Douglass Hanly Moir Pathology Pty Ltd v Davoudi - [2024] NSWPICPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Douglass Hanly Moir Pathology Pty Ltd v Davoudi [2024] NSWPICPD 40
APPELLANT:	Douglass Hanly Moir Pathology Pty Ltd
RESPONDENT:	Nelly Davoudi
INSURER:	Self-insured
FILE NUMBER:	A1-W2053/23
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	24 July 2024
ORDERS MADE ON APPEAL:	1. Orders 1, 2 and 3 of the Principal Member’s Certificate of Determination dated 22 December 2023 are confirmed. 2. Order 4 of the Principal Member’s Certificate of Determination dated 22 December 2023 is revoked. 3. The matter is remitted to a different member for re-determination of the respondent’s entitlements (if any) to weekly payments of compensation.
CATCHWORDS:	WORKERS COMPENSATION – whether the Principal Member failed to take into account a clearly articulated submission – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; Wang v State of New South Wales [2019] NSWCA 263 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
BBW Lawyers
Respondent:
Mr J Malouf, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	22 December 2023

INTRODUCTION AND BACKGROUND

Ms Nelly Davoudi (the respondent in this appeal) was employed by Douglass Hanly Moir Pathology Pty Limited (the appellant) on a part-time basis as a blood collector. She alleged injury 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 respondent asserted injuries to both shoulders, her neck and lumbar spine and the development of psychological symptoms secondary to the physical injuries.
The respondent was also involved in a motor vehicle accident on 8 June 2022, which she initially did not disclose to the appellant’s insurer. The respondent 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 were different to the symptoms from the work injury.
The appellant 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 appellant also disputed the respondent’s claim for weekly payments, asserting that the respondent 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. The appellant lodged its written submissions, which were dated 9 June 2023, and the respondent 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.
The Principal Member issued a Certificate of Determination on 22 December 2023, entering an award in favour of the appellant in respect of the respondent’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 the treatment expense (which was limited to the cost of a consultation in relation to her lumbar spine pain with Dr Balsam Darwish, neurosurgeon) was reasonably necessary as a result of the injury on 6 May 2022. She ordered the appellant to pay the respondent 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, which was 80% of the respondent’s pre-injury average weekly earnings.
The appellant lodged this Appeal Against Decision of a Member (appeal) on 19 January 2024, which was within the 28-day time limit prescribed by s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[1]
[1] A1-W2053/23.
The respondent lodged her own appeal on 29 February 2024,[2] together with an application for an extension of time to appeal because the time to file the appeal had expired. Her appeal challenges the Principal Member’s finding that she was not satisfied that the respondent suffered a psychological condition secondary to her physical conditions on 6 May 2022. In that matter, I determined that there was no merit to the respondent’s appeal, and I refused to extend the time for the respondent to lodge her appeal.[3]
[2] A2-W2053/23.
[3] [2024] NSWPICPD 41 (Davoudi).
The appellant in this appeal challenges the Principal Member’s award of weekly compensation and findings in respect of the respondent’s capacity for work.
This decision is to be read together with my decision in the respondent’s appeal in Davoudi.

ON THE PAPERS

Both parties concede that the appeal can be determined on the basis of the documentary material before the Commission.
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.”
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, including the submissions 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 quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met in this appeal.

THE EVIDENCE

After reviewing the whole of the evidence, the Principal Member concluded that the respondent’s evidence was inconsistent, the respondent had been “selective” as to what she disclosed to the various medical experts, the evidence she gave raised significant credit issues and she was not a reliable witness. Because of those matters, the Principal Member determined the issues on the basis of what she considered to be the available objective evidence. It is therefore appropriate to provide a summary of the evidence so that the Principal Member’s concerns with the respondent’s evidence can be understood.

The respondent’s statements

The respondent provided several statements made by her, including an unsigned statement made by her to the motor vehicle insurance investigator.
In a statement dated 30 November 2022,[4] the respondent provided a brief history of her educational background, indicating that she was undertaking study towards a Bachelor of Psychology, which she expected to complete by the end of 2022. She advised that, prior to the injury the subject of these proceedings, she had not suffered any significant physical conditions that affected her capacity to perform her daily duties. The respondent indicated that she had suffered from psychological symptoms in about 2004, diagnosed as depression and anxiety, but that the symptoms resolved following treatment and the removal of the relevant stressor. The respondent referred to several physical health issues but stated that she considered herself to be most capable of performing the physical requirements of her role and her daily activities. She said that, in particular, she could not recall ever experiencing pain or restriction in her lower back, shoulders or neck prior to commencing her employment with the appellant.
[4] Application to Resolve a Dispute (ARD), pp 1–9.
The respondent described her work history between 2017 and 2020 as intermittent, and included casual work in pathology, waitressing, Uber driving, retail assistance and childcare support. She stated that she commenced work with the appellant as a blood collector in about late 2020, working part time for 18 hours per week, for which she was paid approximately $625 per week. She described her daily tasks.
The respondent said that on 6 May 2022 in the course of her employment she injured her lower back, both shoulders and neck when she attempted to move a large chair so that a patient could be seated. She described feeling a sudden shooting pain in her lower back, which she said radiated into both legs, up towards her neck and into both shoulders. She asserted that she was unable to move her legs, lower back, neck and both shoulders, she reported the incident, and her supervisor advised her to go home and rest.
The respondent said that she attempted to attend work on 10 May 2022, but she was unable to work because of “constant spasms throughout [her] lower back, bilateral legs, bilateral shoulders and neck.”[5] She said that her manager advised her to cease work and to consult her general practitioner.
[5] Respondent’s statement dated 30 November 2022, ARD, p 3, [20].
The respondent stated that she consulted Dr Nicholas Harvey because her usual general practitioner, Dr Malahat Bagherian, was not available. She said that Dr Harvey examined her, certified her unfit for work and referred her, firstly for a CT scan of her lumbar spine undertaken on 19 May 2022 and then an MRI scan undertaken on 27 May 2022.
The respondent indicated that she consulted Dr Harvey for further treatment and was prescribed rest and pain medication. She maintained that she continued to complain to Dr Harvey about chronic lower back pain, shooting pain down both legs and continuing pain and soreness in her neck and shoulders. She said that because Dr Harvey was offering her limited treatment options, she consulted Dr Bagherian, who referred her for an MRI scan of her neck and ultrasound scans of both shoulders, performed on 10 and 11 June 2022, which disclosed no pathological cause, although she continued to experience intermittent pain and restrictions in those areas. She said, however, that she underwent an ultrasound of her right shoulder on 20 June 2022, which disclosed sub-acromial bursitis. She recorded that on that day she commenced treatment from a physiotherapist, Mr Joseph Lee, however, she could not perform the prescribed exercises because of “excruciating pain” in her lower back, she was taken by ambulance to Concord Repatriation General Hospital and was admitted for three days.
The respondent stated that she consulted Dr Bagherian again on 30 June 2022, who reviewed the radiological investigations and referred her to Professor Behzad Eftekhar but the appellant disputed the need for specialist intervention. She said that Dr Bagherian advised her that she could no longer treat her and recommended that she consult a general practitioner who had experience in handling workers compensation matters. The respondent said that she continued to experience “agonising sharp and shooting pain” in her lower back, right shoulder and both legs, as well as “intermittent neck and left shoulder pain.”[6]
[6] Respondent’s statement dated 30 November 2022, ARD, p 5, [31].
The respondent indicated that she then consulted Dr Bishoy Marcus, general practitioner on 22 August 2022, and a physiotherapist named “Davis” (presumably Mr Davis Chun Fung Ng) who treated her for all the above conditions with gentle exercises and massage, and suggested a cortisone injection in her lower back, which she underwent on 15 November 2022. The respondent confirmed that her symptoms persisted, and she had persisting difficulties in all aspects of her daily activities.
The respondent described a long list of pain symptoms and physical difficulties in her shoulders, neck, lower back and both legs, as well as associated psychological symptoms.
The respondent provided a summary of the medical opinions in favour of her case. She asserted that, as a consequence of her injuries, she was bed-ridden and exhausted, the treatment provided had not alleviated her symptoms and she required a more effective treatment plan with specialist advice so that she could return to work in some capacity.
The respondent provided a supplementary statement of the same date,[7] after the appellant had issued a notice pursuant to s 78 of the 1998 Act disputing liability for the respondent’s injuries. She described her ongoing complaints. She disputed the appellant’s reliance on the opinion of Dr Wallace and criticised the manner in which the consultation was carried out. She indicated that she preferred the evidence provided by Dr Eugene Gehr, independent medical examiner, and that of Dr Doig, Dr Bishoy Marcus and Mr Davis Chun Fung Ng, physiotherapist.
[7] ARD, pp 10–16.
The respondent confirmed that she continued to suffer worsening symptoms in her lower back, which caused shooting pain down her legs. She asserted that she had repeatedly reported symptoms in her neck and shoulders to Dr Marcus and Mr Davis, including worsening symptoms in her neck, which developed into an inability to turn her head. The respondent denied that she had ever experienced symptoms in those areas before the injury.
The respondent asserted that the results of the ultrasound scan dated 20 June 2022 and the MRI scan of her neck on 11 June 2022 confirmed that she had been complaining of pain in those areas and seeking treatment since the injury.
The respondent stated that all of her treating general practitioners had certified her as having no capacity for work because of her injuries and that Dr Assad Saboor, psychiatrist, was of the view that her psychological condition was so severe that she could not return to work, and also could not work because of her physical injuries.
The respondent asserted that she could not return to her employment because of her physical disabilities and because she had difficulty concentrating and her memory was clouded, with her attention being focussed on her constant severe pain in her back, neck and shoulders. She maintained that she could not return to work in her current condition.
The respondent made a further statement dated 21 February 2023.[8] She referred to the cortisone injection she was given in November 2022 and said that the procedure made her pain worse and the shooting pains in her legs escalated. She said that her current treatment consisted of pain medication, heat packs and “stickers” and consultations with Dr Bishoy on a monthly basis. She provided a long list of ongoing symptoms and difficulties and maintained that she had been experiencing significant symptoms in her lower back, neck and shoulders since the workplace injury.
[8] Respondent’s further statement dated 21 February 2023, ARD, pp 17–23.
The respondent set out the difficulties she experienced in doing various tasks after the workplace injury and before the motor vehicle accident. She asserted that the motor vehicle accident had no impact on her physical injuries and her physical symptoms prior to the motor vehicle accident were the same as those after the motor vehicle accident. She recounted, however, that her physical injuries escalated over time because she had not received proper treatment for those injuries.
The respondent maintained that since the injury on 6 May 2022, she had experienced psychological symptoms of depression, frustration and worthlessness because of the effect of the physical injuries caused by the injury on 6 May 2022. She asserted that the psychological symptoms triggered by the motor vehicle accident were completely different and consisted of feelings of fear and nightmares and she was diagnosed with post-traumatic stress disorder. She contended that the motor vehicle accident did not affect her symptoms of depression, worthlessness and frustration.
The respondent maintained that she had no capacity for work. She said she would physically struggle to perform the work of a blood collector, had difficulty focussing and would struggle even to complete an online course because prolonged sitting aggravated her lower back. The respondent said that her physical injuries were so debilitating that she could not perform her duties. She contended that her psychological condition also prevented her from returning to work because she lacked motivation, concentration and confidence, and those restrictions would have been the same even if she had not been involved in the motor vehicle accident.
The respondent provided a statement to the compulsory third party motor vehicle insurance investigator dated 24 August 2022.[9] The respondent confirmed that the statement was in support of her claim in respect of the motor vehicle accident on 8 June 2022. She stated that at the time of the accident, she was travelling to see her doctor at Hassall Grove as she was suffering from a sore back at that time. She asserted that, at the time of the motor vehicle accident, she was not suffering from any pre-existing illnesses or injuries that had the capacity to affect her driving ability. She added that other than consulting her doctor about her back, her personal health at that time was good. She described what occurred on 8 June 2022. She confirmed that an Isuzu truck came behind her closely, flashing its lights and hit her car three times, slightly pushing her vehicle forward. She indicated that she panicked and felt frightened and, after she pulled to the side of the road, the driver of the truck came up to the window of her car and threatened her, causing her to be terrified. She reported the incident to the police.
[9] ARD, pp 24–29.
The respondent complained that she was shaken after the incident, she feared driving, suffered nightmares, experienced chest pain and lost confidence in herself. She said that she was receiving treatment from Mr Nick Cherrie, psychologist, and was diagnosed with post-traumatic stress disorder, depression and anxiety. She stated that her back issues were pre-existing and were not related to this incident.

