General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (icare) - [2025] NSWPICPD 45

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (icare) [2025] NSWPICPD 45
APPELLANT:	General Education Castle Hill Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Elham Mirmoeini
INSURER:	Uninsured
FILE NUMBER:	A1-W7207/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	29 May 2025
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The Certificate of Determination dated 9 September 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – finding of ‘injury’ pursuant to s 4(a) of the Workers Compensation Act 1987 where a finding pursuant to s 16 of that Act was arguably also available; application of Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; error of fact within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and associated authorities
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
First Respondent:
Mr D Stiles, counsel
Turks Legal
Second Respondent:
Mr T Hickey, counsel
Law Advice Compensation Lawyers
DECISION UNDER APPEAL:	General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (icare) [2024] NSWPIC 498
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	9 September 2024

INTRODUCTION AND BACKGROUND

Elham Mirmoeini (the second respondent/worker) commenced employment with General Education Castle Hill Pty Ltd (the appellant/employer) on 30 January 2023. The appellant conducted a childcare centre at Castle Hill. It is common ground that the appellant did not have a policy of insurance in respect of its liability in respect of workers compensation as at 29 March 2023, the date on which the worker suffered the alleged injury to her back. The worker made a claim on the Nominal Insurer in respect of incapacity and medical expenses, which was accepted. The Nominal Insurer issued a ‘Notice to Reimburse’ to the employer, pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act) (the Notice). The amount particularised in the Notice was $24,022.60, being weekly compensation of $19,845 and medical expenses of $4,177.60.[1] The appellant instituted proceedings by way of a Miscellaneous Application dated 27 September 2023, in which it disputed its liability to make the payments sought in the Notice.
[1] Miscellaneous Application, pp 60–65.
The matter was listed for hearing on 8 August 2024 before Member Homan. The Member described the issues as whether the worker sustained injury to her lumbar spine on 29 March 2023, quantification of resulting incapacity during the period covered by the Notice, and whether the claimed treatment expenses were reasonably necessary as a result of the injury. Mr Macken, who appeared for the employer, stated he admitted the employer was relevantly uninsured on 29 March 2023, but this admission did not extend to any other date. Mr Macken presaged an argument that the injury alleged was in the nature of a ‘disease’ and the date of injury set by ss 15 or 16 of the 1987 Act would be “other than the 29th of March”.[2]
[2] Transcript of hearing, 8 August 2024 (T), T 1.40–2.8, 3.22–4.7.
The parties’ legal representatives addressed and the Member reserved her decision. The Commission issued a Certificate of Determination dated 9 September 2024, accompanied by 34 pages of reasons.[3] The Commission declined to make the orders sought by the appellant. The appellant was ordered to reimburse the Nominal Insurer the amount specified in the Notice, “less payments made as weekly compensation for the period 30 March 2023 to 30 April 2023”.
[3] General Education Castle Hill Pty Ltd v Workers Compensation Nominal Insurer (icare) [2024] NSWPIC 498 (reasons).

