Davoudi v Douglass Hanly Moir Pathology Pty Limited
[2024] NSWPICPD 41
•24 July 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Davoudi v Douglass Hanly Moir Pathology Pty Limited [2024] NSWPICPD 41 |
APPELLANT: | Nelly Davoudi |
RESPONDENT: | Douglass Hanly Moir Pathology Pty Limited |
INSURER: | Self-insured |
FILE NUMBER: | A2-W2053/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 24 July 2024 |
ORDERS MADE ON APPEAL: | 1. The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – extension of time to appeal a decision of a Member – s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021; Gallo v Dawson [1990] HCA 30 applied – whether the Principal Member erred by determining an issue not before her – Banque Commerciale SA, En Liquidation v Akhil Holdings Limited [1990] HCA 11 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr J Malouf, counsel | |
| Law Partners Personal Injury Lawyers | |
| Respondent: | |
| Ms S Dunn, solicitor | |
| BBW Lawyers | |
DECISION UNDER APPEAL: | Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691 |
PRINCIPALMEMBER: | Ms J Bamber |
DATE OF MEMBER’S DECISION: | 22 December 2023 |
INTRODUCTION AND BACKGROUND
Ms Nelly Davoudi, (the appellant in these proceedings), was employed by Douglass Hanly Moir Pathology Pty Limited (the respondent) on a part-time basis as a blood collector. She alleged injuries in the course of her employment on 6 May 2022, when she was attempting to move a large chair so that a patient could be seated. The appellant claimed injuries to both shoulders, her neck and back and the development of secondary psychological symptoms.
The appellant was also involved in a motor vehicle accident on 8 June 2022. She asserted that the motor vehicle accident did not affect her physical, work-related injuries and, although she suffered psychological symptoms from the motor vehicle accident, those symptoms (which she said were diagnosed as post-traumatic stress disorder) were different to the psychological symptoms from the work injury.
The respondent disputed liability for the alleged frank injuries to the shoulders and neck and asserted that the psychological condition and the lumbar spine injury had resolved. The respondent also disputed the appellant’s claim for weekly payments, asserting that the appellant had at least some capacity for work.
The dispute proceeded to arbitration before a Member of the Commission, who heard oral submissions, following which he directed both parties to lodge written submissions. In the Direction dated 26 April 2023, the Member listed the issues in dispute as:
(a) whether the appellant’s psychological condition had resolved, or had been overtaken by the motor vehicle accident;
(b) whether the appellant’s injury to the lumbar spine had resolved;
(c) the extent of the appellant’s capacity for work, together with the quantification of the appellant’s entitlement to weekly compensation, and
(d) whether the respondent was liable for payment of the treatment expenses.
The respondent lodged its written submissions, which were dated 9 June 2023, and the appellant lodged her written submissions, dated 14 June 2023.
Unfortunately, the Member passed away before he was able to issue his decision. The matter was therefore transferred to Principal Member Bamber, who, with the consent of the parties, reviewed the evidence, the transcript of the oral submissions and the written submissions of both parties and proceeded to determine the dispute. She issued a Certificate of Determination on 22 December 2023. In her reasons, the Principal Member noted that the respondent:
“accepted [that the appellant] sustained injury to her lumbar spine but denies she sustained injury to her cervical spine (neck) and shoulders. It also denies she has sustained a secondary psychological condition.”[1]
[1] Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691 (reasons), [1].
The Principal Member entered an award for the respondent in respect of the appellant’s allegation of injuries to the cervical spine and both shoulders, and the secondary psychological condition. The Principal Member determined that the effects of the injury to the lumbar spine had not ceased and the claim for treatment expenses (which was limited to the cost of a consultation with Dr Balsam Darwish, neurosurgeon, in relation to the appellant’s lumbar spine) was reasonably necessary as a result of the injury on 6 May 2022. She ordered the respondent to pay the appellant weekly compensation from 8 November 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $595.39 per week.