The incident report

The respondent completed an incident report on 6 May 2022 at 12.20 pm.[10] She reported as follows:
“We were very busy and all the seats and rooms were taken by patients. I had a GTT patient where he was required to sit down. I had a big chair in my room that I moved out into the waiting area for the patient to sit on. After a few minutes my back started to hurt and I was unable to move properly from back pain. The pain is severe and is moving onto my legs.”
[10] Reply to Application to Resolve a Dispute (reply), pp 1–2.
The respondent described the injury as “back pain” caused by “moving heavy seat for patient” and the body location was identified as “lower back”.

The medical treatment providers

The clinical records of Dr Nicholas Harvey, Auburn Healthcare Centre

The clinical notes commencing from 2 March 2021 recorded by various general practitioners at the Auburn Healthcare Centre were in evidence.[11] Relevantly, the respondent consulted Dr Nicholas Harvey, general practitioner, on 10 May 2022. Dr Harvey recorded the history of the respondent having to move a large patient chair, which had to be lifted for a short distance because the floor was carpeted. Dr Harvey noted that the respondent felt lower back pain within minutes, which developed into lower back stiffness, causing the respondent to leave work. He further recorded that the respondent experienced lower back stiffness the following morning when arising from bed, and the back remained stiff and painful. He noted that the respondent attempted to return to work on the day of consultation but was unable to perform her duties. On examination, Dr Harvey reported leg pain on elevation of both legs and low back and bilateral leg pain on flexion of the knees. He diagnosed acute back strain.
[11] Reply, pp 66–134.

The respondent consulted Dr Harvey again on 17 May 2022, complaining of lower back stiffness and moderate pain, dull lower back pain when walking or attempting to stand from a sitting position. Dr Harvey noted the respondent wanted to return to work, however, the duties involved bending forwards. He confirmed the diagnosis of a lower back sprain and issued a certificate of capacity certifying the respondent as unfit for work from 18 May 2022 to 24 May 2022.
The respondent returned to see Dr Harvey on 19 May 2022, complaining of increased lower back pain radiating to the right buttock and right knee. Dr Harvey referred the respondent for a CT scan of the lumbar spine. The respondent again consulted Dr Harvey on 24 May 2022 complaining of increasing pain, radiating up the back to the shoulders, and down both legs and said she had difficulty walking. Dr Harvey noted that the CT scan showed minor lumbar disc bulging. He provided the same diagnosis and certified the respondent as being unfit for work from 25 May 2022 to 22 June 2022.
The respondent attended Dr Harvey once more on 1 June 2022, complaining of pain radiating up the spine to the neck and through the left trapezius and down the left arm, with numbness of the left hand.
Certificates of Capacity issued by Dr Harvey recorded that the respondent had no capacity for work from 10 May 2022 to 22 June 2022 as a result of “low back strain,” referrable to the injury on 6 May 2022.[12]
[12] Reply, pp 102–110.

The clinical records of Dr Bishoy Marcus, general practitioner, MyHealth Liverpool

The clinical records of Dr Bishoy Marcus were in evidence.[13]
[13] ARD, pp 138–167.
The respondent attended Dr Marcus on 22 August 2022. Dr Marcus recorded a history of the respondent experiencing back pain radiating into her leg when she attempted to lift and move a heavy chair in the course of her employment on 6 May 2022. Dr Marcus noted that the respondent completed an incident report and advised her manager about the injury, before leaving work about two hours afterwards. He further noted that the respondent attempted to return to work several days later but could not stand on her feet because of the pain. Dr Marcus reviewed an MRI scan obtained by a previous treatment provider, which indicated the presence of an L3/4 level disc bulge, an L4/5 disc prolapse, degenerative changes and a right paracentral disc extrusion impinging on the L5 nerve root. He recorded that the respondent also suffered right shoulder bursitis as a result of the injury. He remarked that the respondent’s only treatment in the past few months had been one physiotherapy session.
Dr Marcus performed a physical examination of the respondent’s back and right shoulder, diagnosing subacromial bursitis in the shoulder and commenting that there was no neck pain or neurology present. He recommended a CT guided cortisone injection in the back, physiotherapy for the shoulder and continuing psychological treatment for the respondent’s poor mental health, which he felt was consistent with a diagnosis of anxiety and depression.
Dr Marcus recorded that he was aware that the respondent was involved in a motor vehicle incident, had an ongoing compulsory third party claim and had been consulting a psychologist in respect of that claim.
At a consultation on 20 September 2022, Dr Marcus recorded that the respondent was financially and mentally struggling and that the respondent indicated that physiotherapy was of no real benefit. He discussed treatment options with her, suggested a perineural cortisone injection to assist with diagnosis but also to provide a therapeutic aid.
Dr Marcus noted the respondent’s psychological complaints, and that she was struggling to complete her university work. He referred her for specialist neurosurgical review.
Dr Marcus completed several certificates of capacity between 22 August 2022 and 20 October 2022,[14] certifying the respondent as having no capacity for work during that period as a result of right subacromial bursitis, right L4/5 disc bulge with neural impingement, anxiety disorder and major depression, with a date of injury on 6 May 2022.
[14] ARD, pp 150–153; 156–159; 164–166.
Dr Marcus provided a report dated 12 September 2022 in response to a number of questions posed by the respondent’s legal representative.[15] He confirmed the history recorded in his clinical notes and advised that the respondent had not mentioned left shoulder or cervical spine symptoms but at the first consultation had presented with symptoms secondary to reactive depression resulting from the injury on 6 May 2022. He advised that he believed that the respondent’s symptoms were consistent with nerve root impingement at the L4/5 level of the back and right shoulder acromial bursitis and said that the respondent required review by a neurosurgeon. He commented that, on the basis of the radiological imaging, the respondent’s back injury was “more than a ‘back strain’.”
[15] ARD, pp 82–84.
Dr Marcus responded to further queries from the respondent’s legal representative in a report dated 17 November 2022.[16] He confirmed the history recorded in the earlier report. He added that initially the respondent did not mention left shoulder or cervical spine symptoms but did mention left shoulder and cervical pain in subsequent consultations. He advised that MRI scanning of the cervical spine disclosed no pathology of concern, and an ultrasound of the left shoulder was unremarkable. He further advised that the respondent underwent a CT guided lumbar injection, however, it was too early to determine whether the injection provided any benefit. He said that the respondent had always made complaints about her back and neck pain. He described the lack of reference to shoulder injury as an “oversight.” He opined that the respondent’s injuries resulted from her work-related injury, reasoning that the respondent was functional before the incident and there was no prior history of symptoms in those areas.
[16] ARD, pp 87–89.
Dr Marcus indicated that he had read the report of Dr Gehr and agreed with his findings and conclusions.

