E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard

[2024] NSWPICPD 70

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2024] NSWPICPD 70
APPELLANT:	E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables
RESPONDENT:	Jo-Anne Howard
INSURER:	Racing NSW
FILE NUMBER:	A1-W5892/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	31 October 2024
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 15 August 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – weight of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, credit findings – Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290; 98 NSWLR 586, reasons – Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, Ming v Director of Public Prosecutions [2022] NSWCA 209, issue estoppel, oral evidence in the Commission – New South Wales Police Force v Winter [2011] NSWCA 330, Spencer v Bamber [2012] NSWCA 274, error within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Turnbull SC
Bartier Perry, solicitors
Respondent:
Self-represented
DECISION UNDER APPEAL:	Howard v E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables [2023] NSWPIC 410
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	15 August 2023

INTRODUCTION AND BACKGROUND

1. Jo-Anne Howard (the worker/the respondent) worked for E B Murray Family Investments Pty Ltd trading as Bede Murray Racing Stables (the employer/the appellant) from 27 October 2008. Graeme Murray, a racehorse trainer with the appellant and the son of Bede Murray, described the worker as a stable hand. Graeme Murray stated the worker “appeared to be knowledgeable about the task involved with racehorses”.[1] Her employment was full time.[2]

   [1] Graeme Murray statement 23/4/15, Application to Resolve a Dispute (ARD), p 87.

   [2] Worker’s statement 22/8/22, ARD, p 3; Investigation report, Application to Admit Late Documents (AALD) 9/12/22, p 1.

2. The worker was injured in an incident on 20 July 1987 in which she was thrown from a horse whilst employed as a trackwork rider with a different employer. Dr Bonnette, the general practitioner who treated her at that time, recorded that at Yass District Hospital the worker was found to have a crush fracture at L2, and a CT scan showed a projection of bone into the spinal cord. Dr Robson, neurosurgeon, reduced the fracture and fixed the spine with plates and screws. Bone grafts were put in place at L1-L2-L3. On 26 February 1988 the long plates and screws were replaced with short plates at L1-L2-L3. The worker then came under the care of Dr Bill Sears, neurosurgeon, who on 10 August 1988 removed the plates and screws. Dr Bonnette, reporting on 4 November 1993, said the worker complained of low back pain ever since.[3] A claim for lump sum compensation against the earlier employer, pursuant to the then ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), resolved on 29 August 1991.[4] Common law proceedings against the earlier employer[5] resolved on 23 March 1994.[6]

   [3] Reply to Application to Resolve a Dispute (Reply), p 462.

   [4] Reply, p 401.

   [5] Reply, pp 402–415.

   [6] ARD, p 151.

3. The current proceedings relate to injuries suffered by the worker on 16 January 2009, when she fell while using a whipper snipper to cut grass at the employer’s horse training business at Conjola. The employer initially accepted liability in respect of the incident. Dr Jarman performed open rotator cuff surgery to the worker’s right shoulder on 19 October 2009.[7] Dr McDowell, neurosurgeon, carried out anterior disc fusion at C5/6 and C6/7 on 10 July 2013.[8] In matter no. 5148/14 an award was made in the worker’s favour, pursuant to s 66 of the 1987 Act in respect of 28 per cent permanent impairment resulting from the injury on 16 January 2009.[9] This related to the cervical spine, both upper extremities and scarring.[10]

   [7] ARD, pp 209–217.

   [8] ARD, p 73.

   [9] ARD, p 82.

   [10] ARD, p 81.

4. In 2016 Dr Mews, neurosurgeon, recommended further surgery involving a cervical spinal decompression. The employer declined to meet the cost of this procedure, and the worker funded it herself. Dr Mews performed surgery involving bilateral posterior cervical foraminotomy, in which the C7 and C8 nerve roots were decompressed, on 7 November 2016.[11] The worker issued proceedings no. 2261/17 in the former Workers Compensation Commission of NSW against the employer. These were decided by Arbitrator Rimmer (as she then was) in a Certificate of Determination dated 22 August 2017. The Arbitrator ordered that the employer pay the worker’s expenses pursuant to s 60 of the 1987 Act, in respect of the treatment provided by Dr Mews, namely, bilateral nerve root decompression at the C7 and C8 nerve roots.[12] The Arbitrator’s finding in the Certificate of Determination was:

   “That the second operation to the cervical spine performed by Dr Mews on 7 November 2016 and related treatment was reasonably necessary as a result of the injury on 16 January 2009.”[13]

   [11] ARD, pp 228–235.

   [12] Howard v Bede Murray Racing Stables, WCC 2261/17 (22/8/2017).

   [13] ARD, p 126.

5. The Commission issued a Certificate of Determination dated 13 September 2021 in matter no. W2772/21.[14] By consent those proceedings were discontinued. It was noted that the employer would make voluntary payments of compensation pursuant to s 60AA(1) of the 1987 Act in respect of four hours of housekeeping per week, and mowing (for four hours per fortnight during October to March and four hours per month during April to September). The employer met the worker’s entitlements to compensation until it issued a dispute notice dated 23 December 2021,[15] denying liability for a sum of $15,378 in respect of “housekeeping, mowing and yard maintenance services between 30 October 2020 and 25 June 2021”. The employer issued a further dispute notice dated 24 December 2021.[16] It referred to two claim forms, both dated 13 October 2020, from the worker. These asserted that, on 1 April 2018 and 12 April 2020, the worker fell at her own home when she “tripped over long grass” when Racing NSW failed to provide lawnmowing/maintenance assistance. The reasons for denial included a dispute about whether these falls and injuries in 2018 and 2020 occurred and whether the circumstances were compensable.

   [14] ARD, p 144.

   [15] Reply, pp 1–5.

   [16] Reply, pp 6–9.

6. On 9 June 2022, the employer issued a dispute notice relating to the injury of 16 January 2009.[17] It disputed the occurrence of compensable injury on 16 January 2009, stating that “the alleged injury did not occur at all”. The current proceedings were commenced on 13 September 2022 and were listed for hearing before Member Sweeney on 22 November 2022. Mr S Hickey appeared for the worker and Mr Saul appeared for the employer. There was discussion regarding the admission of late documents, the extent to which doctrines of res judicata and issue estoppel impacted the employer’s ability to challenge the occurrence of the ‘injury’ on 16 January 2009 and associated procedural matters. The parties lodged written submissions.

   [17] ARD, pp 145–153.

7. The Commission issued a Certificate of Determination dated 2 December 2022, accompanied by 18 pages of reasons.[18] The Member’s order provided:

   “The [appellant employer] is estopped from asserting that the [respondent worker] did not suffer injury to her cervical spine and both shoulders as a result of injury on 16 January 2009 by the awards in Matter No 5148/14 and 2261/17 in the Workers Compensation Commission.”

   [18] Howard v Bede Murray Racing Stables [2022] NSWPIC 665.

8. The orders and reasons in that Certificate of Determination are not challenged in the current appeal. The matter was listed for further hearing before Member Sweeney on 12 April 2023. On that occasion Mr S Hickey appeared for the worker and Mr Talintyre appeared for the employer. The Member recorded that leave was given to the parties to adduce oral evidence.[19] The worker gave oral evidence, including being cross-examined at some length. The parties lodged written submissions. The Commission issued a further Certificate of Determination, with accompanying reasons, dated 15 August 2023.

   [19] Howard v E B Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables [2023] NSWPIC 410 (reasons), [2], [4].

9. In short, the Member in the second reasons found that the worker suffered injury to the neck and both shoulders arising out of and in the course of her employment, on 16 January 2009. He found the worker had not proved that the injuries she suffered in the falls in April 2018 and April 2020 resulted from the work injury on 16 January 2009 or the failure to provide domestic assistance consequent upon that injury. He found the worker had no current earning capacity since 21 July 2022. The Member made a weekly award and an award for medical and hospital expenses in respect of the found injuries.

THE MEMBER’S REASONS

1. The Member said the reasons of 15 August 2023 were to be read “in conjunction” with the earlier reasons of 2 December 2022. He recorded there were two issues in dispute. The first was the worker’s capacity for work since 21 July 2022. The second was whether the further injuries in April 2018 and April 2020 resulted from the proven injuries in the incident on 16 January 2009.[20]

   [20] Reasons, [2], [4].

2. The Member referred to the employer’s submissions on credit, in which it was submitted the worker’s evidence was “a constellation of exaggeration, boasting, advocacy, and deliberate untruths designed to advance her claim”. The Member said the employer submitted the worker’s evidence in respect of capacity to work should not be accepted. The worker’s counsel submitted the worker’s evidence was “forthright and reasonable” and that there were inconsistencies in the evidence of the employer’s witnesses. It specifically submitted on the worker’s part that the evidence of Courtney Gravener (formerly Gillman) should be rejected.[21] The Member summarised the worker’s evidence from her statements, in detail.[22] The Member summarised the worker’s oral evidence.[23]

   [21] Reasons, [6]–[7].

   [22] Reasons, [9]–[39].

   [23] Reasons, [40]–[69].

3. The Member, dealing with the worker’s “Pre-injury health”, described the worker’s “very extensive surgical procedure under Dr Robson, a neurosurgeon, at Canberra Hospital”, following her accident on 20 July 1987. The Member quoted from medical reports of Dr Eikens and Dr Henke, both rehabilitation physicians, around 1994. He referred to a report from Dr Lowy, who examined the worker at the request of the insurer involved in the 1987 accident. Dr Lowy described the worker as “totally and permanently unemployable”. The Member referred to material from a number of general practitioners, and a physiotherapist, who treated the worker over a period from 2002 to 2008. Over this period there were complaints of chronic low back pain, sciatica and severe bilateral neurogenic leg pain. The worker was being treated with medications such as Tramal, Diazepam, MS Contin, Voltaren, Doxylene and Epilim.[24]

   [24] Reasons, [70]–[82].

4. The Member referred to the employer’s submission that the effects of injury to the neck and shoulders in 2009 had ceased. He described the medical evidence relied on to establish this as “outdated and unsatisfactory”. The Member said that Dr Anthony Smith reported to the insurer on 19 August 2014. Dr Smith said the worker did not suffer a shoulder injury in the incident on 16 January 2009. The doctor accepted there was injury to the neck but said any such aggravation of cervical degenerative disease “would have settled after a few weeks”. The Member referred to Dr Smith’s report dated 9 September 2014, in which the doctor “reviewed the surveillance videos”. The doctor said there was “no likelihood of there being anything wrong with her”. The doctor said, “as far as I can tell, she is fit to do any work suitable for women her age without any restriction whatsoever”.[25]

   [25] Reasons, [83]–[85].