The respondent lodged an Appeal Against Decision of a Member on 19 January 2024, alleging that the Principal Member erred in her finding that the appellant had no capacity for work.[2] The appellant lodged this appeal on 29 February 2024, which was outside of the 28-day time limit prescribed by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant made an application for extension of the time limit pursuant to s 352(4)(b) of the 1998 Act.
[2] Matter number A1-W2053/23.
The appellant challenges the Principal Member’s determination that the appellant did not suffer from a secondary psychological injury attributable to the injury on 6 May 2022. Before proceeding to a consideration of the appeal, however, the appellant requires leave to appeal the Principal Member’s decision because the appeal was filed out of time.
The appellant must also satisfy the Commission that the monetary and percentage thresholds to appeal required by s 352(3) of the 1987 Act are met.
This appeal decision is to be read with my decision in the appeal brought by the respondent, Douglass Hanly Moir Pathology Pty Ltdv Davoudi,[3] WHICH CONTAINS a detailed summary of the evidence and the Principal Member’s reasons.
[3] [2024] NSWPICPD 40 (Douglass Hanly Moir).
ON THE PAPERS
Section 352(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 indicated that the appeal can be determined on the basis of the available 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 those 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
The threshold requirement as to quantum pursuant to s 352(3) of the 1998 Act provides that:
“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.”
In the appeal, the appellant provided no indication as to whether the threshold requirements were met. The respondent simply indicated that it conceded that the threshold requirements were satisfied.
The Principal Member found that the appellant had no capacity for work as a result of the lumbar injury and awarded the appellant the maximum entitlement provided for under s 37 of the 1987 Act. Apart from the claim for weekly payments, the only other claim pleaded in the Application to Resolve a Dispute and the only other order made by the Principal Member was for compensation in relation to s 60 of the 1987 Act in respect of future treatment of the lumbar spine in the sum of $350 for a consultation with Dr Darwish.
In Fletchers International Exports Pty Limited v Regan,[4] Deputy President Fleming considered the threshold requirements in s 352(2) of the 1998 Act, which was in the same terms as the current s 352(3) of the 1998 Act, and observed (citations omitted):
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd), a decision in relation to costs only (Grimson v Integral Energy), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson).”[5]
[4] [2004] NSWWCCPD 7 (Regan).
[5] Regan, [27].
If the Principal Member’s finding that the appellant had no capacity for work was confirmed on appeal in Douglass Hanly Moir (the respondent’s appeal), the appellant in the present appeal could not recover any further weekly payments because she is already in receipt of the maximum amount available. Given that the only other amount claimed in the proceedings related to the appellant’s lumbar injury (the s 60 expense) is not in issue in the present appeal, then the monetary amount and the percentage requirement in issue in these proceedings would not be satisfied. In the event that the Principal Member was found to be in error in determining that the appellant was entitled to a full award of weekly compensation and the issue was remitted for re-determination by another member, whether the appellant suffered a secondary psychological condition as a result of the injury on 6 May 2022, or had recovered from her secondary psychological condition, then becomes relevant to the assessment of the appellant’s capacity for work.
Given the unsatisfactory nature of the approach taken by the parties, I issued a Direction on 19 June 2024, drawing the parties’ attention to various authorities[6] and directing both parties to file and serve written submissions in this matter as to how the threshold is met in the event that the employer’s appeal in relation to the claim for weekly payments in Douglass Hanly Moir did or did not succeed.
[6] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, [22]; Kate Louise Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, [16]; Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, [27]; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25 and Howlader v FRF Holdings Pty Ltd [2019] NSWWCCPD 55.”
