Canterbury Bankstown City Council v Gazi (No 2) - [2023] NSWPICPD 77

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Canterbury Bankstown City Council v Gazi (NO 2) [2023] NSWPICPD 77
APPELLANT:	Canterbury Bankstown City Council
RESPONDENT:	Claire Gazi
INSURER:	Self-insured
FILE NUMBER:	A1-W3636/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	29 November 2023
ORDERS MADE ON APPEAL:	1. The appeal does not satisfy the requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 and cannot be brought.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; application of Grimson v Integral Energy [2003] NSWWCCPD 29, Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23, NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63, Popovic v Liverpool City Council [2017] NSWWCCPD 49
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Bartier Perry Lawyers
Respondent:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	10 January 2023

INTRODUCTION AND BACKGROUND

Claire Gazi (the worker) was employed by Canterbury Council as a senior finance officer for approximately 30 years. On 12 May 2016 Canterbury Council and Bankstown Council amalgamated. The worker’s employment, along with that of other staff, was transferred to the newly created Canterbury Bankstown City Council (the employer). The worker went off work from the new amalgamated council from 14 August 2017. On 6 October 2017 the worker claimed compensation on the basis that she had sustained a psychological injury. The employer denied the occurrence of injury and also asserted it had a defence on the basis of s 11A of the Workers Compensation Act 1987 (the 1987 Act). The worker commenced proceedings in the former Workers Compensation Commission of New South Wales (matter no. 2970/18). A decision by an arbitrator of the former Commission, in the worker’s favour, was issued on 22 October 2018.[1]
[1] Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 (appeal decision), [1]–[13].
An appeal by the employer from the Arbitrator’s decision was dealt with in a decision of the President, Phillips J, dated 11 April 2019. The Arbitrator’s finding that the worker was subjected to an excessive workload and suffered injury pursuant to s 4 of the 1987 Act was held to involve no error. The issue of the employer’s defence pursuant to s 11A of the 1987 Act was found to have involved error and was remitted to the same Arbitrator for redetermination.[2] When the matter came before the Arbitrator for re-determination, on 11 June 2019, the proceedings were discontinued by consent.
[2] Appeal decision, [192].
The current proceedings, matter no. W3636/22, were commenced by way of an Application to Resolve a Dispute (ARD) dated 9 June 2022. The worker pleaded a psychological injury on the basis of the ‘disease’ provisions with a deemed date of injury of 14 August 2017. She claimed ongoing weekly compensation from 28 August 2017, together with medical, hospital or related expenses of $2,000 in respect of a Medicare Notice of Charge.
The worker additionally brought proceedings against the employer in matter no. W3755/22, in a Miscellaneous Application. This application sought reconsideration of the Arbitrator’s findings, at [131] and [138] of the reasons dated 22 October 2018 in matter no. 2970/18. The reconsideration related to the finding “regarding whether the cause of the [worker’s] injury included her perception that she was bullied and harassed, treated unfavourably, and/or subjected to inappropriate treatment in the workplace”. It was requested that the Miscellaneous Application be “heard jointly with the substantive application for relief”. It was asserted the “evidence does not support a defence pursuant to section [11A]” and that the reconsideration application “addresses the scope of the matters which caused the [worker’s] injury”.
