Ferro v Mercon Group Pty Ltd - [2023] NSWPICPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4
APPELLANT:	Joe Ferro
RESPONDENT:	Mercon Group Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W6127/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	1 February 2023
ORDERS MADE ON APPEAL:	1. Order 6 in the Certificate of Determination in respect of the entitlement pursuant to s 38 of the Workers Compensation Act 1987 is set aside. 2. The matter is remitted for re-determination by a different member in respect of the claim made pursuant to s 38 of the Workers Compensation Act 1987 consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – section 38 of the Workers Compensation Act 1987 – member’s obligation to give reasons – failure to give reasons - Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17 and Wang v State of New South Wales [2019] NSWCA 263 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr S Lott, solicitor
Hall & Wilcox
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF Member’s DECISION:	14 April 2022

INTRODUCTION AND BACKGROUND FACTS

This is an appeal from a Certificate of Determination dated 14 April 2022.
The background facts, subject to one matter, are uncontroversial. On 3 February 2017 the appellant suffered a fall in the workplace of approximately 3 metres. The appellant was standing on a slab which gave way.
The appellant suffered a severe injury to the left ankle. The respondent accepted liability for that injury.
The respondent did not accept liability for alleged injuries to the cervical spine, lumbar spine, laceration to the head, impairment of the visual system and a psychological injury in the form of Post-Traumatic Stress Disorder and depression. The proceedings before the Commission agitated the appellant’s claim with respect to these further injuries.
The Member found that the appellant had suffered an injury to the left lower extremity (leg and ankle) and a psychological injury. He found for the respondent (against the appellant) with respect to the injuries of the laceration to the head, the lumbar spine, cervical spine and visual system.
There is no appeal from the findings with respect to these injuries.
The Member found the appellant to have been totally incapacitated for employment from the date of injury on 3 February 2017 to 2 August 2019, pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). This was a period of 130 weeks and exhausted the appellant’s entitlement to weekly compensation during the first and second entitlement periods.
The appellant’s Pre-Injury Average Weekly Earnings were agreed by the parties at $791.92. The Member entered an award for the appellant with respect to weekly compensation as follows:
(a) pursuant to s 36, at the rate of $752.32 per week from 3 February 2017 to 5 May 2017, and
(b) pursuant to s 37, at the rate of $633.53 per week from 6 May 2017 to 2 August 2019.
There is no appeal with respect to that award.
The only controversial factual issue relates to whether the insurer had made an assessment of the appellant as to his “current work capacity” and whether s 38(2) or (3) of the 1987 Act applied. This issue is of importance to the appeal because it is critical to the operation of s 38. The Member made no finding with respect to this issue.
The appeal is from part of the Certificate of Determination, namely the following:
“6. The [appellant] has not satisfied the requirements for an award for weekly compensation pursuant to section 38. Award for the respondent on the claim for weekly compensation pursuant to section 38 from 3 August 2019 to date and continuing.”

CERTIFICATE OF DETERMINATION

The Commission determined:
“1.     The [appellant] suffered an injury to his left lower extremity (leg and ankle) and a psychological injury in the course of his employment with the respondent on 3 February 2017.
2.      At the date of injury, the [appellant’s] pre-injury average weekly earnings were $791.92.
3.      Award for the respondent on the claims for injury to the lumbar spine, cervical spine and visual system.
4.      As a result of his injury, the [appellant] was totally incapacitated for employment from 3 February 2017 to 2 August 2019.
5.      The respondent is to pay the [appellant] weekly compensation as follows:
(a)pursuant to section 36, at the rate of $752.32 per week from 3 February 2017 to 5 May 2017, and
(b)pursuant to section 37, at the rate of $633.53 per week from 6 May 2017 to 2 August 2019.
6. The [appellant] has not satisfied the requirements for an award for weekly compensation pursuant to section 38. Award for the respondent on the claim for weekly compensation pursuant to section 38 from 3 August 2019 to date and continuing.”

PRELIMINARY MATTERS

The appeal has been brought within time.
The claim which is subject of this appeal is for on-going weekly compensation pursuant to s 38 of the 1987 Act at the rate of $633.53 from 3 August 2019 to 3February 2022. Section 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied.