5. The Member noted Dr Smith’s opinion was given “some eight years before the [employer] denied liability to pay weekly compensation”. He said Dr Smith did not identify what aspect of the surveillance videos led to the opinion that there was “no likelihood of there being anything wrong with her”. The Member said it was “extremely difficult to reconcile that conclusion with the [worker’s] long surgical history”. The Member accepted the employer’s submission that “a finding of permanent impairment does not prove incapacity”. The Member said, “it would be surprising if a patient who had undergone a cervical fusion would be certified fit for work without restriction”. The Member said that, additionally, “Dr Smith’s opinion is very different to the conclusion reached by Dr Bentivoglio”.[26]

   [26] Reasons, [86]–[87].

6. The Member referred to Dr Bentivoglio’s assessment of the worker on 16 March 2016. The doctor noted the history of “anterior cervical discectomy and fusion at C5/6 and C6/7”. The doctor opined that the worker “would only be fit for light duties work on a part-time basis”. The Member referred to Dr Bentivoglio’s re-examination of the worker on 19 June 2017, following the further surgery performed by Dr Mews on 7 November 2016. Dr Bentivoglio noted “persistent neck pain and some radicular symptoms in her left hand”. The Member referred to Dr Bentivoglio’s opinion that “the best she can hope for is to run her small property”. The Member quoted the following from the doctor’s report:

   “Unfortunately, I do not believe there will be any significant improvement in her prognosis. She will have persistent neck pain and all the symptoms in her arms. It is now 7 months since her second operation. If after 5 more months there is no further improvement, I do not anticipate there will be. Unfortunately, she is going to be left on significant pain medication and drug dependence will also become an issue.”[27]

   [27] Reasons, [88]–[91].

7. The Member referred to a certificate of capacity dated 4 July 2022 from the worker’s general practitioner, Dr Herath. It described the worker as “permanently incapacitated” but did not say to what extent. The Member noted the worker was under the care of Dr Gordiev, an orthopaedic surgeon, and Dr Jain, a pain specialist. The worker was having panic attacks and was referred for psychiatric review. The Member referred to Dr Porter, an orthopaedic surgeon, who treated the worker from 1 June 2019. The doctor diagnosed a recurrence of a “previous supraspinatus tear” and performed a right shoulder open cut revision repair on 26 June 2018. On 12 October 2018, Dr Porter reported right shoulder improvement following the surgery but increasing difficulties with the left shoulder. In 2021 the worker was referred to Dr Rae, another orthopaedic surgeon, who recommended a “reverse total shoulder replacement” and put her on a public hospital wait list, noting she “may initiate an approval process through the WorkCover in the interim”.[28]

   [28] Reasons, [92]–[95].

8. The Member referred to Dr Rae’s report dated 28 October 2021, following a review of the worker. The doctor described the worker as presenting with “severe pain and distress”. She was “greatly restricted by her bilateral shoulder problems with the right being very severe and the left being moderate to severe”. There were arthritic changes and signs of chronic rotator cuff tears. The Member quoted from a referral letter from Dr Gordiev to Dr Jain, a pain specialist:

   “Joanne is quite young and would like to ‘get back on her horse and mower’. She is young and active and I have recommended that she pursue non-operative treatment for as long as possible.”[29]

   [29] Reasons, [96]–[97].

9. The Member also quoted from reports of Dr Patrick, a general surgeon, who saw the worker at her solicitor’s request. Dr Patrick considered that the right shoulder surgery on 26 June 2018 resulted from both the injury on 16 January 2009 and the fall in long grass on the worker’s property in April 2018. Dr Patrick also considered a fusion of the worker’s left wrist performed by Dr Policinski resulted from that fall. [30]

   [30] Reasons, [98]–[100].

10. The Member referred to the employer’s submissions dealing with the video surveillance. The Member referred to the following examples, given by the employer, which required physical exertion:

    (a)    on 25 October 2012 manoeuvring, lifting and carrying a 25 kg box from a hardware store;

    (b)     on 19 January 2016 lifting a chair overhead;

    (c)    between 6 to 8 August 2020 carrying bags of shopping, lifting and carrying pieces of wood, some of them large;

    (d)    between 10 and 12 September 2020 carrying bags of shopping and cases of beer, carrying her grandchild, operating a ride-on mower, operating a tractor and picking up debris from her property, and

    (e)    between 1 and 4 October 2020 picking up large garbage bags and boxes, stepping up and down off trucks, lifting and securing a large tarpaulin overhead, unloading goods from the truck, riding a quadbike, carrying her grandchild and carrying out other activities which involved lifting and carrying.[31]

    [31] Reasons, [101].

11. The Member noted the employer’s submission that the video evidence of physical activities was inconsistent with the presentation to medical practitioners. The Member said the employer had not sought to correlate particular activities in the surveillance with a specific medical examination. The Member doubted that the surveillance material from before 6 August 2020 was “of significant value in assessing the [worker’s] capacity”. This was because such material predated the cervical surgery performed by Dr Mews on 17 November 2016 and was “well prior to the further shoulder surgery performed by Dr Porter”. The Member said, “it would be wrong to reach a conclusion adverse to the [worker’s] credit on the basis of these limited observations”.

12. The Member said the video evidence in September and October 2020, on the other hand, “casts doubt as to whether the [worker’s] recent presentations to medical practitioners including Dr Patrick, Dr Rae and Dr Gordiev is entirely reliable. It also suggests the possibility that the [worker] has some capacity for work”. The Member continued:

    “While the surveillance evidence does show the [worker] driving a tractor, driving [a] mower, and, at intervals, using her arms at and below shoulder height in a fairly fluent fashion, to pick up debris on her property, it cannot nullify the medical evidence which suggests that the [worker] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery.”[32]

    [32] Reasons, [102]–[105].

13. The Member dealt specifically with the issue of credit. He described the thrust of the cross-examination of the worker as going to the state of the worker’s back before the injury on 16 January 2009, the nature of her work with the appellant, and irregularities in her reporting of the incident of 16 January 2009 to her employer and medical practitioners. The Member said there was an expectation of different recollections of events from more than 14 years previously. He said he would be reluctant to make adverse findings on the worker’s credit based on discrepancies between her evidence and that of Hayley Humphry, Courtney Gillman and the Murrays. The Member said it was not open to the employer to adduce evidence to contradict the finding of injury to the neck and shoulders in the course of employment on 16 January 2009.[33]

    [33] Reasons, [106]–[107].

1. The Member said that, even ignoring the estoppels, the employer’s lay evidence did no more than raise a scintilla of doubt as to the circumstances of the injury. None of Jack Murray, Bede Murray and Hayley Humphry disputed that the injury occurred. The Member referred to the “inexplicable inconsistency” between Ms Gillman’s note that she saw the worker fall, compared with her subsequent statement evidence. He said he suspected this was another example of memory becoming impaired by the passage of time.[34]

   [34] Reasons, [108]–[109].

2. The Member referred to the possibility that the worker was not fit for the work of a stable hand, as a result of her injury in 1987. He said the medical evidence could not be considered in isolation. Graeme Murray stated the worker performed those duties in a satisfactory manner, had a good attendance record and was not subject to any disciplinary warnings. He stated that she was knowledgeable about the work involved with racehorses. The Member said this suggested that when she commenced, the worker was capable of performing moderately arduous work on a full-time basis.[35]

   [35] Reasons, [110]–[111].

3. The Member referred to the worker as “not a completely satisfactory witness”. He described the worker’s evidence, that she rode track work before she started at the employer and would “never complain about her back”, as “difficult to accept in the context of the contemporaneous medical record”. The Member referred to the worker’s account, of why there was no record of her consultation with a doctor following her injury, as “improbable”. He referred to the worker’s explanation for applying for a disability pension, through Dr Riegelhuth, on 28 January 2009, and not mentioning the injury of 16 January 2009. The Member said he doubted the worker’s explanation, that she was told by a Centrelink employee not to raise the 2009 injury. The Member said:

   “Bearing in mind these and other answers which the [worker] gave during cross-examination, I have concluded that her evidence is not completely reliable and I should carefully scrutinise her evidence when it is not corroborated by other evidence.”[36]

   [36] Reasons, [112]–[114].

4. The Member then turned to the allegation of injuries at the worker’s home, in falls in April 2018 and April 2020. The worker alleged these were compensable as they resulted from the employer’s failure to provide lawnmowing services. Dr Patrick, in the worker’s case, described them as “consequential”. The Member said the employer’s agreement to pay for the cost of mowing “was neither determined by the Commission nor the subject of consent orders”. The agreement did not give rise to an estoppel.[37] The Member referred to the commonsense test of causation and said he was “not persuaded that the [worker] has proven a relevant causal connection between her injuries and the falls”.[38] He gave various specific reasons for his view, in the reasons at [121]. These included the fact that “given the view I have taken of the [worker’s] evidence, there is not a straightforward account of the precise mechanism of each injury which I can accept”. The Member said that any causal connection with the employer’s failure to provide domestic assistance was “speculative and does not prove a sufficient nexus with the work injury”.[39]

   [37] Reference was made to Department of Education & Training v Sinclair [2005] NSWCA 465, [90]–[93].

   [38] Reference was made to March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.

   [39] Reasons, [115]–[122].

5. The Member referred to the cost of right shoulder surgery performed by Dr Porter on 26 June 2018. The Member referred to the worker’s history to Dr Porter on 1 June 2018 that she had “right shoulder pain of the current severity [for] the last 18 months”. The Member said this “would seem to exclude the 2018 incident as a significant cause”. He described the employer as “clearly liable for the cost of the treatment”. The Member said that, in any event, the worker’s evidence was that the employer indemnified her for the surgery, it was unnecessary to make any further order.[40]

   [40] Reasons, [123]–[124].

6. The Member quoted from Dr Jain, a pain specialist, who in March 2023 reported:

   “It is very common for people with chronic pain to overdo things that would exacerbate the pain and to counteract that they would take large doses of short-acting opioids; however, when the effect of medication wears off it is quite common that it would exacerbate their pain further and incapacitate the patient. This leads to further sensitisation and deconditioning and is counter-productive to pain management. We regularly educate people to pace their activities; however, [the worker] being a farmworker it is very hard for her to grasp this concept and she tends to overdo things on a regular basis.”

7. The Member said he doubted “the ingestion of medication adequately explains the range of activities demonstrated by the surveillance in 2020”. He said it was undoubted that the worker was “consistently prescribed opioid medications since, and probably before the injury in 2009”. The Member noted the worker’s background. She left school before completing the School Certificate, she was not accomplished at reading or writing, other than a short period at Meals on Wheels she worked with horses or in other rural work during her adult life. She was dependent on medication and was now in the “last term of her working life”.[41]

   [41] Reasons, [128]–[130].