The appellant submits that, while there are two concurrent appeals, both appeals relate to the same claim and therefore, for the purpose of the threshold requirements, the appeals should not be considered separately. The appellant refers to the claim for weekly payments and treatment expenses pleaded in the Application to Resolve a Dispute and says that the respondent, in its appeal, appealed the weekly payments claim. The appellant submits that the amount of weekly payments awarded clearly exceeds the threshold requirements. The appellant refers to Deputy President Fleming’s observations in Regan and asserts that the “accepted” psychological condition is clearly relevant to an award of weekly payments and “would affect any such award.”[7]
[7] Appellant’s submissions dated 26 June 2024, [7].
The appellant further submits that, in the event that the appeal in matter number A1-W2053/23 succeeds, and the award of weekly payments is set aside, her secondary psychological condition alone would establish an incapacity for work and found an amount of compensation that exceeds the necessary threshold.
The respondent lodged its submissions out of time. Nonetheless the submissions made simply agreed with the position asserted by the appellant and did not take the issue any further.
In considering this matter, I formed a preliminary view that, if I determined in Douglass Hanly Moir that there was no error in the Principal Member’s decision to award weekly payments at the maximum amount pursuant to s 37 of the 1987 Act, the appellant could not satisfy the threshold requirements because there would be no amount in issue. However, I have determined in Douglass Hanly Moir that the Principal Member erred in her consideration of the appellant’s entitlement to weekly payments of compensation, the finding has been set aside, and the issue requires re-determination.[8] In those circumstances, if the appellant in this appeal is found to have suffered or suffers from a compensable secondary psychological condition as a result of the injury on 6 May 2022, it is relevant to the consideration of any entitlement to weekly payments of compensation. The amount and percentage of the amount in issue exceeds the threshold requirements of s 352(3) of the 1998 Act.
[8] Douglass Hanly Moir.
Leave to extend the time to appeal
The appellant’s appeal was lodged outside of the time frame prescribed by s 352(4) of the 1998 Act and the appellant therefore requires leave to have the time to appeal extended.
Section 352(4) of the 1998 Act provides that:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the Personal Injury Commission Rules 2021 (the 2021 Rules) relevantly provides:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a) an appeal under the 1998 Act, section 352,
…
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) An extension application—
(a) must be made at the same time as the relevant application to which it relates, and
(b) must be in the approved form, and
(c) must include full details of the arguments relied on in favour of granting the order, and
(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4) The extension application must be decided by the following (the decision-maker)—
(a) for an appeal under the 1998 Act, section 352—a presidential member,
(b) otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6) In this rule—
statutory period means—
(a) for the 1998 Act—the period specified in section 352(4)(a), and
…”.
The Principal Member issued her Certificate of Determination on 22 December 2023. The respondent appealed the decision, lodging its appeal on 19 January 2024. The appellant filed her Notice of Opposition to Appeal Against Decision of a Member on 26 February 2024, in which she also sought to raise a “cross appeal” in respect of the Principal Member’s finding that she did not suffer a secondary psychological condition as a result of the physical injuries sustained on 6 May 2022. As there is no provision in the Personal Injury Commission legislation that provides for a “cross appeal”[9] the appellant was advised by a Delegate of the President that the appropriate course was for her to lodge her own appeal against the Principal Member’s Certificate of Determination. The appellant lodged her appeal on 29 February 2024 including, at the Direction of the Delegate of the President, an application for extension of the time to file the appeal with submissions supporting the application for the extension.
[9] Rail Corporation of New South Wales v B [2009] NSWWCCPD 81; BlueScope Steel Ltd v Markovski[2013] NSWWCCPD 69; Navitas English Pty Ltd v Trinh [2017] NSWWCCPD 52.
The appellant submits that her legal representatives mistakenly believed that a cross appeal could be dealt with by the Commission, asserting that such a process has previously been undertaken in the Commission. The appellant cites several Presidential decisions where the Presidential Member considered that once an appeal was properly before the Presidential Member, it was open to the Presidential Member to review all decisions made by the relevant decision-maker in the Certificate of Determination.
