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 on injury in the employ of the respondent involving the “aggravation of a back injury and aggravation of myalgic encephalomyeltits/chronic fatigue syndrome (ME/CFS)”. The injury is pleaded as resulting from his use of an inappropriate chair while working from home as an ITAS tutor, during the COVID pandemic. The claim was initially accepted. The respondent denied liability from 20 July 2021 (when it disputed certain claims for medical and related treatment) and from 30 November 2021 (when it disputed whether the effects of any aggravation continued).[3] It issued a notice dated 7 October 2021, in which it disputed there was any entitlement to ongoing weekly payments or to medical or related treatment expenses.[4] The Application to Resolve a Dispute (the ARD) claims weekly compensation from 1 December 2021 on a continuing basis, together with various medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
[3] Hallmann v Southern Cross University [2022] NSWPIC 292, reasons for decision (reasons), [1], [3]–[5].
[4] ARD, pp 96–101.
The matter was listed for a preliminary conference on 12 April 2022. The appellant was self-represented and Mr Galea, solicitor, appeared for the respondent. Various procedural matters were dealt with, such as notices for production, an amendment to claim medical expenses in respect of a sleep physician, the production of documents and the time needed for a hearing. Ultimately the Member listed the matter for hearing over a full day, to be held on 31 May 2022.
The matter was listed for a further telephone conference on 27 April 2022. Again, the appellant was self-represented and Mr Galea, solicitor, appeared for the respondent. There was debate regarding the breadth of a notice for production issued by the appellant following the earlier telephone conference. The Member made orders that the respondent, by 5 pm on 28 April 2022, file and serve reasons why any particular document required to be produced pursuant to the notice should not be produced. The appellant had until 6 May 2022 to respond. A decision on this issue was to be made after 6 May 2022. The respondent was otherwise to produce documents pursuant to the notice, in respect of which no objection was made.[5] The Commission issued a Direction dated 10 May 2022 (accompanied by reasons) requiring the respondent to comply with the Notice to Produce by 16 May 2022.
[5] Transcript 27/4/22 (T2), T2 18.24–19.9.
The matter was listed for hearing on 31 May 2022. The appellant was self-represented and Mr Grant of counsel appeared for the respondent. The hearing was conducted by way of a video link consistent with the Commission’s protocols during the coronavirus pandemic. Both parties addressed and the appellant made submissions in reply. The Member reserved his decision. The Commission issued a Certificate of Determination dated 15 June 2022 accompanied by the reasons.