ON THE PAPERS

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

THRESHOLD MATTERS

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

THE MEMBER’S REASONS

The Member engaged in a detailed summary of the evidence, both medical and lay.[4] She noted the employer’s concession that it was uninsured on 29 March 2023.[5] She noted Mr Macken’s submission that the injury was “in the nature of a disease” and that “the proper deemed date must be 30 March 2023 as the first date of incapacity for the purposes of ss 15 or 16 of the 1987 Act”. She referred to alleged inconsistencies, identified by Mr Macken, in the reporting of the injury. She noted there was a report of back pain by the worker to her doctor in August 2022 after a flight to Europe. The employer submitted the worker’s evidence lacked credit and the Commission would not be satisfied that an injury was sustained.[6] The employer submitted the worker had a capacity for work in suitable employment and an order for reimbursement by the employer should not be made.[7]
[4] Reasons, [8]–[70].
[5] Reasons, [71].
[6] Reasons, [72]–[84].
[7] Reasons, [95]–[97].
Mr Stiles, for the Nominal Insurer, submitted some of the employer’s submissions went beyond the scope of the current proceedings, which related only to the payments particularised in the Notice. The Member summarised Mr Stiles’ submissions. He submitted that, apart from the isolated report of back pain following a long haul flight, there were no relevant complaints of symptoms or referrals for a period of five and a half years. The evidence supported a finding of injury and incapacity, the employer’s application should be refused and orders made for payment of the amount specified in the Notice.[8]
[8] Reasons, [98]–[112].
The Member summarised the submissions of Mr Hickey for the worker. Mr Hickey submitted the worker adopted the Nominal Insurer’s submissions, the worker was participating only as an interested party. The worker submitted the employer sought to make much of the radiological investigations but was not qualified to give a medical opinion. The worker’s general practitioner recorded that the disc bulges seen on the 2023 investigations were due to the work events. There was no evidence from co-workers disputing what she said. The only evidence from the employer came from the directors, Ms Gao and Ms Golshani, who had a personal interest in the proceedings. There was no evidence provided from Sijal, the co-worker who the worker was working with at the relevant time. The worker submitted Ms Gao’s response to the worker’s certificate of capacity was confrontational. It was submitted the employer did not hold a policy of insurance and Ms Gao’s evidence ought to be treated with caution.[9]
[9] Reasons, [113]–[121].
Mr Hickey submitted the complaints of back pain in the past were “very mild” and there was a clear change of circumstances. Her history of back pain was disclosed to the employer. Her general practitioner confirmed her condition had been stable. The worker submitted the only medical evidence on incapacity was the medical certificates. The worker submitted the material dealing with incapacity during the period in dispute “all indicated a total incapacity”.[10]
[10] Reasons, [122]–[128].
The Member summarised the employer’s submissions in reply. She noted a submission that the worker did not refer to a workplace connection with her back pain until 6 April 2023, when she made an enquiry regarding WorkCover. The employer submitted the evidence of Ms Gao and Ms Golshani should be accepted. There was no evidence corroborating the worker’s version of events.[11]
[11] Reasons, [129]–[134].
The Member’s reasons outlined the relevant statutory provisions dealing with claims where an employer is uninsured.[12] She referred to the decision of the Court of Appeal in Ballantyne v WorkCover Authority of NSW,[13] which dealt with the Commission’s function on an application under s 145(3) of the 1987 Act. The Member noted the employer disputed whether the worker had sustained an injury. The Member referred to the worker’s text message at 10:12 pm on 29 March 2023. It referred to back pain and that the worker would be unable to work the next day. It identified pressure at work that day and staff shortages which had caused the pain. The worker saw Dr Rahmanamlashi on the following day. Complaints included bilateral radiculopathy and paraesthesia; movements were reduced. The clinical notes of 30 March and 3 April 2023 did not refer to a work cause. At the next consultation, on 6 April 2023, Dr Rahmanamlashi recorded a history of the worker suffering a flare up after being asked to look after 13 children by herself.[14]
[12] Reasons, [136]–[143].
[13] [2007] NSWCA 239.
[14] Reasons, [148]–[153].