8. The Member said the 1987 accident diminished the worker’s capacity to work, which was then “further diminished by the subject injury and the multiple operative procedures”. The Member said:

   “While he did not have access to the surveillance videos, I suspect that the views of Dr Bentivoglio are an accurate assessment of her situation and the best that can be hoped for is that the [worker] can maintain her small property. There is no further medical evidence in the [employer’s] case after this time which might suggest a different outcome.”[42]

   [42] Reasons, [131].

9. The Member concluded that, considering the definition of ‘suitable employment’ in s 32A of the 1987 Act and the reasoning in the decision of Wollongong Nursing Home Pty Ltd v Dewar,[43] the worker had no current capacity since the cessation of weekly compensation. He found that her total incapacity resulted from the subject injury on 16 January 2009. While she “had significant restrictions before that time, she was able to perform full time work to the satisfaction of [the] employer”.[44]

   [43] [2014] NSWWCCPD 55 (Dewar), [62]–[63].

   [44] Reasons, [132]–[133].

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”

2. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both 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

1. 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

2. The respondent’s former solicitor lodged a Notice of Ceasing to Act dated 8 August 2024, which stated he had ceased to act in the matter from 12 April 2024. By email dated 8 August 2024 the Commission furnished the respondent with a copy of the Notice, told the respondent that it could not provide her with legal advice, and suggested some bodies that she could contact if she wished. These were the Independent Legal Assistance and Review Service (ILARS), the Law Society of NSW and Law Access NSW. By email dated 9 August 2024 the respondent raised some concerns and requested that the Commission contact her. By email dated 12 August 2024 the Commission reiterated that it could not provide her with legal advice and asked that she contact the Commission within 14 days if she had engaged representation. The Commission informed her that if she did not make contact within 14 days it would continue to deal with the outstanding appeal. The respondent forwarded an email to the Commission, which the appellant’s solicitor was copied into, dated 19 August 2024. It again raised some concerns, suggested the respondent had arranged to take legal advice in September, and said she was content that the Commission hold off the decision until that time. The respondent has not subsequently made any contact with the Commission. The concerns raised in the respondent’s emails do not impact on the issues raised in the appellant’s appeal, which the parties are entitled to have decided.

GROUNDS OF APPEAL

1. The appellant raises the following grounds of appeal:

   (a)    There was an error of fact and/or discretion in failing to accord adequate weight to the surveillance evidence relied upon by the appellant (Ground No. 1);

   (b)    There was an error of fact and/or discretion in failing to accord adequate weight to the evidence of Dr Smith (Ground No. 2);

   (c)    There was an error of fact and/or discretion in failing to accord adequate weight to the evidence of the lay witnesses called by the appellant (Ground No. 3);

   (d)    There was an error of fact and/or discretion in failing to accord adequate weight to the evidence of the absence of early complaint (Ground No. 4);

   (e)    There was an error of fact and/or discretion in failing to accord adequate weight to other matters affecting the [respondent’s] credit (Ground No. 5), and

   (f)    There was an error of law in failing to give sufficient reasons for his determination that the claimant had no current working capacity. (Ground No. 6)

APPEALS PURSUANT TO SECTION 352(5) OF THE 1998 ACT

1. Section 352(5) of the 1998 Act provides:

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. In Iqbal v Hotel Operation Solutions Pty Ltd the Court of Appeal described the nature of an appeal to a Presidential member, pursuant to s 352(5) of the 1998 Act, in the following terms:

   “… s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision ‘was or was not affected by any error of fact, law or discretion’. The appeal ‘is not a review or new hearing’. As the Deputy President correctly noted, and as this Court has held, if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.”[45]

   [45] [2022] NSWCA 138, (per Basten AJA, Brereton and Mitchelmore JJA agreeing), [11].

3. The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[46]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[47] Basten JA said:

   “With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[48]

   [46] [2020] NSWCA 54 (Hill).

   [47] (1966) 39 ALJR 505 (Whiteley Muir). See Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.

   [48] Hill, [20].

4. In Northern NSW Local Health Network v Heggie[49] Sackville AJA said:

   “A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.

GROUND NO. 1: THE WEIGHT GIVEN TO THE SURVEILLANCE EVIDENCE

[49] [2013] NSWCA 255; 12 DDCR 95, [72].

Appellant’s submissions

1. The appellant submits the surveillance material should be viewed to understand its impact. It is submitted to show more than “typical light day-to-day activities” – it shows tasks that require “a degree of physical exertion”, often over “a lengthy period of time”. The appellant refers (with slightly more extended descriptions) to the examples of activity referred to by the Member in his reasons at [101] (see [19] above). The appellant submits that none of the surveillance, taken over eight years, indicates “any disability whatsoever”. It refers to the finding that there was ‘no current work capacity’ and submits the film is “critical for a number of reasons”.[50]

   [50] Appellant’s submissions, [38]–[42].

2. The appellant refers to the timing of the respondent’s surgery, a right rotator cuff repair “nine months after the accident”, neck surgery in July 2013 and right shoulder surgery in June 2018 after her fall in April of that year. It submits the respondent complains of an inability to engage in a full range of motion which is “inevitably subjective”. It submits the respondent’s case is that she has “effectively been incapable of working since leaving the employment of the appellant”. It submits the video shows the respondent using her “arms outstretched and carrying heavy items”, “driving without restriction”, “lifting items and reaching above her head to lift chairs or close doors”. It submits the video shows the respondent having the ability to freely bend, freely turn her head, use her arms to pick up apparently heavy items and lift a chair above her head, drive tractors, dig holes, lift rocks and use a lawn mower. It submits the respondent’s evidence, “implicitly or explicitly”, suggested she could not do these things. It submits this is “contrary to her case that she is without any ability to work” and it raises credit issues. It submits the reliability of the respondent’s evidence was “a key consideration” in the finding that the respondent had “no current work capacity”. It submits the video was “a significant tool in assessing the reliability of the [respondent’s] evidence”.[51]

   [51] Appellant’s submissions, [44]–[47].

3. The appellant submits the Member must have rejected the proposition that the video showed a significant capacity to carry out work and accepted the respondent’s evidence over “what is shown in the surveillance”. The appellant describes this as the exercise of a “discretion to accept some evidence and reject other evidence”. It submits the Member accepted the respondent’s subjective evidence that she was incapable of carrying out any work. It submits that, “[i]mplicitly, [the Member] must have rejected the objective evidence of the surveillance”. It then repeats, in part, a description of what the surveillance showed.[52]

   [52] Appellant’s submissions, [48]–[49].

4. The appellant refers to the reasons at [129], in which the Member doubted that the respondent’s ingestion of medication adequately explained the activities in the surveillance. It refers to the reasons at [130] in which the Member observed that reservations about the reliability of a worker’s evidence may lead to a finding that incapacity is not established. The Member said the circumstances of the case did not lend themselves to “such a simplistic analysis”. The appellant submits a proper analysis of the surveillance material must “inevitably” lead to a question mark over the respondent’s evidence. The appellant submits the Member did not make it clear why this did not lead to a finding that the respondent had failed to prove total or partial incapacity. It submits the surveillance demonstrates a significant work capacity, even for the work she performed prior to the accident in January 2009. It submits that, at the least, the surveillance demonstrates the respondent could do unrestricted driving, move freely and lift packages. This suggests she was fit for delivery work such as that she performed for Meals on Wheels.[53]

   [53] Appellant’s submissions, [50]–[55].

5. The appellant submits the film should have had a “significant impact” on the respondent’s credit. It showed what she could do physically. It is submitted to be in marked contrast with what she said and with a finding that she was completely incapacitated for work.[54]

   [54] Appellant’s submissions, [56].

Respondent’s submissions

1. The respondent’s submissions at [3] set out multiple points which she submits provide the context in which the issues of incapacity and credibility were to be assessed. The submissions set out much of the history of multiple surgical procedures and investigations detailed in the medical evidence. These are largely referred to above and I will not repeat the summary from the respondent’s submissions. The respondent’s submissions refer to the respondent’s presentation as a witness and repeat the submission made before the Member that her evidence was given in a forthright manner. It is submitted her answers were consistent to a significant degree, having regard to the effluxion of time since the injury in 2009. The respondent’s submissions accept that she performed tasks on her hobby farm, together with driving, shopping and carrying her grandchild. Her submissions refer to performing these activities “having taken pain killing medication” and it is submitted the respondent paid the price for overindulging in such activities.[55] The respondent’s submissions refer to her evidence that she could not perform the sort of work she previously did at both Meals on Wheels and with the appellant.[56]

   [55] Reference is made to reports from Mr Dennet dated 8/2/23 and Dr Jain dated 9/3/23, AALD 21/3/23 and the respondent’s statement 15/11/22.

   [56] Transcript of proceedings 12/4/23 (T), T 140.32–141.1.

2. The respondent refers to her submissions before the Member, which cited Dewar and referred to s 32A of the 1987 Act. They refer to the respondent’s stoicism and to her history of heavy medication. The respondent submits that her small farm was the mother of necessity, where she sometimes needed to perform semi-arduous tasks. The respondent refers to the process of the rational analysis of conflicting medical opinion, by reference to Wiki v Atlantis Relocations (NSW) Pty Ltd.[57] The respondent submits the Member properly assessed the evidence in concluding that the respondent had no capacity for work.[58]

   [57] [2004] NSWCA 174, 60 NSWLR 127 (Wiki), [56]–[68].

   [58] Respondent’s submissions, [3].

3. The respondent submits the Member gave detailed reasons for not accepting Dr Smith’s opinion. The respondent’s submissions set out, at some length, passages from the Member’s reasons that summarise the medical evidence.[59] The respondent submits the Member’s reasoning provided a “clear path”, the surveillance evidence did not nullify the significance of the medical evidence, the respondent had significant pathology in her shoulders and cervical spine. There were two operations on the cervical spine and two surgical procedures on the right shoulder. The Member had concerns about credibility and the reliability of certain evidence. He said there was a need to carefully scrutinise the respondent’s evidence where it was not corroborated. He undertook a rational analysis of the medical evidence from Dr Smith, and also from the other doctors including Dr Bentivoglio. Reference is made to the reasons at [84] to [91].

   [59] Respondent’s submissions, [4]–[19].

1. The respondent refers to Woolworths Ltd v Warfe[60] and to Minister for Immigration and Citizenship v SZMDS.[61] The respondent quotes the following from SZMDS:

   “If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”[62]

   [60] [2013] VSCA 22 [131].

   [61] [2010] HCA 16; 240 CLR 611 (SZMDS).

   [62] SZMDS, [131] (per Crennan and Bell JJ).