The appellant asserts that the position in relation to cross appeals is not clear and submits that for the above reasons, in this case there are exceptional circumstances which would warrant the granting of leave and the Presidential Member ought to deal with the matters she has raised.
The appellant further asserts that a demonstrable and substantial injustice would result if she was not allowed to bring the appeal from the Principal Member’s finding that she did not suffer a secondary psychological injury in circumstances where that issue was never in dispute. The appellant explains that the question of her capacity for work has been raised in the respondent’s appeal and she would be significantly disadvantaged if the secondary psychological injury was excluded from such a consideration.
The appellant contends that there is no prejudice to the respondent if time to appeal was extended because the respondent has lodged its own appeal.
The respondent says that it neither consents to nor opposes the application for an extension of time.
The appellant’s assertion that a Presidential Member may review all of the findings and determinations of the relevant member below is misplaced. The cases cited by the appellant were determined prior to 1 February 2011, when a different statutory scheme applied to appeals in respect of decisions made before that date. Section 352(5) of the 1998 Act at that time provided that:
“An appeal under this section is to be by way of review of the decision appealed against.”
Following the amendments to the 1998 Act introduced by the Workers Compensation Legislation Amendment Act 2010, s 352(5) was amended, with effect from 1 February 2011, to read as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Thus, the Presidential Member’s power on appeal is limited to a consideration of an allegation of error identified by the appellant and to the correction of any such error.[10]
[10] Ballina Shire Council v Knapp [2019] NSWCA 146 per Payne JA, [32]–[33], Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [16].
The appellant submits that the phrase “exceptional circumstances” referred to in r 133A of the 2021 Rules is not defined. The phrase, however, has been considered in a number of authorities.
As Allsop P (as his Honour then was) observed in Bryce v Department of Corrective Services:[11]
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, ...”.
[11] [2009] NSWCA 188, [10].
McHugh J considered the question of extending time to appeal in Gallo v Dawson.[12] His Honour observed that, in order to determine whether a strict application of time limits would work an injustice, it was necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties if the application to extend time was granted or refused;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the fact that the respondent has “a vested right to retain the judgment.”[13]
[12] [1990] HCA 30 (Gallo).
[13] Gallo, [2].
The appellant asserts that she was unaware that a cross claim could not be brought in the Commission. Ignorance of procedural requirements in the Commission is not a factor that lends support to an application for relief from the obligation to comply with the time limits imposed by the legislation.
It can be readily inferred that the respondent was aware of the appellant’s intention to raise the issue now raised in this appeal when it was served with the appellant’s Opposition lodged on 26 February 2024 in Douglass Hanly Moir. That time, however, was outside of the time frame for filing an appeal.
A factor that tends to support the application for an extension of time is that the Principal Member’s Certificate of Determination is, in any event, the subject of an appeal by the respondent, so that any prejudice to the respondent is less likely to arise.
The only unusual circumstance in the history of the proceedings was the unfortunate passing of the Member who had the conduct of the matter through to (and including) the arbitration stage. That does not feature as an exceptional circumstance in terms of explaining the delay in lodging the appeal from the Principal Member’s Certificate of Determination. There are no exceptional circumstances.
In accordance with the observations made by Allsop P and McHugh J in the authorities referred to above, in order for me to determine whether to grant leave to extend the time to lodge the appeal, I need to also consider whether a demonstrable or substantial injustice would occur if leave were not granted. I am therefore required to make an assessment of the merits of the appeal.
THE GROUND OF APPEAL
The appellant’s sole ground of appeal asserts that “the [Principal] Member erred at law in construing the dispute before her.”
The appeal submissions
The appellant’s appeal submissions
The appellant submits that it was erroneous for the Principal Member to consider matters that were not put to her, without warning the parties that she intended to do so. The appellant says that it was only open for the Principal Member to determine whether the secondary psychological condition had ceased. The appellant says that there is no evidence to counter the medical evidence that supports a finding that she did suffer a secondary psychological condition, and Dr Grama, the respondent’s qualified psychiatrist, actually agreed that the appellant suffered a secondary psychological condition as a result of the lumbar injury, and that the condition had not ceased.
