Dr AJ Oliver Pty Ltd v Brodie - [2024] NSWPICPD 71

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Dr AJ Oliver Pty Ltd v Brodie [2024] NSWPICPD 71
APPELLANT:	Dr AJ Oliver Pty Ltd
APPELLANT’S INSURER:	Employers Mutual NSW Limited
FIRST RESPONDENT:	Carol Anne Brodie
SECOND RESPONDENT:	Secretary, Department of Education
SECOND RESPONDENT’S INSURER:	Allianz - TMF
FILE NUMBER:	A1-W4961/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	5 November 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the decision of Member Drake dated 5 December 2023 is refused. 2. The matter is remitted for referral for medical assessment in accordance with Order 6 of the Certificate of Determination dated 5 December 2023.
CATCHWORDS:	WORKERS COMPENSATION – s 352(3A) of the Workplace Injury Management and Workers Compensation Act1998 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms J Gair, solicitor
Gair Legal
First respondent:
Mr B McManamey, counsel
RMB Lawyers
Second respondent:
Ms K Balendra, counsel
Bartier Perry
DECISION UNDER APPEAL:	Brodie v Secretary, Department of Education & Ors [2023] NSWPIC 649
MEMBER:	Ms L Drake
DATE OF MEMBER’S DECISION:	5 December 2023

INTRODUCTION

The first respondent was employed by the second respondent as a TAFE teacher for a period of over 28 years. During the course of that employment, the first respondent sustained a psychological injury.
Subsequent to ceasing employment with the second respondent, the first respondent gained employment with the appellant as a receptionist, during which time she suffered a recurrence or an aggravation of the same injury.
The first respondent commenced proceedings in the Personal Injury Commission (the Commission) on 12 July 2023 claiming lump sum compensation in respect of 15% Whole Person Impairment (WPI) for her psychological injury.
The matter was listed for teleconference before Member Drake who issued a Direction for each party to lodge written submissions. This was in response to an argument raised by the appellant opposing any referral of the claim for medical assessment on the basis that there was no medical evidence implicating the appellant. After considering the written submissions of each party, Member Drake issued a Certificate of Determination dated 5 December 2023.
The appellant appeals from that decision.

THE MEMBER’S REASONS

The Certificate of Determination issued on 5 December 2023 records:
“1.     The [first respondent] was injured by way of a disease (psychological) in the employ of the [second respondent] and [the appellant].
2.     The injury is deemed to have occurred on the date of the claim made by the [first respondent] against the last relevant employer. As such the [appellant] is liable for the extent of that claim.
3.     The application by the [appellant] to amend the Application to Resolve a Dispute (ARD) to delete the [appellant] is refused.
4.     The report of Dr Chow is excluded by operation of regulation 44 and will not be provided to the Medical Assessor.
The Commission Orders:
5.     There will be an award for the [first respondent] against the [appellant] for a psychological injury incurred during the course of employment with the [appellant].
6.      The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows:
(a) Date of injury: 16 January 2923 (deemed).
(b) Body system: psychological injury.
(c) Method of assessment: whole person impairment.
(d) Documents to be referred: Application to Resolve Dispute (ARD) and attachments, Reply and attachments excluding the report of Dr Chow.”
The appellant’s case was that the first respondent suffered a psychological injury whilst in the employ of the second respondent, and the injury was then temporarily aggravated in the course of employment with the appellant. The appellant argued that the effects of the aggravated injury had ceased, and any ongoing impairment was due to employment with the second respondent.
Although the appellant had accepted liability with respect to the psychological injury and payments were made for a period of time in respect of weekly compensation and medical expenses, it argued it was not liable for any ongoing payments and any referral to a Medical Assessor should not include the appellant.
The appellant denied the first respondent’s claim for lump sum compensation in respect of 15% WPI on the basis that the injury did not meet the threshold required by s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act).[1] The denial was based on Dr Whetton’s opinion, qualified by the appellant, who in his report dated 19 April 2023 assessed 0% WPI arising from the first respondent’s employment with the appellant.
[1] Application to Resolve a Dispute (ARD), pp 29–34.
The appellant also relied on the medical report of Dr Gertler dated 6 May 2021,[2] engaged by the first respondent’s solicitor, who was of the opinion that the first respondent was suffering “major depressive disorder with psychotic features as a result of her employment with TAFE New South Wales” and that “her impairment is related … solely to her employment with TAFE New South Wales. The aggravation in her condition brought about by the circumstances of her employment with Dr Oliver has in my opinion largely resolved and need not be taken into consideration in assessing impairment.”
[2] ARD, pp 38–44.
The appellant submitted that as Dr Gertler was of the opinion the WPI was solely related to the employment with the second respondent, and Dr Whetton found 0% WPI arising from the employment with the appellant, there was no medical dispute under s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) against the appellant.[3]
[3] Appellant’s written submissions to the Member dated 6 October 2023, [16]–[23].
In addition to the forensic expert reports of Dr Gertler and Dr Whetton, the appellant also sought to rely on the medico-legal reports of consultant psychiatrist, Dr Chow who was qualified by the second respondent. While the first respondent objected to the appellant relying on Dr Chow’s reports given the operation of regulation 44 of the Workers Compensation Regulation 2016 which prevents a party from relying on more than one forensic medical report of the same specialty, the appellant submitted that making submissions based on medical evidence relied upon by the first and second respondents did not result in a breach of the regulations.
The appellant relied on several case authorities including my decision of Voudouris v TDV Constructions Pty Ltd[4] and submitted that an injury that has 0% WPI is not capable of referral for medical assessment pursuant to s 319 of the 1998 Act as there is no medical dispute against the appellant.[5]
[4] [2023] NSWPICPD 53.
[5] Appellant’s submissions dated 6 October 2023, [24]–[37].
The first and second respondent’s submissions were relatively harmonious in that the injury was one of disease to which ss 15 and 16 of the 1987 Act applies. The operation of these sections results in a deemed date of injury on the date which the impairment claim is made, and that compensation is payable by the last employer where the employment was a substantial contributing factor to the injury.
The second respondent submitted that as the appellant had accepted liability for the psychological injury, the appellant was responsible for the compensation payable. With respect to the argument raised by the appellant that an injury with 0% WPI was not capable of referral for assessment, the first respondent submitted that the authorities relied on by the appellant related to matters where there was more than one body part. As the psychological injury was one injury, to one system, the correct question was whether the totality of the injury resulting from all employment has resulted in impairment.
The first respondent also submitted that it was not necessary to show that the employment was causative of the injury.
The Member did not accept the appellant’s submission that there were two separate injuries and was satisfied that the injury was by way of disease in the employ of both the appellant and the second respondent. Given the operation of ss 15 and 16 of the 1987 Act, the appellant was liable for any compensation payable.[6]
[6] Brodie v Secretary, Department of Education & Ors [2023] NSWPIC 649 (reasons), [16]–[17].
Although Dr Gertler said the aggravation in the employ of the appellant had “largely resolved”, the Member did not consider that this resulted in any injury suffered in the employ of the appellant no longer operating. The Member noted that “largely resolved” means “partially unresolved”.[7]
[7] Reasons, [20].
With respect to the admission of Dr Chow’s report, the Member found that relying on more than one forensic expert report of the same specialty was expressly prohibited by the regulation and determined that it be excluded from the documentation to be provided to the Medical Assessor.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