THE MEMBER’S REASONS

The Member referred to the background, briefly summarised at [1] above. He referred to various specific claims made in the proceedings, pursuant to s 60 of the 1987 Act. These involved general practitioner consultations and medication, a king-sized orthopaedic mattress, a curved computer monitor screen, a sit/stand desk and accessories, a chair, an “air relax compression system”, an ottoman, a wearable monitoring apparatus, “IV Saline Solutions” on a monthly basis and an Isagenix diet on a monthly basis. He said the agreed issues were whether the effects of injury had ceased, the extent of incapacity for work, and liability for past medical expenses.[6]
[6] Reasons, [2]–[8].
The Member summarised the appellant’s evidence from his statements. He concluded that the appellant continued to work for the respondent, including in an unsuitable chair at home, until mid-September 2020. The Member said there was no evidence to suggest that the appellant’s work with other universities (Sydney University and the University of New England) contributed to aggravations of the appellant’s conditions. He said s 16 of the 1987 Act fixed liability on the employer who last employed the worker in relevant employment. The respondent had not sought to join the other universities on the basis it had any contribution rights pursuant to s 16(2).[7]
[7] Reasons, [49]–[53].
The Member referred to the reports from Dr Bird, the appellant’s treating doctor. Dr Bird drew a distinction between the appellant’s work during 2020 (increased hours performed completely at home) and in past years (performed primarily face to face which allowed him to move around). Dr Bird made the following diagnoses:
“Aggravation of back/cervical spine/neck injury leading to exacerbation of ME/CFS with persisting Fibromyalgia (FM) Note – the back was triggered before the ME/CFS with FM and then caused the triggering of the ME/CFS symptoms of pain, fatigue, migraines, headaches, etc.
Weight gain as a result of injury (about 8kgs in a month) resulting from reduced activity caused by injury.”[8]
[8] Reasons, [56]–[59].
The Member referred to Dr Cleaver, an orthopaedic surgeon who had reported to Dr Bird. Dr Cleaver described “pain in three spinal regions due to the posture he had to adopt while working from home”. The doctor said the pain was “a muscular postural response to an abnormal situation, but that this condition should settle down with physical therapies”.[9]
[9] Reasons, [64]–[66].
The Member referred to two reports from Dr Keller, an occupational physician qualified by the respondent, following “Zoom” examinations. Dr Keller said there were significant medical restrictions, saying it was:
“… plausible that being more sedentary while working from home has aggravated the [appellant’s] symptoms but [I] cannot see why the [appellant] could not manage these symptoms through breaks and activity on a self managed basis.”
The Member referred to Dr Keller’s second report where the doctor said that the evidence was insufficient to support the claim that the employment was the main contributing factor to the symptoms and the need for treatment.[10]
[10] Reasons, [67]–[72].
The Member referred to reports from Dr Gorman, a consultant physician who reported at the respondent’s request. Dr Gorman considered there may have initially been a brief aggravation of the pre-existing condition but the aggravation had now resolved. The ongoing condition was “100% the result of his pre-existing conditions”. He did not consider employment to be the main contributing factor to any aggravation. He conceded the appellant’s office chair “may have worsened the [appellant’s] symptoms for a short period”.[11]
[11] Reasons, [73]–[80].
Although he had some misgivings,[12] the Member ultimately concluded that Dr Bird was “in a very good position to provide an opinion”.[13] The Member said that Dr Cleaver overcame the criticism that there was “no specific diagnosis of the injury”. He described Dr Bird’s opinion on causation in his report dated 31 October 2021 as “compelling”. It identified “an unbroken chain of events from the [appellant] being required to work from home in an unsuitable chair to the onset of significant pain throughout his spine, and then to the aggravation of ME/CFS symptoms”. The Member said that the appellant’s work “had to be done from a work station in his home”. He said Dr Bird had “a better understanding of the work being undertaken”. The Member also accepted Dr Bird’s opinion that “lack of activity and increase in weight due to the spinal pain” aggravated the pre-existing ME/CFS”.[14]
[12] Reasons, [82]–[83].
[13] Reasons, [84]–[86].
[14] Reasons, [88]–[96].
The Member referred to Dr Bird’s discussion of a photograph that showed swelling of the appellant’s feet and ankles. Dr Bird considered the swelling of the ankles was “reflective of microcirculatory issues from ME/CFS and poor cardiac return”. Dr Bird considered the symptoms of ME/CFS had been aggravated by the “unsuitable work conditions at home”. The Member said that Dr Keller did not refer to such symptoms although they had been raised in two of Dr Bird’s reports by the time of Dr Keller’s consultation with the appellant. The Member said that Dr Gorman did not refer to swelling of the limbs at his examination, nor did he examine the appellant’s gait, although there were complaints of a lack of balance.[15]
[15] Reasons, [98]–[103].
The Member quoted a passage from AV v AW[16] dealing with proof of injury involving aggravation, etcetera pursuant to s 4(b)(ii) of the 1987 Act. He referred to the issue of whether employment was the ‘main contributing factor’ to the aggravation of the ME/CFS condition. He said that Dr Gorman had not engaged in the necessary evaluative process, considering the contribution from both work and non-work factors. He attributed the appellant’s deteriorating condition to increasing inactivity and weight gain without considering whether the source of these factors was the poor working conditions at home. The Member accepted there was spinal pain due to unsuitable working conditions. This caused decreased activity and weight gain, which in turn led to aggravation of symptoms associated with ME/CFS, such as swelling of the lower limbs and balance problems. He accepted Dr Bird’s conclusion that employment with the respondent was the main contributing factor to the aggravation of the spinal condition and ME/CFS.[17] The Member concluded:
“The medical evidence which I have preferred supports a finding that the effects of the injury sustained by the [appellant] are continuing, and therefore the respondent remains liable for weekly payments of compensation and the payment of reasonably necessary medical treatment.”[18]
[16] [2020] NSWWCCPD 9.
[17] Reasons, [104]–[108].
[18] Reasons, [110].
