Fairfield City Council v Comlekci - [2023] NSWPICPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fairfield City Council v Comlekci [2023] NSWPICPD 45
APPELLANT:	Fairfield City Council
RESPONDENT:	Naciye Comlekci
INSURER:	Self-insured
FILE NUMBER:	A2-W6635/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	8 August 2023
ORDERS MADE ON APPEAL:	1. The Certificates of Determination dated 21 April 2022 and 6 April 2023 are confirmed.
CATCHWORDS:	WORKERS COMPENSATION – sections 3 and 42 of the Personal Injury Commission Act 2020 – object and guiding principle of the Act to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible – the duty to co-operate with the Commission to give effect to the guiding principle to participate in the processes of the Commission and to comply with directions and orders of the Commission – assessment of earnings in the absence of precise evidence - New South Wales v Moss [2000] NSWCA 133 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr A J Parker, counsel
Carroll & O'Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	6 April 2023

INTRODUCTION AND BACKGROUND

The respondent, Naciye Comlekci, was employed by the appellant as a full-time early childhood educator. On 10 September 2020, whilst working at the appellant’s Wetherill Park Early Learning Centre, the respondent’s right wrist was injured in the following manner. The respondent and another staff member were attempting to stop a child from climbing over a fence. The child approached the respondent and head butted her. In the process, the respondent put up her hands to protect herself and felt her right hand being suddenly forced downwards. The respondent reports that she was immediately in pain and attended her GP. The respondent was off work for a short period of time and then performed restricted duties until 5 August 2021. On that date the respondent was informed that unless she was cleared to return to her full pre-injury duties, she would not be permitted to work.
The appellant issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the respondent’s injuries to her right hand/wrist on 13 April 2021.[1] The notice denied injury or that employment was a substantial or main contributing factor, and in the alternative, denied there to be a continuing causal connection between any injury or employment. Sections 4(b), 9A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act) were relied on. An Application to Resolve a Dispute (ARD) was then filed in the Personal Injury Commission (the Commission) by the respondent on 21 December 2021 claiming both weekly compensation and medical expenses. The matter proceeded to arbitration before the Member and concluded by way of written submissions. The issues to be determined by the Member were clarified to include whether the respondent had sustained injury as defined by s 4(a) of the 1987 Act (irrespective of the dispute notice raising s 4(b)) and whether employment was a substantial contributing factor pursuant to s 9A. If so, the Member was to determine the extent of the respondent’s incapacity for work and pre-injury average weekly earnings (PIAWE), as well as any entitlement to medical expenses pursuant to s 60 of the 1987 Act.
[1] Application to Resolve a Dispute (ARD), p 3.
In a Certificate of Determination (COD) dated 21 April 2022, the Member made findings in favour of the respondent in terms of injury, ordering the payment of medical expenses, and held that the respondent was incapacitated for work for a closed period between 5 August 2021 to 28 February 2022. Before determining the respondent’s award for weekly compensation, the Member ordered that the parties file wage material, wage schedules and submissions, after which, the balance of the dispute would be determined on the papers.
It was at this point that the appellant lodged its first appeal, against the COD of 21 April 2022, which was determined by Deputy President Wood in Fairfield City Council v Comlekci.[2] As the appeal was against an interlocutory decision of the Member, the Deputy President determined that leave to appeal be refused pursuant to s 352(3A) of the 1998 Act as it was not in the interests of justice to intervene at that stage, nor was it necessary or desirable for the proper determination of the dispute to grant leave. The matter was remitted back to the Member for determination of the remaining issues, being the respondent’s PIAWE and claim for weekly compensation.
[2] [2023] NSWPICPD 6.
On 6 April 2023, the Member issued a subsequent Certificate of Determination confirming the orders made on 21 April 2022 and determining the respondent’s PIAWE, ordering the payment of weekly compensation pursuant to ss 36 and 37 of the 1987 Act for a closed period.
The appellant then filed its second appeal against both decisions of the Member dated 21 April 2022 and 6 April 2023. It is this second appeal that I am determining.

ON THE PAPERS

The appellant has requested an oral hearing in this appeal. This request is advanced on two grounds. Firstly, it is said to be necessary as a transcript of the proceedings of 9 March 2023 was not available. Secondly, there is a broad assertion that as a result of the grounds advanced, an oral hearing is required.
There is no merit in the first ground. The proceedings on 9 March 2023 was not a hearing, it was a preliminary conference. The purpose of such a conference is to attempt to resolve the dispute by agreement. If this cannot be achieved, sometimes directions for the preparation of the matter for hearing may be made. Such events are not transcribed unless requested by the parties and no such request was made by the appellant. Nor has the appellant identified any matter or occurrence said to have taken place at the conference that is in any way germane to the appeal.
There is no merit in the second ground advanced. The grounds of this appeal do not raise any difficult or novel points of law.
The appeal however is not compliant with the Procedural Direction WC 3 – Presidential appeals and questions of law, which governs the approach to appeals in the Commission. Later in this decision in the section entitled “Principles on Appeal” I refer to this issue before determining that I am satisfied that the appeal submissions contain sufficient detail to enable me to determine the essential arguments being pursued by the appellant.
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.”
Having regard to these legislative provisions, Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties, 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.
I therefore decline the appellant’s request for an oral hearing of this appeal.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The respondent provided a statement dated 19 October 2021 in support of her application.[3] The statement describes the circumstances of the injury. Whilst the appellant denied the fact of injury both in its s 78 notice[4] and in its submissions, the Member found that injury was established. There is no challenge to that finding on appeal so the respondent’s version of the event on 10 September 2020 has been established. The respondent’s evidence was summarised by the Member in his decision of 21 April 2022 commencing at paragraph [21]. I do not repeat those passages other than to say that the respondent described both the circumstances of injury, her medical treatment and her ongoing pain.
[3] ARD, p 1.
[4] ARD, p 3.
The respondent has come under the care of her general practitioner, Dr Theocharous. In a report dated 13 August 2021, the doctor provided a clinical diagnosis of a soft tissue injury to the wrist.[5] The doctor considered the respondent was able to engage in pre-injury duties but could not manage babies due to the possible risks associated with her wrist giving way. At this time, Dr Theocharous certified the respondent as fit to work 40 hours per week with a 5kg lifting restriction and minimal pushing/pulling with the right arm.[6] By 1 December 2021, the respondent’s capacity improved, allowing her to lift up to 8kg and push/pull up to 10kg.[7]
[5] ARD, p 20.
[6] ARD, p 22.
[7] ARD, p 25.
In disputing liability for the respondent’s claim, the appellant relied on the independent medical opinion of Dr Anthony Smith, orthopaedic surgeon. In an initial report of 24 February 2021[8], Dr Smith noted that the respondent was still working and experienced an overall improvement in her condition, notwithstanding some restriction and pain. Dr Smith opined “on the balance of probabilities” that the respondent was suffering from minimal early right wrist joint osteoarthritis, which was an uncommon inherited familial condition, aggravated by the work incident. This however required further investigation, by way of a bone scan. Dr Smith considered that employment was not a “substantial contributing factor” to the osteoarthritis but was a “major contributing factor” to its aggravation. In terms of capacity, the doctor found the respondent to be fit for work with a wrist splint but “may be advised to avoid particular activities”.
[8] Reply to ARD (reply), p 8.
In a supplementary report dated 19 March 2021,[9] Dr Smith responded to specific questions put to him by the appellant. The doctor confirmed an initial aggravation at work which would have ceased after a “matter of hours, a day or two or three at the most”, but would have been reactivated by engaging in various activities, thus constituting “a continuum of symptomology”. Whilst there were no on-going symptoms from the incident on 10 September 2020, the respondent would continue to suffer re-aggravations. Again, Dr Smith maintained that the respondent was able to work full-time, and her exacerbations would lessen if wearing a splint, but there was “no real restriction one would place on her”.
[9] Reply, p 5.
There is a single brief report in evidence from the respondent’s hand surgeon, Dr David Yee, following the opinion of Dr Smith, dated 20 April 2021.[10] Dr Yee agreed with a diagnosis of arthritis and confirmed that the respondent required a bone scan. The respondent was discharged from his care.
[10] Application to Admit Late Documents (AALD), 14 March 2022, p 1.
Dr Christopher Oates, consultant occupational physician, prepared an independent medical report for the respondent. In an initial report dated 1 October 2021,[11] Dr Oates took an extensive history of the respondent undergoing treatment by way of anti-inflammatories, physiotherapy, and use of a wrist brace. The doctor recorded a 2019 wrist injury which the respondent had recovered from.
[11] ARD, p 12.
At the time of examination, the respondent reported being “very keen” to return to work and having seen significant improvement to her wrist, but her pain had not completely subsided.
Dr Oates believed the respondent had suffered a hyperflexion injury occurring on 10 September 2020 which had not recovered. The doctor diagnosed the respondent with a soft tissue injury to the right wrist with MRI evidence of extensor carpi ulnaris strain and non-specific swelling at the distal radioulnar joint resulting from inflammatory synovitis (not arthritis).
Dr Oates did not agree with Dr Smith’s opinion of an aggravation of pre-existing osteoarthritis, finding there to be no convincing radiological evidence of same. Dr Oates also rejected Dr Smith’s “hypothesis” that any work-related aggravation would have ceased within days, or that on-going symptoms were due to constitutional arthritis. Dr Oates assessed the respondent as being fit for full-time usual duties with the use of a wrist brace, however, she should avoid frequent picking up and carrying of children until the wrist had recovered.
In a supplementary report dated 4 March 2022,[12] Dr Oates clarified that inflammatory synovitis was a “remote or delayed” effect of the incident of 10 September 2020, noting that it was not present in an early MRI scan of 6 October 2020 but was present in an ultrasound 12 months following injury. This was likely a result of chronic mechanical irritation to the wrist joint. Based on this, Dr Oates considered “inflammatory synovitis to be a direct result of the incident”. The doctor also confirmed that the prior 2019 injury resolved.
[12] AALD dated 15 March 2022, p 1.
By way of evidence as to her earnings, the respondent relied on a pay slip dated 3 February 2022, filed in an Application to Admit Late Documents (AALD) dated 23 March 2022 in response to a direction made by the Member.[13] Utilising the payslip, the respondent submitted that her PIAWE was $1,350.00, based on an hourly rate of $35.57. Notwithstanding the direction issued by the Member and encouragement by the respondent,[14] the appellant did not file any wage records to assist in the calculation of PIAWE and instead addressed this issue by way of written submissions. In written submissions dated 30 March 2022 at [20], the appellant says as follows:
“… the [appellant] notes that the [respondent’s] total gross earnings in the period from the 1^st of July 2021 to the 30^th of January 2022 was $27,262.31 which is an average of $879.00 per week. The [appellant] submits that on any view of the available medical evidence the [respondent] would clearly be capable of earning substantially in excess of that amount in suitable employment so that the [respondent] would have no entitlement to weekly compensation in any event”.
[13] AALD dated 23 March 2022, p 1.
[14] Respondent’s written submissions dated 24 March 2022, [53]–[55].
In further submissions filed by the respondent on 12 May 2022 (in accordance with directions made in the initial certificate of determination dated 21 April 2022 for the filing of a wages schedule), the respondent maintained reliance on the payslip for the calculation of PIAWE, which was then clarified to be $1,351.66 (based on an hourly rate of $35.37 over a 76 hour fortnight). Alternatively, the respondent sought to rely on income tax statements, noting that again, the respondent had failed to respond to the direction issued by the Member to file wage material. These submissions and tax statements were admitted into evidence.
The appellant filed further submissions on earnings on 30 March 2023, in which it stated: “in the absence of proper evidence having been filed in accordance with the Rules and Practice Directions of the Commission any claim for weekly compensation should fail”, or in the alternative, any determination of weekly compensation should be based upon a “Wage Schedule” attached to those submissions which stipulated a PIAWE of $1,215.00 per week and the ability to earn “at least” $1,600.00 per week. No wage records were annexed by the appellant to support these asserted weekly rates.