The Member discussed inconsistencies between the statements of the worker, Ms Gao and Ms Golshani. She described it as “difficult to resolve” whether the worker was working “out of ratio at any time” on 29 March 2023. Arrangements fluctuated during the day, staff went home sick, it was “unclear” when the worker took her lunch break. The Member was satisfied the worker did, for a time, perform the tasks of her role on her own, and that there had been some staff shortages on that day. The Member did not accept the worker’s evidence of when her symptoms commenced and her reporting of her injury to Ms Golshani. Ms Golshani provided “compelling evidence” that she was not present in the workplace after 10 am on 29 March 2023. The worker’s text message on 29 March 2023 at 10:12 pm did not indicate the back pain had been reported that day but did suggest the symptoms were work caused. The Member said it was improbable that the worker would not have made a formal report of the injury, if she had experienced an acute onset of pain so severe that she screamed. The Member said the worker worked until 6 pm, the normal conclusion of her shift, on 29 March 2023. It was improbable that she did not have time to complete an incident report. It was improbable, if there had been such an acute onset of symptoms, that this would not have been recorded by Dr Rahmanamlashi on 30 March or 3 April 2023.[15]
[15] Reasons, [159]–[171].
The Member referred to Davis v Council of the City of Wagga Wagga[16] and the need for caution in dealing with clinical records. She said Dr Rahmanamlashi’s note on 6 April 2023 was consistent with a work-related cause for the worker’s symptoms being reported to the doctor for the first time on that date. The Member found the worker did not report the onset of back pain until 10:12 pm on 29 March 2023. She did not accept the worker’s evidence that she had an acute onset of severe and debilitating symptoms, nor that the worker told Ms Golshani about her back pain.[17]
[16] [2004] NSWCA 34.
[17] Reasons, [172]–[174].
The Member said there was no evidence to suggest the worker had significant lumbar symptoms immediately prior to 29 March 2023. She performed her work tasks for several months before she ceased work. The Member said there was no medical opinion that the symptoms which commenced on 29 March 2023 were entirely attributable to the pre-existing condition. Dr Rahmanamlashi said the condition had been stable prior to 29 March 2023. The Member said the text message the worker sent to Ms Gao on 29 March 2023, of an onset of symptoms that day, was “compelling”. On 30 March 2023 the worker saw a doctor, there were clinical signs on examination, radiological investigations revealed a pathological explanation for the symptoms. The Member said she was satisfied the worker suffered an increase in lumbar symptoms on 29 March 2023 at work, constituting an aggravation of pre-existing pathological changes in the lumbar spine. There was no other precipitating event, there was no medical opinion suggesting the increase in symptoms could have been idiopathic.[18]
[18] Reasons, [175]–[181].
The Member concluded that the weight of the evidence was consistent with employment being “a substantial or the main contributing factor”. This was Dr Rahmanamlashi’s opinion, there was nothing to the contrary. The Member said that although the injury was in the nature of an aggravation of pre-existing degenerative disease, she was not satisfied the injury “consists in the aggravation etc of a disease”. She rejected the employer’s argument that the date of injury described in the Notice was incorrect. The Member said the employer had not discharged its onus of demonstrating on the balance of probabilities that the date of injury in the Notice was incorrect.[19]
[19] Reasons, [182]–[184].
The Member said the first certificate from Dr Rahmanamlashi provided that during the period from 30 March 2023 to 30 April 2023 the worker could engage in modified duties on a full-time basis. On 1 May 2023 Dr Rahmanamlashi, at the request of the worker, amended his certification and backdated it. The amended certification provided that the worker had no current work capacity in the period up to 30 April 2023. The Member said this contradiction in the certificates was not explained by the doctor, there was no explanation of why the more contemporaneous certification was inaccurate. In respect of the period up to 30 April 2023 the Member preferred the more contemporaneous evidence, that there was a capacity to engage in full-time modified duties. She found the payments made for that period were not in accordance with the 1987 Act.[20]
[20] Reasons, [188]–[191].
The Member referred to the surveillance material, bank and business records. She said these did not establish the worker was operating a business or demonstrating a capacity to engage in suitable duties during the period while compensation was paid.
The Member found that from 1 May 2023 to the end of the period covered in the Notice, the only medical evidence before the Commission was that the worker had no current work capacity. The Member found the employer was not required to reimburse the Nominal Insurer for weekly payments made during the period from 30 March 2023 to 30 April 2023. The employer was bound to reimburse the Nominal Insurer for compensation paid in respect of the period from 1 May 2023 to 30 August 2023.[21]
[21] Reasons, [192]–[199].
The Member referred to the settled principles governing the recovery of medical and related treatment expenses. She noted there was “no real challenge” to the reasonableness of these at the hearing. She said none of these were unusual or inconsistent with the nature of the injury. She was satisfied they were reasonably necessary as a result of the found injury. She concluded the employer was liable to reimburse the Nominal Insurer for these amounts as particularised in the Notice.

