[36] [2001] FCA 1833, [28].
[37] Raulston, [20].
In Northern New South Wales Local Health Network v Heggie[38], Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[39]
[38] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[39] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[40] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[41]
[40] [2020] NSWCA 54 (Hill).
[41] Hill, [20].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) The Member erred in fact in finding that the appellant’s failure was not occasioned by ignorance. (Ground No. 1)
(b) The Member erred in law in considering that the appellant’s receipt of income protection payments displaced the proposition that she was ignorant in material respects about her right to claim compensation payments. (Ground No. 2)
(c) In the light of his assessment that income protection payments were relevant to the application of s 261(4) of the 1998 Act, the Member erred in point of law in failing to consider whether the failure to claim was occasioned by “other reasonable excuse”. (Ground No. 3)

GROUND NO. 1

Appellant’s submissions

The appellant submits that her evidence on this issue was referred to in the reasons at [13], where she was quoted as saying she did not turn her mind to workers compensation, until she consulted Dr Zoltan. This was an unequivocal statement; to reject it was to find the appellant “had lied about her state of knowledge”. This “was not warranted on the evidence … all the more so in the absence of cross-examination”.
The appellant submits that Dr Lovric’s comments about workers compensation and sickness benefits are recorded in the reasons at [75] to [76]. At best, they confirm the appellant had not turned her mind to the question (consistent with ignorance). At worst (from the respondent’s perspective) they are consistent with the appellant’s stated ignorance. It is submitted Dr Lovric’s comments do not record the source of the information or the terms in which it was delivered.[42]
[42] Appellant’s submissions, [6]–[8].

Respondent’s submissions

The respondent submits that the appellant bore the onus of proof. The outcome depended on the facts; the Member found the appellant’s evidence to be unreliable and her explanation to be inadequate. The respondent quotes from a passage of Raulston that is generally consistent with the discussion at [28] to [31] above. The respondent submits the appellant had previously made a claim for workers compensation and also claimed under an income continuance policy following her psychological breakdown. It submits there are passages in Dr Lovric’s report dated 13 May 2010 “from which it can be readily inferred [the appellant] was not ignorant of her right to claim workers compensation”. These were not addressed in the appellant’s statement. The respondent submits no “reasonable cause”, other than ignorance, was proffered by the appellant in the evidence or submissions. The respondent submits the appellant has not demonstrated that the decision was wrong.[43]
[43] Respondent’s submissions, [4]–[11].
The respondent submits the Member’s finding was that the appellant’s evidence was “unreliable”, not that she lied about her state of knowledge (it refers to the reasons at [141]–[142]). Cross-examination was not required. Section 261 and the relevant evidence was raised between the parties in the dispute notice dated 21 December 2018. Her statement was essentially a “general denial”. The Member identified matters in the reasons at [156] to [160] that were not explained in the appellant’s statement. There is a “compelling inference” that the appellant was alerted in May 2010 by Dr Lovric to a link between psychological injury and workers compensation. She chose not to address this in her statement. The respondent submits the appellant failed to discharge her onus and had not demonstrated appealable error.[44]
[44] Respondent’s submissions, [13]–[26].