Mr Cheuk Yui (Joseph) Lee, Precision Physio Concord

The treatment notes recorded by Mr Cheuk Yui (Joseph) Lee from Precision Physio Concord were provided.[17] The initial consultation was recorded on 20 June 2022. The history of injury on 6 May 2022 was noted. The respondent’s complaints were noted as shooting pain from the neck and back, radiating down both legs and arms, together with complaints of bladder and bowel incontinence. The respondent was further assessed on 29 June 2022, with similar complaints recorded.
[17] ARD, pp 121–124.
On 29 June 2022, Mr Lee wrote to the motor vehicle insurer, advising that the respondent’s symptoms were greater than the clinical signs and it appeared that the respondent was catastrophising, so that he was unable to perform a physical assessment. He considered that the respondent was displaying “yellow flags.”

Concord Hospital Discharge referral

The Concord Hospital Discharge referral related to the respondent’s admission to that hospital on 20 June 2022 and her discharge on 22 June 2022.[18] The discharge referral was completed by Dr Joseph Chen, Resident Medical Officer, on behalf of Dr Barry Kane, rheumatologist. The clinical history confirmed that the respondent had been admitted for management of acute and chronic low back pain. The past history was recorded as chronic low back pain for five weeks after lifting heavy furniture, with associated migraines, tinnitus, photosensitivity, groin paraesthesia, bowel and bladder urgency.
[18] ARD, pp 125–129.

Dr Malahat Bagherian, general practitioner, Hassall Grove Medical Centre

Dr Malahat Bagherian provided a certificate of capacity dated 24 June 2022.[19] She recorded the respondent’s complaints as “severe pain in her lower back and upper back and neck and shoulder area” as a result of the injury on 6 May 2022 and noted that the respondent’s psychological condition, which Dr Bagherian attributed to pain and an inability to move, was impeding the respondent’s recovery. She certified the respondent as having no capacity for work from 23 June 2022 to 23 July 2022.
[19] Reply, pp 145–147.
On 30 June 2022, Dr Bagherian issued a letter directed “To Whom It May Concern.”[20] She advised that the respondent was suffering from lower back pain, radiating into the upper back and both shoulders. She certified that the respondent was not fit to walk or drive. Dr Bagherian also referred the respondent to Professor Behzad Eftekhar, neurosurgeon, for management of the respondent’s lumbar pain, noting that her symptoms were not improving, and the respondent was “hardly” walking.[21]
[20] ARD, p 78.
[21] ARD, p 77.
On 28 July 2022, Dr Bagherian referred the respondent to Mr Nick Cherrie, psychologist, for treatment of marked anxiety and depression in the context of severe pain and discomfort following an injury at work two months earlier.[22]
[22] ARD, p 79.

Mr Nick Cherrie, psychologist

The respondent attended Mr Nick Cherrie on 8 July 2022. Mr Cherrie recorded the history of the motor vehicle accident and the respondent’s anxiety associated with the incident. He noted a possible diagnosis of post-traumatic stress disorder unrelated to the back injury and recorded the symptoms on presentation were night terrors, driving anxiety, anxiety about the other driver attacking her and being “[c]onstantly fearful and worried”.[23]
[23] Reply, p 135.
The respondent attended on 5 further occasions between then and 7 December 2022, complaining of ongoing psychological issues and severe pain affecting her ability to concentrate.[24]
[24] Reply, pp 136–140.
On 9 February 2023, Mr Cherrie wrote to the appellant in response to its request for a copy of Mr Cherrie’s clinical notes. He advised:
“I can release [the respondent’s] notes to you, however there seems to be a bit of confusion at our end. When [the respondent] first presented to our clinic it was unclear if she was being seen for a WorkCover claim, or a [Compulsory Third Party (CTP)] one, and I think we may have gotten our wires crossed somewhere along the way. She stated it was for CTP, we have her listed as [claim number], and we received a correspondence from Allianz CTP on 08 DEC 22 stating that they were planning to close her claim and discontinue paying for [the respondent]. However, in another part of our system she is seemingly listed as being under Allianz Workers Compensation.
All of my treatment for her has been chiefly focused on the trauma of her traffic incident and the resultant psychological distress.
I apologise for the confusion, but perhaps you are able to shed some light on the matter?”[25]
[25] Reply, p 20.

The radiological investigations of the lumbar spine

The CT scan of the lumbosacral spine performed by Dr Mei Ming Chan dated 19 May 2022 disclosed a sacralised L5 vertebral body that the radiologist considered could be the source of mechanical symptoms, minor disc bulges at the L3/4 and L4/5 levels but with no neural impingement.[26]
[26] ARD, p 90.
The lumbar MRI scan undertaken on 27 May 2022 by Dr Brian Lam noted the partially sacralised L5 vertebral body reported on the CT scan. Dr Lam concluded that at the L4/5 level of the spine, there was moderate disc degeneration, a right disc extrusion extending slightly posteriorly, resulting in impingement of the right L5 nerve root. Dr Lam recommended a CT guided right L5 nerve root block or L4/5 epidural injection to be used as a diagnostic measure and potentially as a therapeutic procedure.[27]

The medico-legal opinions

[27] ARD, p 91.

Dr Barbara Schiff, Injury Management Consultant

The respondent was referred by the appellant to Dr Barbara Schiff, Injury Management Consultant. She assessed the respondent on 4 July 2022. In her report of the same date, Dr Schiff advised that the respondent complained of pain in the “lower back, both shoulders, right leg more than left leg, general body aches, psychological issues in relation to chronic pain.” She observed that the respondent was “catastrophising” her pain, which, in Dr Schiff’s view, was inconsistent with her radiological findings. She noted that “significant pain focus” was present and there were “maladaptive pain behaviours.” She recommended referral to a rheumatologist and an independent orthopaedic examiner, given the inconsistent findings and the inability to perform a clinical examination because of the respondent’s presentation.
Dr Schiff considered that the respondent was, at the time of examination, unfit for her employment. She diagnosed the respondent as suffering from right shoulder bursitis and L4/5 discogenic disease. She noted that the respondent was studying psychology and was due to finish her module to complete her online course by the end of 2022. Dr Schiff was of the view that the respondent could complete some work options at home online for 10 to 12 hours, over a seven day week, or two hours per day.[28]
[28] Reply, pp 48–62.

Dr Assad Saboor, psychiatrist

Dr Assad Saboor was asked by the respondent’s legal representative to conduct a medical examination and provide an opinion in respect of the respondent’s psychological condition. He provided a report dated 21 October 2022.[29] Dr Saboor took a history of the injury on 6 May 2022, which caused severe pain in her low back and shooting pain into her legs. Dr Saboor reported that the respondent also experienced neck pain with bursitis in both shoulders. He recorded that the respondent denied any previous symptoms and asserted that all of the problems commenced from the injury on 6 May 2022.
[29] ARD, pp 64–73.
Dr Saboor noted that the respondent complained of constant depression and severe anxiety as a consequence of ongoing pain, loss of function and dependency on others. He said that the respondent disclosed a prior history of infrequent depression approximately eight or nine years ago.
Dr Saboor further noted that the respondent denied any other non-work related stressors or problems in her life that “could have contributed to her current presentation.”[30] Dr Saboor noted the opinions of Dr Grama, Dr Wallace and Dr Gehr. He diagnosed an adjustment disorder with anxious mood resulting from physical problems associated with the injury on 6 May 2022, and found the respondent was unfit to return to her pre-injury employment, was totally unfit for work, and a return to gainful employment was unlikely.
[30] ARD, p 67.
Dr Saboor provided a further report dated 9 March 2023, following a review of the respondent’s statement given to the compulsory third party motor vehicle insurer in relation to the motor vehicle accident on 8 June 2022.[31] He maintained his opinion that the respondent suffered an adjustment disorder with depressed and anxious mood secondary to the back injury on 6 May 2022. He observed that the respondent did not report to him any symptoms of post-traumatic stress disorder but, based on the notes from the respondent’s treating psychologist, the respondent also suffered post-traumatic stress disorder as a consequence of the motor vehicle accident.
[31] ARD, pp 74–76.