ON THE PAPERS

The parties submit that the matter can be determined on the papers. The appellant submits that having regard to the legal and factual issues involved, the Commission may be assisted by oral submissions. The respondent does not offer any such qualification.
I am satisfied that the materials and parties’ submissions are sufficient to enable me to determine the matter without an oral hearing. I proceed accordingly.

JURISDICTION

The jurisdiction exercised by the Personal Injury Commission under s 352(5) of the 1998 Act is constrained to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion and to the correction of any such error. Importantly, the appeal is not a review or a new hearing.

GROUNDS OF APPEAL

The appellant raised the following grounds of appeal:
Ground One: The Member erred in law when he failed to give any or any adequate reasons for making an award for the respondent in respect of the claim for weekly compensation on or from 3 August 2019.
Ground Two: The Member erred in fact or law when he made an award for the respondent in respect of the claim from 3 August 2019 and continuing.
Ground Three: Such other grounds as become apparent when the transcript is available.
No additional grounds of appeal were submitted.

GROUND ONE

Appellant’s submissions

The appellant submits the Member found that the appellant had no current work capacity up to 2 August 2019,[1] but gave no consideration as to whether the appellant continued to have no “current work capacity” after 2 August 2019. Furthermore:
“In fact section 38 is not mentioned at any time in the statement of reasons. There is no reference to any submission made about the third entitlement period, no reference to the terms of the section and no consideration about any evidence that could be relevant to determining an entitlement pursuant to that section.”[2]
[1] Ferro v Mercon Group Pty Ltd [2022] NSWPIC 165 (reasons), [40]–[46].
[2] Appellant’s amended submissions, 6 May 2022, [17].
The Member accepted the opinion of Drs Carran and Poplawski given in 2021 when concluding that there was no current work capacity up to 2 August 2019. The appellant submits the Member must have assumed there had been an application under s 38(3) by the worker and an assessment by the insurer, otherwise the Member would not have had jurisdiction to determine the s 38 issue.[3]
[3] Citing Lee v Bunnings Group Limited [2013] NSWWCCPD 54 (Lee).
The appellant submits:
“The application for an assessment is at page 360 of the ARD [Application to Resolve a Dispute]. The insurer has made an assessment because it argued before the Member that there was no incapacity.
When the terms of section 38 are examined there does not appear to be a matter in which the requirements of section 38 have not been met.”[4]
[4] Appellant’s amended submissions, 6 May 2022, [21]–[22].

Respondent’s submissions

The respondent submits that in the absence of an assessment made by the insurer, the Member did not have jurisdiction to make an order with respect to s 38 of the 1987 Act. The appellant relies upon the findings of the Court in Lee. The respondent makes the further submission that a review of the transcript of the arbitration does not reveal any submission by the appellant on this issue.