Consideration

The appellant seeks to bring herself within the scope of s 261(4) of the 1998 Act. The respondent correctly submits that the appellant, as the party seeking to establish the application of s 261(4), carries the onus in this regard.[45] The appellant does not submit to the contrary.
[45] Respondent’s submissions, [4]. Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, per Jacobs J, [9]–[11].
The appellant’s submissions refer to her not turning her mind to workers compensation until she saw Dr Zoltan. The reasons at [33] describe the appellant’s statement dated 7 September 2015, where at [30] she said:
“I did not know that l could make a claim for workers’ compensation benefits. I did not even think about making a claim until I had an appointment with a Dr. Zoltan in Newcastle, which was arranged by Melissa McNee, my income protection case manager.”[46]
[46] ARD, p 6.
The appellant’s submissions describe the Member’s rejection of this evidence as a finding that the appellant had “lied about her state of knowledge”, which was “not warranted on the evidence … more so in the absence of cross-examination”.
The Member dealt with the onset of the appellant’s work caused psychological difficulties. He noted the difficulty in obtaining a “clear chronology” where a case is “brought so far outside the limitation period”.[47] In the reasons at [124] to [127] the Member sought, by reference to the evidence overall, to determine when “things became so bad” that the appellant approached Mr Cowley about her problems. He concluded that, doing the best he could, this was “after August 2009”. On the basis of this, the Member did not accept the appellant’s evidence that she “was suffering panic attacks as early as December 2008”. He suggested the appellant had conflated her attendance on Dr Ciardi in late 2008 with the later onset of panic attacks. The Member concluded, on this analysis, that pressure of work did not overwhelm the appellant until “about mid-2009, and probably not until August and 7 September 2009”. She was being treated for depression prior to this, from 2008 at least.[48]
[47] Reasons, [123].
[48] Reasons, [128]–[131].
The Member continued, describing inconsistencies in the appellant’s evidence, when compared with contemporaneous facts and medical histories.[49] This led to the Member referring to the difficulty in recalling facts many years previously, and “a danger that there will be an inadvertent reconstruction of events as remembered many years later”. He then made a finding that he considered “the evidence of [the appellant] to be unreliable”.
[49] Reasons, [133]–[139].
Later in his reasons, the Member dealt with “the critical question” of whether he accepted the appellant’s “claim of ignorance”. He referred to factors raised in the respondent’s submissions, going to the acceptability of that claim. He shared “those reservations”. He noted he had already found the appellant’s evidence to be “unreliable for the reasons discussed above”. He gave reasons, summarised at [24] to [25] above, for why he did not accept the explanation of delay based on ignorance. He said he did not feel “a sense of persuasion that such was the case”.[50]
[50] Reasons, [160].
It is clear, from the summary of the reasons above, that the Member (contrary to the appellant’s submissions) nowhere found that the appellant was lying or was being deliberately untruthful. The credibility finding he made was one of unreliability, for which he gave an explanation other than deliberate untruthfulness. There is a distinction to be drawn between a finding of deliberate untruthfulness and one based on unreliability: Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest).[51]
[51] [2011] NSWCA 63, [65].
The appellant’s challenge to the availability of the credibility finding raises the fact that she was not cross-examined.
In JB Metropolitan Distributors Pty Ltd v Kitanoski Roche DP discussed the availability of credit findings in the context of the procedures applicable in the Workers Compensation Commission:
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 [Winter] from [81]).”[52]
[52] [2016] NSWWCCPD 17 (Kitanoski), [121].
The respondent submits that in the circumstances of the current matter, cross-examination was not required. Section 261 was raised in the s 287A dispute notice dated 21 December 2018 and all of the evidence to be relied on by the parties had been served.[53]
[53] Respondent’s submissions, [14].
The respondent’s submissions on this issue are consistent with the decisions in Winter and Kitanoski. The appellant did not, following lodgment of the respondent’s submissions on this appeal, seek to put on any submissions in reply, identifying specific procedural unfairness in the circumstances. The appellant’s challenge in Ground No. 1, to this aspect of the Member’s reasoning, does not succeed.
The appellant additionally challenges the conclusions the Member formed regarding what was discussed at the consultation with Dr Lovric. Dr Lovric saw the appellant on 13 May 2010 and reported on that date to the Independent Claims Assessor for Suncorp.[54] The assessment related to the appellant’s claim for salary continuance. It described a “complete breakdown” on 6 September 2009 while at home. It included a history that she “never considered making a workers compensation claim”[55] and “[s]he notes currently applying for Sickness Allowance through Centrelink and not having lodged a workers compensation claim”.[56] It included reference to the appellant having seen Dr Ciardi, her general practitioner, about “similar symptoms in 2006”.
[54] ARD, pp 356–372.
[55] ARD, p 359.
[56] ARD, p 364.
Dr Lovric’s recorded history noted the appellant commenced work with the respondent on 28 July 2008. It included a history that the appellant’s work with the respondent “involved dealing with income protection and life insurance in the claims section and she was in the ‘First Response Unit’, handling the phone-calls from first notifications”.[57]
[57] ARD, p 363.
In her statement dated 18 January 2017 the appellant, dealing with the state of her knowledge, referred to her previous workers compensation claim in respect of a back injury. She said:
‘I did not know that a person could not [sic] claim for psychological illness, as none of my doctors had ever mentioned so. I also thought that you needed to have some kind of accident at work to be able to make a claim. I have been telling my doctors since the injury happened that I had breakdown in 2009 because of work but I did not realise it was possible to claim until I met Dr Zoltan Zsadanyi in 2014.”[58]
[58] ARD, p 20.