The appellant submits that the Principal Member proceeded to determine the issue when it was never actually disputed that the appellant suffered a secondary psychological condition as a result of the injury on 6 May 2022. The appellant says that it is evident that the condition was never disputed as:
(a) the notice issued pursuant to s 78 of the 1998 Act did not raise the issue;
(b) the psychiatric medical opinions provided by the experts agreed that the appellant suffered from a secondary psychological condition as a result of the accepted lumbar injury;
(c) the Member originally appointed to determine the matter noted in his direction dated 26 April 2023 that the issue was “Whether the [appellant’s] psychological condition has resolved and has been overtaken by a motor vehicle accident on 9.11.2021”, and
(d) before the original Member it was confirmed that there was no dispute that the secondary psychological condition existed, but the issue was whether it had resolved.
The appellant asserts that the Principal Member’s finding should be revoked and instead a finding made that the effects of the secondary psychological condition have not ceased, and an award pursuant to s 60 of the 1987 Act for treatment expenses associated with the secondary psychological condition be made.
The respondent’s appeal submissions
The respondent refers to the dispute notices issued by it pursuant to s 78 of the 1998 Act and concedes that the issues raised in those notices pertaining to the secondary psychological condition were limited to the claim for weekly payments and treatment expenses. The respondent submits that those issues raised were in the context of an assumption that the history provided by the appellant was correct. The respondent says that, after the proceedings were commenced, it became apparent that that was not the case.
The respondent asserts that it was prejudiced by the appellant’s late disclosure of the psychological injury sustained in the motor vehicle accident and the compulsory third party claim. The respondent says that its ability to investigate the alleged psychological injury was impeded by the late disclosure, given that the psychiatric report from Dr Sergiu Grama, psychiatrist commissioned by the respondent, was obtained prior to the commencement of proceedings.
The respondent refers to s 289A(4) of the 1998 Act, which allows a dispute about previously unnotified matters “to be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so”. The respondent asserts that it was in the interests of justice that the Commission dealt with the question of causation and the alleged secondary psychological condition dispute where the appellant’s credibility was seriously called into question after the dispute notices were issued. The respondent says that it was incumbent upon the Principal Member to consider the evidence provided by the medical experts. The respondent contends that it directly raised the issues of the appellant’s credit in oral submissions and the cause of the appellant’s psychological condition, including the delay in the appellant reporting any psychological symptoms. The respondent contends that the issue was raised in response to the appellant’s allegation of injury, and that constituted a “dispute”.
The respondent refers to the appellant’s written submissions made in the arbitration proceedings and submits that the appellant clearly understood that the respondent denied the secondary psychological condition and made opposing submissions responding to that issue.
The respondent refers to its submissions about the incorrect history provided to the medical experts and the delay in reporting the symptoms until after the motor vehicle accident. The respondent submits that the Principal Member was not obliged to accept the appellant’s evidence in circumstances where it was contradicted by a credible and substantial body of evidence.[14] The respondent adds that there was no reliable medical opinion that supported a causal connection between the appellant’s lumbar injury and a secondary psychological condition so that it was open for the Principal Member to consider the issue because the allegation, together with any claim for incapacity, must fail.
[14] Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36.
Consideration of the merits of the appeal
The original Member recorded in a Direction dated 26 April 2023 that the issue for him to determine in respect of the alleged secondary psychological condition was whether the condition had resolved, or whether it had been overtaken by the motor vehicle accident. The issues identified by the Member were consistent with the dispute notices issued by the respondent pursuant to s 78 of the 1998 Act.
The Principal Member who then took carriage of the matter identified the issue raised by the respondent was whether the appellant sustained a secondary psychological condition.