Dr Eugene Gehr, orthopaedic surgeon

Dr Eugene Gehr was also requested by the respondent’s legal representative to examine the respondent and provide an opinion. He provided a report dated 27 September 2022.[32] Dr Gehr reviewed in detail the documentation provided to him comprising of the report of Dr Marcus, the referral letters from Dr Bagherian, the Concord Hospital discharge referral by Dr Chen, various certificates of capacity, documents produced by physiotherapist Joseph Lee and the radiological investigations.
[32] ARD, pp 42–54.
Dr Gehr noted the respondent’s presenting complaints and took a history of the injury to the back with pain shooting down both legs on 6 May 2022. Dr Gehr further noted that the respondent also complained of right shoulder pain resulting from the injury, pain in the left shoulder since the injury, together with paracervical neck pain and severe back pain requiring admission to Concord Hospital on 20 June 2022.
Dr Gehr took a brief history of the motor vehicle accident, which the respondent claimed had no effect on her injuries arising out of the work-related injury. He noted that the respondent’s physical injuries and difficulties resulting from the injury on 6 May 2022 continued.
Dr Gehr performed a physical examination. He diagnosed the respondent as suffering from lumbar spine discogenic pain with positive nerve tension test on both lower limbs, bilateral shoulder soft tissue injury with impingement and soft tissue injury to the cervical spine. He said that the respondent was not fit for her pre-injury duties and her ability to return to pre-injury duties would be dependent upon the response to treatment from a neurosurgeon, a shoulder specialist, and a pain management specialist. He considered that the injury to the lumbar spine was caused by the event on 6 May 2022. He disagreed with the view of Dr Harvey that the respondent’s injury was simply a “back strain” and commented that he agreed with the opinion of Dr Marcus, which he described as “robust and logical”.
Dr Gehr provided a supplementary report dated 21 November 2022 in response to a series of questions posed by the respondent’s legal representative.[33] Dr Gehr advised that on the basis of the history recorded in his previous report, there was no other cause for the respondent’s shoulder injuries, noting that:
(a) the respondent underwent shoulder investigations in the month following the injury, and
(b) Dr Marcus reported that the respondent complained of shoulder, neck and lumbar spine pain since the injury, despite not having reported cervical or left shoulder pain in the first consultation.
[33] ARD, pp 56–60.
Dr Gehr confirmed that he had read the reports of Dr Marcus and Mr Davis Chun Fung Ng and observed that both of those treatment providers substantiated his findings and there was no reason to doubt those documents, which contained the same history as that recorded by him. He further confirmed that, on the basis of the respondent’s orthopaedic complaints, she was not able to return to her pre-injury occupation. Dr Gehr said that he disagreed with the opinion of Dr Wallace, particularly that the back injury had resolved, and that the mechanism of injury was incapable of causing a lower back injury. He agreed with Dr Wallace that there was no evidence of radiculopathy from the L5 level of the back. He added that injuries to the neck and shoulders from lifting a heavy chair were not unexpected.
Dr Gehr provided a further supplementary report dated 27 February 2023 following receipt of the respondent’s statement made to the motor vehicle insurance investigator.[34] He said that the respondent had disclosed the motor vehicle accident to him, and the statement did not refer to any impact on the respondent’s orthopaedic injuries flowing from the injury on 6 May 2022. Dr Gehr concluded that he saw no reason to alter his opinion expressed in his earlier reports.
[34] ARD, pp 61–63.
Dr Gehr provided a further supplementary report dated 13 May 2023, in which he confirmed his opinion already expressed.[35]
[35] Respondent’s Application to Admit Late Documents dated 18 May 2023, pp 3–5.

Dr Sergiu Grama, general and forensic psychiatrist

The appellant arranged for the respondent to be assessed by Dr Sergiu Grama, general and forensic psychiatrist. Dr Grama provided a report dated 28 September 2022.[36] He noted that the respondent had experienced an onset of pain in her back and both shoulders within a few minutes after manoeuvring a large, heavy chair in the course of her employment with the appellant. He recorded that the respondent was sent home from work, attempted to return to work a few days later but could not continue, so she ceased work and consulted Dr Harvey, who was not her usual doctor. Dr Grama took a history of the respondent’s treatment thereafter, which included changing her general practitioner to Dr Bagherian, then to Dr Marcus and being admitted to Concord Hospital.
[36] Reply, pp 24–33.

Dr Grama reported that the respondent complained of severe constant pain which was adversely affecting her mental health. He said that the respondent did not mention any other factors which might have contributed to her pain other than the work injury on 6 May 2022. Dr Grama said that the respondent complained of significantly limited social functioning, recreational activities and travel, and lack of concentration as a consequence of the pain.
Dr Grama noted that the respondent disclosed a history of anxiety and depression about nine years previously in the context of family issues, which she thought lasted for several months.
Dr Grama performed an assessment of the respondent’s mental health and expressed the opinion that the respondent suffered from an adjustment disorder with mixed anxiety and depressed mood, which the respondent advised occurred about one week after the work injury. He noted that the disorder was reported to have arisen as a consequence of and secondary to the physical injury. Dr Grama opined that:
“Once the stressor or its consequences have terminated the symptoms of Adjustment Disorder are expected to cease and they usually do not persist for more than 6 months. According to Dr Wallace consequences of the claimed work injury have terminated.”[37]
[37] Dr Grama’s report, p 7, reply, p 30.
In response to specific questions posed by the appellant, Dr Grama said that:
(a)    if the pain was severe or persisted for a long time, it might act as a stressor and could precipitate a psychological disturbance;
(b)    he did not believe that the respondent had a pre-existing or non-work related psychiatric or psychological condition, or that the respondent’s employment caused an aggravation, acceleration, exacerbation or deterioration of a prior psychological condition, and
(c)    the respondent did not disclose any causative factors for the condition.

Dr Raymond Wallace, orthopaedic surgeon

Dr Raymond Wallace examined the respondent at the request of the appellant and provided a report dated 16 September 2022.[38] He recorded a consistent history of the injury on 6 May 2022 and the onset of sharp pain in the lumbar spine radiating bilaterally into the lower limbs, causing the respondent to cease work. He noted that the respondent attempted to return to work on 10 May 2022 but left early because of the presence of lumbar pain.
[38] Reply, pp 34–47.
Dr Wallace took the history that the respondent attended her general practitioner, Dr Bagherian, who prescribed physiotherapy and pain medication. He referred to the significant aggravation of her lumbar pain requiring admission to Concord Hospital, which he recorded as occurring in July 2022. Dr Wallace said that the respondent also complained of the onset of cervical pain radiating to both shoulders at the time of the injury.
Dr Wallace recorded the respondent’s current complaints, which included symptoms in the trapezius muscles and both shoulders, worse with repetitive lifting. He noted that the respondent complained of constant aching pain at the L4/5 level of the lumbar spine, radiating into the buttocks and lower limbs and ankles, aggravated by lifting, sitting or forward flexion. Dr Wallace indicated that the respondent had been certified as having no capacity to work. He reviewed the radiological investigations, which he said showed disc degeneration at the L4/5 level of the lumbar spine with a small disc bulge, a disc extrusion causing mild flattening of the L5 nerve root but no abnormality at the L5/S1 level. He remarked that the investigations of the left and right shoulders and cervical spine showed no abnormality.
Dr Wallace diagnosed minor musculoligamentous strain of the lumbar spine which had resolved and aggravation of pre-existing degenerative disease, which also had resolved, with no evidence of radiculopathy. He considered that the injury was minor and should have resolved within two weeks. He was of the opinion that the mechanism of injury was not capable of causing significant lumbar spinal pathology.
Dr Wallace was of the view that the clinical findings on examination were inconsistent, the respondent displayed significant pain behaviour and that there was no objective evidence of the respondent suffering injury to her cervical spine or shoulders in the incident.
Dr Wallace concluded that the respondent’s lumbar injury had resolved, that she suffered no incapacity for work as a result of the injury on 6 May 2022 and she did not require any treatment for any work-related conditions.
Dr Wallace provided a supplementary report dated 8 May 2023.[39] He noted the further information provided to him about the respondent being involved in a motor vehicle accident on 8 June 2022. He observed that the respondent was referred for an ultrasound investigation of the left shoulder on 10 June 2022, an MRI scan of the cervical spine on 11 June 2022 and an ultrasound of the right shoulder on 20 June 2022, which were all conducted closely after the motor vehicle accident and all of which showed no significant abnormality.
[39] Appellant’s Application to Admit Late Documents dated 19 May 2023, pp 2–6.
Dr Wallace confirmed his view that the respondent’s neck and shoulder complaints were not related to the injury on 6 May 2022 and the mechanism of the motor vehicle accident would be consistent with the onset of those complaints. He added that it was highly likely that the respondent’s lumbar condition was significantly aggravated in the motor vehicle accident.