THE MEMBER’S REASONS

The appellant challenges both of the Member’s decisions. The first decision is dated 21April 2022, the second is dated 6April 2023. It is therefore necessary to deal with both.

Certificate of Determination dated 21 April 2022

The Certificate of Determination issued 21 April 2022 provided a background of the injury and proceedings. The Member identified the following issues for determination:
(a)    Whether the respondent sustained injury arising out of or in the course of her employment pursuant to s 4(a) of the 1987 Act.
(b) If the answer to (a) is in the affirmative, whether the respondent’s employment with the appellant was a substantial contributing factor to the workplace injury pursuant to s 9A of the 1987 Act.
(c)    If the answers to (a) and (b) are in the affirmative, whether (and if so, to what extent) the respondent has been incapacitated for work as a result of the workplace injury, since 5 August 2021.
(d)    If the respondent has been incapacitated for work as a result of the workplace injury since 5 August 2021, what is the correct calculation of her pre-injury average weekly earnings (PIAWE).
(e) If the answers to (a) and (b) are in the affirmative, whether the respondent is entitled to reasonably necessary medical and other expenses pursuant to s 60 of the 1987 Act since 13 April 2021.[15]
[15] Comlekci v Fairfield City Council [2022] NSWPIC 175 (reasons dated 21 April 2022), [1]–[5].
The Member addressed the various AALDs filed by the respondent. The respondent had filed an AALD on 15 March 2022, which included a supplementary report from Dr Oates and a letter from the appellant dated 7 February 2022. The appellant objected to the late documents, and the Member outlined his reasoning for admitting the 7 February 2022 letter but not the supplementary report. In his reasoning, the Member noted he admitted the letter as it was created by the appellant, he found no prejudice in admitting it and it was in the interests of justice to do so. However, he did find prejudice to the appellant in admitting the supplementary report as the appellant had not had time to obtain medical evidence in response to the report. Further, the respondent had an opportunity to obtain the report prior to lodging the ARD and no explanation was provided as to why it had not done so.[16]
[16] Reasons dated 21 April 2022, [6]–[9].
The respondent emailed documents to the Commission on 22 March 2022, being the respondent’s ATO 2022 income statement, ATO income statements from 2021, 2020 and 2019 and a payslip dated 3 February 2022. The Member outlined his reasoning for admitting the 2022 income statement and payslip but refused to admit the other documents. The appellant had not objected to the admission of the 2022 ATO income statement, however it had objected to the income statements for 2021, 2020 and 2019 and the 3 February 2022 payslip. The Member found no prejudice to the appellant in admitting the payslip as it was created by the appellant and it was in the interests of justice to do so. The Member did not admit the income statements from 2021, 2020 and 2019 and explained that he found prejudice to the appellant as it had not had a proper chance to consider and investigate the documents. Further, the respondent had not indicated they would be relied on in the proceedings and had failed to include them in the ARD without explanation. The Member ordered the respondent to file an AALD attaching only the 2022 income statements and the payslip, which was done on 23 March 2022. In coming to his decision to admit the documents, the Member considered the six matters referred to at cl 28 of Procedural Direction PIC4, as well as r 69 of the Personal Injury Commission Rules 2021 (the Rules).[17]
[17] Reasons dated 21 April 2022, [10]–[12].
The respondent had sought orders that the appellant produce a report from Dr Price and material the appellant used to calculate the respondent’s PIAWE. In refusing to make the orders, the Member explained that the respondent, although aware of Dr Price’s report and the relevance of the PIAWE material, had not issued any directions for production for them. The respondent also sought that the calculation of the respondent’s PIAWE be deferred. The Member explained that this was refused as in his opinion, it was not within the objects of the Commission to facilitate the just, quick and cost-effective resolution of the dispute.[18]
[18] Reasons dated 21 April 2022, [13]–[18].