2. The respondent submits the Member’s decision on incapacity was made after considering the surveillance evidence, the cross-examination of the respondent, the lay evidence and the medical evidence. The decision was properly reasoned and not infected by an illogical, unreasonable or irrational process. There was no error.[63]

   [63] Respondent’s submissions, [20]–[24].

Consideration

1. My reasons relating to Grounds Nos. 1 and 2 should be read together. In Shellharbour City Council v Rigby[64] Beazley JA (as her Excellency then was) dealt with an argument that the evidence of a witness was given undue weight. Her Honour said:

   “Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”

   [64] [2006] NSWCA 308 (Rigby), [144].

2. The High Court, in SZMDS, dealt with a matter in which challenge was made to a decision of the Refugee Review Tribunal. Justices Crennan and Bell made the statement of principle quoted at [49] above. Their Honours also said:

   “On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”[65]

   [65] SZMDS, [135].

3. The Member set out specific periods of surveillance on which the appellant addressed. He drew a distinction between the material from before 6 August 2020 and material thereafter. This was because the observations that predated 6 August 2020 also predated the further cervical spinal surgery performed by Dr Mews in 2016 and the right shoulder surgery carried out by Dr Porter in 2018 (see [20] to [21] above).[66] I note the pleaded weekly claim (and the weekly award ultimately entered) commenced from 21 July 2022. The appellant’s submissions on appeal do not raise any specific issue with this aspect of how the Member dealt with the surveillance material, although its submissions on appeal refer (without specific reference to this point) to all of the surveillance material.

   [66] Reasons, [103].

4. The appellant submits the Member must have “accepted the position [the respondent] put forward and therefore had no current work capacity”. It submits the Member “accepted her evidence over what is shown in the surveillance”. It submits that the Member:

   “… must have rejected the objective evidence of the surveillance showing the [respondent] lifting a chair above her head, lifting her hands above her head to close the door of a Toyota Landcruiser wagon, showing her driving a car (as she used to do for Meals on Wheels), driving tractors, digging, lawn mowing, lifting reasonably heavy bags, turning her head freely, moving her shoulders freely and walking freely”.[67]

   [67] Appellant’s submissions, [48]–[49].

5. The appellant submits that “the surveillance film clearly should have had a significant impact upon the credit of the [respondent]”. The film is described as being “in marked contrast to both what she said and to any finding that she was completely incapacitated for work”.[68] The appellant submits that, in assessing work capacity, “the Member should not have relied upon any evidence proffered by the [respondent] as to such matters where the evidence was not otherwise objectively proved”.[69]

   [68] Appellant’s submissions, [56].

   [69] Appellant’s submissions, [37].

6. Contrary to the appellant’s submissions, the Member did not reject the evidence of the surveillance. He referred to having “carefully considered that video in the context of the medical evidence”. The Member said that the surveillance evidence from September and October 2020 “casts doubt on whether the [respondent’s] recent presentations to medical practitioners including Dr Patrick, Dr Rae and Dr Gordiev is entirely reliable. It also suggests the possibility that the [respondent] has some capacity for work”.[70] However, the Member also said that the surveillance evidence “cannot nullify the medical evidence which suggests that the [respondent] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery”.[71]

   [70] Reasons, [104].

   [71] Reasons, [105].

7. The Member was clearly alive to the potential impact of the surveillance, on both the issue of credit, and the assessment of whether there was employment for which the respondent was currently suited within the definition in s 32A of the 1987 Act. The Member described the respondent as “not a completely satisfactory witness”. He expanded on this in the reasons at [112] to [114]. He concluded that “her evidence is not completely reliable and I should carefully scrutinise her evidence when it is not corroborated by other evidence”.[72] I note the discussion by Handley JA in Malco Engineering Pty Ltd v Ferreira,[73] a case in which a worker was found to have given deliberately untrue evidence. His Honour said:

   “This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.

   In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.”

   [72] Reasons, [114].

   [73] (1994) 10 NSWCCR 117 (Malco).

8. In Brown v Tavern Operator Pty Ltd Ward CJ in Eq (as her Honour then was) said:

   “At the outset I note that where the veracity of part of a witness’ evidence is not accepted (or is in doubt), a careful assessment of the rest of that evidence is required in order to determine its honesty and reliability (per Handley JA in Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 — that being a case where a finding of perjury had been made on one part of the evidence), though this does not mean that the balance of that witness’ testimony can never be accepted without corroboration (Heydon JA, as his Honour then was, in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 719; [2001] NSWCA 305).”[74]

   [74] [2018] NSWSC 1290 (Brown), [305].

9. The appellant, referring to the task of assessing the respondent’s capacity for work, submits “the Member should not have relied upon any evidence proffered by the [respondent] as to such matters where the evidence was not otherwise objectively proved”.[75] The approach taken by the Member was consistent with the approach taken in Malco and Brown, that advocated by the appellant is not.

   [75] Appellant’s submissions, [37].

10. The appellant submits:

    “The Member then referred to the [respondent’s] earlier work history. He did not make it clear why a proper analysis of the surveillance material leading, as it must inevitably, to a question mark over the [respondent’s] evidence, did not lead to a finding that the [respondent] had not proven total or partial incapacity.”[76]

    [76] Appellant’s submissions, [53].

11. This submission should be considered in the light of the credit finding, as discussed above. It was necessary that the Member deal with the issue of incapacity on the whole of the evidence, of which the surveillance material was only a part. The Member referred to the surveillance at [101] to [105] of the reasons. At [105], the Member said that the surveillance evidence “cannot nullify the medical evidence which suggests that the [respondent] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery”. This substantially answers the rhetorical question, posed in the appellant’s submissions, of why the surveillance material “did not lead to a finding that the [respondent] had not proven total or partial incapacity”. The submission that the Member “must have rejected the objective evidence of the surveillance” cannot be accepted. The Member clearly took account of the surveillance evidence in the context of the evidence as a whole.[77] There was a large body of medical evidence which proved the respondent’s multiple injuries and associated treatment. It was not a case in which there was no objective medical evidence, such that a decision maker was entirely dependent on the worker’s credibility.

    [77] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale), 444 (per Meagher JA).

12. I note the appellant’s submission that the surveillance material is “in marked contrast to both what she said and to any finding that she was completely incapacitated for work” (emphasis added). The Member made a finding, on which the ongoing award of weekly compensation was based, that the respondent had ‘no current capacity’ since the cessation of weekly compensation. In doing so, he referred specifically (and appropriately) to the definition of ‘suitable employment’ in s 32A of the 1987 Act and to the decision of Roche DP in Dewar. The correctness of the reasoning in Dewar has been accepted in the Commission, and before that in the former Workers Compensation Commission of NSW, over many years. I have applied it and agree with it. The finding that there was no current work capacity involved application of the definition of ‘suitable employment‘ found in s 32A of the 1987 Act, which provides:

    “suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—

    (a)     having regard to—

    (i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

    (ii) the worker’s age, education, skills and work experience, and

    (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

    (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

    (v) such other matters as the Workers Compensation Guidelines may specify, and

    (b)     regardless of—

    (i) whether the work or the employment is available, and

    (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

    (iii) the nature of the worker’s pre-injury employment, and

    (iv) the worker’s place of residence.”

13. The Member’s reasons, at [127] to [132], dealt with the statutory definition in s 32A. The Member quoted from Dr Jain’s report dated March 2023, which referred to people with chronic pain taking “large doses of short-acting opioids”. The doctor said that for the respondent, “being a farmworker it is very hard for her to grasp this concept and she tends to overdo things on a regular basis”. In his reasons at [129] the Member said, “I doubt that the ingestion of medication adequately explains the range of activities demonstrated by the surveillance in 2020”. The Member went on to deal with matters that were relevant under s 32A. Other than a short period at Meals on Wheels, the respondent’s work experience was “with horses or in other rural work during her adult life”. She left school “before obtaining her School Certificate”. She was “not accomplished at reading or writing”. She had “not worked for many years”, she was “dependent on medication”, she was in “the last term of her working life”.

14. The Member referred to medical evidence from Dr Peter Bentivoglio, a neurosurgeon qualified by the appellant.[78] In the last of his reports, dated 19 June 2017, Dr Bentivoglio dealt with fitness for employment, saying:

    “She has not worked in her chosen profession for 8 years and she runs a small property by herself, that seems to be the capacity of the work that she can do.

    She is not to lift more than 10kg and avoid repetitive bending and twisting and putting anything heavy on her shoulders.

    This ongoing incapacity is still present, I feel the best that she can hope for is to run her small property.”[79]

    [78] Reports dated 16/3/16, 21/4/16, 3/6/16 and 19/6/17, Reply, pp 27–40.

    [79] Reply, p 39.

15. The Member said:

    “While he did not have access to the surveillance videos, I suspect that the views of Dr Bentivoglio are an accurate assessment of her situation and the best that can be hoped for is that the [respondent] can maintain her small property. There is no further medical evidence in the [appellant’s] case after this time which might suggest a different outcome.”[80]

    [80] Reasons, [131].

16. It was also necessary that the medical evidence be read in concert with the estoppels the subject of the Certificate of Determination dated 2 December 2022 and the accompanying reasons.

17. In his reasons dated 2 December 2022 the Member dealt with estoppels flowing from earlier proceedings between the parties, including the decision of Arbitrator Rimmer dated 22 August 2017. Arbitrator Rimmer had found:

    “That the second operation to the cervical spine performed by Dr Mews on 7 November 2016 and related treatment was reasonably necessary as a result of the injury on 16 January 2009.”[81]

    [81] Certificate of Determination 22/08/17, WCC 2261/17.

18. Member Sweeney’s findings regarding the estoppels are referred to at [7] above. He placed reliance on the earlier findings between the parties, described in the reasons at [107].

19. I have viewed the surveillance material. In my view the approach the Member took to it was open to him. The extensive record of pathology and treatment involved multiple surgical procedures. Dr McDowell, neurosurgeon, performed surgery involving fusion at C5/6 and C6/7 in July 2013. Dr Mews, neurosurgeon, carried out further surgery, involving decompression of the C7 and C8 nerve roots, in 2016. An open rotator cuff repair of the right shoulder was performed by Dr Jarman on 19 October 2009. Dr Porter, orthopaedic surgeon, performed open surgery, involving further repair of the recurrent rotator cuff tear of the right shoulder, on 26 June 2018.[82] I note the only doctor who commented on the surveillance material was Dr A.L.G. Smith, an orthopaedic surgeon, who reported to the appellant on the topic, on 9 September 2014:

    “I have reviewed the surveillance videos and would consider that there is no likelihood of there being anything wrong with her and once again, as far as I can tell, she is fit to do any work suitable for women her age without any restrictions whatsoever.”[83]

    [82] ARD, pp 238–9.