The Member considered the appellant’s entitlements. He said he could not make a weekly award for the period 18 May 2020 to 30 June 2020 as there was no medical evidence dealing with the appellant’s entitlements for this period. He said there was also an available inference that the appellant was able to earn “at least the maximum weekly compensation amount pursuant to section 34 of the 1987 Act” during that period.[19] The Member discussed the earnings revealed by the appellant’s Schedule of Earnings.[20] He discussed Dr Bird’s Certificates of Capacity and report. He briefly summarised Dr Gorman’s views on incapacity, which Dr Gorman did not consider resulted from workplace injury in any event.[21]
[19] Reasons, [113].
[20] Reasons, [114]–[116].
[21] Reasons, [117]–[120].
The Member quoted s 37 of the 1987 Act, which he said governed the appellant’s weekly entitlement from 1 December 2021. The Member said the appellant’s Schedule of Earnings showed him to have worked “11 hours during three separate fortnightly periods from 5 November 2021 to 10 December 2021”. He said this was inconsistent with Dr Bird’s opinion that the appellant was not fit for any duties during that time. He said that the appellant showed work capacity during the last nine months of 2021, including the six weeks during November and early December when Dr Bird considered he had no work capacity. The Member said that the appellant conceded in his submissions in reply that he was “doing sporadic work at the moment”. He found the appellant “retained some partial capacity for work since 1 December 2021”.[22]
[22] Reasons, [121]–[127].
The Member turned to deal with the extent of the partial incapacity and calculation of the weekly entitlement. He noted s 32A of the 1987 Act required him to ignore the availability of work for which the worker was currently suited. He said the appellant had an ability “to earn around $700 per week for six weeks during 2021”. He said a “more realistic assessment of his work capacity should be based upon his earnings around the time liability was disputed”, a figure of “$340 per week, being his earnings with Sydney University from 5 November 2021 to 10 December 2021”. This represented “about 5.5 hours of work per week, [which] comes within the restrictions set out by Dr Bird in the Certificates of Capacity which were issued prior to [that dated] 15 December 2021 which certified the [appellant] as having no current work capacity”. The Member said the maximum applicable weekly compensation amount was $2,195.70 to 31 March 2022 and is now $2,224. The award pursuant to s 37(3) of the 1987 Act was:
(a) from 1 December 2021 to 31 March 2022: $2,195.70 less $340 = $1,855.70 per week; and
(b) from 1 April 2022 to date and continuing: $2,224.00 less $340 = $1.884 per week.[23]
[23] Reasons, [129]–[137].
The Member then referred to the specific claims for medical or related treatment recommended by Dr Bird, several of which were disputed in the notice dated 20 July 2021. The first was a king-sized orthopaedic mattress. This was previously recommended in 2010 by Mr Pratt, an occupational therapist. The appellant’s muscle spasms and movements during the night caused his partner to be involuntarily struck during her sleep. The mattress was to allow the appellant and his partner as much room as possible while staying in the same bed. Dr Bird said the existing mattress was now past its use by date and sagging. Dr Bird also said the type of mattress now required was “different because of the new injury”.[24]
[24] Reasons, [139]–[142].
The Member referred to the decision of Rose v Health Commission (NSW) in which Burke CCJ said:
“Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.”[25]
The Member said that a comfortable night’s sleep, with the appellant’s ongoing spinal pain, met the criteria in Rose. It met the definition of a ‘curative apparatus’ in subclause (g) of s 59 of the 1987 Act. He referred to Thomas v Ferguson Transformers Pty Ltd[26] where Hutley JA said an apparatus may be curative if it assists in the “continual war with disease, atrophy of the muscles by lack of use, and even psychological decay by reason of lack of something to do”. The Member considered the mattress also fell within the definition of ‘modification of a worker’s home or vehicle directed by a medical practitioner’ in subcl (g) of s 59. He ordered that the respondent pay the cost of purchase and delivery of a mattress as recommended by Ms Smith, occupational therapist, in her report dated 5 April 2021.[27]
[25] [1986] NSWCC 2; 2 NSWCCR 32 (Rose), [48A–C].
[26] [1979] 1 NSWLR 216 (Thomas), 220.
[27] Reasons, [146]–[151].
The Member said it was “reasonable that the respondent meets the cost of a suitable ergonomic chair for the [appellant] to use”. He said it fell within subcl (g) of s 59, ‘modification of the worker’s home’. The appellant nominated a specific chair which was not supported by medical opinion. Ms Smith recommended a specific chair but the appellant said it was not appropriate for him. The chair the appellant suggested was one that Ms Smith thought was unsuitable as it lacked appropriate lumbar or neck support. Bearing in mind the nature of the injury the subject of this dispute, the Member said it was “imperative” that the appellant have “a suitable chair which is recommended by an appropriate expert”. He ordered:
“the respondent is [to] pay for the costs of trials of a suitable office chair to be used by the [appellant] in his home under the supervision of a medical practitioner, and that the respondent is to pay for a suitable office chair upon the recommendation of a medical practitioner.”[28]
[28] Reasons, [152]–[159].
Dealing with the claim for a “sit/stand desk and accessories” the Member referred to the reports of Dr Bird, Ms Wise and Ms Smith and ordered:
“There will be an order that the respondent is to pay for the cost of the purchase, delivery and installation of a 1800mm x 1500mm electric height adjustable work station.”[29]
[29] Reasons, [160]–[164].
The Member dealt with the claim for a curved computer monitor screen. The appellant claimed the cost of a “49 inch Curved DQHD Gaming Monitor”, at $3,408. Ms Smith considered a curved gaming screen was not suitable, it was designed for picture viewing and gaming, twin screens would be a more appropriate option. Dr Bird recommended a 48 inch or larger curved monitor with higher clarity of definition. He said he would not recommend twin screens, a curved monitor with high quality images would allow the appellant to “perform his duties and view the screen from multiple angles”. The Member preferred the opinion of Ms Smith, who had occupational therapist qualifications and also “the benefit of attending the [appellant’s] home to determine his immediate needs”. The Member noted Dr Bird had not “considered the concerns raised by Ms Smith”. There was no order regarding the cost of a curved computer monitor screen.[30]
[30] Reasons, [165]–[170].