In her statement dated 18 August 2020, the appellant said that she saw Dr Zoltan at the request of the income protection insurer on 17 September 2014. Dr Zoltan asked whether she had been in receipt of workers compensation. When the appellant said no, the doctor suggested she see a solicitor. She then spoke with her current solicitors. She stated that prior to that time she was “completely unaware that I could claim workers compensation payments for my psychological injury”. The appellant also said that, on the Monday following her collapse on the evening of Sunday 7 September 2009, she saw a doctor and then spoke to Mr Neil Brothman. Mr Brothman said he would take care of lodging a claim with the income protection insurer. “He never mentioned anything about workers compensation.”[59]
[59] Appellant’s statement 18.8.2020, [4]–[8], Application to Admit Late Documents, 20.8.20, pp 1–2.
The appellant submits that Dr Lovric’s report does not record the source of the information about workers compensation or the terms in which it was delivered. The passage relating to the appellant “currently applying for Sickness Allowance through Centrelink and not having lodged a workers compensation claim” appears in a section of Dr Lovric’s report under “Discussion of Documents” and a subheading “Asteron Initial Claim Form, Group Salary Continuance”. In the section of that document which was completed and signed by the appellant, she ticked a box to indicate that she was applying for Centrelink in respect of “this sickness/injury”. The words “currently applying for sickness allowance through Centrelink” are written in by hand. In the same part of the document the appellant ticked a box marked “N” (for no) in response to a question “Have you lodged a workers compensation claim?” In the same part of the document there is a question “If ‘no’, do you intend on lodging a claim?” Neither of the boxes “N” or “Y” was ticked.[60]
[60] ARD, pp 43–44.
The words “She never considered making a workers compensation claim” appear in a passage from the report that records the appellant’s progress subsequent to her breakdown at home in September 2009. It could be readily inferred this was part of the history given by the appellant to Dr Lovric.
The Member noted that the appellant’s statement dated 18 August 2020 referred to her conversation with Mr Brothman shortly after 7 September 2009 but contained no reference to “her consultation with Dr Lovric, in which the topic was raised twice”.[61] Dr Lovric’s report does not deal in any specific way with what was said to or by the appellant, relevant to her state of knowledge of her rights to workers compensation, beyond the two relevant passages referred to at [52] to [53] above. The appellant’s statements do not deal with what was said by her or Dr Lovric at the consultation. How the Member dealt with that evidence depended on the drawing of inferences.
[61] Reasons, [158].
On this topic, the Member recorded a submission by Mr Callaway, that there were references to workers compensation in Dr Lovric’s report and “it was unimaginable that [the appellant] would not have considered her workers compensation rights when she clearly knew of them through her discussion at that time”.[62] The Member noted a submission by Mr Callaway that, having regard to Dr Lovric’s comments, the appellant “could not now argue that she was ignorant of her entitlement, and that the more probable reason was that at the time she herself did not associate her psychological state with her work conditions”.[63]
[62] Reasons, [108].
[63] Reasons, [117].
Relevant to his assessment of the evidence overall the Member found, at [142] and [158] of the reasons, that the appellant’s evidence was “unreliable”. This was on the basis of his analysis of inconsistencies in the medical histories and the appellant’s evidence (see the reasons at [126] to [142] and the summary at [40] to [41] above). The finding of unreliability was not based on matters emanating from Dr Lovric’s report. The only inference drawn by the Member from Dr Lovric’s report, relevant to the appellant’s state of knowledge of her workers compensation rights, was that at the consultation with Dr Lovric, “the topic was raised twice”. The topic was specifically mentioned in Dr Lovric’s report at two different places, in different contexts. The inference was available on the evidence: Bradshaw v McEwans Pty Ltd,[64] Luxton v Vines.[65] I note the passage from Raulston (see [28] above) dealing with the drawing of inferences:
“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.”
[64] (1951) 217 ALR 1, 5.
[65] [1952] HCA 19; 85 CLR 352 (per Dixon, Fullagar and Kitto JJ), [8].
It cannot be said that the inference drawn, that the topic of workers compensation entitlements was raised twice at the consultation, it having been mentioned twice in the report, was wrong (see [28] above). The relevance of the evidence does not lie simply in whether what was said was inconsistent with the appellant’s claim of ignorance. The Member was critical of the adequacy of the appellant’s evidence, in that she dealt in her statement dated 18 August 2020 with her conversations with Mr Brothman, but not with what was said at her consultation with Dr Lovric, where the topic was raised.[66] The challenge to the Member’s treatment of Dr Lovric’s report fails.
[66] Reasons, [158].
Ground No. 1 asserts error in finding that the appellant’s failure was not occasioned by ignorance. Whilst this is perhaps understandable, given the way in which the findings were expressed at [161] of the reasons, it misstates the onus. The issue was not whether the respondent established that the appellant’s failure was not occasioned by ignorance. It was whether the appellant established that the failure to make a claim within six months was occasioned by ignorance, so as to bring herself within s 261(4) of the 1998 Act. Whilst the Member inverted where the onus lay, this would not have affected the result. He approached the matter on the basis that the respondent had discharged an onus that it did not bear. It follows that the appellant had not discharged her onus to prove the contrary proposition.
The evidence about the consultation with Dr Lovric was a small part of the evidence on which the Member relied in reaching his conclusion. He relied also on his finding, made for reasons quite unconnected with Dr Lovric’s report, that the appellant was an unreliable witness. This was in circumstances where a claim for workers compensation was first made on 22 October 2014, about five years after the appellant last worked for the respondent. The earliest of the appellant’s statements was dated 7 September 2015, about one year after the claim form. The Member specifically referred to the effluxion of time as a difficulty in obtaining “a clear chronology”, and also to the appellant’s account of when she became overwhelmed at work as being “vague”.[67] Immediately prior to making a finding that the appellant’s evidence was “unreliable”, the Member said:
“… one of the further difficulties in recalling facts accurately that occurred many years ago is that there is always a danger that there will be an inadvertent reconstruction of events as remembered many years later.”[68]
[67] Reasons, [123], [126].
[68] Reasons, [141].