    [83] Reply, p 26.

20. I note the weekly compensation claimed in the current proceedings commenced from 21 July 2022. I do not accept that the Member erred in how he dealt with the surveillance evidence and with the weight he gave it. It was considered in the context of the evidence overall, including the medical evidence. The evidence, as a whole, supported the conclusion reached by the Member, which was open to him. The appellant has not succeeded in demonstrating error within the meaning of s 352(5) of the 1998 Act.

21. Ground No. 1 fails.

GROUND NO. 2 – THE WEIGHT GIVEN TO DR SMITH’S EVIDENCE

Appellant’s submissions

1. The appellant submits the respondent’s solicitors made no attempt to obtain their own medical opinion on the surveillance material. The only doctor who reported on the surveillance material was Dr Smith in 2014. He said there was “no likelihood of there being anything wrong with [the respondent]”. The doctor’s view was expressed after the 2013 surgery although before the 2018 surgery. The appellant refers to the reasons at [86] which read:

   “Dr Smith’s opinion was given some eight years before the [appellant] denied liability to pay weekly compensation. In the years since he issued the report, the [respondent] has undergone several significant operative procedures. These matters cast doubt on Dr Smith’s opinion on the incapacity issue in this case.”

2. The appellant submits that “[h]ow it in fact casts doubt upon Dr Smith’s opinion is difficult to discern.” It submits that this, of itself, does not deal with the sequelae of surgery or work capacity. It submits that much of the surveillance was taken after the 2018 surgery. The appellant submits that the surveillance material contradicts what the respondent asserted.[84]

   [84] Appellant’s submissions, [59]–[61].

3. The appellant refers to the reasons at [87], which read:

   “However, there are other aspects of Dr Smith’s reports that are difficult to accept. First, he does not identify what aspects of the surveillance videos led him to the opinion that there was ‘no likelihood of there being anything wrong with her’. Secondly, it is extremely difficult to reconcile that conclusion with the [respondent’s] long surgical history. It is true, as Mr Talintyre submitted, that a finding of permanent impairment does not prove incapacity. On the other hand, it would be surprising if a patient who had undergone a cervical fusion would be certified fit for work without restriction. Thirdly, Dr Smith’s opinion is very different to the conclusion reached by Dr Bentivoglio.”

4. The appellant submits it was not a difficult exercise to correlate what the respondent said was wrong with her with what was shown in the video. The appellant submits that “any reasonable doctor would have looked at and concluded similarly to Dr Smith that there was unlikely to be anything significantly wrong with her”. The appellant submits much of the surgical history occurred before Dr Smith commented on the surveillance. It submits there was no change in how the respondent appeared in the videos that post-dated Dr Smith’s opinion.[85]

   [85] Appellant’s submissions, [62]–[63].

5. The appellant refers to the passage at [87] of the reasons in which the Member gave, as a reason for rejecting Dr Smith, the fact that Dr Smith’s conclusion was different to that of Dr Bentivoglio. It submits Dr Bentivoglio had not seen the surveillance and this was an error in the exercise of the Member’s discretion. The appellant refers to the reasons at [88] to [91] and submits this is confirmatory of Dr Smith’s opinion.[86]

   [86] Appellant’s submissions, [64]–[66].

Respondent’s submissions

1. The respondent refers to the reasons at [84] to [91] and to the decision of Wiki. It is submitted the Member gave logical and rational reasons for not preferring the opinion of Dr Smith.

2. The respondent repeats the submissions at [4] to [9] of her submissions on the appeal. Dr Smith’s opinion was that “any aggravation sustained to her cervical degenerative disease on 16 January 2009 would have settled after a few weeks”. The Member explained his analysis and reasons for rejecting this opinion, at [83] to [87] of the reasons. The respondent additionally refers to the reasons at [84] in which the Member explained that Dr Smith’s opinion was incompatible with the earlier findings in the Workers Compensation Commission of NSW. The respondent noted the Member accepted the opinion of Dr Bentivoglio in preference to that of Dr Smith.

Consideration

1. Dr Smith’s opinion on the surveillance video is set out in his report dated 9 September 2014.[87] Excluding formal parts, that report states:

   “I have reviewed the surveillance videos and would consider that there is no likelihood of there being anything wrong with her and once again, as far as I can tell, she is fit to do any work suitable for women her age without any restrictions whatsoever.

   I think she has been so fit for some time.” (emphasis added).

   [87] Reply, p 26.

2. The appellant submits that the activities demonstrated on the video were “clearly matters that any reasonable doctor would have looked at and concluded similarly to Dr Smith that there was unlikely to be anything significantly wrong with her”.[88] (emphasis added) Dr Smith’s stated opinion was that there was “no likelihood of there being anything wrong with her” (emphasis added).

   [88] Appellant’s submissions, [62].

3. Dr Smith was aware of the earlier lumbar surgery, it was referred to briefly in his report dated 19 August 2014, as having been “quite successful”.[89] At the time when the video was taken, on which Dr Smith commented, the respondent had undergone fusion of her lumbar spine at L1/2 and L2/3 (involving three surgical procedures) following the earlier injury on 20 July 1987, and fusion of her cervical spine at C5/6 and C6/7 following the injury on 16 January 2009. The cervical surgery was described by Dr Smith as involving “C5-6 and C6-7 anterior cervical discectomy and fusion with a plate fixation”. The respondent had also undergone surgery to the right shoulder on 19 October 2009, involving repair of a partial thickness tear in the rotator cuff.[90] It is difficult to understand a medical conclusion that there was not “anything wrong with her” when it is uncontroversial that her spine was fused at four levels.

   [89] Reply, p 19.

   [90] Dr Smith’s report 19/8/2014, Reply, pp 19–20.

4. It should be noted that Dr Smith’s opinion, in his supplementary report dated 9 September 2014, was very similar to that arrived at by the doctor without the benefit of the surveillance video. In his initial report, dated 19 August 2014, the doctor concluded that “any aggravation sustained to [the respondent’s] cervical degenerative disease on 16 January 2009 would have settled after a few weeks”, and that there was “no injury to the right shoulder”.[91] The doctor’s ultimate conclusion in his initial report, without reference to seeing the video, was that there was “no impairment arising from her work injury” and that the “shoulder operation has not resulted in any impairment”. Without the benefit of the video, Dr Smith was able to conclude:

   “As far as I can tell she is fit to do any work suitable for women of her age without any restrictions whatsoever and has been so fit for quite some time.”[92]

   [91] Reply, p 22.

   [92] Reply, p 25.

5. The appellant submits Dr Smith was the only doctor who viewed the surveillance and whose opinion “included the objective evidence provided by the surveillance”.[93] Dr Smith’s supplementary report dated 9 September 2014, after seeing the video, did not refer to any specific activities in the video as being significant to the view the doctor formed on the respondent’s fitness, her capacity for work or the consistency of her presentation. The Member referred to this aspect of Dr Smith’s supplementary report.[94] The video evidence did not appear to have significantly altered Dr Smith’s opinion. The assistance afforded to the appellant’s case, by Dr Smith’s supplementary report, was limited. The appellant’s submissions are critical of the respondent’s case, in that it did not include an opinion from a medical expert of the respondent’s, dealing with the video. Dr Smith’s supplementary report made little contribution to the appellant’s case. The appellant’s qualified medical case included Dr Bentivoglio, a neurosurgeon, who does not appear to have been invited by the appellant to comment on the surveillance.

   [93] Appellant’s submissions, [32].

   [94] Reasons, [87].

6. The Member dealt with the probative value of Dr Smith’s opinion in the reasons at [83] to [87]. He noted that Dr Smith’s opinion on the respondent’s shoulders and neck was incompatible with earlier findings of members of the former Workers Compensation Commission (see the Certificate of Determination dated 2 December 2022). The Member’s reasons were consistent with him carefully considering the video and associated evidence and dealing with its significance. His reasons at [38] to [39] summarised the response from the respondent’s statements. At [101] of his reasons, the Member summarised those aspects of the video surveillance that were submitted by the appellant to require physical exertion. He concluded that the video evidence from September and October 2020 caused doubt regarding the respondent’s “recent presentations to medical practitioners”. This gave rise to the credit finding referred to at [57] above.

7. The Member briefly summarised aspects of the video, it showed the respondent “driving a tractor, driving [a] mower, and, at intervals using her arms at and below shoulder height in a fairly fluent fashion”. He observed that the surveillance material “cannot nullify the medical evidence which suggests that the [respondent] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery”. The Member’s finding on incapacity was not simply based on what the respondent asserted; it involved reference to the Member’s observations of the surveillance material considered in concert with the medical evidence. The Member did this against a background of approaching the respondent’s evidence in a fashion consistent with his stated reservations regarding her credit.

8. It was open to the Member to accept the evidence of Dr Bentivoglio (part of the appellant’s medical case) in preference to that of Dr Smith. I accept the respondent’s submission that the Member gave logical and rational reasons for not accepting the opinion of Dr Smith.

9. I do not accept that the Member erred in the weight he gave to the evidence of Dr Smith. Ground No 2 fails.

GROUND NO. 3 – FAILING TO GIVE ADEQUATE WEIGHT TO THE APPELLANT’S LAY WITNESSES

Appellant’s submissions

1. The appellant states the evidence of all witnesses was given by way of witness statements. The appellant then, by leave, cross-examined the respondent, who was challenged on her evidence. It states that none of the lay witnesses in the appellant’s case were cross-examined. It notes the “normal rules of evidence” do not apply. It submits there was a series of unchallenged statements, contradicting the respondent, which were “admitted unchallenged”. The appellant submits that, “as a matter of fairness”, the Member “ought to have heard cross-examination of the appellant’s lay witnesses, or otherwise accepted what they said when it was contrary to what the [respondent] said”.[95]

   [95] Appellant’s submissions, [67]–[69].

2. The appellant submits “a number of the witnesses had not been associated with the appellant for many years. It is difficult to see why they would have reason or motive to lie on behalf of the appellant”. It submits there were many inconsistencies in the evidence.[96]

   [96] Appellant’s submissions, [70]–[71].

Respondent’s submissions

1. The respondent submits much of the evidence of the appellant’s lay witnesses went to the issue of ‘injury’, the subject of an earlier decision of the Member dated 2 December 2022. The respondent submits the appellant was estopped by the Anshun principle[97] “from disputing that the worker suffered an injury to the neck and shoulders as a result of the 2009 injury”.[98] The respondent sets out her written submissions, made before the Member, dealing with the evidence of Courtney Gravener (Gillman) and Graeme Murray.[99]

   [97] See Port of Melbourne Authority v Anshun [1981] HCA 45; 147 CLR 589, Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190.