THE PRINCIPAL MEMBER’S REASONS

The Principal Member noted that the matter had proceeded to arbitration before a different Member, oral submissions were made and recorded, and both parties provided written submissions. She further noted that the parties had agreed that the matter could be referred to a new member, without the need for a telephone conference and the dispute was allocated to her for determination. She advised that she had read the documents lodged in the matter and had listened to the sound recording of the proceedings on 29 May 2023.
The Principal Member reviewed the respondent’s statement evidence, including the respondent’s statement that she was studying psychology and was likely to complete her university degree at the end of 2022. The Principal Member also noted that the respondent had a previous history of anxiety and depression in 2004, for which she sought treatment, and the condition resolved. The Principal Member recorded that the respondent could not recall any prior back, shoulder, or neck pain before the commencement of her employment with the appellant in 2020.
The Principal Member summarised the respondent’s statement evidence as to the cause of the injury on 6 May 2022, her unsuccessful attempt to return to work, her continuing symptoms in her lower back, neck and shoulders, as well as her psychological symptoms and her ongoing treatment. The Principal Member noted that, in the respondent’s statements dated 30 November 2022, the respondent did not mention that she was involved in a motor vehicle accident on 8 June 2022.
The Principal Member referred to the respondent’s third statement dated 21 February 2023, which included reference to the motor vehicle accident and in which the respondent detailed her difficulties arising from the work-related injury on 6 May 2022. The Principal Member recorded that the respondent asserted that the motor vehicle accident did not impact upon those physical injuries and triggered different psychological symptoms to those that she had continued to experience from the injury on 6 May 2022.
The Principal Member remarked in some detail upon the inconsistencies between those statements and the respondent’s statement made to the motor vehicle insurance investigator dated 16 August 2022. She noted the explanation by the respondent for the inconsistencies contained in her further statement dated 1 May 2023. The Principal Member considered it significant that the respondent asserted in the statement made to the motor vehicle insurance investigator that, other than receiving treatment for her back, her health prior to the motor vehicle accident was good. The Principal Member considered it also relevant that the respondent did not mention to the motor vehicle insurance investigator the alleged prior symptoms in her neck, shoulders or psychological symptoms. The Principal Member noted the significant psychological complaints made in the motor vehicle CTP claim form on 14 June 2022, and the respondent’s assertion that she had not suffered from a similar injury or illness. The Principal Member remarked that the CTP insurer accepted the respondent’s psychological claim.
The Principal Member recorded that the incident report completed by the respondent on 6 May 2022 simply referred to the respondent having experienced severe back pain shooting into her legs.
The Principal Member summarised the medical evidence from the respondent’s treating doctors, including the complaints made by the respondent to those doctors, and noted that the CTP insurer approved treatment by a psychologist and a psychiatrist. The Principal Member also summarised the medical evidence provided by the various medical experts qualified by the parties.
The Principal Member turned to the oral submissions and provided a detailed summary of both the oral and written submissions made by the parties.
The Principal Member observed that, because of the conflicting accounts given by the respondent, she needed to treat the evidence with some caution. She considered that it was significant that in the incident report completed by the respondent, the respondent only referred to having suffered an injury to her lower back, with pain travelling to her legs. The Principal Member observed that, as the respondent referred to pain in her legs, it seemed that the respondent had given some thought to completing the report in detail. The Principal Member concluded that, if the respondent had experienced symptoms in her neck and shoulders, it would be more likely that she would have also listed symptoms in those areas.
The Principal Member noted that the respondent had consulted Dr Harvey four days after the event, who took a detailed account of the injury but did not record symptoms other than low back symptoms and who only performed an examination of the respondent’s back and legs. The Principal Member observed that Dr Harvey’s detailed notes and examination indicated that the doctor did not take a mere cursory approach to the respondent’s complaints or in the physical examination he performed. She said that in those circumstances, it would have been likely that, if the respondent complained of pain in her neck and shoulders, Dr Harvey would have recorded those complaints in the medical certificate he issued.
The Principal Member further reviewed the medical evidence as to the delay in the respondent making complaints recorded in the treating medical evidence in respect of the neck and shoulders. She concluded that the respondent’s failure to report the alleged injuries cast serious doubt as to whether the respondent suffered injury to her neck and shoulders in the incident on 6 May 2022. The Principal Member additionally remarked upon the inconsistency between the respondent’s assertions in this case and the information provided to the CTP insurer. The Principal Member indicated that as a result, she had significant concerns as to whether the respondent was a reliable witness.
The Principal Member noted that in Dr Harvey’s notes there was no record of shoulder or neck pain in the entries on 17 May 2022 or 19 May 2022 and said that, although the respondent reported back pain radiating to her shoulders at the consultation on 24 May 2022, that did not mean that she had an injury to her shoulder. She remarked that it was clear that Dr Harvey was not of the view that she had suffered such injury and had ordered radiological investigations only of her spine. The Principal Member noted that Dr Harvey did record complaints by the respondent on 1 June 2022 of pain radiating into the left trapezius and pain on movement of the left shoulder. She said that that lent support to the respondent’s case, but also confirmed that Dr Harvey took some care to accurately record the respondent’s symptoms, contrary to the respondent’s assertion that Dr Harvey was dismissive of her complaints.
The Principal Member concluded that there was a serious doubt as to whether the respondent in fact injured her neck and shoulders in the incident on 6 May 2022. She expressed “significant concern” as to the reliability of the respondent’s evidence because of the omissions in the respondent’s reporting, including that the respondent advised the CTP insurer that, apart, from the lumbar injury, she was in good health and did not mention a neck or shoulder injury. The Principal Member referred to the complaints made by the respondent to Mr Lee of almost immediate shooting pain in the back, pins and needles at the neck and back and down both legs and arms, as well as the symptoms the respondent indicated on the questionnaire form. The Principal Member described those complaints as “a more florid account than she gave to Dr Harvey”.[40] She remarked that the respondent’s presentation was completely inconsistent with her presentation to Dr Harvey, and that Mr Lee was so concerned that he arranged her admission to Concord Hospital.
[40] Davoudi v Douglass Hanly Moir Pathology Pty Ltd [2023] NSWPIC 691 (reasons), [144].
The Principal Member considered that the Concord Hospital records were significant, in particular the discharge report completed by the rheumatological registrar on behalf of Dr Kane. She determined that the records were not consistent with the respondent’s assertion that she “genuinely suffered the extent of the symptoms she complains of and provides further evidence [that she should] treat her accounts with caution.”[41] The Principal Member further pointed out that the respondent’s medical certificates provided separately for the motor accident and the work accident, which were issued at the same time in June 2022, did not make reference to the other incident and it appeared that the respondent had consulted different medical practices for each injury.
[41] Reasons, [145].
The Principal Member considered it “troubling” that, if the respondent had experienced psychological symptoms following the injury on 6 May 2022, the respondent failed to disclose that history to the CTP insurer. The Principal Member referred to the evidence from the respondent that her psychological symptoms resulting from the motor vehicle accident were different to those emanating from the injury on 6 May 2022, which, the respondent said, indicated that there were two different psychological symptoms. The Principal Member remarked that the respondent was not a medical expert, so that evidence should be treated with caution. The Principal Member pointed out that there was no record of the respondent suffering psychological symptoms before the motor vehicle accident. She concluded that, had she been experiencing those symptoms, it would have been more likely than not that Dr Harvey would have taken a record of them.
The Principal Member concluded:
“Because of the inconsistencies in [the respondent’s] case, and relying on Dr Harvey’s records and [the respondent’s] incident report in particular, I do not feel an actual persuasion that she did in fact sustain an injury to her neck and shoulders in the work incident on 6 May 2022. I do however accept that her low back injury has not ceased. The pathology did reveal some impingement. As to whether she has proved she has a secondary psychological condition because of the back injury is a difficult issue to resolve. I have found she is not a reliable witness particularly as she seems to have been selective as what she tells the many practitioners she has seen”.[42]
[42] Reasons, [154].
The Principal Member referred to the evidence of Mr Cherrie that the respondent suffered from post-traumatic stress disorder and anxiety that was attributable to the motor vehicle accident and that was the focus of his attention. She expressed concern about that evidence and further concern that the respondent did not disclose the motor vehicle accident, nor the psychological treatment she was receiving from Mr Cherrie to Dr Saboor and Dr Grama. The Principal Member added that the respondent denied to Dr Saboor the presence of any non-work-related stressors, and the Principal Member was unsure of whether Dr Saboor was aware of the contents of the report by Mr Cherrie when Dr Saboor expressed his view on causation. She said that, for those reasons, she had no confidence in the views expressed by Dr Saboor.
The Principal Member observed that the respondent bore the onus of proof and that the treating and medico-legal doctors were very reliant upon the histories given to them by the respondent. She reasoned that none of those doctors treating the respondent after she ceased seeing Dr Harvey appeared to be aware of Dr Harvey’s initial clinical notes or the incident report completed by the respondent. She noted that Dr Gehr did not refer to those documents.
The Principal Member found that the respondent was not a reliable witness, and taking into account Dr Harvey’s evidence as well as the inconsistencies in the evidence she was not satisfied that the respondent did in fact suffer an injury to her neck and shoulders in the injury on 6 May 2022, but she was satisfied that the effects of the respondent’s lower back injury had not resolved. She further concluded that she was not satisfied that the respondent had discharged her onus in respect of establishing a secondary psychological injury as a result of her back injury.
The Principal Member proceeded to determine the respondent’s claim for s 60 expenses and the claim for weekly payments. She ordered the appellant to pay the $350 claimed in respect of the proposed treatment for the respondent’s lumbar spine. The Principal Member commented that some evidence about whether the respondent had completed her degree in psychology would have been of assistance in determining the weekly payments claim, and it would also have been helpful for a medical specialist to have indicated whether the cortisone injection on 15 November 2022 assisted with a diagnosis of the lumbar spine condition.
The Principal Member noted that the most recent medical certificate was provided by Dr Marcus who opined that the respondent had no current capacity for employment, on the basis of the lumbar spine injury, the psychological symptoms and the right shoulder bursitis. The Principal Member noted that the MRI scan of the lumbar spine disclosed some impingement at the L5 level, although Dr Gehr did not find any radiculopathy. She said that, despite the fact that the certificate included the alleged injuries that she had found were not proven, she was satisfied that the respondent’s capacity for employment was affected by the lower back injury.
The Principal Member concluded that:
“[The respondent] was only working 28 hours per week at the time of the work injury and notwithstanding the concerns I have expressed about the evidence, including her tendency to exaggerate, I find that [the respondent] does not have the capacity to return to her pre-injury employment due to her persisting lumbar injury. The [appellant] did not make any submissions in the alternative to relying on Dr Wallace’s opinion, which I have not accepted. With a degree of reservation, I nonetheless accept Dr Marcus’s certification that she has no current work capacity. Even though he includes the right shoulder and psychological symptoms on his most recent certificate, I accept it is the effects of the lumbar injury which have caused incapacity. Accordingly, I make an award in her favour pursuant to s 37 at 80% of her PIAWE in the amount of $595.39 per week from 8 November 2022 to date and continuing.”