This was a valid consideration regarding acceptance of the appellant’s evidence. It is generally consistent with what was said by McClelland CJ in Eq in Watson v Foxman:
“Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible
details are then, again often subconsciously, constructed. All this is a matter of
[69] (1995) 49 NSWLR 315, 319.
ordinary human experience.”[69]
I note also the following passage from Onassis v Vergottis:
“Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”[70]
[70] (1968) 2 Lloyds Reports 403, 431.
A more extended section of the above passage was quoted with approval in Withyman v State of New South Wales where Allsop P (Meagher and Ward JJA agreeing) described it as a “helpful discussion of credibility”.[71]
[71] [2013] NSWCA 10, [65].
The Member referred to multiple other matters that caused him to have reservations regarding the appellant’s evidence regarding her ignorance of her rights. She was aware of the workers compensation scheme, having previously herself had a claim for a back injury. She had worked for over one year with the respondent, an insurance company, as a claims officer. Prior to her employment with the respondent the appellant worked in a responsible position as a manager with David Jones. The Member concluded it was likely the appellant “would have been aware of the existence of workers compensation for psychological injuries”.[72]
[72] Reasons, [160].
The respondent, of course, did not carry an onus to prove that the appellant was aware of her rights. It was up to the appellant to prove that she was ignorant of those rights at the relevant time.
The approach adopted by the Member was available on the evidence. The appellant has not established appealable error having regard to the principles summarised at [27] to [31] above.
Ground No. 1 fails.