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[22] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[23] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[24]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[25]
[22] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[23] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[24] [1996] HCA 140; 140 ALR 227.
[25] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[26] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[27]
[26] [2020] NSWCA 54 (Hill).
[27] Hill, [20].
In Northern NSW Local Health Network v Heggie[28] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[28] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a) Error of law in regard to the determination of the date of injury. This ground relates to the entirety of the Member’s decision with the exception of the finding in the reasons at [191] (Ground No 1).
(b) Error of fact in regard to the occurrence of injury. This ground relates to the entirety of the Member’s decision with the exception of the finding in the reasons at [191] (Ground No 2).

APPELLANT EMPLOYER’S SUBMISSIONS

Ground No 1

The appellant submits the matter proceeded at first instance on the basis that, if the date of injury relied on by the Nominal Insurer was incorrect, the recovery proceedings would fail. It states it relies on its submissions at first instance on this issue.
The appellant refers to the ‘injury’ finding at [181]:
“After carefully weighing the evidence, I am satisfied that the [worker] experienced an increase in lumbar symptoms constituting an aggravation or exacerbation of pre-existing pathological changes at her lumbar spine while at work on 29 March 2023.”

The appellant submits this finding clearly brought the injury within s 4(b)(ii) of the 1987 Act, although not referring specifically to the section. The appellant refers to the reasons at [183]:
“I have considered the [employer’s] submissions that a deemed date of injury pursuant to s 15 or 16 of the 1987 Act ought to apply and that 29 March 2023 was not the first date of incapacity. While I accept that the injury is in the nature of an aggravation of pre-existing degenerative disease at the [worker’s] lumbar spine, I am not satisfied that it ‘consists in’ the aggravation etc of a disease. The evidence is also consistent with a personal injury occurring on 29 March 2023. In the absence of a medical opinion, I am not satisfied that the date of injury specified in the s 145(1) notice is incorrect.”
The appellant submits the words ‘consists in’ are not found in s 4 of the 1987 Act and the inclusion of these words constitutes an error of law.[29]
[29] Appellant’s submissions, [7]–[10].
The appellant submits that having made a finding of injury that brought the matter within the ‘disease’ provisions, it was necessary that the Member determine an injury date by reference to either s 15 or s 16 of the 1987 Act. This required determination of the first period of incapacity. The first period of incapacity, and therefore the deemed date, was not 29 March 2023. It may have been 30 March 2023, although the Member had found that the payments from 30 March 2023 to 30 April were not in accordance with the legislation.
The appellant submits that, on the Member’s findings, the date of injury relied on in the Notice was incorrect and the sum in the Notice was not recoverable.

Ground No 2

The appellant refers to matters in the reasons which it submits raised serious doubt regarding the occurrence of injury:
(a)   at [159] the Member found the worker’s evidence was contradicted by that of two other witnesses;
(b)   at [166] the Member found the worker’s evidence regarding the commencement of her symptoms and the reporting of the injury to Ms Golshani ought not be accepted;
(c)   at [170] to [171] the Member described the worker’s evidence as improbable, and
(d)   at [175] the Member said the above findings raised doubt regarding whether the worker had sustained injury.
The appellant additionally submits Dr Rahmanamlashi, at the consultation on 30 March 2023, did not record a reference to workplace injury. The appellant submits the doctor was only told of a connection between the low back symptoms and employment on 6 April 2023. The appellant submits this should have resulted in the Member not being satisfied the worker sustained the alleged injury.
The appellant submits there should have been a determination in its favour.[30]

NOMINAL INSURER’S SUBMISSIONS

[30] Appellant’s submissions, [14]–[16].