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.
However there is no doubt that the Member’s decision was an interlocutory decision. This is acknowledged by all parties to the appeal. Leave is therefore required pursuant to s 352(3A) of the 1998 Act as noted and sought by the appellant. The first respondent opposes the granting of leave, the second respondent however accepts that leave is necessary in accordance with s 352(3A) of the 1998 Act, but develops no submission in support of a grant of leave.
The appellant’s submissions on the question of leave appear at paragraph [2] of the appellant’s submissions dated 2 January 2024. In summary, the appellant argues that the referral to the Medical Assessor was made without jurisdiction and further that it has been denied an ability (or opportunity) to contest the substantive merits. The appellant says that if the matter proceeds to medical assessment, it will only be left with appeal rights thereafter, offending the principle of efficient, cost-effective litigation.
I will decide the leave question later in this decision.

GROUNDS OF APPEAL

The appellant relies on the following six grounds of appeal:
Ground One – The Member erred in failing to adequately and accurately set out the matters in dispute between the parties.
Ground Two – The Member erred in failing to consider and address all the documents in evidence before the Commission.
Ground Three – The Member erred in failing to provide any or any sufficient reasons in support of the decision and specifically, failing to consider and address the pleadings.
Ground Four – The Member erred in concluding there was one injury sustained by the worker as against the first and second respondents.
Ground Five – The Member erred in failing to consider and address the operation and impact of s 319 of the 1998 Act.
Ground Six – In so doing, the Member made orders outside the jurisdiction of the Commission.

LEGISLATION

Section 4 of the 1987 Act defines injury as:
“4      Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     …”
In respect of aggravation of a disease injury, s 16(1) of the 1987 Act provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”