These two sets of proceedings were listed on 13 October 2022 before Mr Isaksen, the Member who had previously (as an arbitrator of the former Workers Compensation Commission of NSW) dealt with the matter in 2018. Mr Tanner appeared for the worker and Mr Stockley appeared for the employer. The parties made submissions on whether the employer could rely on a report of Dr Smith, a psychiatrist, in addition to that of Dr Whetton, psychiatrist, on whom it had relied previously. The Member held that, as a consequence of cl 44 of the Workers Compensation Regulation 2016 (the regulations) it could not.[3] On the same date the Commission issued a Direction to the parties for written submissions to be filed and served dealing with the following:
(a) whether the worker can have the Commission reconsider the issue of whether her perception of unfair treatment at work was a cause of her psychological injury, and
(b) whether evidence now relied upon by both parties which has been produced subsequent to proceedings in matter no 2970/18 should be admitted into evidence in the two applications currently before the Commission.
[3] Transcript of hearing 13/10/22 (T1), T1 4.14–5.6.
The Member issued a Certificate of Determination dated 5 December 2022, which contained the following orders:
“(a) The application made by the [worker] in W3755/22 for a reconsideration of the findings made in Certificate of Determination no. 2970/18 is dismissed.
(b) Evidence which has been produced subsequent to proceedings in matter no. 2970/18, can be admitted into evidence in matter no. 3636/22, with the exception of the medical report of Dr Glen Smith dated 3 October 2020.”
The Member, in the course of dealing with the effect of his orders, said:
“56. As a consequence of the application for reconsideration being dismissed, the additional evidence should be limited to the s 11A issue, the [worker’s] incapacity for work since October 2018 and the [worker’s] need for treatment for her psychological condition since October 2018.
57. The interests of justice, and there being no prejudice to be suffered by the [employer], leads me to the conclusion that the additional material included in both the ARD and Reply should be allowed into evidence in matter no. 3636/22.”[4]
[4] Reasons for decision, 5/12/22, [56]–[57].
The above orders were accompanied by reasons, which included a summary of the parties’ submissions dealing with these questions.
The matter was next listed before the same Member, with the same appearances, on 9 December 2022. The worker’s counsel sought to have the Member reconsider the order set out at cl (a) of paragraph [6] above, which the Member declined to do.[5] Counsel addressed on the issue of whether the employer had discharged its onus of establishing a defence pursuant to s 11A of the 1987 Act.
[5] Transcript of hearing 9 December 2022 (T2), T2 2.11–13.10.
In the course of Mr Tanner’s submissions, following a short adjournment, Mr Tanner said:
“… having regard to the material before you, I think I’m going to confine the claim to a general order under section 60 and discontinue the weeklies claim. That can be dealt with, subsequently, obviously, depending on your determination on that.”[6]
[6] T2 47.10–14.
The Commission issued a Certificate of Determination dated 10 January 2023, accompanied by 10 pages of reasons.[7] The Member in his reasons stated:
“During the course of the hearing the [worker] discontinued her claim for weekly payments of compensation, and now only seeks a general order that the [employer] is to pay the cost of reasonably necessary medical treatment incurred by the [worker] as a result of her psychological injury.”[8]
[7] Gazi v Canterbury Bankstown City Council [2023] NSWPIC 5 (the reasons).
[8] Reasons, [17].
The Certificate of Determination provided:
“The Commission determines:
1. The [worker] sustained a psychological injury in the course of her employment with the [employer], with a deemed date of injury on 14 August 2017.
2. The [employer] has failed to establish a defence pursuant to s 11A of the Workers Compensation Act 1987.
The Commission orders:
1. The [employer] is to pay the [worker’s] reasonably necessary medical or related treatment for the psychological injury she sustained in the course of her employment with the [employer] on 14 August 2017 pursuant to s 60 of the Workers Compensation Act 1987.”