Ground No 1

The Nominal Insurer refers to the text message sent by the worker on 29 March 2023, in which the worker reported the injury. The Member described this as “the most contemporaneous account”. The Nominal Insurer refers to the reasons at [181] and [183] where the Member concluded:
“181. After carefully weighing the evidence, I am satisfied that the [worker] experienced an increase in lumbar symptoms constituting an aggravation or exacerbation of pre-existing pathological changes at her lumbar spine while at work on 29 March 2023.
…
183. I have considered the [employer’s] submissions that a deemed date of injury pursuant to s 15 or 16 of the 1987 Act ought to apply and that 29 March 2023 was not the first date of incapacity. While I accept that the injury is in the nature of an aggravation of pre-existing degenerative disease at the [worker’s] lumbar spine, I am not satisfied that it ‘consists in’ the aggravation etc of a disease. The evidence is also consistent with a personal injury occurring on 29 March 2023. In the absence of a medical opinion, I am not satisfied that the date of injury specified in the s 145(1) notice is incorrect.”
The Nominal Insurer submits the Member’s conclusion was consistent with the medical and factual evidence. It submits the appellant has not relied on any medical evidence in support of its argument that there should have been an injury finding on the basis of the ‘disease’ provisions. It refers to the text message dated 29 March 2023, which reported the back injury as a result of the worker’s work on that day. [31]
[31] Nominal Insurer’s submissions, [1]–[6].
The Nominal Insurer refers to the description of injury in the claim form dated 19 April 2023:
“On Wed 29th Mar, because of short in staff, childcare centre director left me in preschool room with 13 kids which later combined with another room with 8 kids, which made it 21 children to me and another educator to care, clearly out of ratio by rules. After lunchtime, the other educator took her kids to her room, left me again with 13 kids to look after, clean the mess, change nappies. I was under such a pressure from around 12.30 to 3.30pm. This is when I started to feel a severe back pain that I hadn’t experienced for a very long time. I reported this to Director as we are out of ratio.”[32]
[32] Nominal Insurer’s Reply, p 30, quoted at Nominal Insurer’s submissions, [8]–[9].
The Nominal Insurer submits the above is evidence of a discrete injury, rather than a disease of gradual process. It submits that there is no medical support for the argument that there was an injury within the meaning of either s 15 or s 16 of the 1987 Act. It submits the Member considered the allegation that there was injury within the meaning of s 16, in the reasons at [183]. She was not satisfied the injury “consists in” the aggravation of a disease and she considered the evidence was consistent with ‘personal injury’ occurring on 29 March 2023. It submits Ground No 1 should be rejected.[33]
[33] Nominal Insurer’s submissions, [10]–[11].

Ground No 2

The Nominal Insurer submits the appellant has selectively quoted from the Member’s comments regarding the state of the evidence. The ‘injury’ issue was considered in the reasons from [146]. The Member raised some issues regarding the worker’s evidence. At [177] she ultimately accepted there was no evidence of significant lumbar symptoms prior to 29 March 2023; at [179] the Member described the worker’s account in the text message to Ms Gao as “compelling evidence”. The Member accepted there were increased back symptoms at work on 29 March 2023. She considered the available factual and medical evidence and was persuaded by the contemporaneous evidence. The Nominal Insurer submits the appellant has not identified error and Ground No 2 should also be rejected. The Nominal insurer submits the appeal should be dismissed.[34]
[34] Nominal Insurer’s submissions, [12]–[18].

WORKER’S SUBMISSIONS

The worker’s submissions make a preliminary point that the appellant relied solely on the evidence of Ms Gao and Ms Golshani. The only medical evidence in the appellant’s case was a certificate from Dr Rahmanamlashi dated 6 April 2023. The medical evidence in the matter also included the clinical material from Dr Rahmanamlashi, a report from Dr Eftekar, neurosurgeon, and some radiology reports. The worker summarised the effect of the “non-traversed” medical evidence:
(a)   The worker presented to Dr Rahmanamlashi on 30 March 2023 with complaints of low back pain, sciatica and bilateral radiation.
(b)   An MRI scan on 31 March 2023 showed a posterior disc bulge at L4/5 with potential contact at the L5 nerve root. An MRI report dated 4 November 2017 showed no similar bulge at L4/5.
(c)   Dr Rahmanamlashi diagnosed “L4/L5 and L5/S1 disc bulging/foraminal stenosis”.
(d)   Dr Eftekar described the worker’s presentation as “severe back pain with imaging conforming [sic, confirming] neural compression, although ‘not sinister enough to require neurosurgical intervention’.”

Ground No 1

The worker submits the appellant had no medical evidence to support its argument. The medical evidence was that quoted immediately above. The worker submits ss 4(a) and 4(b) are not mutually exclusive. The worker quotes the following passage from NSW Police Force v Gurnhill:
“Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms ‘disease’ and ‘personal injury’ in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance. As noted by Gleeson CJ and Kirby J in Petkoska (at [40]):
‘The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an ‘injury’ in the primary sense’.”[35]
[35] [2014] NSWWCCPD 12 (Gurnhill), [73], quoting from Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; 200 CLR 286, [40].
The worker submits the appellant’s argument in Ground No 1 ignores the only medical and lay evidence in the case. It additionally ignores the fact that an aggravation of a disease such as spondylosis is capable of supporting a finding of injury under s 4(a) of the 1987 Act.[36] The worker describes the appellant’s position in Ground No 1 as “unarguable”.
[36] Worker’s submissions, [16]–[21]. Reference is made to Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (Dimovski).
The worker submits the Member’s analysis was in accordance with law; she summarised the Member’s line of reasoning as follows:
(a)   the worker was performing tasks on her own in the context of staff shortages;
(b)   there was no medical evidence that attributed the symptoms commencing on 29 March 2023 to the pre-existing condition;
(c)   there was no other precipitating event to account for the worker’s increased lumbar symptoms, and
(d)   the Member was “not satisfied that the injury consist[s] in the aggravation etc of a disease”, saying “the evidence was also consistent with a personal injury occurring on 29 March 2023”.