GROUND NO. 2

Appellant’s submissions

The appellant refers to the reasons at [159], where the Member refers to the possibility that receipt of income protection payments distracted the appellant from the question of her workers compensation rights. She submits the Member’s speculation may be correct, but that is not inconsistent with ignorance of her rights. She had not investigated those rights and until she did she remained ignorant.[73]
[73] Appellant’s submissions, [10].

Respondent’s submissions

The respondent submits that “nothing turns on the [Member’s] equivocal observation” at [159] of the reasons. It should be viewed in the context of the reasons at [156] to [160]. The observation at [159] was not determinative.[74]
[74] Respondent’s submissions, [27]–[28].

Consideration

Paragraph [159] of the reasons reads:
“Whilst Ms Burke now maintains that she was ignorant of her entitlement to claim for psychological injuries, it may very well be that she did not consider her options at that time, not out of ignorance, but because she was receiving weekly payments under her income protection policy and, as she said, did not turn her mind to her rights at workers compensation. That is a different proposition from being ignorant of the existence of those rights.”
This passage does not contain positive findings of fact. The appellant correctly refers to it as “speculation”. The passage states the proposition that, even if the appellant did not turn her mind to her rights to receive workers compensation, this does not necessarily prove that she was ignorant of those rights. The respondent correctly submits that the passage was “not determinative”. There was a positive finding at [160] of the reasons that the appellant was aware of the existence of workers compensation for psychological injuries. This was consistent with the conclusion that she was not ignorant of such rights, which was the question that required answer. The Member expressed multiple reasons at [156] to [160] which supported that conclusion. The passage at [159] of the reasons does not involve appealable error. It would not change the result.[75]
[75] Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828, [7], Walshe v Prest [2005] NSWCA 333, [27].
Ground No. 2 fails.

GROUND NO. 3

Appellant’s submissions

The appellant submits her argument under s 261(4) relied on failure to claim “caused by ignorance or other reasonable cause”. She submits the Member should have made known his view that receipt of income protection “somehow displaced a finding of ignorance”. Counsel could then have taken instructions and if appropriate could have submitted that receipt of such payments constituted “other reasonable cause”.

Respondent’s submissions

The respondent submits that the Member was not obliged to foreshadow his view. The further argument foreshadowed was not put to the Member and he could not err by failing to deal with an issue that was not argued.

Consideration

The appellant’s submission on this ground does not fairly or accurately state the Member’s discussion at [159] of the reasons. I have concluded above that the passage at [159] does not give rise to appealable error. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, the High Court said:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”[76]
[76] [2006] HCA 63; 231 ALR 592; 81 ALJR 515, [48].
In Brambles Industries Ltd v Bell, McColl JA said:
“... a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”[77]
[77] [2010] NSWCA 162; 8 DDCR 111, [30].
The argument in Ground No. 3 is inconsistent with the above authorities. Ground No. 3 fails.

CONCLUSION

All of the grounds of appeal have failed. The appeal fails.

DECISION

The decision in the Amended Certificate of Determination dated 27 October 2020 is confirmed.

Michael Snell
DEPUTY PRESIDENT

23 April 2021