The Certificate of Determination issued on 22 December 2023 records:
“The Commission determines:
1. Award for the [appellant] in relation to allegations of injury to the cervical spine, bilateral shoulders and secondary psychological condition on 6 May 2022.
2. The effects of the lumbar spine injury agreed to have been sustained in the course of employment on 6 May 2022 have not ceased.
3. The claim made under s 60 of the Workers Compensation Act 1987 for a consultation with Dr Darwish is reasonably necessary as a result of the work injury on 6 May 2022.
4. The [appellant] is to pay the [respondent] weekly compensation from 8 November 2022 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $595.39 per week.”

GROUNDS OF APPEAL

The appellant relies on two grounds of appeal as follows:
(a) Ground A: The Principal Member’s decision contains an error of fact by relying on a fact that was wrong, and
(b) Ground B: The Principal Member committed an error of law in failing to provide the appellant with procedural fairness by not dealing with the submissions made by it.

LEGISLATION

Section 37 of the 1987 Act provides:
“Weekly payments during second entitlement period (weeks 14–130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”

SUBMISSIONS

As to Ground A

The appellant’s submissions

The appellant cites Raulston v Toll Pty Ltd,[43] in which Roche DP summarised the principles identified by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[44] in respect of what is required in order to disturb a primary decision-maker’s determination of fact or discretion. The appellant refers to the Principal Member’s observations as to the lack of credibility of the respondent’s evidence, in particular that:
(a)    she had significant concerns about the respondent’s reliability as a witness;
(b)    if the respondent was suffering psychological symptoms before the motor vehicle accident and as a result of the injury on 6 May 2022, it was troubling that the respondent did not disclose those symptoms to the CTP insurer;
(c)    the respondent gave a “troubling account” to Mr Lee, physiotherapist;
(d)    Mr Lee’s assessment of the respondent cast doubt on the respondent having genuinely suffered the extent of her reported symptoms, which was a further indication that the respondent’s evidence should be treated with caution;
(e)    it was concerning that the medical certificates in relation to the work-related injury and the motor vehicle injury were issued at the same time but did not refer to the other injury;
(f)    the fact that the respondent failed to tell both Dr Saboor or Dr Grama about the car accident and the treatment from Mr Cherrie gave support to the conclusion that the respondent was an unreliable witness;
(g)    because the respondent was selective about what she reported to the doctors, she was an unreliable witness, and
(h)    the respondent’s credit was seriously affected by her failure to inform Dr Saboor of her significant psychological symptoms referrable to the motor vehicle accident.
[43] [2011] NSWWCCPD 25.
[44] (1966) 39 ALJR 505 (Whiteley Muir).
The appellant further refers to its submissions made to the Principal Member that the evidence of Dr Grama could not be accepted because it was based on an incorrect history, Dr Gehr’s opinion in respect of the respondent’s capacity for work or what duties were suitable for the respondent to perform should not be accepted, and Dr Saboor’s opinion as to the respondent’s capacity from a psychological perspective was flawed.
The appellant points to the Principal Member’s reasons, in which she indicated the difficulties she had in assessing the respondent’s capacity because the opinions of the treating practitioners and the medico-legal experts were dependent upon the history provided by the respondent, which was unreliable.
The appellant refers to the observations of Keating P in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde[45] that medical certificates are of little probative value if they are not supported by a medical report explaining the history upon which the certificates are based. The appellant quotes from the Principal Member’s reasons for concluding that the respondent was entitled to weekly payments, in which the Principal Member took into account that Dr Marcus’ certificate included the psychological symptoms and the right shoulder bursitis. The appellant stresses that the Principal Member observed that “the [appellant] did not make any submissions in the alternative to relying on Dr Wallace’s opinion,” which the Principal Member had not accepted. The appellant submits that the Principal Member was in error to say that the appellant had not made any submission in the alternative to its reliance upon the opinion of Dr Wallace. The appellant submits that the finding of total incapacity based on the opinion of Dr Marcus was wrong because:
(a)    it was against the Principal Member’s findings as to the respondent’s credit;
(b)    the Principal Member found that caution should be adopted because not all of the medical experts had the history of the motor vehicle accident;
(c)    none of the medical experts were aware of Dr Harvey’s initial clinical notes or the respondent’s own incident report;
(d)    it contradicted the Principal Member’s non-acceptance of the opinions of Dr Grama, Dr Saboor and Dr Gehr, and
(e)    the medical certificate only refers to the injury on 6 May 2022, without reference to the motor vehicle accident and there was no way of knowing whether Dr Marcus’ opinion was provided in the context of a correct history.
[45] [2011] NSWWCCPD 22 (Hyde).
The appellant submits that, in line with Hyde, the medical certificates must be considered to be of little probative value when Dr Marcus has not provided a medical report in which the correct clinical history and the motor vehicle accident are recorded. The appellant adds that the injuries listed in the Certificates of Capacity issued by Dr Marcus included injuries to the neck, both shoulders and a psychological condition. The appellant asserts that the Principal Member did not explain how she delineated between the lower back and the non-compensable conditions when she made findings as to the respondent’s capacity for work.
The appellant cites Paric v John Holland (Constructions) Pty Ltd,[46] as authority to say that the certificates of capacity produced by Dr Marcus should be afforded no weight because there is no evidence that the facts relied upon were sufficiently like the facts found. The appellant submits that the Principal Member’s reliance upon one certificate of capacity is inconsistent with her finding that the respondent was an unreliable witness because she had been selective about the matters she disclosed to the medical practitioners. The appellant contends that, in the context of the significant inconsistencies and omissions in the reporting by the respondent, and her tendency to exaggerate, the certificate of capacity produced by Dr Marcus should not be accepted.
[46] [1985] HCA 58 (Paric).

The respondent’s submissions

The respondent submits that this ground of appeal appears to allege error on the part of the Principal Member by her finding that the respondent suffered from an incapacity as a result of the lumbar spine injury. The respondent contends that the appellant’s appeal is flawed because the appellant has failed to show how the Principal Member’s finding that the effects of the lumbar injury had not ceased was wrong. The respondent adds that, in any event, the appellant has not appealed that finding.
The respondent says that the lumbar spine injury was accepted, and it continues.
The respondent points out that, consistent with her submission at arbitration, the appellant did not adduce any evidence as to the respondent’s capacity for work in respect of the lumbar spine injury and the secondary psychological condition. The respondent asserts that, in the context of the evidence that was either accepted or rejected by the Principal Member, there had to be a finding of incapacity.
The respondent contends that it was not an error for the Principal Member to rely upon the medical certificates of Dr Marcus and the respondent’s assertion that Dr Marcus was not aware of the motor vehicle accident was clearly incorrect. The respondent refers to Dr Marcus’ reports dated 12 September 2022 and 17 November 2022 and says that in the November report, Dr Marcus indicated that he had read the report of Dr Gehr, which, the respondent says, clearly disclosed the motor vehicle accident, so that Dr Marcus must have been aware of the motor vehicle accident.
The respondent asserts that the allegation that the Principal Member failed to delineate between the back injury and the non-compensable complaints is unjustified because the Principal Member clearly concluded that the respondent’s lumbar injury impacted the respondent’s capacity for work, noting that the MRI scan showed some impingement at the L5 disc level, despite Dr Gehr not finding radiculopathy.
The respondent submits that, in any event, it is incumbent upon the appellant to “disentangle” the causes of the respondent’s incapacity when the causes are multifactorial, relying on Watts v Rake[47] for that proposition. The respondent says that the appellant failed to adduce any evidence proving that the lumbar spine injury had ceased, or that the respondent’s “other injuries” were the cause of the respondent’s incapacity.
[47] [1960] HCA 58.
The respondent submits that this ground of appeal must fail.