THE MEMBER’S REASONS

The Member, in his reasons dated 10 January 2023, outlined the factual and procedural background, including the President’s orders on appeal in the earlier proceedings.[9] The Member noted the President’s discussion of Manly Pacific International Hotel v Doyle.[10] The Member noted he had rejected the worker’s application for reconsideration of certain findings previously made in matter no. 2970/18. The Member said that Mr Tanner had renewed his application for reconsideration at the commencement of the hearing of the current matter, this application being rejected. He noted the amendment of the current pleadings to restrict the relief claimed to a ‘general order’ pursuant to s 60 of the 1987 Act (see [10] to [11] above).[11]
[9] Reasons, [1]–[10].
[10] [1999] NSWCA 465; 19 NSWCCR 181 (Doyle).
[11] Reasons, [11]–[17].
The Member noted the summary of the evidence in the President’s decision, which he did not repeat. He noted the employer carried the onus of proving the s 11A defence. The Member referred to the employer’s submission that the difficulties of the worker (and other employees) with the SAP software system formed part of the employer’s actions with respect to transfer. The Member noted the employer’s submission that the requirement to integrate systems of work, including the SAP system, was the whole or predominant cause of the worker’s injury. The employer submitted its actions were reasonable. The amalgamation of the councils was mandated by legislation. There were tool box talks and a buddy system. The Member referred to the worker’s submission that the process of ‘transfer’ could not be “never-ending”. The process had ended by the time the worker began to develop her injury from the end of June 2019 onwards. The worker submitted extra demands were placed upon the worker, “quite distinct from the process of transfer”. There was a “lack of training and support, and excessive workload and demands”.
The Member referred to some decisions dealing with s 11A of the 1987 Act. He quoted from the reasons of Fitzgerald JA in Doyle. The Member said that “the worker’s response to employment conditions encountered after a transfer might still be action taken with respect to transfer, and that otherwise it is ‘a question of fact and degree’ as to whether a worker’s transfer is the whole or predominant cause of a psychological injury”.[12]
[12] Reasons, [19]–[32].
The Member said that the date of transfer of the finance team (of which the worker was part) was 24 April 2017, according to the employer’s instructions to its counsel. The worker said that she initially enjoyed working with her new team until the end of June 2017. The Member quoted Dr Whetton’s history that “initially she was happy”, but in May 2017 “there were increased work demands and there was other work which was accumulating and needed to be completed”. He referred to the worker’s statement that “in or about July 2017, my workload and Ranka’s management style of me began to affect my emotional state”. After referring to Dr Whetton’s histories, the Member accepted that:
“… the heightened stress experienced by the [worker] from the end of June 2017 onwards was caused by particular demands placed upon the [worker] in the operation of that computer system due to there being an increase in her workload, the particular difficulty which operating the computer system which the [worker] perceived to have been due to a change in the codes, and in being required to undertake additional work when two employees had taken leave.”[13]
[13] Reasons, [33]–[39].
The Member referred to his initial decision that the psychological injury was caused by an excessive load and demands placed on the worker; he said this finding was not disturbed on appeal to the President. The Member concluded that the increased workload was not action taken with respect to transfer, but rather due to particular demands which arose from the end of June 2017 onwards. He said those demands did not amount to action with respect to transfer and therefore s 11A cannot apply to bar the worker from having compensation paid to her. The Member said it followed that “action with respect to transfer cannot be the whole or predominant cause of the [worker’s] psychological injury”.[14]
[14] Reasons, [43]–[45].
The Member then turned to consider the ‘reasonableness’ of the employer’s actions, in the event that the above finding was in error. The Member reviewed a number of relevant authorities. He noted his finding that the cause of injury was “the excessive workload and demands placed upon the [worker] from the end of June 2017”, a finding that was not disturbed on appeal. He found that the relevant actions “cannot be regarded as being reasonable”. He concluded the employer had “failed to establish a defence pursuant to s 11A of the 1987 Act”.[15]
[15] Reasons, [46]–[56].

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.”
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.

THE GROUNDS OF APPEAL

The employer raises the following grounds of appeal:
(a)   Error of law in either identifying or applying an incorrect test of causation to the question of whether the worker’s injury was wholly or predominantly caused by action in respect of transfer. (Ground No. 1)
(b)   The Member erred in law in failing to consider all of the relevant circumstances that were causative of the respondent worker’s injury. (Ground No. 2)
(c)   The Member erred in law in failing to give reasons for his conclusion that the worker’s injury resulted from increased workload alone from late June 2017 or alternatively failed to engage with the employer’s case in this respect. (Ground No. 3)
(d)   Error of law in failing to give sufficient reasons for his determination that the Council’s actions were not reasonable. (Ground No. 4)

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met. There is an issue regarding whether the amount of compensation at issue on the appeal satisfies the requirements of subs (3) of s 352.