The evidence, including the appellant’s statement evidence, the records and opinions of the treating doctors, and the medico-legal experts is summarised in my decision in Douglass Hanly Moir.
The Principal Member’s reasons are also summarised by me in Douglass Hanly Moir. In essence, the Principal Member determined that the appellant’s statement evidence was unreliable, her accounts to the various medical experts were conflicting, and so she was required to treat the evidence with caution. She concluded that there was no objective evidence that the appellant suffered psychological symptoms prior to the motor vehicle accident, and in the absence of such evidence she was not satisfied that the appellant suffered a psychological condition secondary to the lumbar injury, which was the only physical injury she accepted.
The parties’ submissions in the arbitral proceedings
The appellant opened her oral submissions with the observations that the respondent’s evidence supported the claimed psychological injury and did not support the respondent’s case that the psychological condition had ceased.[15] She further submitted that:
(a) her statement evidence disclosed that she had experienced the psychological symptoms since the injury on 6 May 2022 and the psychological symptoms referrable to the motor vehicle accident were different to those secondary to the work injury;[16]
(b) the appellant’s case was that she suffered an adjust disorder caused by her injury, which was supported by Dr Saboor, and the respondent had no evidence to the contrary;[17]
(c) the appellant was referred to a psychologist by Dr Bagherian for treatment of anxiety and depression which was consequent upon the physical injuries;[18]
(d) she consulted Dr Marcus on 22 August 2022 with symptoms of anxiety and depression;[19]
(e) Dr Saboor took a history of the appellant suffering a back injury at work and developing a psychological condition as a result of the physical pain;[20]
(f) Dr Saboor’s opinion was that the appellant’s employment was a substantial contributing factor to the development of the condition;[21]
(g) Dr Grama agreed that there was a psychological injury in the form of an adjustment disorder,[22] and
(h) The appellant was seeking an award in her favour in respect of the claimed injuries to the back, neck, left shoulder, right shoulder and the “secondary psych.”[23]
[15] Transcript of proceedings (T), Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691, T1.28–31.
[16] T6.5–12.
[17] T6.30–34.
[18] T10.4–13.
[19] T12.5–22.
[20] T15.16–25.
[21] T15.27–30.
[22] T16.21–28.
[23] T19.30–33.
The respondent orally submitted that:
(a) the appellant asserted that she experienced secondary psychological symptoms from the date of injury, yet there was no evidence that she reported such symptoms prior to the motor vehicle accident;[24]
(b) the first mention of psychological symptoms was the referral to Mr Nick Cherrie, which recorded a history of mood symptoms for ten days following the motor vehicle accident, and her past history was “not recorded”;[25]
(c) the clinical records from Parramatta Psychologists commencing 8 July 2022 made a possible diagnosis of post-traumatic stress disorder and anxiety, not related to the back injury but referrable to the motor vehicle accident, with no history of prior secondary psychological symptoms;[26]
(d) those records were a clear indication that psychological symptoms resulted from the motor vehicle accident;[27]
(e) the appellant was certified as having no capacity for work because of the psychological condition attributed to the motor vehicle accident,[28] and
(f) the medical opinions that supported the notion of the psychological injury resulting from the lumbar injury should be disregarded because they were based on an incorrect history, the appellant only sought psychological treatment after the motor vehicle accident, and the records showed that the problems and significant symptoms did not arise until after the motor vehicle accident.[29]
[24] T22.30–T23.6.
[25] T23.29–T24.12.
[26] T24.15–32.
[27] T25.30–32.
[28] T26.24–T27.2.
[29] T34.9–18.
The respondent provided further submissions in writing. The respondent submitted that it:
(a) relied upon its oral submissions already made, and
(b) sought an award in its favour in respect of the injuries to the neck, right shoulder, left shoulder and secondary psychological injury.