Ground No 2

The worker quotes the Member’s reasons at [117] to [124], which the worker’s submissions on appeal set out in full. The worker quotes the well-known passage from Raulston which is quoted at [21] above, and from Hill and Heggie. It quotes from Shellharbour City Council v Rigby.[37] It is necessary for the appellant to demonstrate error within the meaning of s 352(5) of the 1998 Act. This has not been done, it is insufficient that the appellant disagrees with the Member’s findings. The worker submits the appeal should be dismissed.[38]
[37] [2006] NSWCA 308 (Rigby), [144].
[38] Worker’s submissions, [25]–[33].

CONSIDERATION – GROUND NO 1

The approach for which the appellant argues is that rejected by the Court of Appeal in Dimovski. In that decision Hodgson JA referred to the competing approaches in Colliar v Bulley[39] and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd.[40] In Colliar the majority judgment was given by Davies AJA, with Meagher JA agreeing, Priestley JA dissented. Davies AJA said:
“I do not accept that an injury, which constitutes an aggravation ... of a disease and to which the employment has contributed, falls outside s 16 simply because the claim for compensation was or could have been framed in terms of para (a) of the definition.”[41]
[39] [2000] NSWCA 1; 19 NSWCCR 302 (Colliar).
[40] (1998) 45 NSWLR 606 (Mecha).
[41] Colliar, 326, [72].
The Court of Appeal in Dimovski unanimously rejected the approach taken in Colliar in this regard. Hodgson JA in Dimovski said:
“In my opinion, the decision in Mecha is to be preferred. Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.”[42]
[42] Dimovski, [68].
Handley JA and Young CJ in Eq, in Dimovski, similarly concluded that the Mecha view was correct and to be preferred to the approach taken in Colliar.[43] The effect of the appellant’s argument in the current matter is that, if the elements were present to support a finding of injury pursuant to the ‘disease’ provisions, it would involve error for the Member to make a finding of injury pursuant to s 4(a) of the 1998 Act. I do not accept that submission, which is inconsistent with Dimovski.
[43] Dimovski, [29], [85].
The appellant’s submissions criticise the way in which the Member expressed her finding of injury at [183] of the reasons (set out at [27] above). The Member there said: “While I accept that the injury is in the nature of an aggravation of pre-existing degenerative disease at the [worker’s] lumbar spine, I am not satisfied that it ‘consists in’ the aggravation etc of a disease.” The appellant submits the words ‘consists in’ are not found in s 4 of the 1987 Act and the inclusion of these words constitutes an error of law.
The words ‘consists in’ are taken from the opening words of s 16 of the 1987 Act. I note the reasons of Hodgson JA in Dimovski, quoted at [45] above, specifically use the words “consists in” when describing a finding of injury pursuant to s 16. This is clearly the way in which the Member was using this language in her reasons at [183]. The appellant’s submission that this somehow involved an error of law is without merit and is rejected.