The Member dealt with the cost of an ottoman. One symptom of the found aggravation injury was swelling of the appellant’s lower limbs. Dr Bird recommended the ottoman to keep the legs elevated. The Member said a “suitable ottoman” was necessary to try and reduce the appellant’s swelling in his lower limbs. The respondent was to pay the cost of an ottoman.[31]
[31] Reasons, [171]–[174].
The Member dealt with the claim for an “air relax compression system”. Dr Bird recommended it to try to reduce pain and swelling in the appellant’s legs. Dr Bird said the appellant had benefitted from the use of such a device. The Member said Dr Gorman was not critical of the device, but rather said it related to pre-existing medical problems (an argument that was not accepted by the Member). The appellant stated that he had such a device and it was an “effective temporary tool” to reduce swelling. The Member accepted this device was a ‘curative apparatus’ and ordered the respondent to meet the cost.[32]
[32] Reasons, [175]–[180].
There was a claim for a “wearable monitoring apparatus”, an “Apple iwatch or Garmin”, to monitor things such as “steps in the day, heart rate, blood oxygen gases and blood pressure”. The Member said it was reasonably necessary to allow this device for the monitoring of “vital signs”.[33]
[33] Reasons, [181]–[183].
There was a claim, supported by Dr Bird, for the administering of one litre of saline each month, to assist in increasing blood volume and improving cardiac function. Dr Bird said there had been prior use of IV saline, before the most recent work injury, but the appellant’s “postural orthostatic intolerance” had moved from “an intermittent issue to a chronic issue”. Dr Gorman said the treatment made “little physiological sense” given the “fluid loading” in the ankles and hands. The Member said he would give weight to the opinion of Dr Bird, who had treated the appellant over many years, the treatment fell within the criteria set in Rose. The Member observed that this treatment was “potentially open-ended”, Dr Bird gave no guidance regarding how long it should be used. The Member said there needs to be a balance between allowing a reasonable time to gauge the benefit and providing certainty to the respondent regarding its financial burden, “at least until the potential benefits of this treatment can be measured”. There was not guidance from the experts on this issue. The Member said that, balancing the interests of the parties, the respondent should “meet the cost of IV saline solution each month for a period of one year from the date of this determination”.[34]
[34] Reasons, [184]–[191].
The Member dealt with the claim relating to an Isagenix diet. He referred to the appellant’s weight at different times; it had exceeded 135 kilograms. Dr Bird said that the Isagenix diet was an “effective option” to try to reduce the appellant’s weight. He could not exercise or use a gym program due to his injuries. His most recent weight, referred to in his statements, was 130 kilograms. Dr Gorman suggested dietary means, he did not accept the Isagenix diet had benefits over other ways of reducing calories. The Member said there was an “unbroken chain of events” which commenced with his spinal pain due to unsuitable work conditions and led to weight increase due to the spinal pain. The Member preferred the opinion of Dr Bird, as he had responsibility for the appellant’s ongoing care. Dr Bird did not put parameters on how long this diet should be used for. The Member said that six months should be sufficient to determine whether the diet would benefit the appellant. There was an order that the respondent pay the cost of the Isagenix diet for six months from the date of the determination.[35]
[35] Reasons, [192]–[201].