The Member then considered the evidence, which has been canvassed at [15]–[27] above.
The Member accepted the respondent’s submission that the evidence in her statement should be accepted as there is no evidence to the contrary. He accepted the respondent’s submission that the appellant was not willing to provide the respondent with work since 5 August 2021, referring to the letters from the appellant to the respondent. He found he had sufficient evidence to draw an inference that the appellant has a report from Dr Price stating the respondent is unfit to return to pre-injury duties.[19]
[19] Reasons dated 21 April 2022, [65]–[66].
The Member referred to Dr Theocharous’ notes and found that the respondent first consulted him about the right wrist on 10 September 2020 and x-rays were taken on that date.[20]
[20] Reasons dated 21 April 2022, [26], [28].
Regarding the appellant’s submission that Dr Oates only saw the respondent after “some flair [sic] up of her condition on 2 August 2021 when she was unable to complete a task involving chopping up food”, the Member found the evidence in the respondent’s statement and the history provided to Dr Oates suggests she did not attempt to chop up food on that date, having advised the appellant she was unable to, therefore the Member did not intend to deal with this submission.[21]
[21] Reasons dated 21 April 2022, [77].
The Member then turned to his findings and reasons. He first addressed the issue of whether the respondent sustained a workplace injury arising out of or in the course of her employment pursuant to s 4 of the 1987 Act. In his consideration, he canvassed the definition of ‘injury’ pursuant to s 4 and the review of authorities concerning the issue of injury in Castro v State Transit Authority (NSW).[22] He noted Castro makes clear that what is needed to establish “injury” is a “sudden or identifiable pathological change”, and a temporary physiological change in the body’s functioning does not constitute an injury. The Member considered Deputy President Roche’s statements in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear,[23] which he said is consistent with Castro.
[22] [2000] NSWCC 12; 19 NSWCCR 496 (Castro).
[23] [2014] NSWWCCPD 47.
The Member rejected the appellant’s submission that he cannot be satisfied the respondent sustained a personal injury on 10 September 2020, noting Dr Theocharous found reduced movements associated with tenderness and palpation in all directions in his examination prior to ordering x-rays on 10 September 2020.[24]
[24] Reasons dated 21 April 2022, [81]–[84].
The Member said that having regard to Dr Oates’ diagnosis, he was satisfied the respondent suffered an injury to her right wrist arising out of or in the course of her employment on 10 September 2020. In coming to this finding, the Member referred to Roche DP’s statement in Galluzzo v Commonwealth Bank of Australia,[25] which applied the definition of personal injury as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. He found that, contrary to the appellant’s submission, there does not need to be radiological change for an injury within the meaning of s 4 to occur. The Member accepted the respondent’s complaints as to what occurred on 10 September 2020, which he says made clear there was a physiological change or disturbance to her wrist. He said this finding was consistent with the reports of Dr Smith, although he rejected his findings regarding the underlying pathology, being an asymptomatic arthritic condition. He said Dr Smith’s description of what occurred on 10 September 2020 and the effect was consistent with physiological change or a disturbance to the respondent’s wrist.[26]
[25] [2014] NSWWCCPD 82, [31], citing Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45.
[26] Reasons dated 21 April 2022, [85]–[87].
Having determined the respondent suffered an injury pursuant to s 4, the Member then considered whether employment with the appellant was a substantial contributing factor to the workplace injury pursuant to s 9A of the 1987 Act. The Member found he was satisfied employment with the appellant was a substantial contributing factor to the injury. In coming to this decision, the Member considered s 9A and the example of matters to be taken into account provided in subs (2) of s 9A. The Member noted that, consistent with Dayton v Coles Supermarkets Pty Ltd,[27] this issue is a question of fact and is a matter of impression and degree to be decided after a consideration of all the evidence.[28]
[27] [2001] NSWCA 153, [29].
[28] Reasons dated 21 April 2022, [88]–[90].
Regarding the evidence, the Member accepted the opinions of Dr Oates and Dr Theocharous. He noted that Dr Smith, who opined the respondent suffered an aggravation of her osteoarthritic disease, also said that the respondent’s employment on the date of injury was a major contributing factor to that aggravation.[29] The Member found there is no evidence to suggest an injury during the respondent’s teenage years, as alleged by the appellant, was causing any symptoms as at 10 September 2020. Further, the respondent stated that she made a complete recovery from the injury that occurred on 25 October 2019 and the Member found there was no evidence to suggest otherwise.[30]
[29] Reasons dated 21 April 2022, [92]–[94].
[30] Reasons dated 21 April 2022, [95]–[100].
In rejecting the appellant’s submission that respondent has an arthritic condition, the Member preferred the evidence of Dr Oates, who found no significant arthritis and who had access to the 27 September 2021 ultrasound results when he said the findings were indicative of inflammation and not arthritis. Dr Smith did not have access to these results when he prepared his reports, placing him in a less advantageous position, and the Member found Dr Smith’s opinion that the respondent has an arthritic condition was speculative. In coming to his determination, the Member also did not place much weight on Dr Yee’s opinion considering the brevity of the report and request for further investigations, noting Dr Yee only provided one report following a ‘review’, despite seeing the respondent on three occasions.[31]
[31] Reasons dated 21 April 2022, [99]–[100].
The Member placed significant weight on the opinion of Dr Theocharous, noting the respondent had been attending his clinic since 1992. The Member said in this context, the doctor’s comment about employment being the “sole contributing factor to the injury” (rather than any arthritis condition, the 25 October 2019 injury, or any childhood injury) carries weight.[32]
[32] Reasons dated 21 April 2022, [101].
Having found that employment with the appellant was a substantial contributing factor to the respondent’s injury, the Member then considered whether, and to what extent, the respondent has been incapacitated for work as a result of the injury since 5 August 2021.
The Member ultimately found that since 5 August 2021, the respondent has not been fit for her pre-injury employment. In coming to his decision, the Member considered the reports of both Dr Oates and Dr Theocharous, who were of the view that the respondent was fit for full time employment with restrictions, including a wrist brace and not working in an area where she would be required to lift babies frequently. Both doctors were concerned that the respondent may drop babies or young children, and the risk of injury would also be to the respondent’s right wrist if it were to give way. The Member considered it highly relevant that the appellant itself does not consider the respondent to be fit for full-time employment, referring to the letters to the respondent dated 31 August 2021, 16 December 2021 and 28 February 2022. The Member placed considerable weight on these letters and noted that faced with the medical certificates of Dr Theocharous, it arranged for the respondent to be examined by Dr Price.[33] Following this, the appellant provided the 7 February 2022 letter to the respondent that recorded “you are deemed unfit to safely return to pre-injury duties without restrictions, in your position as a Child Care Worker”.[34]
[33] Reasons dated 21 April 2022, [103]–[109].
[34] Reasons dated 21 April 2022, [107].
The Member then considered whether the respondent had current work capacity between 5 August 2021 and 28 February 2022. The Member rejected both parties’ submissions on this point and referred to cl 9(1) of Sch 3 to the 1987 Act, noting that he already found the respondent was not yet able to return to her pre-injury employment. Therefore, he was required to consider whether the respondent was able to return to work in a suitable employment during the time claimed. In coming to a decision in this regard, he referred to s 32A of the 1987 Act and noted that neither party had provided much assistance to the Commission to make a finding. However, the Member noted that of the matters referred to in s 32A, there were medical certificates from Dr Theocharous covering the period between 10 August 2021 and 28 February 2022, which were consistent with the opinion of Dr Oates that the respondent was fit for full-time work with lifting and carrying restrictions. The Member ultimately determined the respondent’s suitable employment between 5 August 2021 and 28 February 2022 was employment which complied with the restrictions referred to in the certificates from Dr Theocharous.[35]
[35] Reasons dated 21 April 2022, [110]–[118].
As a result of this finding, the Member was required to make a finding as to what the respondent would be able to earn in suitable employment. He ultimately determined that the respondent would be able to earn the full-time minimum wage (set pursuant to Pt 2-6 of the Fair Work Act 2009 (Cth)), which as at 1 July 2021 was $772.60 per week. In coming to this decision, he noted the lack of assistance by both parties as to what the respondent could earn in employment that complies with the restrictions. The Member also found the respondent was fit for full-time work but at the most basic level having regard to the restrictions placed upon her earning capacity by Dr Theocharous.[36]
[36] Reasons dated 21 April 2022, [119]–[120].
The Member then considered the respondent’s PIAWE. The respondent asserted that her PIAWE is $1,350.00, whilst the appellant asserted that the PIAWE is $878.00. The Member found that there was no reliable documentary evidence to allow him to correctly calculate the respondent’s PIAWE. He considered the respondent’s 2022 income statement was unreliable because it was clear that during the period between 1 July 2021 to 30 January 2022, the respondent had periods when she was not paid and the payslip represented post-injury earnings rather than pre-injury earnings. The Member referred to r 68 of the Rules and found he was not in a position to calculate the respondent’s PIAWE and her entitlements. He made the following orders:
“(a)    The [appellant] is to file and serve a wage schedule and copies of the [respondent’s] payslips and wage records for the period between 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the [respondent’s] PIAWE) by 6 May 2022.
(b)     The [respondent] is to file and serve a wage schedule by 13 May 2022.
(c)     The [respondent] is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
(d)     The [appellant] is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
(e)     Any submissions in reply are to be filed and served by 25 May 2022.[37]
[37] Reasons dated 21 April 2022, [121]–[128].
Regarding s 60 expenses, the Member found the respondent was entitled to have her reasonably necessary medical expenses pursuant to s 60 of the 1987 Act paid and agreed to make a general order in relation to her past expenses. In relation to her proposed future treatment, the Member found a dynamic ultrasound scan and a bone scan with SPECT was reasonably necessary treatment, referring to the recommendation by Dr Oates. However, regarding the ultrasound, the Member found it was not clear from Dr Oates’ report whether the ultrasound undertaken complied with his recommendation for a dynamic ultrasound scan. Therefore, he did not make a specific order in relation to this ultrasound.[38]
[38] Reasons dated 21 April 2022, [130]–[132].
The Member then summarised his findings and concluded that once submissions had been supplied, he would determine the balance of the dispute “on the papers”.[39]
[39] Reasons dated 21 April 2022, [133]–[140].
The Certificate of Determination issued on 21 April 2023 records:
“The Commission determines:
1.     The [respondent] sustained a personal injury arising out of or in the course of her employment with the [appellant].
2.     The [respondent’s] employment with the [appellant] was a substantial contributing factor to the personal injury.
3.     The [respondent] was incapacitated for work as a result of the personal injury between 5 August 2021 and 28 February 2022.
4.     The [respondent] was able to earn $772.60 per week in suitable employment between 5 August 2021 and 28 February 2022.
5. The [respondent] requires medical treatment, and the [appellant] is liable to pay reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act).
The Commission orders:
6. The [appellant] to pay the [respondent’s] reasonably necessary medical expenses pursuant to section 60 of the 1987 Act, including the cost of a bone scan with SPECT in accordance with the recommendation in Dr Oates’ report dated 1 October 2021.
7.     The [appellant] is to file and serve a wage schedule and copies of the [respondent’s] payslips and wage records for the period 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the [respondent’s] PIAWE) by 6 May 2022.
8.     The [respondent] is to file and serve a wage schedule by 13 May 2022.
9.     The [respondent] is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
10.   The [appellant] is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
11.   Any submissions in reply are to be filed and served by 25 May 2022.
12.    At the conclusion of the time allowed for submissions the balance of the dispute will be determined ‘on the papers’.”