   [98] Respondent’s submissions, [28]–[29].

   [99] Respondent’s submissions, [30]–[31].

2. The respondent refers to the reasons at [46] to [60] which dealt with cross-examination of the respondent. She refers to the reasons at [106] to [114] which dealt with the Member’s consideration of the lay evidence. She submits the Member considered the lay evidence and that his reasons for how he dealt with the appellant’s lay case were soundly based.[100]

   [100] Respondent’s submissions, [32]–[37].

Consideration

1. The appellant correctly submits that the normal rules of evidence do not apply. Section 43 of the 2020 Act provides:

   “43    Procedure before Commission generally

   (1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

   (2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

   (3)     The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[101]

   [101] The provisions in s 43 were previously to be found, in identical form, in subss (1) to (3) of s 354 of the 1998 Act.

2. Parties are required to lodge and serve material on which they seek to rely and statements of witnesses on whose evidence they propose to rely.[102]

   [102] See rr 34 and 67 of the Personal Injury Commission Rules 2021.

3. The operation of the rule in Browne v Dunn,[103] and principles of procedural fairness in the context of the former Workers Compensation Commission of NSW, were dealt with in New South Wales Police Force v Winter.[104] After reviewing the authorities Campbell JA (Giles JA and Handley AJA agreeing) said:

   “... Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness’s account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness’ account is not challenged in cross-examination.”

   And:

   “The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case”[105] (excluding citations, emphasis in original).

   And:

   “Further, whether a litigant, who contends that there has been a breach of procedural fairness, was represented by counsel can be relevant to an assessment of whether there has been a breach of procedural fairness. There may well have been sound tactical reasons for Mr Morgan taking the objection …”[106] (excluding citations).

   [103] (1893) 6 R 67.

   [104] [2011] NSWCA 330 (Winter).

   [105] Winter, [84].

   [106] Winter, [85].

4. The appellant’s submissions urge that two alternative courses were open to the Member. The first was that the Member should have heard cross-examination of the appellant’s lay witnesses. The second was that the Member should otherwise have accepted the evidence of the appellant’s lay witnesses whenever it was contrary to the respondent’s evidence.[107] The appellant refers to no authority in support of this submission. Although not specifically framed as such, the ground appears to potentially raise an alleged breach of the rules of procedural fairness.

   [107] Appellant’s submissions, [69].

5. In Spencer v Bamber the Court of Appeal said:

   “… compliance with the principle in Browne v Dunndoes not always require an allegation to be put to a witness in the witness box. In particular, exchange of affidavits before trial can adequately give each side the opportunity to respond to allegations made concerning them. Further, there is no rule of law requiring that evidence not challenged in cross-examination be accepted - a judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he or she accepted, or if it was inherently incredible.”[108]

   [108] [2012] NSWCA 274, (per Campbell JA, Basten and Macfarlan JJA agreeing), [134] (excluding references). See also Winter at [81].

6. The appellant does not assert that either party failed to comply with its obligation to serve relevant witness statements prior to the hearing. The parties would each have been aware of the case made by the other, it is not suggested otherwise. There is no basis to conclude that the appellant did not have a reasonable opportunity to put its evidence and submissions before the Member. It was open to the appellant to call oral evidence from its lay witnesses. It was not incumbent on the respondent to require the appellant’s lay witnesses for cross-examination. Neither the transcript or the submissions on this appeal suggest that the appellant sought to call lay evidence and was unable to do so. The Member heard oral evidence on 12 April 2023. Both parties were represented by experienced counsel. During discussion about the admission of Applications to Admit Late Documents, reference was made to the statements of “a number of [appellant] witnesses”. The worker’s counsel enquired whether this material was “still pressed, the issue of injury having been dealt with in the prior decision”. The employer’s counsel responded, saying “that’s still pressed because … we rely upon that material going to credit.”[109] There may well have been sound tactical reasons, when the evidence of the appellant’s witnesses was before the Commission in any event, to avoid exposing them to cross-examination.  

   [109] T 5.8–28.

7. The appellant submits that, in the absence of its witnesses being cross-examined, the Member should have accepted the evidence of the appellant’s lay witnesses whenever it was contrary to that of the respondent. I take this to be a reference to the appellant’s submissions dealing with Ground No. 1, in which it argued that the respondent’s evidence should not be accepted unless it was “objectively proved”. For reasons given above, I rejected that submission. I concluded that the approach taken by the Member, in respect of his credit finding, did not involve error. The Member dealt with the lay evidence against a background of the finding on estoppel made in his decision dated 2 December 2022. The correctness of that finding is not challenged in this appeal. The Member said:

   “By reason of the earlier findings of the Workers Compensation Commission it is not open to the [appellant] to adduce evidence to contradict the findings that the [respondent] suffered injury to her neck and shoulders in the course of employment on 16 January 2009. In my view, much of the cross examination of the [respondent] on the circumstances of the injury was intended to achieve that end under the guise of cross examination as to credit. It is undoubtedly the case that significant parts of the cross examination were intended to establish that the injury could not have occurred in the circumstances previously proven. If there was an objection to these aspects of the cross-examination, I would have disallowed those questions.”[110]

   [110] Reasons, [107].

8. The Member then went on to deal with the probative value of the appellant’s lay evidence, “in any event”. He said it “does no more than raise a scintilla of doubt as to the circumstances of the injury”. He said that “[n]either Jack or Bede Murray, nor Hayley Humphry dispute that it occurred”. The Member referred to the discrepancy in the written evidence from Courtney Gillman. In her handwritten note dated 4 June 2009 Ms Gillman said: “I Courtney Gillman witnessed Joanne Howard slipped over on the wet grass and grazed her elbow. She never told me she was injured or in any pain.”[111] In her statement dated 1 June 2022 Ms Gillman said she saw that the respondent:

   “… sat on the ground in a controlled manner. As she entered the sitting position, her right elbow bumped the motor for the whipper snipper and this caused an insignificant graze to the elbow.

   It is nonsense that the [respondent] slipped and fell. This is false.”[112]

   The Member dealt with this inconsistency, describing it as “another example of a witnesses’ memory becoming impaired by the passage of time”.[113]

   [111] ARD, p 83.

   [112] ARD, p 107.

   [113] Reasons, [109].

9. I do not accept that the Member erred in failing “to have heard cross examination of the appellant’s lay witnesses” in circumstances where the appellant, which was capably represented, did not itself seek to call them. I do not accept that the Member erred in not accepting what those witnesses said in their statements, to the extent that the statements were contrary to the respondent’s evidence. I note there was, in any event, apparent internal inconsistency in the material from Ms Gillman. Ground No. 3 fails.

GROUND NO. 4 – ERROR IN THE WEIGHT GIVEN TO ABSENCE OF EARLY COMPLAINT

Appellant’s submissions

1. The appellant seeks to identify factual circumstances which, it is submitted, suggest that the respondent’s injuries were relatively minor.

2. Medical notes, from the general practice the respondent attended, recorded consultations on 22 January 2009 (for a hernia) and 28 January 2009 (feels she can no longer keep working due to bodily aches and pains).[114] The reasons recorded the respondent said that she saw her general practitioner on 28 January 2009 and he thought she had “strained a few muscles”.[115] On 16 March 2009, she told Dr Hayden her “right shoulder pain was becoming worse”. This was the first specific mention in the notes, after the injury, of right shoulder pain.[116] The appellant submits the failure to complain to the doctor when she first saw him after the accident “would attest to the relatively minor nature of her injuries”.[117] The respondent said she was “focussed” on obtaining treatment for a hernia which was repaired on 1 April 2009.[118]

   [114] Atherfield Medical Service notes, Reply, p 64.

   [115] Reasons, [17].

   [116] Reply, p 66.

   [117] Appellant’s submissions, [72]–[75].

   [118] Reasons, [18].

3. The appellant refers to the clinical note from Dr Riegelhuth, from the same medical practice, dated 28 January 2009. It states: “Now seeking disability pension … feels she can no longer keep working due to bodily aches and pains”. The respondent saw Dr Riegelhuth again on 30 January 2009 to complete a pension application.[119] The application was based on the fall from a horse in 1987 and the associated lumbar spine injuries, it did not mention the neck or shoulders. The appellant submits the respondent agreed with this, referring to T 81.11. The evidence recorded in the transcript was not that straightforward. The respondent claimed she did refer to her neck and shoulders, but Centrelink told her to “just claim [her] old injury”.[120] The appellant refers to the reasons at [113], where the Member said he found it “difficult to accept [the respondent’s] explanation for requesting certification for a disability pension from Dr Riegelhuth, on the basis of the 1987 injury”. He also doubted the respondent’s explanation for not reporting the injuries to Dr Riegelhuth.[121]

   [119] AALD 7/11/22.

   [120] T 81.7–32.

   [121] Appellant’s submissions, [76]–[79].

4. The appellant submits this “strongly suggests that whatever happened on 16 January 2009 did not produce any significant injury”. The appellant submits that it may be estopped from asserting there was no injury on 16 January 2009, it is not estopped from asserting that the injury was only minor and that the respondent was, and is, capable of working.[122]

   [122] Appellant’s submissions, [80]–[81].

Respondent’s submissions

1. The respondent refers to the appellant’s submissions at [74]. The appellant’s submissions at [73] to [74] read:

   “73.   At [47] of her statement of 22 August 2022, ([ARD] 11), the [respondent] said:

   ‘On 28 January 2009 I attended my treating GP, who simply thought I had strained a few muscles.’

   74.    That statement was in relation to her attendance upon a GP on 28 January 2009 and the Member so found at … [17] of his reasons. It is important to note that there was no mention in the clinical records relating to that first post-accident GP attendance of any problem with her neck or shoulder (Reply 64–65).”

1. The respondent submits what was recorded at [17] of the reasons was the Member recording some of the evidence, not a finding.[123] The reasons at [17] state:

   “The [respondent] says that on 28 January 2009, she attended her general practitioner ‘who simply thought I had strained a few muscles’.”

   [123] Respondent’s submissions, [38].

2. The respondent submits the Member paid close regard to the respondent’s evidence regarding consulting with her general practitioner following the injury. The respondent refers to the reasons at [112] to [114] which read:

   “112. While the passage of time may explain many of [the] discrepancies in the evidence, the [respondent] was not a completely satisfactory witness. Her evidence that she had ridden trackwork before commencing work for the [appellant] and would ‘never complain about her back’ is difficult to accept in the context of the contemporaneous medical record. Similarly, the [respondent’s] account of seeing a doctor named Evelyn (probably Dr Fui-Ling Kong) following the injury and her account of why there was no record of this consultation in the clinical notes of the Atherfield Medical Service seems improbable.