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.”
The appellant submits the matter cannot be decided solely on the basis of the written material. He submits “there will need to be oral submissions due to my limited ability to cover the submissions in full”.[36] The respondent submits the matter can be decided on the basis of the written material.
[36] Appellant’s submissions, p 2.
The appellant’s Appeal Against Decision of Member was dated 13 July 2022. The written submissions attached to the appeal run to 149 typed pages, including the appellant’s chronology and list of authorities. There follows a further 88 pages of documents that are the subject of an application by the appellant to admit fresh or additional evidence. The appellant lodged “Further submissions” dated 24 August 2022, which were 5 typed pages in length. The appellant, in his further submissions, additionally sought to include a further ground of appeal (Ground No. 11) that “The Member has erred in failing to make express findings with respect to the consequential conditions arising from the injury.” The respondent’s Notice of Opposition was lodged on 12 September 2022. The respondent’s written submissions in that Notice, including its list of authorities, occupied 10 typed pages. The appellant, on 3 October 2022, lodged submissions in reply. These ran to a further 46 pages (not including 6 pages of correspondence attached to those submissions as an annexure).
The submission that the appellant had limited ability to cover the submissions in full is not adequately explained. The appellant describes himself as having a “very good understanding of the English language both verbal and written”. He states he has a Bachelor of Business (Accounting) with Honours from the University of New England – Northern Rivers. He states he has a Bachelor of Laws with First Class Honours from the University of Newcastle. He states he has a Diploma of Legal Practice from the University of Newcastle. His employment history includes working as a solicitor from May 2004 to March 2006.[37] I have read his submissions, which are comprehensive. He is well-able to express himself in his written material. I do not accept that the appellant lacked the opportunity to include appropriate submissions in the voluminous material he has lodged. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submission by the respondent 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.
[37] Appellant’s statement 2/2/21, [69], [71].

