Hallmann v Southern Cross University - [2023] NSWPICPD 57

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hallmann v Southern Cross University [2023] NSWPICPD 57
APPELLANT:	Geoffrey Peter Hallmann
RESPONDENT:	Southern Cross University
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-W955/22
PRESIDENTIAL MEMBER:	Acting President Michael Snell
DATE OF APPEAL DECISION:	18 September 2023
ORDERS MADE ON APPEAL:	1. To the extent that it is necessary, the time for lodgment of an Appeal Against Decision of Member is extended to 25 July 2022. 2. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act1998 is refused. 3. Paragraph [1] of the Orders in the Certificate of Determination dated 15 June 2022 is amended by substituting the figure of “$1,942.90” for the figure of “$1,855.70” in subparagraph (a) and the figure of “$1,978.10” for the figure of “$1,884” in subparagraph (b). 4. Paragraph [3] of the Orders in the Certificate of Determination dated 15 June 2022 is amended at subparagraph (a) by deleting the words “Sealy Vienna plush king mattress” and substituting the words “Maison UFM King Orthopaedic Mattress and overlay and delivery ($12,328.95 or current market cost)”. 5. The Certificate of Determination dated 15 June 2022 is otherwise confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 60 of the Workers Compensation Act 1987, ‘reasonably necessary’, application of Diab v NRMA Ltd [2014] NSWWCCPD 72, Rose v Health Commission (NSW) [1986] NSWCC 2, 2 NSWCCR 32; fresh or additional evidence, application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; ‘consequential condition’ – unnecessary that the specific term be used as a descriptor; error within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act1998 – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Mr S Grant, counsel
HWL Ebsworth Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	15 June 2022

INTRODUCTION AND BACKGROUND

Geoffrey Hallmann (the appellant) states he contracted glandular fever in about December 1992 at work. He states that the condition was “pushed into” Myalgic Encephalomyelitis/Chronic Fatigue Syndrome (“ME/CFS”) by long hours, work stressors and other factors. He said he had persistent flu-like symptoms from about 1995.[1] The condition was diagnosed in 1998. There were lengthy absences from the workforce subsequent to November 1996. The appellant states that there was a previous workers compensation claim with a deemed date of injury of 29 November 1996, and that matter is “still ongoing”. In August 2008 the appellant started working with Southern Cross University (the respondent) as an ITAS tutor (study assist officer). He worked on “revolving contracts” from 2008. His employment was casual.[2]
[1] Appellant’s statement 2/2/21 (misdescribed as 2/2/20 at its heading), Application to Resolve a Dispute (ARD), p 5, [34], [36], [39], [40]–[41], [69], [71].
[2] Appellant’s statement 2/2/21, [72]–[74], [76], [83].
The appellant, in these proceedings, relies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICPD 57
Decision Date: 18 September 2023

CaseChat Overview and Summary

In the matter of Hallmann v Southern Cross University, the applicant sought compensation for injuries sustained during employment. The primary dispute centred on the assessment of the consequential condition of orthostatic intolerance and its relation to the applicant's pre-existing diabetes. The case was heard and determined by the Workers Compensation Commission of New South Wales.

The key legal issues before the court were whether the Member correctly identified the consequential condition of orthostatic intolerance as a result of the applicant's employment injuries and whether the Member's findings on the matter were supported by the evidence. Additionally, the court had to consider whether the Member erred in his interpretation of the applicable law, particularly in relation to the concept of 'reasonably necessary' treatments and the admissibility of fresh evidence. The court was also required to determine whether the Member’s findings constituted an error within the meaning of s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The court examined the Member's findings on the condition of diabetes and the treatments claimed to address orthostatic intolerance. It was noted that the Member had clearly communicated his findings to the parties, including the respondent’s insurer. The court considered the appellant's arguments regarding the approval of specific treatments and the chain of causation set out in Dr Bird’s report. The court concluded that the Member’s findings on the consequential condition of orthostatic intolerance were adequately supported by the evidence and did not constitute an error. The court also found that the Member's reasoning processes were appropriate and aligned with the applicable legal standards.

The court dismissed the appeal, finding that Grounds Nos. 1 and 9 failed as the Member’s findings were clear and adequately supported by the evidence. The court upheld the Member's conclusions on the consequential condition of orthostatic intolerance and the treatments related to it. The appeal was dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 78 of the Personal Injury Commission Rules 2021 provides:“78 Statement of reasons for decision (1) This rule applies only in relation to the following applicable proceedings— (a) Commission proceedings, (b) merit review proceedings. (2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following— (a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the appropriate decision-maker’s understanding of the applicable law, (c) the reasoning processes that led the appropriate decision-maker to the conclusions made.” Reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[87] The Member’s reasons in my view satisfy the requirements discussed in decisions such as Beale[88] and Pollard v RRR Corporation Pty Ltd.[89] [87] Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; 185 CLR 259, [30].[88] See Beale, per Meagher JA, 442–444.[89] [2009] NSWCA 110, per McColl JA, [56]–[57]. It follows from the above that Grounds Nos. 1 and 9 fail. The Member’s finding on the condition of diabetes was made clear to the parties, including the respondent’s insurer. The appellant refers to the treatments which were claimed on the basis they were to treat orthostatic intolerance, being IV saline, AirRelax compression system and supply of an ottoman. He submits the Member expressly approved these treatments. The appellant quotes at length from the reports of Dr Bird and from remarks made by the Member in his reasons. The appellant refers to the findings of fact at [107]–[110], [172], [175] to [178], and [184]–[188] of the reasons.[90] He quotes from a decision in earlier proceedings involving him and a different employer, he quotes from passages from the reasons in which the Member was critical of the report of Dr Gorman and passages in the transcript before the Member which dealt with his needs relating to orthostatic intolerance. This includes quoting at length from the reports of Dr Bird. He submits the transcript shows that “orthostatic intolerance was raised 12 times with the Member”. He quotes from his own submissions at first instance.[91] [90] Appellant’s submissions, Ground No. 2, [1]–[16].[91] Appellant’s submissions, Ground No. 2, [18]–[34]. The appellant quotes from correspondence from the insurer dated 6 July 2022, in which the insurer said that “exacerbation of Orthostatic Intolerance and Diabetes Type 2 were not part of the findings in the Certificate of Determination and are not accepted under your claim.” The appellant submits the reasons unequivocally concluded that orthostatic intolerance was a consequential condition of the ME/CFS. He submits Dr Bird’s report dated 31 October 2021, and the chain of causation there set out, was accepted by the Member. The appellant submits there should be an order finding there was aggravation of orthostatic intolerance.[92] [92] Appellant’s submissions, Ground No. 2, [36]–[40].

Ratio Decidendi

Legal Principle Established

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