DISCUSSION

Leave to appeal

In the ARD filed by the first respondent, the claim was for 15% permanent impairment on the basis of a psychiatric injury caused by the nature and conditions of her employment with the second respondent, which was aggravated during the employment with the appellant. With respect to the appellant, the pleading reads (at page 10 of the ARD), “Aggravation, acceleration or exacerbation or deterioration of disease”, which is described below on the same page as “Aggravation of psychological injury”.
The appellant’s Reply is based upon the terms of the s 78 Notice dated 18 May 2023[8] which notes that while liability had been previously accepted “for your psychological injury” and that benefits were paid from 6 February 2020 until 26 March 2021, the appellant relied upon Dr Whetton’s assessment of 0% WPI in declining the first respondent’s WPI claim.[9] The second respondent’s Reply disputed liability and raised a number of issues about new evidence and the joinder of the appellant.
[8] Appellant’s Reply to Application to Resolve a Dispute (Reply), p 1.
[9] Reply, p 3.
The appellant argues that there is no medical dispute between it and the first respondent and further that no injury had been found against it. The appellant says that the first respondent had pleaded a new injury against it in the form of an aggravation.[10] In effect the appellant argues that there were two separate injuries, the second of which occurred in its employ and which has fully resolved, on the appellant’s case.
[10] Appellant’s submissions on appeal dated 2 January 2024, [50].
At this point it is timely to note a few principles. A psychological condition can be classified as a “disease”.[11] Before the question of whether an aggravation occurred can be assessed, the first question that must be answered is was the worker suffering a disease? If the answer to this question is in the affirmative, one then proceeds to assess whether an aggravation has occurred and was employment the main contributing factor in accordance with s 4(b)(ii) of the 1987 Act.[12] Further, ss 15 and 16 do not define an injury, they assume that injury has occurred.[13] Once these various elements have been satisfied by a worker, the deemed date of injury provided for in s 16(1)(a) of the 1987 Act becomes operative. If more than one employer is involved, s 16(1)(b) of the 1987 Act then acts to fix the last employer with liability. In this case that is the appellant.
[11] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 638.
[12] State of New South Wales v Rattenbury [2015] NSWWCCPD 46, [35].
[13] Crisp v Chapman (1994) 10 NSWCCR 492, applied in Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31, [66].
In this matter the Member was not persuaded that there were two separate injuries, rather the Member found the first respondent was injured by way of disease in the employ of the appellant and second respondent.[14] This was an available finding on the evidence. The first paragraph of the Certificate of Determination dated 5 December 2023 provides that “[the first respondent] was injured by way of a disease (psychological) in the employ of the [second respondent] and [the appellant].” Contrary to the appellant’s complaint that the Member failed to identify injury,[15] the Member clearly found injury in the nature of a disease.[16] Far from being inconsistent with the first respondent’s case as set forth in the ARD (which I have described above), the Member’s findings are consistent with the claim as advanced by the first respondent.
[14] Reasons, [16]–[17].
[15] Appellant’s submissions dated 2 January 2024, [33].
[16] Section 4(b) of the 1987 Act.
I do not accept the argument that the Commission lacked jurisdiction to refer the claim to a Medical Assessor in the manner as alleged by the appellant. The appellant’s submission on that point fails to come to terms with or grapple with the effect of s 16(1)(b) of the 1987 Act, once a disease injury had been found and the other elements of s 4(b)(ii) of the 1987 Act were proven. Accordingly, Order 2 of the Certificate of Determination attaches liability on the appellant. The Member noted that the appellant had accepted liability for the injury[17] and there is no challenge to that finding, nor could there be. Looked at this way, the appellant’s arguments about s 319 of the 1998 Act and the effect of Skates v Hills Industries Pty Ltd[18] simply do not arise.
[17] Reasons, [19].
[18] [2021] NSWCA 142.
The principles I have outlined above in approaching such a case have been followed by the Member.
The Member’s finding of an injury by way of disease has not been disturbed.
This being the case, the provisions of s 352(3A) of the 1998 Act are not satisfied, indeed to the contrary, the granting of leave would only serve to frustrate the “proper and effective determination of the dispute”. Given the disease finding, acceding to the appellant’s application would leave the first respondent without the appropriate employer to respond to the application. The appellant says that it has been “denied the ability to rely on a substantive defence on the merits”.[19] I do not accept this submission. The appellant relied on written submissions dated 6 October 2023 and a reply submission dated 23 October 2023 in conducting its argument before the Member. The arguments set out in those submissions are the same as those now being agitated on appeal. The appellant has been heard on these issues.
[19] Appellant’s submissions dated 2 January 2024, [2].
Leave to appeal is refused.
As leave to appeal has been refused, it is unnecessary for me to consider the appeal grounds.

Notice of Contention

The second respondent has filed a Notice of Contention which is undated. This Notice, when closely examined, is in fact an appeal. It has not been filed within the timeframe for an appeal.[20] The decision was issued on 5 December 2023 and whilst the Notice is undated, it refers to its date as being 14 February 2024.[21] This is well outside the 28-day period. It proceeds to rely on “grounds of appeal”[22] and then sets out two grounds asserting errors on the part of the Member. I should say that a Notice of Contention is not a device to enable the filing or pursuit of what is effectively, on its face, an out of time appeal.
[20] Section 352(4) of the 1998 Act.
[21] Notice of Contention, [1].
[22] Notice of Contention, [6].

There is no doubt between any of the parties that the Member’s decision was interlocutory. There is no submission made by the second respondent for leave to appeal under s 352(3A) of the 1998 Act.
Even were I minded to extend time for the filing of an appeal by the second respondent pursuant to s 352(4)(b) of the 1998 Act, which I am not, accepting what has been submitted as to exceptional circumstances, I would in any event decline to grant the second respondent leave to appeal. After the medical assessment takes place there are other processes available for the second respondent to agitate matters on appeal.

DECISION

Leave to appeal the decision of Member Drake dated 5 December 2023 is refused.
I therefore remit the matter for referral for medical assessment in accordance with Order 6 of the Certificate of Determination dated 5 December 2023.

Judge Phillips

PRESIDENT

5 November 2024