SUBSEQUENT PROCEEDINGS

The Member’s decision was issued on 15 June 2022. The appellant’s Appeal Against Decision of Member was dated 13 July 2022. On 11 September 2022 the appellant commenced further Commission proceedings, involving the same parties, no. W5967/22. These referred to the Certificate of Determination in the current proceedings and stated the matter was under appeal. The further proceedings nominated a date of injury of 18 May 2020, the same as the pleaded date of injury in the current proceedings. I note in the current matter the Member’s weekly award commenced on 1 July 2020, which was also found to be the deemed date of injury. The Member said there was no medical evidence for the period from 18 May 2020 to 30 June 2020 (see [16] above). The finding of the date of deemed injury would reflect the first relevant date of incapacity, on the medical evidence.
The pleading of injury in the two sets of proceedings was similar but not identical. Both pleaded “aggravation of existing spinal injury (Lumbar, Thoracic and Cervical)”, “consequential sleep issues (also aggravating ME/CFS with FM)”, and “aggravation/deterioration of existing ME/CFS with FM (by aggravated spinal injuries AND sleep deterioration”. The current proceedings nominate 8 separate injury descriptions, the subsequent proceedings nominate 14 injury descriptions.
The subsequent proceedings came before a senior member by way of a preliminary conference on 19 October 2022.[38] The appellant was self-represented and the respondent was represented by Mr Galea, solicitor. A dispute notice dated 1 September 2022 had been issued by the respondent relating to “certain section 60 expenses and referrals and so forth”.[39] The respondent withdrew its dispute notice. It agreed to pay weekly benefits on the basis of total incapacity from 16 June 2022 (the date immediately following the decision in the current proceedings).[40] The respondent was to have credit for payments made. It was ordered that the respondent pay weekly compensation and expenses pursuant to s 60 of the 1987 Act as follows:
“1. The respondent is to pay weekly benefits in accordance with the liability acceptance letter dated 29 June 2022, from 16 June 2022 to date and continuing; and the respondent is to have credit for payments made.
2. The respondent is to pay pursuant to section 60 of the Workers Compensation Act 1987 medical expenses, as follows:
(a)Consultations with ophthalmologist; gastroenterologist; dentist; endocrinologist; sleep physician; and cardiologist, and investigations recommended by those specialists;
(b)Chiropractor;
(c)Medications, heat packs, cold packs; and
(d)Incidental costs”.[41]
[38] Transcript 19/10/22 (T3).
[39] T3 2.3–5, 7.9–10.
[40] T3 33.14–16, 35.15–36.7.
[41] Certificate of Determination – Consent Orders, matter no. W5967/22, 19/10/22.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to quantum, pursuant to subs (3) of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met. The decision is not interlocutory.
The Commission wrote to the appellant on 13 July 2022 advising that his attempt to lodge his Application to Appeal on that date had been rejected, as the attachment to the Application (that should have contained the grounds of appeal, submissions, chronology and authorities) was a blank white page. The letter also made other suggestions regarding the availability of legal advice and the like. The Commission forwarded an email to the appellant on the same date, stating that a number of staff members had attempted to open the attachment with the same result. The appellant was advised to relodge the document within the prescribed time if he wished. An email from the Commission to the appellant dated 14 July 2022 indicated that an attempt to relodge the appeal document online, at 4.56 pm on 13 July 2022, met the same outcome. An email from the Commission to the appellant on 15 July 2022 confirmed the position. The appellant emailed the Commission on Friday 15 July 2022 stating he had been unwell for a few days, that there had been an update to his computer “several days ago” and that he would attempt “to work this out”.[42] The balance of the appeal documentation (the grounds, submissions, chronology and authorities) was successfully lodged by the appellant with the Commission, online, on 25 July 2022. The respondent’s solicitors were cc’d into the above email exchange between the Commission and the appellant.
[42] Application to Appeal, pp 150–160.
The appellant’s Application to Appeal was not lodged in its entirety until a date outside the period of 28 days provided in subs (4) of s 352 of the 1998 Act. The appellant submits “the application was lodged on time. The annexures, however, were late due to circumstances beyond my control”. He submits “I cannot explain what has occurred”.[43] The respondent, fairly, does not take any point that the appeal was lodged out of time nor argue that the appeal cannot be brought in the circumstances. To the extent that it is necessary, the time to bring the appeal is extended to 25 July 2022. The respondent makes no argument to the contrary.
[43] Application to Appeal, p 1.

SUBSEQUENT CORRESPONDENCE

On 31 August 2023, the Commission advised the parties by email that the matter had been allocated to me for determination. On the same day, the appellant sent an email to the Commission in the following terms:
“Matters have moved forward on multiple points in this matter.
What is the time frame for this, noting it is now 12 months removed in time. I would need to provide updated submissions”.
On 1 September 2023, the Commission replied in the following terms:
“The parties do not have a right to lodge further submissions as a consequence of the matter having been allocated to a Presidential member. The timetable for submissions is closed.
Any application by a party to rely on further submissions outside the timetable would require leave of the Commission. Such an application would have to be served on your opponent who would be entitled to respond.
Any such application would need to be made with great promptness as the matter is currently with the relevant Presidential member for preparation of a decision.
This correspondence should not be taken as constituting an indication that leave would be granted.
Please ensure that the respondent’s solicitors are copied into any correspondence or material that you forward to the Commission.”
The appellant did not subsequently lodge any application.