THE ISSUE REGARDING SECTION 352(3) OF THE 1998 ACT

Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”

The employer’s submissions on this issue

The employer submits the application was for weekly compensation from 28 August 2017 to date and continuing at the rate of $1,447.22 plus a general order pursuant to s 60 of the 1987 Act. The matter involves the re-determination of a remitter on appeal, where the monetary threshold had been met. Following the original decision on 28 October 2018, the worker was paid weekly compensation by way of arrears and was paid weekly compensation until the decision of the President dated 11 April 2019 (there being no stay on the weekly payments pending the appeal). Weekly payments to date, as a consequence of the initial decision of the Arbitrator (as he was at the time) exceed $5,000.
The employer submits that, in discontinuing the weekly claim during the course of submissions, for want of up-to-date evidence on incapacity, the worker “warehoused that part of her claim which has in no way been abandoned”. The employer submits the decision on liability fixes the employer with liability for at least the sum awarded in the 2018 decision, which exceeded $5,000. It submits s 352(3) is satisfied.[16]
[16] Employer’s submissions, pp 1–2.

The worker’s submissions on this issue

The worker submits the monetary threshold in s 352(3) is not satisfied. She submits the award against which the employer seeks to appeal (the decision dated 10 January 2023) does not provide for an amount of at least $5,000 to be paid to the worker. It is a general order pursuant to s 60 of the 1987 Act.[17] The worker quotes from Inghams Enterprises Pty Ltd v Grigor where it was said:
“There must be at least $5,000 at issue on the appeal, before it can be brought. The only order in the respondent’s favour was a general order for payment of s 60 expenses. That did not determine the entitlement of the respondent to the recovery of specific expenses. Potentially, if there was a proper evidentiary basis to do so, the appellant could dispute issues such as causation, and whether specific treatment was ‘reasonably necessary’. There is no agreement or schedule as regards the amount of the relevant expenses. There were no specific expenses the subject of the order. The evidence does not support the conclusion that ‘compensation at issue on the appeal’, pursuant to the general order for s 60 expenses, is at least $5,000.”[18]
[17] Worker’s submissions, [5].
[18] [2017] NSWWCCPD 23, [29].
The worker submits that, similarly, the award by way of a general order pursuant to s 60 in the current matter was not quantified and could not satisfy the $5,000 threshold.[19] The worker refers to the employer’s argument that the current matter involves a re-determination, on remitter, from an appeal where the threshold was met. The worker submits the past payments of weekly compensation are not “on issue on the appeal”. The sole issue the Member was required to determine was the entitlement in the matter before him, an entitlement to a general order pursuant to s 60, the weekly claim having been discontinued. The worker submits the “only issue that is relevant for the purposes of s 352(3)(a) [of the 1998 Act]” is quantification of the award in matter no. W3636/22, which the employer seeks to set aside. The worker also refers to a decision of Keating P in Popovic v Liverpool City Council, a case in which the worker initially claimed a sum of $5,000 by way of medical expenses, but then amended to a claim for only a general order pursuant to s 60 of the 1987 Act. His Honour rejected a submission that the $5,000 threshold was satisfied in these circumstances, saying:
“It follows that the reference to a claim for ‘$5,000’ pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.”[20]
[19] Worker’s submissions, [7].
[20] [2017] NSWWCCPD 49 (Popovic), [25]–[28]. Worker’s submissions, [8]–[16].

The employer’s submissions in reply on this issue

The employer submits the factual situations in the cases referred to in the worker’s submissions were different to those in the current matter (which it describes as “extraordinary”). It submits the current matter involved the post-appeal re-determination of a claim for benefits patently exceeding the s 352 threshold. It submits the 2018 liability decision ordered weekly compensation exceeding the $5,000 threshold. It submits the worker has not indicated she will repay that amount pending the outcome of the appeal and any further application before the Commission. It submits that sum necessarily remains in issue and grounds the jurisdiction for the appeal. It submits that a refusal to permit the appeal would “reward forensic opportunism”.