Certificate of Determination dated 6 April 2023

The Certificate of Determination dated 6 April 2023 again provides a brief history of the matter, including an overview of the injury, and the proceedings and findings made to date. It details the appellant’s previous application to appeal, where Wood DP refused leave and referred the dispute back to the Member for determination of the remaining issues in dispute.
The Member referred to a preliminary conference before him on 9 March 2023, at which it was noted that the respondent had complied with orders 8 and 9 made on 21 April 2022 however, the appellant had failed to comply with orders 7 and 10. He noted the following further orders made at the preliminary conference:
“1.     On or before 10 March 2023, the [respondent] is to provide the [appellant] with her submissions dated 12 May 2022 previously lodged with the Commission (including the wages schedule and other attachments to those submissions).
2.      On or before 24 March 2023, the [appellant] is to provide the [respondent] with and lodge with the Commission its response to the 12 May 2022 submissions (including any wages schedule in reply, all relevant pay records of the [respondent] in the 12 months prior to her injury, and a list of compensation payments made so far to the [respondent].
3.      All the documentation and the wage schedules served and lodged in accordance with orders 1 and 2, will be admitted into evidence unless either party approaches the Commission for liberty to apply, before 31 March 2023.
4.      The balance of the dispute will then be determined ‘on the papers’ after 31 March 2023.”
The Member noted that following these orders, on 30 March 2023, the appellant lodged submissions and a wages schedule, although this did not include any attached document as requested in the orders. The respondent advised the Member she did not wish to make further submissions.
The Member identified the issues for determination, being the respondent’s PIAWE and whether the respondent had received any payments from the appellant prior to 5 August 2021 pursuant to s 46 of the 1987 Act.
The Member outlined the evidence considered in making his determination, noting the additional evidence admitted, including six pages of attachments to the respondent’s submissions lodged 12 May 2022, which consisted of ATO income statements for the financial years ending 2020, 2021 and 2022, the respondent’s wages schedule lodged 12 May 2022 and the appellant’s wages schedule lodged 30 March 2023.
The appellant had objected to the admission of the attachments to the respondent’s 12 May 2022 submissions, pointing out that these should have been included in the ARD in accordance with r 68 of the Rules. However, the Member outlined his view that the orders made on 21 April 2022 were appropriate as he required extra information to determine the respondent’s PIAWE. The orders were appropriate pursuant to s 43(2) of the 2020 Act and r 74(c) of the Rules. The Member did not consider the orders compromised the objects of the 2020 Act, being the just, quick and cost-effective resolution of the real issues in the proceedings. Rather, they reflected those objects as they allowed procedural fairness to both parties to provide additional documentation to assist the Commission.[40]
[40] Comlekci v Fairfield City Council [2023] NSWPIC 147 (reasons dated 6 April 2023), [16]–[21].
The Member outlined his use of discretion to admit the income statements pursuant to r 67(4) of the Rules. He considered that as the respondent had sought to obtain the appellant’s consent to admit the documents, the appellant had time to consider the income statements and if necessary, obtain further evidence. The appellant was also advised at the preliminary conference on 30 March 2023 that the Member intended to admit the documents. Further, the income statements record the payments made by the appellant and the appellant had made no submissions that they were incorrect. The Member concluded that it was in the interests of justice that they be admitted as they were the only documentation provided by either party to assist in determining the respondent’s PIAWE.[41]
[41] Reasons dated 6 April 2023, [23]–[25].
In further support, the Member also referred to Procedural Direction PIC3, cl 28. In considering the matters raised in that clause, the Member concluded that it was in the interests of justice to admit the income statements, the appellant was not significantly prejudiced by their admission, he would be unable to determine the respondent’s PIAWE without them, their admission is in accordance with s 42 of the 2020 Act, and the respondent’s failure to lodge the documents in the ARD should not result in their exclusion, particularly as r 67(4) allows the Member to admit them in the interests of justice.[42]
[42] Reasons dated 6 April 2023, [26].
The Member then turned to the evidence. He did not repeat the evidence summarised in the 21 April 2022 Certificate of Determination, but noted the respondent’s evidence, being the wages schedule used by the respondent to support her PIAWE being $1,351.66 and the income statements which show she earned $67,836.52 gross between 1 July 2019 and 29 June 2020 and $70,173.46 gross between 1 July 2020 and 28 June 2021. He also noted the appellant’s evidence, being the wages schedule, which alleged the PIAWE to be $1,215.[43]
[43] Reasons dated 6 April 2023, [27]–[30].

The Member then considered the parties’ submissions lodged after his determination of 21 April 2022. The respondent asked the Member to draw an inference that the appellant has no evidence that would assist the defence, given it had not complied with order 7 in the 21 April 2022 COD. To this, the Member found he did not need to draw this inference, however he did find it surprising the appellant did not provide any of these easily obtainable payment records despite being ordered to do so by the Commission.[44] The Member considered the respondent’s other submissions, including those referencing income statements from the 2020 and 2021 financial years. The respondent submitted that in the 2021 financial year, the respondent’s average weekly wage was $1,349.49, however the Member found this to be of little probative value as it referred to her post-injury earnings. The respondent alternatively submitted that the Member could undertake a pro-rata approach to the calculation of PIAWE.[45]
[44] Reasons dated 6 April 2023, [31]–[33].
[45] Reasons dated 6 April 2023, [34]–[35].
The appellant submitted that the income statement should not be admitted into evidence. The Member rejected this for the reasons noted above in [54]–[59]. The appellant also submitted that the claim for weekly compensation should fail in the absence of proper evidence filed in accordance with the Rules and Practice Directions. In the alternative, the appellant submitted compensation should be determined in accordance with a PIAWE of $1,215, to which the Member noted the appellant had provided no evidence to support this calculation.[46]
[46] Reasons dated 6 April 2023, [36]–[37].
After considering the evidence and the parties’ submissions, the Member turned to his findings and reasons.
The Member found that to determine the respondent’s weekly compensation entitlements between 5 August 2021 and 28 February 2022, he needed to calculate the respondent’s PIAWE and compare it with her current weekly earnings as found in the 21 April 2022 certificate of determination.[47]
[47] Reasons dated 6 April 2023, [38].
After referring to cl 2 to Sch 3 of the 1987 Act, the Member considered that he was required to determine the respondent’s earnings between 13 September 2019 and 10 September 2020 and accepted that he could use the pro rata approach suggested by the respondent. The Member used the respondent’s average earnings during the 2020 financial year to calculate her earnings between 13 September 2019 and 30 June 2020 and the respondent’s average earnings for the 2021 financial year to calculate her earnings between 1 July 2020 and 10 September 2020. He noted that this approach was most sensible in the absence of weekly pay records produced by the appellant. The Member therefore calculated the respondent’s PIAWE to be $1,313.44 using the following calculations:
(a)    $67,836.52 (2020 financial year earnings) / 52 weeks x 41.71 weeks (292 days between 13 September 2019 and 30 June 2020) = $54,412.72;
(b)    $70,173.46 (2021 financial year earnings) / 52 weeks x 10.29 weeks (72 days between 1 July 2020 and 10 September 2020) = $13,886.25, and
(c)    $54,412.72 + $13,886.25 = $68,298.97 / 52 weeks = $1,313.44 per week.[48]
[48] Reasons dated 6 April 2023, [39]–[45].
In relation to payments pursuant to s 36 of the 1987 Act, the Member noted the appellant did not provide a list of compensation payments made to the respondent and Mr Macken (solicitor for the appellant) was unable to assist when asked by the Member during the preliminary conference. Following the preliminary conference, order 2 requiring a list of payments was not complied with by the appellant. The Member inferred from this failure to provide a list of payments that the appellant had not made any s 36 payments to the respondent. Both parties were granted liberty to apply if some payments were made in this regard.[49]
[49] Reasons dated 6 April 2023, [46]–[47].
The Member then concluded that the respondent’s PIAWE was $1,313.44 and in accordance with his 21 April 2022 decision, the respondent was entitled to s 36 and s 37 payments. He provided the relevant time periods and the payments to be made to the respondent on the basis that no s 36 payments had been made, granting liberty to either party to apply within 28 days if s 36 payments had been made.
The Certificate of Determination issued on 6 April 2023 records:
“The Commission determines:
1.      The determinations made in the 20 [sic, 21] April 2022 certificate of determination are confirmed.
2.      The [respondent’s] pre-injury average weekly earnings is determined to be $1,313.44.
The Commission orders:
3. The [appellant] is to pay the [respondent] $475.17 per week pursuant to s 36(2) of the Workers Compensation Act 1987 (the Act) for the period between 5 August 2021 and 3 November 2021.
4.      The [appellant] is to pay the [respondent] $278.15 per week pursuant to s 37(3) of the Act for the period between 4 November 2021 and 28 February 2022.
5.      Liberty is granted to either party to apply within 28 days should the [respondent] have received any payments pursuant to s 36 of the Act prior to 5 August 2021.”