Consideration

In my view, Ground One of the appeal is made out and Order 6 of the Certificate of Determination must be set aside. My reasons follow.
Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
There is accordingly an express statutory obligation on the Member to provide reasons.
Rule 78 of the Personal Injury Commission Rules 2021 relevantly provides:
“(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 reason 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, and
(b)the appropriate decision-maker’s understanding of the applicable law, and
(c)the reasoning process that led to 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 of party.”
“Applicable proceedings” for the purpose of the rule are “Commission proceedings”: r 78(1)(a).
In Sydney Catholic Schools Limited v Bridgefoot[5] President Phillips DCJ, in revoking the Certificate of Determination and remitting the matter to a different member for determination, said in summary that s 294(2) requires the arbitrator (member) to engage with the issues and grapple with the argument advanced by counsel.
[5] [2021] NSWPICPD 17.
In Wang v State of New South Wales[6] the Court of Appeal said:
“It was submitted that the judge failed to respond to substantial, clearly articulated arguments relying on established facts on behalf of Mr Wang …
The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to an error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.”
[6] [2019] NSWCA 263, [62]–[63].
At page 32 of the transcript,[7] counsel for the appellant directed the Member’s attention to the opinions of Drs Carran and Poplawski to support the submission that the appellant had no current work capacity. At page 33 of the transcript, counsel for the appellant said this:
“That’s a clear opinion as to there being no current work capacity. That’s consistent with there being no current work capacity during the period with which these proceedings can be concerned, which, with being the period of the first 260 weeks following the injury. And there is, there is no reason on the material before you, to conclude that the [appellant’s] capacity was any greater at any stage since the subject accident.”[8]
[7] Transcript of proceedings before the Member, 21 March 2022 (T).
[8] T 33.1–8.
The submission was fundamental to and involved a substantial part of the appellant’s case for weekly payments of compensation.
The Member found the appellant had established that he had been totally incapacitated for 130 weeks.[9]
[9] Reasons, [46].
Contrary to the appellant’s submissions, the Member did not expressly find that the appellant had “no current work capacity”. He found “total incapacity”, but this is not the same as a finding of “no current work capacity”. Furthermore, the Member has no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act. Section 38 requires the insurer to make a work capacity assessment. Therefore the Member’s function in the event of a contest is to determine whether the insurer has made an assessment and what is the assessment.
A claim under s 38 was clearly raised in the ARD.[10] The appellant’s counsel made a clear submission that the appellant’s entitlement to compensation was not limited to the 130 week period which expired on 2 August 2019 but extended for a further 130 week period.
[10] ARD, p 7.
Counsel did not expressly direct attention to s 38 in terms, but as the only circumstance in which compensation could be payable after 130 weeks was pursuant to s 38 (see s 38(1)), it was not essential to raise the submission. In any event, it is plain from the terms of Order 6 that the Member recognised he was dealing with s 38.
As both parties recognised in their submissions on the appeal, s 38 required the insurer to make an assessment as to whether the appellant had a current work capacity or no current work capacity. The Member did not make a finding with respect to whether or not the insurer had made any such assessment.
Without intending to be comprehensive, to support Order 6 the Member was required by s 294(2) of the 1998 Act to:
(a) Make findings and provide reasons as to whether the insurer had made an assessment of the appellant’s current work capacity.
(b) If so, determine what assessment the insurer had made for the purpose of s 38(2) and (3) of the 1987 Act.
(c) If s 38(2) applied, make findings as to whether the insurer had concluded that the worker was likely to indefinitely have no current work capacity.
(d) If s 38(3) applied, make factual findings with respect to s 38(3)(a) to (c).
The disposition of the appellant’s claim for weekly compensation after 3 August 2019 required the Member to provide reasons sufficient to satisfy s 294(2) and r 78. The absence of reasons is an error of law.
The order made by the Member has the same vice as the order made in Lee. Namely, it has the legal and practical potential to deprive the appellant from obtaining a work capacity decision and from recovering compensation from the relevant insurer or both.
As to the appropriate relief, the parties have submitted that the matter should be redetermined.
The appellant also submits that there is evidence of a request to the insurer for a work capacity assessment.[11] As the insurer had argued before the Member that there was no incapacity, the Commission may infer the insurer had made an assessment. An argument based on this form of inferential reasoning was accepted in Rawson v Coastal Management Group Pty Limited,[12] however, the present matter is different from that which presented in Rawson for the following reasons:
(a)    unlike the position in Rawson, the present insurer did not make payments of compensation to the appellant during the post 130 week period,
(b)    the document at ARD pp 360–361 is incomplete in that page 1 of that document is not in evidence,
(c)    there is no express evidence of the insurer’s assessment,
(d)    there is no concession by the insurer that it had made an assessment,
(e)    a finding of total incapacity by the Member is not the same as a finding of no current work capacity by the insurer, and
(f)    the inference urged by the appellant is not inevitable or the only inference available.
[11] ARD, p 360.
[12] [2015] NSWWCCPD 3 (Rawson), [63].
The Member’s decision in Order 6 of the Certificate of Determination in my view is in error and must be set aside. I am not persuaded that I should exercise the power under s 352(6A) of the 1998 Act to determine the matter.
The claim pursuant to s 38 of the 1987 Act is remitted for re-determination by a different member consistent with these reasons.