   113. Equally, I find it difficult to accept her explanation for requesting certification for a disability pension from Dr Riegelhuth, on the basis of the 1987 injury on 28 January 2009. On 30 January 2009 Dr Riegelhuth issued an application for a disability pension that made no reference to the injury on 16 January 2009. The contents of the clinical notes and the Centrelink application form establish that the [respondent] did not report her recent injury to Dr Riegelhuth at these consultations. I doubt that an employee of Centrelink would have told her not to raise the consequences of the 2009 injury with her doctor, when applying for the invalid pension, as the [respondent] stated in her evidence.

   114. Bearing in mind these and other answers which the [respondent] gave during cross-examination, I have concluded that her evidence is not completely reliable and I should carefully scrutinise her evidence when it is not corroborated by other evidence.”

3. The respondent submits the above is inconsistent with the argument that the Member “failed to accord adequate weight to the evidence [as to] absence of early complaint”.[124]

   [124] Respondent’s submissions, [38].

Consideration

1. The notes from the Atherfield Medical Service recorded consultations on 9, 15 and 22 January 2009.[125] These all appear to have related to complaints regarding an abdominal lump. The consultation on 9 January 2009 (with Dr Danko) recorded a history of “recent painless lump” and an ultrasound was requested. An entry in the notes on 22 January 2009, recorded by the receptionist, said “Patient recalled for abdominal wall u/s results from 21/01/09. No recall letter sent. Patient has appointment today 22/01/09 at 4:15pm to discuss results.” The consultation on 22 January 2009 was with Dr Riegelhuth. The note recorded “O/E lump as described in anterior Abd wall – mid line will require surgical repair”. The note recorded “this occurred on 24/12/08”. The note stated “unfit to work as this involves lifting and straining in all her activities and which aggravates pain and lump. Await insurance co acceptance of claim. Then review and refer surgeon.” The reason for the visit was recorded as “hernia – WorkCover”.

   [125] Reply, pp 63–4.

2. The next entry in the notes was on 28 January 2009,[126] again with Dr Riegelhuth:

   “Now seeking disability pension

   For review old notes

   See Friday double time to complete form

   Feels she can no longer keep working due to bodily aches and pains

   Reason for visit:

   Disability pension claim form”.

   [126] Reply, p 64.

3. I note the pension application[127] was dated 27 January 2009 and signed by Dr Riegelhuth on 30 January 2009. An entry in the notes on 9 February 2009 recorded that Dr Hayden saw the respondent for “Left sided pleuritic chest pain”. An entry by Dr Riegelhuth on 23 February 2009 recorded that “work cover has accepted hernia for repair”, that there was a referral to Dr Sithi for the hernia repair and that the respondent was given a “w/c certif to 27/3/08 [sic]”. There were consultations for entirely unrelated matters on 5 March 2009 and 10 March 2009. On 16 March 2009 the respondent saw Dr Hayden, who recorded:

   “Booked for hernia repair

   off voltaren

   now right shoulder pain an issue”.

   [127] AALD 7/11/22, pp 1–8.

4. The respondent saw Dr Flore at the practice on 25 March 2009. Dr Flore recorded the respondent was “still c/o mild pain left ribs” and was “for hernia OT on Wed”. She prescribed Panadeine Forte. On 2 April 2009, the respondent saw Dr Woods who recorded “hernia op yesterday”.

5. On 11 May 2009 the respondent saw Dr Hayden, who recorded:

   “Has had hernia repaired

   Now wants right shoulder investigated

   Present since 16/1/2009

   Clinically is supraspinatus tendinitis Actions:

   Diagnostic imaging requested: US – shoulder (R) – Present since 16/1/2009

   Clinically is supraspinatus tendinitis – ?? rotator cuff tear”.

6. It appears the respondent was being kept off work, in any event, by the hernia and associated treatment. This is consistent with the Member’s reasons at [18] to [19] where it is stated:

   “18.   The [respondent] says that while her shoulders and neck were painful she was ‘focused’ on obtaining treatment for her hernia. Accordingly, it was not until 16 March 2009, that she informed a general practitioner, Dr Hayden, that her ‘right shoulder pain was becoming worse’.

   19.    The [respondent] recounts that she underwent hernia repair surgery on 1 April 2009. Thereafter, she was investigated for a condition of her right shoulder. On 25 May 2009, she gave her employer a Report of Injury form asserting injury to both shoulders.”

7. This does not necessarily lead to a conclusion that the work injury on 16 January 2009 was of a minor nature. The appellant’s submissions on Ground No. 4 are reminiscent of the Member’s remarks in the reasons at [107]. The Member there described cross-examination as to the circumstances of the injury as intending “to establish that the injury could not have occurred in the circumstances previously proven”. In the Certificate of Determination dated 2 December 2022 the Member at [73] to [76] of his reasons dealt with the scope of the estoppels that existed. These matters included:

   (a)    that the respondent suffered injury to her cervical spine and both shoulders as a result of the 2009 injury;

   (b)    that the respondent is entitled to permanent impairment compensation for her cervical spine and shoulders as a result of the 2009 injury, and

   (c)    that the cervical surgery in 2016 was reasonably necessary as a result of the 2009 injury.

8. The respondent submits that the Member did give weight to the evidence regarding complaints by the respondent to the general practice she attended. It led to a finding on the respondent’s credit.

9. The appellant submits the respondent’s evidence could not be accepted at face value. It submits the respondent’s case, that she was not fit for any work, should be rejected. The appellant submits it is open to assert that the injury was “only minor” and that she was capable of working. It submits that, combined with the surveillance evidence, there was “clear support to reject the [respondent’s] case that she was not fit for any work and to find, therefore, that she in fact had a current capacity for work”.[128] Much of this submission is based on a general attack on the respondent’s credit, rather than matters associated with complaints to her general practitioners in the early days following the injury on 16 January 2009.

   [128] Appellant’s submissions, [80]–[81].

10. Consideration of the early complaints does not, in my view, lead to the conclusions for which the appellant argues. The aspects of this material that were found to have implications for the respondent’s credit were those identified at [112] and [113] of the reasons. The Member made a clear finding at [114] of the reasons, consistent with authority, regarding how this affected his treatment of the respondent’s credit. This is dealt with above in the consideration of Ground No. 1. The respondent injured her shoulders and neck in the incident on 16 January 2009 (facts that flow from the estoppels). The clinical notes indicate she made irregular (and sometimes delayed) complaints about these aspects of her injuries. She attributed this to her focus on the repair of her hernia. The reasons did not suggest any lack of acceptance on the Member’s part of this aspect of her evidence.

11. The appellant attempts to characterise the injury on 16 January 2009 as “minor”. This is inconsistent with the various estoppels and the history. By way of example, in the Workers Compensation Commission of NSW, proceedings number 2261/17, it was found that “the second operation to the cervical spine performed by Dr Mews on 7 November 2016 and related treatment was reasonably necessary as a result of the injury on 16 January 2009.” I note the passage from Rigby quoted at [51] above. The weight to be given to the evidence was largely a matter for the Member. Could it be said that the Member’s findings were “so against the weight of evidence that some error must have been involved”? To adopt the language used by the Court of Appeal in Hill (see [39] above) were the findings of fact made by the Member open to him? The answer, in my view, is clearly that the Member’s factual findings were open to him. The appellant’s submissions do not specifically challenge the fact-finding process on the basis that the Member’s conclusions were not open. Rather, they argue that an alternative outcome is preferable. Such an approach, on an appeal pursuant to s 352(5) of the 1998 Act, is contrary to the settled authority referred to at [38] to [40] above.

12. Ground No. 4 fails.

GROUND NO. 5 – THE WEIGHT GIVEN TO OTHER MATTERS AFFECTING CREDIT

Appellant’s submissions

1. The appellant submits there were “other matters that ought to have led the Member to be wary of the [respondent’s] evidence”. It refers to the Member’s reasons at [133]:

   “In reaching this conclusion, I have not been influenced by the [respondent’s] dire presentation at the arbitration hearing. I am unable to relate the [respondent’s] use of a walking frame to ambulate to the injuries to her neck and shoulders in the subject accident.”

2. The appellant submits it was “not a walking frame but a mobility scooter that the respondent arrived in”.[129] It submits the reasons at [133] involved error. There ought to have been a finding that the respondent was seeking to “elevate the seriousness of her injuries ... Instead, [the Member] simply decided to take no notice of it.”[130]

   [129] Appellant’s submissions, [83]–[84].

   [130] Appellant’s submissions, [82]–[85].

Respondent’s submissions

1. The respondent submits that she did not, in her evidence in chief or in her statements, refer to a need to use a mobility scooter. The respondent refers to the reasons at [45]:

   “The [respondent] told Mr Talintyre in cross-examination that she had been using a mobility scooter for ‘a couple of months’. She agreed that it was because of problems with her hips ‘since I had a fall in 2018’.”

2. The respondent submits the Member found that the respondent had not succeeded in proving that her falls in 2018 and 2020 resulted from the injury on 16 January 2009. Her hips were not claimed. There was no basis for making a finding regarding anything other than the neck and shoulders. The respondent submits the Member’s approach was appropriate.

Consideration

1. There were references to hip pain in the medical evidence. Dr Gordiev referred to “arthritis of the left hip” and “a slightly antalgic gait due to pain in the left hip”.[131] Dr Jain referred to hip pain amongst the respondent’s complaints.[132] A report from Mr Dennett, a senior physiotherapist with Canberra Health Services, referred to “right hip pain consistent with mod-severe hip OA”.[133] The respondent was asked some questions in cross-examination on the topic. She described the scooter as being because of her hips.[134] Her brief evidence was generally consistent with the Member’s reasons at [45].

   [131] Dr Gordiev report 16/2/22, ARD, pp 255–6.

   [132] Dr Jain report 9/3/23, AALD 21/3/23, pp 4–5.

   [133] Mr Dennett report 8/2/23, AALD 21/3/23, pp 1–2.

   [134] T 21.22–22.10.

2. I do not accept the appellant’s submission that the Member should have made a finding, on the basis of the very limited evidence on this topic, that the respondent was seeking to exaggerate the seriousness of her injuries in using the mobility scooter. I accept the respondent’s submission that the Member’s approach was appropriate in the circumstances.

3. Ground No. 5 fails.

GROUND NO. 6 – REASONS FOR THE FINDING ON CURRENT WORK CAPACITY

Appellant’s submissions

1. The appellant submits the Member’s “findings as to capacity seems to have been made” in the reasons at [132], from which it quotes the following:

   “Her total incapacity results from the subject injury. While the [respondent] had significant restrictions before that time, she was able to perform full time work to the satisfaction of her employer.”