As to Ground B

The appellant’s submissions

The appellant cites various authorities in which a tribunal’s obligations to refer to the relevant evidence and deal with a party’s clearly articulated arguments are discussed.[48] The appellant also refers to the decision of Phillips P in Sarheed v C1 Formwork Group Pty Limited,[49] in which the President applied those authorities and observed that the failure to consider a substantial argument made by a party can constitute a failure to exercise jurisdiction where the failure to do so is material to the outcome.
[48] DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; CPE15 v Minister for Immigration and Border Protection[2017] FCA 591; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863.
[49] [2021] NSWPICPD 7.
The appellant refers to r 15.2(3) of the former Workers Compensation Commission Rules 2011. Those rules are no longer in force. The appellant also makes reference to the NSW Court of Appeal decision in Paric v John Holland Constructions Pty Ltd[50] and the High Court decision in the appeal from the Court of Appeal in Paric, submitting that a medical opinion must have been produced in a “fair climate” and, while elaborate explanations are not required, the opinion cannot simply rest upon an assertion without proof.
[50] [1984] 2 NSWLR 505.
The appellant points out that the Principal Member found that the respondent had only worked for 28 hours per week prior to the injury on 6 May 2022, the Principal Member expressed concern about the state of the evidence and noted the respondent’s tendency to exaggerate. The appellant submits that the Principal Member then determined that the respondent’s lumbar injury impacted upon her capacity to work and, on the basis of a medical certification from Dr Marcus, awarded the respondent weekly payments at the maximum rate pursuant to s 37 of the 1987 Act.
The appellant asserts that the Principal Member’s observation that the appellant solely relied upon the opinion of Dr Wallace and did not make any alternate submissions was clearly wrong. The appellant quotes a passage from its written submissions dated 9 June 2023, wherein it:
(a)    pointed to the evidence that the respondent was studying full time and due to complete a bachelor’s degree in psychology at the end of 2022;
(b)    said that there was no evidence to suggest that the respondent had ceased or had difficulties with those studies, and
(c)    submitted that that evidence showed that the respondent had a demonstrable capacity for at least sedentary work.
The appellant submits that those submissions were not traversed by the respondent and, in the absence of any evidence that the respondent failed to complete those studies or was struggling to do so (which the Principal Member conceded would have been useful), the Principal Member should have dealt with those relevant and material submissions.
The appellant points to the respondent’s evidence as to the various types of casual work the respondent had previously performed and asserts that the respondent had not reported difficulties in driving prior to the motor vehicle accident on 8 June 2022, and after the motor vehicle accident, she developed anxiety when driving. The appellant recites the evidence as to the significant impact the motor vehicle accident had on the respondent’s well-being.
The appellant reproduces s 32A of the 1987 Act and submits that the respondent had previous experience as an Uber driver and asserts that the respondent had the capacity to perform that work prior to the motor vehicle accident. The appellant says that this was clearly demonstrated by the fact that the respondent was driving her vehicle after the injury on 6 May 2022 and on 8 June 2022. The appellant says that, in addition, the evidence of Dr Schiff supports the contention that the respondent’s ability to complete modules in her university degree shows an ability to perform sedentary work for 10 to 12 hours per week.
The appellant asserts that the Principal Member failed to engage with its submissions, which were submissions material to a central issue in the proceedings, and thus the Principal Member fell into error.

The respondent’s submissions

The respondent asserts that the appellant failed to adduce any evidence that the respondent had a capacity for work in the context of her lumbar injury and the “accepted” secondary psychological condition. The respondent disputes the appellant’s assertion that the Principal Member failed to engage with its submissions and makes reference to the Principal Member’s reasons where the respondent says that the Principal Member noted those submissions. The respondent contends that the appellant has failed to show how the appellant’s submissions ought to have resulted in a determination that the respondent had a capacity for work.
The respondent further contends that the submissions as to the respondent’s previous experience and her capacity to drive prior to the motor vehicle accident were not the subject of submissions made to the Principal Member. The respondent submits that the appellant should not now be permitted to advance an argument that was never put to the Principal Member at first instance and the Principal Member cannot have erred by failing to take into account a submission never made to her.
The respondent contends that, as a consequence, the respondent is not required to engage with the submissions and whether the submissions have merit, other than to say that the appellant’s allegation that the respondent has capacity is “entirely unsupported by any medical evidence.”
The respondent submits that this ground of appeal must fail.

THE RELIEF SOUGHT

The appellant seeks an award in its favour in respect of the Principal Member’s finding in relation to the respondent’s entitlement to weekly compensation, or in the alternative that the matter be remitted for re-determination by another member.
The respondent submits that the appeal should be dismissed. The respondent asserts that certain orders made by the Principal Member relating to the awards in favour of the appellant in respect of the allegations of injury to the cervical spine, bilateral shoulders and secondary psychological condition on 6 May 2022 ought to be revoked. Those remedies, other than that the appeal should be dismissed, do not fall within the scope of this appeal.

CONSIDERATION

Ground A: The Principal Member’s decision contains an error of fact by relying on a fact that was wrong

The appellant recites its submissions made to the Principal Member in respect of the respondent’s lack of credibility, the failure of the respondent to disclose matters to the motor vehicle insurer and to the appellant, and why the opinions of Dr Grama and Dr Gehr should not be accepted. It is somewhat difficult to identify from those submissions with any precision the “fact” that the appellant asserts is “wrong”, given that the Principal Member accepted that the respondent’s evidence was unreliable and should be treated with caution, and the Principal Member did not accept the opinions of Dr Grama and Dr Gehr.
The appellant refers to the Principal Member’s acceptance of the certificate of capacity provided by Dr Marcus and her observation that the appellant made no submissions other than those seeking reliance on the opinion of Dr Wallace. The assertion that the Principal Member failed to address the appellant’s submission as to the respondent’s capacity for work is more clearly raised under Ground B of this appeal and is dealt with under that ground. The appellant asserts that the opinion of Dr Marcus was wrong because it included the non-compensable conditions in the neck and both shoulders and the psychological condition, and because Dr Marcus did not have a correct history so that it lacked probative value.
Ultimately, the appellant submits that the certificates of capacity provided by Dr Marcus should have been afforded little weight because there is no evidence that they were produced in a fair climate. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[51] The appellant must show that:
(a)     a member’s preference for one view of the facts over another is so outweighed by other probabilities that the conclusion must be wrong;
(b)     material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn, or
(c)     the available inference in the opposite sense to that chosen by the Member is so preponderant that the Member’s decision must be wrong.[52]
[51] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
[52] Whiteley Muir.
The Principal Member expressed some reluctance in accepting the certificate of capacity in which Dr Marcus opined that the respondent had no capacity for work. Her reluctance was because of the fact that the certificate included conditions that the Principal Member considered were not referable to the work-related injury.
The appellant’s complaint is that the Principal Member erred in fact by attributing weight to the opinion of Dr Marcus in the certificate of capacity, in which Dr Marcus included the non-compensable injuries and the non-compensable condition in his assessment of the respondent’s capacity. This ground of appeal might have also been framed as a complaint that the Principal Member afforded no, or too little, weight to the evidence of Dr Schiff and the respondent’s own evidence as to her ability to continue her studies.

In any event, the Principal Member did not include in her reasoning consideration of the views of Dr Schiff, which was evidence contrary to the evidence of Dr Marcus. The Principal Member’s failure to deal with the evidence of Dr Schiff is adequately addressed under Ground B of the appeal and her determination in relation to the respondent’s entitlement to weekly compensation is revoked. The question of the respondent’s entitlement to weekly compensation is to be remitted to another member for re-determination. In those circumstances, I do not consider it appropriate to express my view on the weight to be afforded to that evidence. Given that Ground B of the appeal has succeeded, it is not necessary to determine this ground.