GROUND TWO

Appellant’s submissions

The appellant submits that an examination of the transcript discloses that the matter proceeded on the basis that only the first and second entitlement periods were in dispute. The appellant submits that neither party made submissions about s 38 and that in the circumstances the Member should have raised the matter with the parties if he proposed to make a determination. Furthermore, if the Member had properly considered the matter, he would have concluded that there was a continuing entitlement under s 38.
The appellant submits that the requirements of s 38 are met because Drs Poplawski and Carran provided opinions which were accepted by the Member that the appellant had no current capacity. In the alternative, the appellant submits that if the appellant had a current work capacity, there should be no order made beyond that period as the appellant had not been assessed for permanent impairment and it was not possible at this time to know whether s 39 [sic] applied or will continue to apply in the future.

Respondent’s submissions

The respondent points out that the appellant’s submission to the effect that the parties proceeded before the Member on the basis of only the first and second entitlement periods being in dispute is inconsistent with the submission overall. Furthermore, the Application to Resolve a Dispute filed by the appellant clearly referred to a claim for weekly compensation payments after week 130, s 38 from 3 August 2019 and “ongoing”.

Consideration

Ground Two of the appeal does not satisfy the Procedural Direction WC3 – Presidential appeals and questions of law with respect to specificity of the error alleged.
Ground Two of the appeal amounts to a global complaint that the appellant should not have lost. That does not satisfy the requirements of r 123, nor does it meet the requirements of Procedural Direction WC3 at paragraphs [24]–[25].
Those directions provide:
“24. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred,
(b) any material findings it is said the member should or should not have made, and
(c) any material facts it is said the member should or should not have found.
25. It is not acceptable to merely allege that the member erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
In my view, the issue of the appellant’s entitlement under s 38 was before the Member. The Member’s decision adverse to the appellant is vitiated by the absence of reasons.
The respondent is correct in its submission that the appellant’s entitlement after 3 August 2019 was in issue before the Member. Furthermore, the respondent is correct as observed above that the appellant submitted that he had an entitlement to 260 weeks of weekly compensation, an entitlement which could only be supported by an award under s 38.
It follows that the Member was required to resolve the appellant’s claim after 3 August 2019 and this of necessity involved consideration of s 38. The Member did not provide reasons for the conclusion contained in Order 6. He did not address the appellant’s argument at the hearing, much less did he make relevant findings of fact with respect to whether the insurer had performed an assessment in the terms required by s 38. However, those errors are entirely encompassed within Ground One.

The complaint in relation to Ground Two is in the nature of a complaint by the appellant that his counsel was not informed of the likelihood of an adverse result under s 38. But the appellant’s counsel made submissions with respect to this issue.[13] The appellant included both medical and lay evidence in relation to this issue. The Member was not required to inform the appellant in advance of his proposed determination.
[13] T 32–33.
Ground Two of the appeal is defective as to form and substance as it covers the same error the subject of Ground One. I dismiss Ground Two of the appeal.

PROPOSED GROUND THREE

The appellant asserts a right to file further grounds of appeal after the transcript has been considered. No submissions are made to support this ground, nor is legislative authority cited for the asserted right to proceed in this manner.
Ground Three does not comply with the requirements of Procedural Direction WC3. Furthermore, so far as I can see, there is no right to make such a reservation as claimed by the appellant.
It may well be that in any particular matter the transcript is unavailable when the initial appeal papers are prepared. A note in the submissions to this effect may be appropriate. Doubtless the Commission is sufficiently flexible to accommodate matters arising from the delayed receipt of the transcript, and in this case, a Direction was issued by the President’s Delegate on 13 May 2022 attaching the transcript and inviting the appellant to make any supplementary submissions it wished to in respect of the transcript by 27 May 2022. Nothing further was submitted by the appellant and it needs to be said that Ground Three as expressed in the present matter does not constitute a ground of appeal and should not be included as a ground of appeal.

CONCLUSION

Order 6 in the Certificate of Determination in respect of the entitlement pursuant to s 38 of the Workers Compensation Act 1987 is set aside.
The matter is remitted for re-determination by a different member in respect of the claim made pursuant to s 38 of the 1987 Act, consistent with these reasons.

Geoffrey Parker SC
Acting Deputy President

1 February 2023