The appellant provided written submissions in reply to the respondent’s submissions. She observed that it was curious that the respondent “now denies [the psychological] injury entirely” which was “disingenuous” in circumstances where the respondent’s own medical expert supported the allegation of a secondary psychological condition.[30] The appellant added that her statement evidence should be accepted, as should the opinion of Dr Saboor in relation to causation dated 21 October 2022, who recorded a consistent and detailed history following a review of the clinical notes.
[30] Appellant’s written submissions dated 14 June 2023, [3(e)].
On the basis of both parties’ submissions, it is hardly surprising that the Principal Member proceeded to determine whether the appellant suffered a secondary psychological condition as a result of the physical injuries sustained on 6 May 2022.
The Principal Member summarised the submissions of the parties. In relation to the respondent’s written submissions, the Principal Member noted that the respondent sought an award in its favour in respect of the secondary psychological condition because of the absence of complaints to treatment providers prior to the motor vehicle accident and because of the appellant’s lack of disclosure and lack of credibility.
The respondent made clear submissions that, because of the serious lack of credibility in the appellant’s evidence, the lack of contemporaneous evidence and the incorrect histories provided to the various medical experts, it could not be accepted that the appellant suffered a secondary psychological condition.
The appellant’s written submissions were in reply to the respondent’s written submissions and the appellant’s reply addressed the issue of whether the appellant had suffered a secondary psychological condition as a consequence of the injury on 6 May 2022. The appellant did not raise any objection that that was not an issue for determination and in fact engaged with the issue.
In Banque Commerciale SA, En Liquidation v Akhil Holdings Limited,[31] Mason CJ and Gaudron J made the following observations (citation omitted):
“… pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.”[32]
[31] [1990] HCA 11 (Banque Commerciale).
[32] Banque Commerciale, [19]–[20].
In the very recent decision of Capitalink Pty Ltd v Withnall,[33] Bell CJ made the following observations:
“Mr Lawrance maintained that, although not pleaded, the type of reasoning he was seeking to deploy was sufficiently ‘in play’ during the proceedings at first instance and that this was a case where the parties could be said to have fought the case at first instance outside of the pleadings. In Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70, reference was made to ‘cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial.’
Much of the argument on appeal related to whether the argument Mr Lawrance sought to propound on appeal was ‘in play’ at first instance.[34]
…
In light of the extracts from the Respondent’s submissions at first instance and the terms of the primary judgment, it is evident that, while perhaps not presented with the same clarity of analysis and supporting reference to authority as this Court received from Mr Lawrance, the argument was sufficiently in play at first instance notwithstanding that it went beyond the pleadings. No question of prejudice to the Respondent arises in this circumstance.”[35]
[33] [2024] NSWCA 172 (Withnall).
[34] Withnall, [42]–[43].
[35] Withnall, [49].
Section 289A of the 1998 Act provides:
“289A Further restrictions as to when a dispute can be referred to Commission
(1) A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if—
(a) it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b) it concerns matters, raised in writing between the parties before the dispute is referred to the President for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”
The issues raised in the respondent’s dispute notices and its Reply to the Application to Resolve a Dispute did not identify the issue relied upon by the respondent at arbitration that the appellant did not suffer a secondary psychological condition and there is no record of that issue being raised prior to the commencement of the arbitration. In usual circumstances, the respondent should have sought leave to raise the issue. Where, however, both parties engaged in submissions on point, and the appellant did not object to the respondent’s submissions, the appellant cannot assert any procedural unfairness in the Principal Member dealing with the submissions of both parties. The appellant, in failing to object to the issue and making submissions on point, has clearly acquiesced to the issue being raised. I add that, in the context of the significant failure of the appellant to disclose the motor vehicle accident and its consequences, which rendered the medical evidence of little assistance, it was clearly in the interests of justice for the issue to be raised.
It follows that the Principal Member was not in error in dealing with the submissions made, which is the only ground upon which the appellant relies in this appeal. There is thus no merit to the appeal and I decline to extend the time to appeal.
DECISION
The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
24 July 2024
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