GROUNDS OF APPEAL

The appellant relies upon four grounds of appeal. They are as follows.
GROUND A – Error of law in determining the matter on a basis not put by or to the parties.
GROUND B – Error of fact regarding current work capacity and regarding ability to earn.
GROUND C – Denial of procedural fairness.
GROUND D – Error of discretion regarding evidence admitted.

PRINCIPLES ON APPEAL

The principles associated with appeals under s 352(5) of the 1998 Act are well settled. For an appellant to succeed, error must be identified in a meaningful way and then established. The leading case, which I will merely note rather than referring to in detail, is Raulston v Toll Pty Ltd.[50]
[50] [2011] NSWWCCPD 25 (Raulston), [19].
In addition, I would make the following remarks about how appeals are dealt with given the manner in which the appellant has pursued this matter. The practice and procedure for appeals is governed by Procedural Direction WC3 (PD WC3). Pausing here, Procedural Directions are made pursuant to the power found in s 21 of the 2020 Act. Parties to proceedings, their representatives and agents are obliged to comply with them.[51] In this appeal, PD WC3, in terms of Grounds A and D in particular, has not been complied with in a proper or meaningful way. There are aspects of non-compliance in the other two grounds as well.
[51] Section 21(4)(d) of the 2020 Act.
In Kowalski v Repatriation Commission,[52] the Full Federal Court said this about appeals and these are remarks which are directly relevant to the manner in which the appellant has approached this appeal:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage, or even worse, just judgment paragraph number what the error might be.”[53]
[52] [2011] FCAFC 43 (Kowalski).
[53] Kowalski, [21].
The ARD was filed in this matter on 21 December 2021. The Member published an interlocutory decision, as I have set out above, on 21 April 2022 which the appellant appealed. Leave to appeal was not granted and the appeal was dismissed on 8 February 2023. The matter was remitted to the Member who published his final decision on 6 April 2023. Both decisions of the Member are now the subject of this appeal, which will be the fourth decision of the Commission in dealing with this dispute.
I have considered whether to direct the appellant to file amended submissions which comply with the requirements I have described (above). In light of the history of this matter, including the appellant’s non-compliance with orders made by the Member, and by reference to the Commission’s statutory mandate,[54] I will proceed to determine this appeal, notwithstanding its deficiencies. Doing the best I can, I am satisfied that there is enough in the appellant’s submissions for me to understand and rule on the essential arguments being advanced. Section 43(3) of the 2020 Act dictates that “[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” and that is what I propose to do. It is high time that this dispute was brought to an end.
[54] Section 3(c) of the 2020 Act.

LEGISLATION

Section 3 of the 2020 Act sets out the objects of the Act as follows:
“3      Objects of Act
The objects of this Act are as follows—
(a)     to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose,
(b)     to ensure the Commission—
(i) is accessible, professional and responsive to the needs of all of its users, and
(ii) is open and transparent about its processes, and
(iii) encourages early dispute resolution,
(c)     to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d)     to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e)     to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f)      to ensure that the Commission—
(i) publicises and disseminates information concerning its processes, and
(ii) establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g)     to make appropriate use of the knowledge and experience of members and other decision-makers.”
Section 42 of the 2020 Act provides:
“42    Guiding principle to be applied to practice and procedure
(1)     The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a) exercises any power given to it by this Act or the Commission rules, or
(b) interprets any provision of this Act or the Commission rules.
(3)     Each of the following persons is under a duty to co-operate with the Commission to give effect to the guiding principle and, for that purpose, to participate in the processes of the Commission and to comply with directions and orders of the Commission—
(a) a party to proceedings in the Commission,
(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Commission.
(4)     In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5)     However, nothing in this section requires or permits the Commission to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.”

DISCUSSION

As to Ground A – Error of law in determining the matter on a basis not put by or to the parties

The appellant says the following in support of this ground:
“The Appellant submits, with respect, that the reasoning of the Commission Member in the decision of 21 April 2022 includes a number of significant instances where the reasons rely on matters which were not put on behalf of the Worker nor were matters which were raised by the Member to be addressed by the parties.”[55]
[55] Appellants submissions on appeal, 3 May 2023, [8].
The appellant then says that the instances are found in the following paragraphs of the Member’s 21 April 2022 decision: paragraphs [96], [97], [98], [99], [100], [105], [106], [107] and [119].
I have examined these nominated paragraphs. It is very unhelpful to make a broad complaint of error and then simply refer to paragraph numbers in a decision. The alleged error should be identified in a meaningful way and with precision. This is precisely the type of approach that was criticised in Kowalski. Having reviewed the paragraphs, I think that they can be logically placed into three separate categories in terms of the discrete topic being dealt with in each category. Whilst a decision should be read as a whole,[56] in light of the very specific complaint in this ground, namely that the matters traversed by the Member in these paragraphs was not put by or to the parties, I am satisfied that this is a proper manner in which to deal with this ground.
[56] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
The first category is the paragraphs of the Member’s reasons (dated 21 April 2022) from [96] to [100]. In these paragraphs, the Member is dealing with a conflict in the expert medical opinion as to whether the respondent was, at the time of her injury, already suffering from arthritis in her right hand and wrist. The second category encompasses reasons [106] and [107]. These paragraphs deal with the Member’s considerations about the respondent’s fitness to work in her pre-injury calling as a childcare worker. The third and final category relates to reasons [119]. In this category, the Member makes a finding about what the respondent would be expected to earn in suitable employment.

Category One

Category One comprises reasons [96] to [100]. These paragraphs read as follows:
96.    In his report, Dr Oates thoroughly reviews the radiological evidence and finds no significant arthritis present. He had access to the [respondent’s] 27 September 2021 ultrasound results (which Dr Smith did not) and opines that the findings from the ultrasound are indicative of inflammation and not arthritis. He takes a consistent history from the [respondent] and performs a thorough examination of her.
97.    Dr Smith’s opinions are based largely upon his view that the [respondent] had a pre-existing asymptomatic arthritic condition. Relying upon the evidence of Dr Oates, I find this not to be the case. Dr Smith importantly did not have access to the [respondent’s] 27 September 2021 ultrasound results when he prepared his reports. He has not commented upon those results at all.
98.    I find Dr Smith’s opinion regarding the [respondent] having an arthritic condition to be speculative. He acknowledges that such a condition normally occurs bilaterally, and he also acknowledges that it is an uncommon condition (see page 10 of the Reply). He also suggests further investigations.
99.    The [appellant] asks that I prefer Dr Smith’s opinion as he examined the [respondent] prior to Dr Oates. In my opinion, this actually places Dr Smith in a less advantageous position as he did not have access to the [respondent’s] 27 September 2021 ultrasound results.
100. The [appellant] places reliance upon Dr Yee’s opinion in his 20 April 2021 report as referred to at paragraph 64 above. I do not however place much weight upon the opinion in this report considering the brevity of the report and the request in the report for further investigations. I also note that according to Dr Oates, the [respondent] consulted with Dr Yee on three occasions, yet I only have his 20 April 2021 report. Indeed the 20 April 2021 report refers to the report as being following a ‘review’.”
Before the Member, the appellant filed written submissions dated 30 March 2022. In these submissions the following appears.
“9. In addition, it should be noted that there is evidence suggesting that the [respondent’s] right wrist condition is arthritic in nature. This view is clearly expressed by the orthopaedic surgeon Dr Smith (Reply, page 10) and is also indicated by the treating hand and wrist surgeon Dr Yee (Respondent’s Application to Admit Late Documents, page 1).
…
13. While Dr Oates seeks to contradict the view of Dr Smith in this regard, he does this solely on the basis that ‘there is no evidence that this arthritic condition is present’ (ARD, page 18). It should be noted however that this is inconsistent with the views of Dr Smith and also with the views expressed by the treating hand surgeon Dr Yee.”
In reply, the respondent says that the Member’s findings were open to him and that there is no direct challenge to them on appeal. The respondent too made submissions on the conflict between the evidence of Drs Smith and Oates.[57]
[57] Respondent’s submissions before the Member, 24 March 2022, [29]–[31], [37]–[38].
In this category the appellant makes a direct claim that the Member’s findings were effectively made absent any contribution from the parties and without their awareness. The appellant’s submission in this category is without merit. A cursory review of the appellant’s submissions to the Member, in particular paragraphs [9] and [13] that I have set out in full above, shows that the entire issue about whether the respondent’s right-hand and wrist was arthritic pre-injury was a live issue before the Member. Indeed, it was the appellant itself who directed the Member’s attention to this controversy. It was right and proper that the Member deal with this issue. The respondent also addressed on this issue. It was an issue that the Member had to and did address.
The error asserted with respect to Category One is dismissed.