THE GROUNDS OF APPEAL

The appellant raises the following grounds of appeal (including the fresh ground, [Ground No. 11] referred to in the appellant’s submissions dated 24 August 2022):
Ground No. 1: The Member failed [to] expressly state his finding that the condition of diabetes was a consequential condition of the injury when finding the medication for diabetes, diabetes monitor and weight loss treatment was reasonably necessary to treat diabetes.
Ground No. 2: The Member failed to expressly state his finding that the condition, orthostatic intolerance (also known as Postural Orthostatic Intolerance) had been aggravated by the injury when making his finding that the treatments for orthostatic intolerance, being IV saline and AirRelax and the Ottoman for elevation of legs, were all reasonably necessary.
Ground No. 3: The Member erred in his finding that the Curved 49” Monitor was not reasonably necessary.
Ground No. 4: The Member erred in his decision to limit the IV saline solution to 12 months.
Ground No. 5: The Member erred in his finding that the claimed total set out in the Form 2 – Application to Resolve Dispute was reasonably necessary with respect to the sit-stand desk whilst failing to stipulate that the accessories that were included in this total in the quote submitted in evidence, were also reasonably necessary.
Ground No. 6: The Member erred in his finding that the ‘Sealy Vienna Plush King Mattress’ from Harvey Norman valued at $8,099 was an appropriate mattress.
Ground No. 7: The Member erred in his finding that the claimed total set out in the Form 2 – Application to Resolve Dispute was reasonably necessary with respect to the King Sized Orthopaedic Mattress whilst failing to stipulate that the woollen underlay that was included in this total in the quote submitted in evidence, were also reasonably necessary.
Ground No. 8: The Member erred in fact when exercising his discretion to limit the Isagenix diet to a period of 6 months.
Ground No. 9: The Member erred in failing to clearly express his finding that the medications claimed for Diabetes was [sic] due to his apparent finding that diabetes was a consequential condition arising out of the injury.
Ground No. 10: The Member erred in finding the Appellant had a predictable work capacity of 5 hours per week;
Ground No. 11: The Member has erred in failing to make express findings with respect to the consequential conditions arising from the injury.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

This appeal is brought pursuant to s 352 of the 1998 Act, subs (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 Northern NSW Local Health Network v Heggie[44] 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.”[45]
[44] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[45] Heggie, [72].
In Raulston v Toll Pty Ltd[46] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[47] 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’.”[48]
[46] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[47] (1966) 39 ALJR 505, 506.
[48] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill,[49] 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).”[50]
[49] [2020] NSWCA 54 (Hill).
[50] Hill, [20].

THE APPELLANT AS AN UNREPRESENTED LITIGANT

The appellant’s submissions make frequent references to his status as an unrepresented litigant. In Reisner v Bratt Hodgson JA (Ipp JA agreeing) said:
“Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.”[51]
[51] [2004] NSWCA 22, [4].
The Commission has an Access Charter that refers, amongst other things, to self-represented parties. It provides for the Commission to furnish information to such a party. It accepts that the needs of parties will vary. It states the Commission is unable to provide legal advice but will encourage unrepresented parties to obtain representation. The appellant, according to his documents, holds multiple tertiary qualifications. The appellant’s sign off, in a letter dated 25 January 2021, described his qualifications as “BBus (Hons), LLB(Hons), Dip Leg Prac, Dip Fin Plan”.[52] In the past he held employment as a solicitor for about two years with a firm in Lismore. He has previously appeared unrepresented in arbitral and Presidential proceedings of the former Workers Compensation Commission of New South Wales.[53] In the course of making a complaint about an independent medical examiner who saw him for the purpose of the current proceedings, the appellant wrote:
“By way of background, I am a former solicitor with experience in Workers Compensation. I have had an ongoing Workers Compensation [sic] for some 20 years. I have attended some 25 or so IME and AMS appointments across that time. I am well versed with the AMA Code of Medical Practice effective 1 October 2020 and Ethical Guidelines on Independent Medical Assessments, revised in 2015.”[54]
[52] ARD, p 1,239.
[53] Hallmann v National Mutual Life Association of Australia Ltd [2018] NSWWCCPD 20.
[54] ARD, p 1,223.

The Commission made suggestions regarding the possibility of his obtaining legal advice when he had apparent difficulties lodging his appeal material on the portal. The appellant’s situation is not that of a typical unrepresented litigant. It is necessary that he be given a fair hearing.

APPLICATION TO ADMIT FRESH OR ADDITIONAL EVIDENCE

Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In CHEP Australia Ltd v Strickland[55] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. ... The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[55] [2013] NSWCA 351; 12 DDCR 501 (Strickland).