CONSIDERATION – GROUND NO 2

Ground No 2 challenges the Member’s fact-finding in dealing with the ‘injury’ issue. The submissions on this ground deal with four specific aspects of the evidence, referred to at [31] above. The matters raised were not matters that directly disproved the occurrence of the injury. Rather, these were matters that the Member said raised “serious doubt” on that issue.
The appellant submits the Member, in the reasons at [170] to [171], “describes the evidence of the [worker] as ‘improbable’”.[44] The Member’s use of that term was specific to certain matters of history. The Member’s reasons at [170] said it was improbable that the worker would not have made a formal report of injury on 29 March 2023, and that she did not have time to complete an incident report, if she had such severe pain that she screamed and could not move. The Member’s reasons at [171] said that if there was “such an acute onset of severe symptoms” it was improbable this would not have been recorded in Dr Rahmanamlashi’s record of the consultations on 30 March 2023 and 3 April 2023. The Member went on to find that a work-related cause for the symptoms was recorded by Dr Rahmanamlashi on 6 April 2023.[45]
[44] Appellant’s submissions, [14].
[45] Reasons, [172]–[173].
The Member’s reasons at [174] to [182] contained her assessment of the weight of evidence, both in favour of and against a finding of ‘injury’. Parts of the reasons that dealt with inconsistencies identified by the Member are summarised at [12] to [13] above. Contrary to the appellant’s submissions, the Member did not describe the worker’s evidence as a whole as “improbable”. The Member described the discrepancies she identified as raising “serious doubt” regarding whether the worker sustained the alleged injury.[46] The appellant submits Dr Rahmanamlashi was not given a history of the work injury on 30 March 2023 (the first consultation after 29 March 2023) and was only given a history of a work connection on 6 April 2023. The appellant submits this failure by the worker to initially give a history of the work connection to her general practitioner, together with the serious doubt referred to by the Member, ought to have resulted in the worker failing on the ‘injury’ issue.[47]
[46] Reasons, [175].
[47] Appellant’s submissions, [15].
The Member’s reasons at [177] to [182] indicated why she arrived at her result on the ‘injury’ issue. Those paragraphs provided:
“177. On the other hand, while I accept that the [worker] had sought treatment for back symptoms previously, there is no evidence to suggest that the [worker] was experiencing significant lumbar symptoms immediately prior to 29 March 2023. Rather, the evidence indicates that the [worker] had been able to perform the tasks inherent in her role without difficulty for several months prior to the cessation of work.
178. There is no medical opinion before me to indicate that any symptoms commencing on 29 March 2023 were entirely attributable to the pre-existing condition. Dr Rahmanamlashi’s evidence was that the previous condition had been stable prior to 29 March 2023.
179. The contemporaneous account of an onset of back symptoms in the context of work on 29 March 2023 in the text message to Ms Gao is, compelling evidence. The next day, the [worker] sought medical intervention, which prompted radiological investigations, which found a pathological explanation for the [worker’s] reported symptoms. Clinical signs on examination were recorded in Dr Rahmanamlashi’s notes. Although the [employer] has submitted that the symptoms described to Dr Rahmanamlashi and the radiological findings were not objectively different to those recorded previously, I am not persuaded that this is in fact the case. In the absence of a medical opinion to that effect, I am not satisfied that the [employer’s] submissions on this matter ought to be accepted.
180. No other precipitating event to account for an increase in lumbar symptoms has been identified on the evidence before the Commission. There is no medical opinion to suggest that the increase in symptoms could have been idiopathic.
181. After carefully weighing the evidence, I am satisfied that the [worker] experienced an increase in lumbar symptoms constituting an aggravation or exacerbation of pre-existing pathological changes at her lumbar spine while at work on 29 March 2023.
182. Although I am not satisfied that the onset of symptoms was initially as severe as described by the [worker] or that she reported her symptoms during the day, the weight of evidence is consistent with an injury to which employment was a substantial or the main contributing factor. An opinion to this effect was given by Dr Rahmanamlashi. No contrary medical opinion is before the Commission.”
The Member’s analysis of the weight of the evidence was conducted having regard to the factual issues on which the appellant now submits there should have been a different result. The appellant’s argument in this regard does not identify specific error in the Member’s fact finding. It is clear, from the reasons at [171], that the Member was aware that Dr Rahmanamlashi did not record a history of the work injury until 6 April 2023. In this regard, I note the reasons at [179], which refer to the text message sent by the worker to Ms Gao on the evening of 29 March 2023.[48] The Member described this as “compelling evidence”. It was consistent with a report of injury to Ms Gao on the evening of 29 March 2023, the date on which it occurred.
[48] Reply of Nominal Insurer, p 17.
The appellant submits there should have been a different result. This appeal is brought pursuant to s 352(5) of the 1998 Act. It is subject to the principles discussed at [20] to [23] above. The appellant has not established error within the meaning of s 352. Ground No 2 fails.

DECISION

The appeal is dismissed.
The Certificate of Determination dated 9 September 2024 is confirmed.

Michael Snell
DEPUTY PRESIDENT

29 May 2025