Category Two

Category Two comprises the paragraphs found at reasons [106] and [107]. These paragraphs read as follows:
“106. It is also in my opinion highly relevant to note that the [appellant] itself does not consider the [respondent] to be fit for full-time employment, without restrictions. I find that to be the clear effect of its letters to the [respondent] dated 31 August 2021, 16 December 2021, and 7 February 2022. I do not accept the submission of the [respondent] that it is estopped in these proceedings from arguing otherwise, but I do place considerable weight upon the concerns raised in the letters regarding the [respondent’s] ability to safely perform the inherent requirements of the work.
107. In my opinion, the [appellant] is in the best position to understand what those requirements are, and faced with the medical certificates from Dr Theocharous in relation to the [respondent’s] restrictions, it arranged the [respondent] to be examined by Dr Price. While I do not have Dr Price’s report before me, I do accept the summary of the report that the [appellant] provided to the [respondent] in the 7 February 2022 letter that ‘you are deemed unfit to safely return to pre-injury duties without restrictions, in your position as a Child Care Worker’.”
The appellant makes no specific submission in relation to these two paragraphs other than the broad complaint that the Member’s reasoning related to matters not put by the parties and it was not intimated to the parties by the Member. The respondent says that the Member is not obliged to provide a running commentary on the evidence and that the findings were both open and are not challenged on appeal.
Reasons [106] and [107] appear in the section of the decision under a subheading which reads: “Whether (and if so, to what extent) the [respondent] has been incapacitated for work as a result of the workplace injury, since 5 August 2021.” This section commences at reasons [103] and concludes at [120] and deals with the respondent’s capacity for work. Both parties addressed the issue of capacity in their written submissions. The appellant specifically addressed this issue in its submissions beneath the heading “Capacity”.[58] The respondent dealt with this issue firstly in her submissions dated 24 March 2022,[59] and in her reply submissions dated 30 March 2022.[60]
[58] Appellant’s submissions before the Member, 30 March 2022, [15]–[20].
[59] See paragraphs [9], [10], [43]–[48], [51].
[60] See paragraphs [5]–[10].

I would further remark that the appellant’s s 78 notice[61] says the following at point 5:
“Further, the current information would suggest that you have a capacity to carry out suitable employment as defined in the legislation. This capacity results in your having an ability to earn as much or more than your pre-injury average weekly earnings, in any event, so that weekly compensation is not payable.”[62]
[61] Notice issued under s 78 of the 1998 Act, 13 April 2021, ARD, p 3.
[62] ARD, p 4.
The respondent’s capacity for work was always a known and notified issue in this case. Starting with the s 78 notice, capacity was an issue. Reasons [106] and [107] deal with the limitations that the appellant itself placed upon the respondent’s work capacity and this is an issue that was specifically referred to, certainly by the respondent worker who made submissions about the appellant’s correspondence.[63]
[63] Respondent’s reply submissions before the Member, 30 March 2022, [10].
The appellant asserts that this was not an issue that was either put to the Member or that the Member raised with the parties. This submission is demonstrably false. Category Two has not been established and is dismissed.

Category Three

Category Three relates to what the appellant alleges is “[t]he most obvious and significant example” of the error alleged in this ground and that relates to reasons [119].
Reasons [119] reads as follows:
“I am required to make a finding as to what the [respondent] would be able to earn in suitable employment. Considering the lack of assistance provided to me by the parties as to what the [respondent] could earn in employment which complies with the restrictions referred to in the certificates from Dr Theocharous, I find that the [respondent] would be able to earn the full-time minimum wage (set pursuant to Part 2-6 of the Fair Work Act 2009 (Cth)), which as at 1 July 2021 was $772.60 per week.”
The appellant complains that “there was no basis at all to consider that the Respondent Worker’s earning capacity should be assessed by reference to the minimum wage. If anything, the Respondent Worker’s earning capacity should have been assessed on this basis by reference to average weekly ordinary time earnings being $1748.40 per week.”[64]
[64] Appellant’s submissions on appeal, 3 May 2023, [10].
The respondent acknowledged the lack of assistance given to the Member by the parties in assessing earnings in suitable employment. The respondent says that notwithstanding this difficulty, the decision-maker’s task was to assess the claim.[65] The respondent also says that the Member cannot be criticised for not using average weekly earnings as the benchmark as the appellant put no submission to that effect.
[65] Citing New South Wales v Moss [2000] NSWCA 133 (Moss).
I accept that the Member did not alert the parties of his intention to use the full-time minimum wage (as referenced in reasons [119]) as his benchmark for what the respondent could earn. But the Member was faced with the respondent submitting that she was totally incapacitated for work and the appellant asserting that the respondent was entitled to no weekly compensation as she was capable of earning in excess of her earnings with the appellant, the premise of such an assertion did not appear to be based on any available expert opinion. Otherwise, the Member was given little or no assistance.
Section 43(2) of the 2020 Act provides as follows:
“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.”
In Moss, referred to by the respondent, the Court of Appeal said:
“The case, then, is not one of which it can be said that there was no evidence of any impairment of capacity to earn. Since there was some evidence of impaired earning capacity, it would have been wrong, on the authorities, for the trier of fact to conclude that damages to compensate for it should only be nil or nominal.”[66]
And:
“… where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”[67]
[66] Moss, [65] per Heydon, JA.
[67] Moss, [87], per Heydon JA.
The parties gave the Member little or no assistance on this issue. I would make the following comments about the argument pursued by the appellant:
(a) There is no complaint by the appellant that the use of the full-time minimum wage was wrong. Rather the complaint is that the appellant was unaware that this measure was being considered and the appellant would have preferred average weekly earnings as being the appropriate measure. The appellant did not make this submission to the Member in terms of average weekly earnings being the appropriate measure. The Member could not have been in error not to refer to a submission that was not made.
(b) There is no reasoned argument advanced by the appellant in this ground as to why average weekly earnings is the better or preferred measure.
The Member’s duty was to hear and determine the dispute presented by the parties consistent with the Commission’s statutory mandate in the 2020 Act, including the objects of the 2020 Act to “resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.”[68] This object sits very comfortably in the context of this matter, the operation of s 43(2) of the 2020 Act and the extract from Moss that I have referred to above. Capacity was always an issue in this application and was one which the appellant specifically addressed in its written submissions.[69] The Member informed himself on this issue by reference to the Fair Work Act measurement for full time minimum wage when faced with a situation much like the one which confronted the Court in Moss. It was the Member’s duty to resolve this aspect of the dispute having heard from the parties on it. The appellant conducted this aspect of its case on the sole basis that the respondent could earn more in suitable employment and thus had no entitlement to weekly compensation. This submission was not supported by any evidence led by the appellant. No alternate proposition was put in the event that this submission did not find favour with the Member. Whilst it might have been preferable for the Member to flag his proposed reliance on the Fair Work Act provision, the appellant had not conducted its defence of the case on this basis.
[68] Section 3(c) of the 2020 Act.
[69] Appellant’s submissions before the Member, 30 March 2022, [15]–[20]. (Paragraph [20] in particular addressed the issue referred to in this category.)
The Member was not in error to deal with the matter in this way having regard to the manner in which the appellant defended this aspect of the case. No error in Category Three has been established.

Conclusion as to Ground A

Ground A fails and is as a result dismissed.