2. The appellant submits “that’s a finding that relates to the period from her accident in January 2009 up to the time that the Member made his assessment, it is a remarkably brief statement of affairs”. It submits “[s]he may well have had the capacity to work before the accident, her lower back and some of the medical evidence notwithstanding”. It continues:

   “However, what occurred between 2009 and the date of the decision was of critical importance. In particular, the fact that the surveillance material showed the [respondent] moving freely as referred to above would suggest that she is capable of some work. To simply say that her incapacity at the present time results from the injury 13 years before without reference to what has gone on previously, the balance of his reasoning notwithstanding, simply does not stand examination.”[135]

   [135] Appellant’s submissions, [86]–[88].

3. The appellant quotes the following passage from Soulemezis v Dudley (Holdings) Pty Ltd:

   “The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment ‘is not only to do but to seem to do justice’: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus, the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability.”[136] (The submission describes the third reason given by his Honour as “inapplicable to the decision of [a] tribunal Member at first instance”.)

   [136] (1987) 10 NSWLR 247, per McHugh JA, 279B.

4. The appellant submits there was much evidence that could significantly affect the respondent’s credit. It submits:

   “In those circumstances, it was incumbent upon the Member to explain in the reasons why he rejected that evidence or, alternatively why, in the face of that evidence, he accepted the [respondent’s] evidence that the accident in 2009, that the incapacity she claimed existed and that it resulted from the 2009 injury [sic]. On this matter his reasons are far from clear.

   The appellant contends that a fair reading of the evidence compels a finding that the [respondent] was not a witness of truth and that she was in fact capable of work. This is a complex matter with much lay and medical evidence. If, as it seems he has, the Member rejects much, if not all, of the appellant’s evidence he ought to have given clear and cogent reasons why. He has not done that.”[137]

   [137] Appellant’s submissions, [90]–[92].

Respondent’s submissions

1. The respondent quotes a moderately lengthy passage from the decision of the Court of Appeal in Wiki, dealing with the duty to give reasons.[138] I will not reproduce the whole of the passage. Wiki at [59], which is part of the quoted passage, reads:

   “It is, of course, well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate which of the evidence is accepted or rejected. The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud vCampbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope AJA agreed). But it is not for nothing that in some bilingual countries the judgment of the court is given in the language of the unsuccessful party. The proper administration of justice requires reasons to be given in a form, firstly, that will enable the losing party to understand properly the grounds upon which the case was lost, and, secondly, that will not, effectively, frustrate the losing party’s right of appeal: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667.”

   [138] Respondent’s submissions, [50], quoting from Wiki, [56]–[59].

2. The respondent submits the Member “gave detailed reasons” for his finding that the respondent had “no capacity” as a result of the subject injury. She submits the Member dealt carefully with the surveillance and other lay evidence. The Member was bound to find injury due to the estoppels. The Member acknowledged the need to scrutinise the respondent’s evidence with caution. She submits the Member correctly applied the test in s 32A of the 1987 Act and the principles in Dewar. The respondent’s submissions stated that her submissions on Ground No. 1 were repeated in support of her position on Ground No. 6.

Consideration

The duty to give reasons

1. Section 294 of the 1998 Act provides for the issue of “a certificate as to the determination” as soon as possible after the determination of the dispute. It provides that a brief statement is to be attached, “setting out the Commission’s reasons for the determination”.

2. Rule 78 of the Personal Injury Commission Rules 2021 (the Rules) provides:

   “78    Statement of reasons for decision

   (1)     This rule applies only in relation to the following applicable proceedings—

   (a) Commission proceedings,

   (b) merit review proceedings.

   (2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—

   (a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,

   (b) the appropriate decision-maker’s understanding of the applicable law,

   (c)the reasoning processes that led the appropriate decision-maker to the conclusions made.

   (3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

3. In Fisher v Nonconformist Pty Ltd[139] Kirk JA (Meagher JA and Simpson AJA agreeing) said there was “no general common law duty on executive decision-makers to give reasons for their decisions”.[140] His Honour referred to the requirements found in s 294 of the 1998 Act and r 78 of the Rules. His Honour did not decide whether the obligation of a Member to give reasons was “to the same standard expected of a judge”. His Honour said that if it were, the standard was summarised in the following passage from the decision of the Court of Appeal in Ming v Director of Public Prosecutions:

   “What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[141]

   [139] [2024] NSWCA 32 (Fisher).

   [140] Fisher, [136].

   [141] [2022] NSWCA 209 (Ming), [43].

The Member’s reasons

1. The appellant submits the “findings as to capacity seem to have been made” in the reasons at [132]. That paragraph, in its entirety, reads:

   “Considering the [respondent’s] capacity in the context of the definition [of] suitable employment in s 32A(a) and the reasoning [in] Dewar leads to the conclusion that the [respondent] has had no current capacity since the cessation of weekly compensation. Her total incapacity results from the subject injury. While the [respondent] had significant restrictions before that time, she was able to perform full time work to the satisfaction of [her] employer.”

2. The part of the paragraph quoted in the appellant’s submissions was only that part which is the subject of emphasis in the quotation set out immediately above. In Beale Meagher JA said that “the statement of reasons must be looked at as a whole and the material inadequacies identified and considered”.[142] When the paragraph is read in full, it is clear that the Member’s consideration had regard to the definition of ‘suitable employment’ in s 32A of the 1987 Act, and to the reasoning in Dewar which deals with the application of the definition. This was fundamental to considering whether the respondent was currently suited to work in ‘suitable employment’.

   [142] Beale, 444.

3. The Member dealt with the question of the respondent’s capacity for work in the reasons at [131], being the paragraph immediately prior to that from which the appellant quotes, in its submissions on this ground:

   “Plainly, the [respondent’s] constricted capacity to work was diminished by the 1987 injury and further diminished by the subject injury and the multiple operative procedures that she has undergone following the injury. The fact that she has not worked many years, is dependent on medication, and is in the last term of her working life further detracts from her capacity to obtain a real job. While he did not have access to the surveillance videos, I suspect that the views of Dr Bentivoglio are an accurate assessment of her situation and the best that can be hoped for is that the [respondent] can maintain her small property. There is no further medical evidence in the [appellant’s] case after this time which might suggest a different outcome.”

4. The passage set out immediately above reflects the reasons in Dewar, which refer to the determination of ‘suitable employment’ within the meaning of s 32A. Roche DP in Dewar said:

   “Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”[143] 

   [143] Dewar, [63].

5. The appellant submits:

   “However, what occurred between 2009 and the date of the decision was of critical importance. In particular, the fact that the surveillance material showed the [respondent] moving freely as referred to above would suggest that she is capable of some work. To simply say that her incapacity at the present time results from the injury 13 years before without reference to what has gone on previously, the balance of his reasoning notwithstanding, simply does not stand examination.”[144]

   [144] Appellant’s submissions, [88].

6. Again, it is necessary that the reasons be considered as a whole. To the extent that the submission suggests that the Member failed to deal appropriately with the relevant history, from the time of the injury on 16 January 2009 to the date of assessment, this is not borne out by the reasons. The Member summarised the respondent’s work history from when she worked with Hardwicke Racing Stable, where she was injured in 1987, and her condition until she commenced with the appellant in 2008.[145] The Member summarised the respondent’s evidence in cross-examination.[146] He summarised medical evidence dealing with the respondent’s orthopaedic difficulties from the lumbar injury in 1987 to 2008.[147] The Member summarised the medical evidence on which the parties relied. He summarised the views of Dr Smith, who assessed the worker at the appellant’s request in 2014. The Member gave reasons for why he did not accept Dr Smith’s opinion.[148] This is discussed above in dealing with Grounds Nos. 1 and 2.

   [145] Reasons, [28]–[35].

   [146] Reasons, [50]–[69].

   [147] Reasons, [70]–[82].

   [148] Reasons, [83]–[87].

7. Dr Bentivoglio, a neurosurgeon, assessed the respondent at the appellant’s request on 16 March 2016 and 19 June 2017. He reported on 16 March 2016, 21 April 2016, 3 June 2016 and 19 June 2017. The Member summarised Dr Bentivoglio’s views.[149] The Member said “I suspect that the views of Dr Bentivoglio are an accurate assessment of [the respondent’s] situation”. He said there was no medical evidence in the appellant’s medical case, after Dr Bentivoglio, that “might suggest a different outcome”.[150] I note Dr Bentivoglio’s final report postdated the further cervical surgery performed by Dr Mews on 7 November 2016. Dr Bentivoglio’s ultimate opinion was that he did “not believe there will be any significant improvement”, the respondent “will have persistent neck pain and all the symptoms in her arms”, she will be “left on significant pain medication and drug dependence will also become an issue”. The doctor said “the best that she can hope for is to run her small property”.[151]

   [149] Reasons, [88]–[91].

   [150] Reasons, [131].

   [151] Reasons, [91].

8. The Member summarised “the more recent medical evidence” in the respondent’s case. He referred to that from Dr Herath (a general practitioner), Dr Gordiev (an orthopaedic surgeon), Dr Jain (a pain specialist), Dr Porter (an orthopaedic surgeon) and Dr Rae (an orthopaedic surgeon). These medical practitioners were treating the respondent from 2018 to 2022. The submission that incapacity was assessed “without reference to what has gone on previously” is without merit.

9. The appellant’s submissions may be seeking to raise an argument that the surveillance material (the most recent period of which was in December 2020) is somehow inconsistent with the Member’s finding of incapacity which commences from 21 July 2022. No submission to this effect is clearly articulated. Other than the opinion of Dr Smith in 2014, which the Member did not accept, there was no medical support for this proposition. The Member’s reasons clearly acknowledged the contents of the surveillance material.[152] His reasons dealt with it in the context of the evidence as a whole:

   “While the surveillance evidence does show the [respondent] driving a tractor, driving [a] mower, and, at intervals, using her arms at and below shoulder height in a fairly fluent fashion, to pick up debris on her property, it cannot nullify the medical evidence which suggests that the [respondent] does have significant pathology in her shoulders and has undergone two bouts of cervical surgery.”[153]

   [152] Reasons, [104].

   [153] Reasons, [105].

10. The medical evidence overall supported this view.

11. The Member’s reasons were thorough. In my view they complied comfortably with the Member’s obligations under s 294 of the 1998 Act and r 78 of the Rules. In my view the requirements of reasons, as described in Ming, were also satisfied.

12. Ground No. 6 fails.

CONCLUSION

1. All of the grounds have failed. The appeal is dismissed.

DECISION

1. The Certificate of Determination dated 15 August 2023 is confirmed.

Michael Snell
DEPUTY PRESIDENT

31 October 2024