Ground B: The Principal Member committed an error of law in failing to provide the appellant with procedural fairness by not dealing with its submissions

The appellant’s submissions relevant to this ground of appeal, and the respondent’s submissions in response, involve a consideration of what was, and what was not, the subject of the appellant’s submissions to the Principal Member as to the respondent’s capacity for work. It is therefore appropriate to provide a brief summary of the appellant’s submissions at first instance, in so far as they deal with the issue of the respondent’s incapacity resulting from the injury on 6 May 2022.
The transcript of the arbitration conducted on 29 May 2023 discloses that, because of time constraints, the appellant made no oral submissions as to the respondent’s capacity for work in respect of the injury on 6 May 2022. In the appellant’s written submissions dated 9 June 2023, the appellant made brief submissions as to the respondent’s capacity. The appellant placed significant reliance upon its denial of the asserted injuries to the neck, shoulders and secondary psychological injury, and submitted that, as those conditions were not compensable, the evidence from Dr Gehr and Dr Saboor as to the respondent’s capacity was of no assistance. The appellant submitted that there should be an award in its favour in respect of the claim for weekly compensation for the following further reasons:
(a)    Dr Wallace opined that the lower back injury had resolved;
(b)    the respondent was exaggerating her limitations, and her evidence could not be accepted;
(c)    the worsening of the respondent’s lower back condition requiring hospitalisation after but proximate to the motor vehicle accident indicated that the lower back condition was aggravated by that accident, and
(d)    the various references to the respondent continuing her studies, said by the respondent to be on a full-time basis, which she expected to complete at the end of 2022, and the absence of any evidence that the respondent was unable to finish those studies, indicated that the respondent had at least some capacity for sedentary work.
The Principal Member clearly dealt with the appellant’s submission that the respondent’s lower back injury had resolved. She rejected the only evidence (that of Dr Wallace) that supported the appellant’s submission to that effect, and her finding that the lower back injury had not resolved is not challenged by the appellant.
At [136]–[156] of reasons, the Principal Member considered in great detail the appellant’s submissions that the respondent was exaggerating, her evidence was unreliable, and the medical evidence contained in the various reports relied upon by the respondent should be rejected because the medical experts had relied upon an incorrect history.
The Principal Member’s conclusions to reject the evidence that the respondent suffered injuries to her neck and shoulders and developed a secondary psychological condition are not challenged on appeal. Nor is her conclusion that the lumbar spine injury had resolved. The conclusions were available to her on the basis of the evidence, which evidence was the subject of lengthy submissions by both parties. The Principal Member made no error in reaching those factual conclusions.
The unreliability of the respondent’s own evidence, together with the unsatisfactory nature of the medical evidence and the Principal Member’s rejection of the claimed injuries to the neck and shoulders, as well as the secondary psychological injury, left the Principal Member with little evidence to assist in the determination of the respondent’s weekly entitlements. The Principal Member accepted that the respondent was unable to return to her pre-injury employment principally because of the pathology identified on the MRI scan and her conclusion that the effects of the lumbar injury persisted.
In her consideration of the respondent’s capacity for work as a consequence of the lower back injury, the Principal Member observed that details as to the outcome of the respondent’s studies would have been helpful, as well as some medical evidence as to whether the cortisone injection into the lumbar spine had been of assistance in reaching a diagnosis. That evidence was not forthcoming.
The Principal Member observed that “[the appellant] did not make any submissions in the alternative to relying on Dr Wallace’s opinion, which I have not accepted.”[53] The appellant takes issue with this passage. The appellant maintains that it did make other submissions that:
(a)    there was evidence that the respondent had some capacity for work, namely that the respondent was able to pursue her studies;
(b)    there was evidence from Dr Schiff that the respondent had some capacity for work, and
(c)    the respondent had experience as an Uber driver and was able to drive prior to the motor vehicle accident.
[53] Reasons, [159].
The appellant did not submit to the Principal Member that the respondent could work as an Uber driver. The appellant also did not specifically bring to the Principal Member’s attention Dr Schiff’s opinion that the respondent could work from home for limited hours. A failure to deal with a submission that was not put at the arbitration does not constitute an error.[54]
[54] Brambles Industries Limited v Bell [2010] NSWCA 162.
The appellant did, however, bring to the Principal Member’s attention the evidence from Dr Schiff and the respondent herself that the respondent was able to continue her studies, which the appellant submitted was evidence that she had capacity for some work. The Principal Member summarised the relevant submissions made by the appellant as follows:
“Counsel [for the appellant] refers to the fact that [the respondent] in her statement dated 30 November 2022 says she was currently studying a Bachelor of Psychology and expects to complete this at the end of 2022 and this is also the history recorded by Dr Schiff and to the CTP insurer. It is argued that there is no evidence that she has ceased studying or has had difficulties due to the alleged injury. The [appellant] submits that therefore, she has demonstrated capacity to complete at least sedentary duties.”[55]
[55] Reasons, [122].
Dr Schiff’s evidence was that the respondent was unfit to work in her pre-injury role, but that the respondent would be able to complete compliance modules or similar “work” options where she could pace herself for two hours per day seven days per week, consistent with her ability to study online. Dr Schiff’s recommended action was to implement working from home on suitable duties as a return-to-work plan.
Although the Principal Member acknowledged the appellant’s clearly made submission, she did not deal with it. She found that the respondent had no capacity for work, without weighing the evidence of Dr Marcus in his certificate of capacity with the evidence specifically referred to by the appellant. The Principal Member’s observation that the appellant “did not make any submissions in the alternative to relying on Dr Wallace’s opinion”[56] was plainly wrong. While the Principal Member was not required to address every submission advanced by the parties, the submission that the respondent had some capacity for work, if accepted, would have materially affected the outcome of the claim for weekly payments.[57]
[56] Reasons, [159].
[57] Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 (Dranichnikov).
The Principal Member based her finding of no capacity for employment on the latest certificate of capacity issued by Dr Marcus, which notably certified the respondent as having no capacity for employment in the context of the lumbar injury but also as a result of psychological symptoms and right shoulder bursitis. The appellant refers to Hyde and Paric and submits that medical certificates are of little probative value if they are not supported by a medical report explaining the history upon which the certificates are based. Given that the Principal Member did not accept that the psychological symptoms and right shoulder bursitis were compensable, and thus Dr Marcus’ opinions were formed on the basis of an incorrect history, an issue as to the probative value of the certificates from Dr Marcus is a matter for consideration.
In the context of there being some evidence that countered a finding of no capacity, the weight to be afforded to the certificate of capacity should have been assessed in the light of that evidence, before a conclusion that the respondent had no work capacity was reached.
The Principal Member’s conclusion will constitute legal error if it amounts to a failure to deal with the appellant’s case on the evidence.[58] However, it is not necessary for me to be satisfied that an error of law is exposed because s 352(5) of the 1998 Act is engaged if I am satisfied that a material error of fact, law or discretion had occurred. As observed by McCallum JA, (Macfarlan and Meagher JJA agreeing) in Wang v State of New South Wales, it is necessary for the primary decision-maker to “engage with the nature and materiality of the argument in the context of the issues in the proceedings”.[59] The Principal Member either misunderstood the appellant’s case, afforded no weight to the evidence about the respondent’s ability to study, or, although recording the appellant’s submission, simply failed to address the submission that the evidence that the respondent was capable of studying online was evidence that she had some capacity for work. In the absence of any opinion other than the certificate of capacity issued by Dr Marcus as to the degree of the respondent’s capacity for employment in respect of her lumbar injury, that evidence, which was relied upon by the appellant, needed to be dealt with.
[58] Dranichnikov.
[59] [2019] NSWCA 263, [63].
It follows that the error complained of in this ground of appeal is established, the Principal Member’s determination as to the respondent’s capacity was erroneous and it is revoked.

CONCLUSION

The appellant has identified error on the part of the Principal Member in her determination that the respondent had no capacity for work. The Principal Member’s findings and determinations that:
(a)    the respondent’s lower back injury had not resolved;
(b)    the respondent was an unreliable witness and her evidence should be treated with caution;
(c)    the respondent did not suffer injuries to her neck and shoulders on 6 May 2022, and
(d)    any psychological condition was not secondary to the injury on 6 May 2022,
have not been disturbed on appeal.
Order 4 of the Principal Member’s Certificate of Determination is revoked.
In the light of the serious lack of reliability in the respondent’s evidence, the state of the evidence is not sufficient for me to re-determine the issue on appeal. There is no objective evidence (such as university records) as to whether the respondent completed her studies and when she did so. There is also no objective evidence (such as the respondent’s taxation records) to verify whether the respondent has or has not worked since her injury on 6 May 2022.
The matter is remitted to a different member for re-determination of the respondent’s entitlements (if any) to weekly payments of compensation. The Member may consider it appropriate to list the matter for a preliminary conference in order to make directions, including as to whether any further evidence may be adduced.

DECISION

Orders 1, 2, and 3 of the Principal Member’s Certificate of Determination dated 22 December 2023 are confirmed.
Order 4 of the Principal Member’s Certificate of Determination dated 22 December 2023 is revoked.
The matter is remitted to a different member for re-determination of the respondent’s entitlements (if any) to weekly payments of compensation.

Elizabeth Wood

DEPUTY PRESIDENT

24 July 2024