As to Ground B – Error of fact regarding current work capacity and regarding ability to earn

In this ground, the appellant commences with the repetition of its argument from Ground A. Given that I have dismissed Ground A, I do not need to further deal with this submission.
I would also make this remark about this Ground which challenges factual findings. For an appeal to succeed, as I have set out above, error must be established. This process is not a review or rehearing and intervention on appeal does not involve the substitution of factual findings absent the establishment of error.
Ground B is essentially a challenge to the Member’s factual findings with respect to the respondent’s capacity for work. The argument is as follows:
“The Appellant submits further that the finding by the Commission Member that the Respondent Worker lacked capacity was in error in any event. The Commission Member has suggested (paragraph 103 of Statement of Reasons of 21 April 2022) that his finding as to incapacity is consistent with the opinions of Dr Oates and Dr Theocharous however each of those Doctors considered the Respondent Worker to be fit for full time employment with restrictions that did not relate to capacity but rather related solely to the issue of safety. Likewise, the consideration referred to in paragraph 107 of the Statement of Reasons of 21 April 2022 also did not relate to an issue of capacity but rather an issue of the Respondent’s ability to ‘safely return to preinjury duty’. As already said, no submission was made in this respect on the behalf of the Respondent Worker for good reason as consideration[s] as to safety are different to considerations as to capacity.”[70]
[70] Appellant’s submissions on appeal, 3 May 2023, [11].
Later in this submission, the appellant makes a number of remarks about the respondent’s skills, experience and qualifications that in its view suggests an earning capacity higher than found by the Member.[71] In relation to this discrete submission, this argument about the respondent’s skills, experience and qualifications based on the history given to Dr Oates was never put to the Member. It is not an error to fail to deal with a submission that was not put. To the extent that this assertion is deployed to support this ground, it is of no assistance.
[71] Appellant’s submissions on appeal, 3 May 2023, [12].
Ground B specifically references two paragraphs of the Member’s decision, [103] and [107]. They provide as follows:
“103. I have already rejected the evidence of Dr Smith that the [respondent] suffered from an asymptomatic arthritic condition which was aggravated for a maximum of three days by the 10 September 2020 injury. In accordance with the opinions of Drs Oates and Theocharous, I find that the [respondent] is still incapacitated by reason of that injury.
…
107. In my opinion, the [appellant] is in the best position to understand what those requirements are, and faced with the medical certificates from Dr Theocharous in relation to the [respondent’s] restrictions, it arranged for the [respondent] to be examined by Dr Price. While I do not have Dr Price’s report before me, I do accept the summary of the report that the [appellant] provided to the [respondent] in the 7 February 2022 letter that ‘you are deemed unfit to safely return to pre-injury duties without restrictions, in your position as a Child Care Worker’.”
The respondent says, with some merit, that the appellant is aggrieved at the determination itself rather than the reasons provided.[72] The respondent further submits that the findings made by the Member were open to be made on the evidence.
[72] Respondent’s submissions on appeal, 9 May 2023, [57].

Consideration

This ground, in essence, attacks the findings made by the Member on the question of the respondent’s capacity for work based on his construction of the medical evidence. The appellant firstly points to the ultimate finding at paragraph [103] of the reasons dated 21 April 2022. But reasons [103] is but the terminus of the Member’s process of reasoning of the medical case which commences at reasons [91], ending at [101]. In this section of the decision [91] to [101], the Member explains in some detail why he prefers the evidence of Drs Oates and Theocharous to that of Dr Price.
Nowhere in this ground does the appellant in terms point to any aspect of the Member’s construction of the medical evidence at reasons [91] to [101] that is factually wrong or made in error. The error required to substantiate this ground, if it existed, would be in these passages. The most the appellant points to is an argument that the restrictions placed upon the worker relate to risk and not capacity. Dr Oates’s opinion is as follows:
“She is fit for full-time work on her usual duties in the preschool room, provided she protects her right wrist in a brace. Until her right wrist is recovered completely, it is best that she does not work in an area requiring frequent picking up and carrying of babies and young children to reduce the risk of the right wrist giving way and dropping the child.”[73]
Earlier on the same page of his report, Dr Oates recommended more investigations:
“to more fully elucidate the nature of pathology present and responsible for ongoing symptoms …”
[73] ARD, p 18.
Dr Oates clearly records ongoing symptoms and restrictions in the respondent’s work capacity. She is advised to protect her right wrist with a brace and not to engage in certain activity, lest her right wrist give way. I would also note that at reasons [106], and this issue is not subject to challenge on appeal, the Member said:
“It is also in my opinion highly relevant to note that the [appellant] itself does not consider the [respondent] to be fit for full-time employment, without restrictions. I find that to be the clear effect of its letters to the [respondent] dated 31 August 2021, 16 December 2021, and 7 February 2022 … but I do place considerable weight upon the concerns raised in the letters regarding the [respondent’s] ability to safely perform the inherent requirements of her work.”
The evidence records ongoing symptoms and restrictions. Dr Oates fears that the wrist could give way and makes recommendations. Dr Theocharous in his certificates (set out above) also imposed restrictions on the respondent’s work capacity. The appellant itself considers that the respondent cannot perform her role. In light of this evidence, the findings made by the Member were clearly open to be made on the evidence without error. Even the appellant’s Dr Price said the respondent was not fit to return to pre-injury duties without restriction.
No error in terms of the Member’s findings with respect to capacity have been identified.
Ground B is dismissed.

As to Ground C – Denial of procedural fairness

The appellant alleges that it was denied procedural fairness in relation to the orders made by the Member at paragraph [128] of the reasons dated 21 April 2022. The appellant argues that it had no opportunity to be heard in respect of the orders made at [128] before they were made. This ground also curiously refers to a “denial of procedural fairness already relied on in Ground A”.[74] How the matters referred to in Ground A are said to be relevant to this ground is not specified. In any event I have dismissed Ground A and it is not relevant to the consideration of this ground. The appellant complains that an earlier application by the respondent to defer calculation of the respondent’s PIAWE entitlement was rejected[75] and ought not to have been revisited absent hearing from the parties.
[74] Appellant’s submissions on appeal, 3 May 2023, [13].
[75] Referring to reasons dated 21 April 2022, [17].
The respondent says that the direction which is contained in reasons [128] cannot be appealed as it is a matter of practice and procedure. The respondent points to the appellant’s refusal to produce any source documents relating to the respondent’s PIAWE calculation.

Consideration

Before considering this ground, I set out the relevant parts of the Member’s reasons.
“17. Finally, the [respondent] sought that the Commission’s calculation of the [respondent’s] PIAWE be deferred until following the determination by the Commission of the substantive issues in the dispute. This application was refused as, in my opinion at the time, such a deferral was clearly not within the objects of the Commission to facilitate the just, quick, and cost effective resolution of disputes.”
“121. In the ARD, the [respondent] asserts that her PIAWE is $1350.00, whilst in the Reply, the [appellant] asserts that the PIAWE is $878.00.
122. Regrettably, the parties have failed to provide the Commission with any reliable documentary evidence to allow me to accurately calculate the [respondent’s] PIAWE.”
“127. As there are competing PIAWEs without documentary corroboration, neither party has admitted PIAWE. In default of any agreement between the parties, and having now had the opportunity to review the submissions of the parties, I am not in a position to calculate the [respondent’s] PIAWE and her entitlements.
128. Therefore, I propose to make the following order:
(a)The [appellant] is to file and serve a wage schedule and copies of the [respondent’s] payslips and wage records for the period between 10 September 2019 and 10 September 2020 (and any other documentation relevant to the calculation of the [respondent’s] PIAWE) by 6 May 2022.
(b)The [respondent] is to file and serve a wage schedule by 13 May 2022.
(c)The [respondent] is to file and serve any submissions regarding the wage material and wage schedules by 13 May 2022.
(d)The [appellant] is to file and serve any submissions regarding the wage material and wage schedules by 20 May 2022.
(e)Any submissions in reply are to be filed and served by 25 May 2022.
129. At the conclusion of the time allowed for submissions the balance of the dispute will be determined ‘on the papers’.”
“138. I find that I do not have sufficient documentary evidence before me to be able to accurately calculate the [respondent’s] PIAWE.
PIAWE is an acronym for a worker’s “Pre-Injury Average Weekly Earnings.” The method of calculation of PIAWE is dependent upon the date of injury as separate approaches exist, depending upon the injury date. To calculate PIAWE, the parties either need to agree on the amount or, where available, review the employer’s wage records to discern the appropriate PIAWE figure. Needless to say, employers are under a lawful duty to maintain wage records for their employees.
I would remark that the 2020 Act places the following duty on the Commission in dealing with matters. In s 43(3) of the 2020 Act, “[t]he Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” This is a power of a procedural kind of wide import.[76]
[76] See commentary on the former provision, s 354 of the 1998 Act in Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339, [9]–[10]. Section 43(3) of the 2020 Act is in the same terms as s 354 of the 1998 Act.
I accept the respondent’s characterisation of the Member’s decision at [128] as involving matters of practice and procedure. In Hamod v State of New South Wales[77] Beazley JA said:
“The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.”[78]
In the same case, Beazley JA said that appellate courts should “exercise particular caution” before intervening in decisions involving matters of practice and procedure.[79]
[77] [2011] NSWCA 375 (Hamod).
[78] Hamod, [134].
[79] Hamod, [132].
The primary function of the Member is to do justice between the parties in accordance with the statutory mandate under which the Commission operates.[80] In this instance, having conducted an unsuccessful conciliation and addressed other preliminary matters related to the matter on 22 March 2022, the Member directed that written submissions be provided, which they subsequently were. Having considered the parties’ submissions, the Member reached the conclusion at reasons [127] that he was not in a position to calculate the respondent’s PIAWE. Indeed, this whole question is reviewed by the Member at reasons [121] to [127]. I would note that appellant does not take issue with the Member’s reasoning or finding that he could not undertake the PIAWE calculation in light of the paucity of the material provided. This is the Member taking steps to ensure the “fair trial” of which Beazley JA spoke in Hamod (above).
[80] Sections 3, 42 of the 2020 Act.