The employer states that, should the Presidential Member consider the appeal cannot proceed for want of jurisdiction, the employer seeks to have the application to amend the proceedings reconsidered. It would seek that the claim be discontinued from 11 April 2019, the date when the decision of the President was issued and the employer’s obligation to make payments ceased. The appellant states that, as a preliminary matter, it seeks a direction regarding whether a reconsideration application should be made to the Member or to the Presidential Member.[21]
[21] Employer’s submissions in reply, [4]–[5].

Consideration

In Grimson v Integral Energy[22] Fleming DP dealt with the satisfaction of s 352(3) of the 1998 Act. The Deputy President said:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘... amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularised by the Applicant.”[23] (emphasis in original)
[22] [2003] NSWWCCPD 29 (Grimson).
[23] Grimson, [30].
In NSW Department of Education and Communities v Colefax Keating P described the reasoning in Grimson as having “been consistently applied in the Commission”,[24] (his Honour referred to a number of Presidential decisions in the former Workers Compensation Commission of NSW).
[24] [2012] NSWWCCPD 63 [24]. See also O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1, Abu-Ali v Martin Brower Australia Pty Ltd [2017] NSWWCCPD 25, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32, Weate v Racing NSW [2020] NSWWCCPD 40.
The proceedings in matter no. 2970/18 were those which were dealt with by the President on appeal, and in which an order for remitter was made in the President’s decision dated 11 April 2019. Those proceedings were then discontinued by consent, in their entirety, on 11 June 2019 (see [2] above).[25]
[25] Certificate of Determination – Consent Orders dated 11 June 2019.
The current proceedings, matter no. W3636/22, were commenced by way of the ARD dated 9 June 2022. It claimed weekly compensation from 28 August 2017. It also claimed “Medical, Hospital or Related expenses” in the amount of $2,000 in respect of a “Medicare Notice of Charge”. During the running of the case the worker sought to amend to withdraw the weekly claim, and to restrict the order sought to a general order for the payment of medical expenses pursuant to s 60 of the 1987 Act. There are some imperfections in the transcript immediately following the passage where Mr Tanner dealt with the discontinuance of the weekly claim.[26] It is clear from the Member’s reasons at [17], and the content of the orders in the Certificate of Determination (see [11] to [12] above), that the matter proceeded on the basis that the ARD was amended accordingly.
[26] T2 47.9–33.
The sum initially claimed by way of medical expenses in the ARD in the current proceedings was $2,000, on account of a charge to the Health Insurance Commission, a sum less than $5,000. The claim was then amended to be one in respect of a general order pursuant to s 60. Such a claim, without more, does not represent an award of compensation that would satisfy the threshold in s 352(3) of the 1998 Act. The passage from Popovic, quoted at [27] above, makes it clear that reference should be had to the basis on which the claim was “run and decided”. The award for a general order pursuant to s 60 cannot satisfy the threshold in s 352(3) of the 1998 Act.
It follows that the threshold in s 352(3) of the 1998 Act is not satisfied and the appeal cannot be brought.
The employer seeks an indication regarding whether an application by it, for reconsideration of the worker’s application to amend, can be reconsidered by me, as a Presidential member. My power to deal with a Presidential appeal is subject to the procedural limitations in s 352 of the 1998 Act. It is limited to the identification and correction of any error of fact, law or discretion within the meaning of subs (5) of s 352. It would be inappropriate for me to express any opinion regarding the procedural options that may or may not be available to the employer in the circumstances. I note this query is made in the employer’s submissions in reply.

DECISION

The appeal does not satisfy the requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 and cannot be brought.

Michael Snell
DEPUTY PRESIDENT

29 November 2023