The difficulty surrounding the calculation of the respondent’s PIAWE was in no small way due to the appellant’s failure to comply with orders of the Commission on 21 April 2022 and 9 March 2023. Whilst the order impugned in this ground is limited to the Member’s first decision, given the appellant’s continued failure to comply with orders made by the Member, the course of conduct by the appellant is something that I will take into account when considering whether to intervene on this issue. The Member remarked upon this ongoing failure to comply with his orders in his decision 6 April 2023 at reasons [33]. The material subject to these orders went directly to the PIAWE calculation. Nowhere has the appellant proffered any explanation as to why it is not able to comply with the orders to file wage records. Wage records are, as I have said above, required by law to be maintained by all employers. Needless to say, the appellant’s approach in failing to comply with these orders reflects little credit upon it. If a member makes an order, as was done in this matter, parties and practitioners are bound to comply with it. The duty in s 42(3) of the 2020 Act to comply with the Commission’s directions and orders could not be expressed in clearer terms. This continued failure has needlessly disrupted the efficient progress of this dispute, contrary to the Commission’s Guiding Principle.[81]
[81] Section 42 of the 2020 Act.
In response to a subsequent direction issued by the Member on 9 March 2023 following remittal from the interlocutory appeal, the appellant filed a Wages Schedule dated 30 March 2023 without any supporting material. One would assume that the monetary figure recorded therein must have a basis in the appellant’s records, but this is not possible to discern from the document. The Member rightly commented upon this at reasons [37(b)] in his 6 April 2023 decision. As is evident, the appellant has been given every opportunity to be heard on the PIAWE issue and to submit such material as was necessary in support of its submission. The procedure adopted by the Member was procedurally fair and was aimed at doing justice between the parties.
The Member’s direction given at reasons [127] in his 21 April 2022 decision was a matter of practice and procedure. The exercise of this discretionary power has not been shown by the appellant to have been affected by error,[82] indeed the direction was completely necessary so as to enable the Member to perform his statutory duty of deciding the dispute. Mindful of the Court of Appeal’s remarks in Hamod, set out above, and the appellant’s ongoing breach of Commission orders which relate to the very issue covered in this ground, and the fact that error has not been established, this is not a matter that justifies appellate intervention.
[82] House v The King [1936] HCA 40; 55 CLR 499 (House v King).
Ground C is dismissed.

As to Ground D – Error of discretion regarding evidence admitted

The submissions in support of Ground D, in their totality, read as follows:
“The Appellant says that the Member was in error in exercising the discretion to admit late documents having regard to the requirements of Procedural [Direction] PIC 3.”[83]
[83] Appellant’s submissions on appeal, 3 May 2023, [16].
I would note that this appeal, on its face, is an appeal “in respect of the whole of each decision of 21 April 2022 and 6 April 2023.”[84]
[84] Appellant’s submissions on appeal, 3 May 2023, [1].
This submission fails to identify which of the Member’s two decisions this ground is said to relate to. On the basis of paragraph [1] of the appeal submissions, one would assume that both decisions are impugned in this ground, but this is plainly not apparent from the submission in Ground D itself. The Member has made rulings in both decisions about the admission of documents. As a consequence of this approach, the appellant was directed to specify the documents that this ground was said to relate to. In a brief set of supplementary submissions dated 9 May 2023, the appellant identified the documents as being those referred to by the Member in paragraph [15(a) and (b)] of his decision dated 6 April 2023. This material is the respondent’s ATO Income Statements and the respondent’s wages schedule, and this material was filed by the respondent in response to orders [8] and [9] made by the Member in the first COD dated 21 April 2022 to file and serve a wages schedule and submissions regarding the wages schedule and wage material, respectively.
This ground fails, in even the most rudimentary way, to identify why the admission of this material was in error. This ground fails, in even the most rudimentary way, to then identify how the discretion to admit this material was infected with error in a House v King sense. I would note that when one reads the decision of 6 April 2023, the documents are referred to in paragraph [15(a) and (b)], and then from paragraph [16] onwards the Member deals with the appellant’s objections to the admission of this material. Nowhere in this ground has the appellant grappled with any aspect of the Member’s decision to admit, which encompasses those 10 paragraphs.[85] Nowhere is any this of this reasoning the subject of any specific submission or attempt to identify error.
[85] Reasons dated 6 April 2023, [16]–[26].
I note that the respondent has, doing the best she can, attempted to identify those aspects of the decision said to be challenged in this ground and has responded accordingly. But this is unsatisfactory. The respondent should not have to “guess” what it is she is called upon to answer.
Intervention on appeal requires the identification and correction of error. The appellant has failed to identify error in any meaningful way in this ground.
Ground D has not been made out and is dismissed.

RESPONDENT’S SUBMISSION ABOUT APPELLANT’S FAILURE TO COMPLY WITH ORDERS FOR PRODUCTION

The respondent to this appeal, with some justification, seeks intervention in relation to the appellant’s failure to produce its wage records which would reveal the respondent’s proper PIAWE. The respondent submits as follows:
“The worker is aggrieved by the employer’s conduct. Through its conduct, she has lost the ability to identify whether the above PIAWE is accurate.
Before determining the matter, the Presidential Unit should direct that the employer comply with the previous Orders, so that the worker can identify whether she should seek a reconsideration before the Member (or Presidential Member), in relation to the PIAWE determination.”[86]
This request is repeated at [96] of the respondent’s submissions.
[86] Respondent’s submissions on appeal, 9 May 2023, [25]–[26].
The appellant has had an opportunity to file submissions in reply to the respondent’s appeal submissions but has chosen not to do so. Consequently, this issue about non-compliance with orders has not been addressed by the appellant. When I read the Member’s reasons where these orders were made or referred to, and now the appeal submissions, it is apparent that the appellant’s approach has been to ignore the orders and any criticism of its continued failure to comply with them. This is notwithstanding the statutory mandate provided in s 49(3) of the 2020 Act that that a person “must not, without reasonable excuse, fail to comply with a direction given to the person”, a breach of which is an offence which attracts a penalty.[87] In circumstances where directions for production are not complied with, the Rules (see r 49(3)) allow a party to the proceedings to seek referral of the matter to the State Insurance Regulatory Authority (SIRA).
[87] Section 60 of the 2020 Act dictates the proceedings for such offences.
As I have made clear above, intervention on appeal is limited to the identification of and correction of error. There is no power in the 2020 Act (or the 1987 or 1998 Acts) that the respondent has directed my attention to that would empower me to order the process urged by the respondent.
The respondent is able, at any time, to seek to have a matter reconsidered by the Member. The problem however with any potential application for reconsideration is obvious. In light of the appellant’s behaviour in failing to comply with Commission orders requiring the production of relevant wage material and its continued silence on this issue, I have little confidence that it will comply with the existing orders, or any new orders issued in any future proceeding. This behaviour will only serve to frustrate any reconsideration process and further delay the final resolution of this application.
I am referring this decision, and in particular my remarks about the appellant’s ongoing apparent failure to comply with orders made by the Commission on no less than two occasions, to the Principal Registrar of the Commission to complete such process as she deems appropriate to enable the parties to be heard on this issue and to consider whether to refer the appellant’s conduct to SIRA. As the appellant is a self-insurer, it is subject to the regulatory supervision of SIRA.
This is the fourth decision of the Commission in this matter which is adverse to the appellant. There have been two first instance decisions of a member and two Presidential decisions on appeal. The grounds advanced in this appeal were unmeritorious and the appeal papers themselves were not produced in accordance with the requirements for appeals in the Commission. The Certificate of Determination issued by the Member dated 6 April 2023 at orders 3 and 4 awarded the respondent weekly compensation for the seven-month period 5 August 2021 to 28 February 2022, an amount totalling (on my calculations) of slightly over $10,000. A general order for s 60 expenses was also made. The cost of this dispute, both in terms of the legal costs expended and the costs to the Commission in dealing with the matter, is out of proportion with its relatively modest value. This circumstance is not in conformity with the model litigant policy (which applies to public bodies such as the appellant). The type of conduct seen in this matter frustrates the Commission’s ability to meet its statutory objects and serves to delay other cases.
The appellant should finish its sport with the respondent, comply with the Commission’s orders regarding the production of material and bring this dispute to a conclusion in accordance with its obligations under s 42 of the 2020 Act that I have referred to above.

DECISION

This appeal has been expressed to be in respect of “the whole of each decision of 21 April 2022 and 6 April 2023.”[88] But the appeal grounds themselves are in the main directed to the Member’s decision of 21 April 2022, with only Ground D making reference to a single aspect of the 6 April 2023 decision. No issue is otherwise taken with the 6 April 2023 decision.
[88] Appellant’s submissions on appeal, 3 May 2023, [1].
The appropriate order to made in this appeal is as follows. The Certificates of Determination dated 21 April 2022 and 6 April 2023 are confirmed.

Judge Phillips
PRESIDENT

8 August 2023