Submissions on this issue

The documents the subject of this application are described as 2022 Certificates of capacity, 2022 email correspondence with EML and IRO (Independent Review Office), 2022 payslips and travel reimbursements. There is also a further report from Dr Bird. Except for the last of these, the reason why they “were not in original proceedings before the Member” is given as being that they did not exist when those proceedings were commenced. In respect of the travel reimbursements, the reason given is that they “were generated in December 2021 … [t]hey are additional documents”.[56] He submits he was unaware the documents would be required.
[56] Appellant’s submissions, pp 2–3.
The appellant submits the reasons supporting the granting of leave are:
(a)    he is unrepresented;
(b)    the Member erred in assessing his work capacity;
(c)    he did not know the documents would be required by the Member;
(d)    his level of capacity is, since 2020, sporadic, unpredictable and limited;
(e)    the certificates go to his actual capacity to work during 2022, which he did not address as he was unaware he had to;
(f)    the correspondence with EML goes to acceptance of diabetes and orthostatic intolerance and to the issue of whether money had been obtained fraudulently,
(g)    correspondence with IRO goes to the fraud allegations and credit;
(h)    travel documents go to attendance at physiotherapy in September/October 2021, they establish a gap in treatment and time off work;
(i)    Dr Bird’s report of 20 June 2022 explains incapacity and investigations;
(j)    the appellant submits that his capacity to work is nil, and
(k)    the respondent is a model litigant which should not benefit from the mistake of an unrepresented litigant.[57]
[57] Appellant’s submissions, pp 3–4.
The respondent opposes the grant of leave. It submits:
(a)    It is necessary to consider whether the relevant evidence could have been obtained with reasonable diligence for use at the hearing, whether there is a high degree of probability of a different outcome if it were admitted, whether the evidence is credible, the merits of the appeal and whether admission is just and equitable.[58]
(b)    There is a need to balance the public interest that litigation should not proceed interminably against the need for justice to be done. The Commission is to act according to equity, good conscience and the substantial merits of the case.[59]
(c)    The appellant has a legal qualification and chose to act for himself. He has demonstrated knowledge of the workers compensation legislation. He understands the procedural availability of late documents.
(d)    The respondent submits the appellant seeks to use his ignorance as an excuse. This should not be allowed to create unfairness.[60]
(e)    The medical certificates of Dr Bird that predate the decision could have been available with reasonable diligence. The certificate of Dr Bird that postdates the decision cannot be relevant to whether the decision contains error of fact, law or discretion.
(f)    The correspondence that relates to administration of the claim by the insurer is irrelevant. It is not likely to affect the outcome.
(g)    Dr Bird’s report dated 20 June 2022 postdates the hearing, it is argumentative, much of the information could have been obtained with reasonable diligence prior to the hearing. If admitted now the respondent is deprived of the opportunity to seek further evidence to meet it.
(h)    The various bar graphs could, with reasonable diligence, have been obtained for use at the hearing. It is unlikely they would alter the outcome in any event.[61]
[58] Reference is made to Haider v JP Morgan Holdings Australia Ltd [2007] NSWCA 158.
[59] Reference is made to PCR Plastic Settings Pty Ltd v De Brito (No. 3) [2008] NSWWCCPD 82.
[60] Respondent’s submissions, [1]–[11].
[61] Respondent’s submissions, [12].
The appellant, on this application, submits in reply:
(a)    His previous solicitor, Mr Bechara, withdrew from the matter at the time of the preliminary conference held on 21 March 2022. He submits the respondent was aware of this as it was referred to in the preliminary conference held on 12 April 2022. He accuses the respondent of misleading the Commission and breaching its obligations as a model litigant in this regard. He submits the matter should be referred to the Registrar to consider what action should be taken against the respondent.
(b)    There are lengthy submissions from the appellant that accuse the respondent of misleading the Commission in various ways. He submits his relevant legal knowledge was not as great as the respondent states. He submits (amongst other things) that he has evidence of brain damage. He submits at length on the Commission’s ‘Access and Equity Charter’ and says he was not supplied with various forms of assistance referred to in the Charter. The appellant submits he was “ambushed” by the respondent on the issue of whether he had a partial incapacity. He submits the Member should not have considered that issue. Alternatively, the fresh evidence should be admitted to meet it.[62]
(c)    The appellant refers to Oztech Pty Ltd v Public Trustee of Queensland (No. 15)[63] and Alan v Vehicle Builders Employees Federation of Australia[64] on the meaning of the phrase ‘reasonable diligence’. The appellant submits he did not have the knowledge and understanding of the workers compensation jurisdiction that a legal practitioner would have. He says he had a brain injury, he had various conditions that were aggravated, he was “prone to oversight and errors”. He submits he was required to process a significant body of material after the respondent made it available to him prior to the hearing date, he was sick and overwhelmed. He submits he “exercised the diligence of a non-solicitor applicant with brain damage (including memory issues)”.[65]
(d)    The appellant makes lengthy submissions dealing with whether he had residual earning capacity. He argues for the admission on appeal of correspondence with the insurer, travel reimbursement forms and pay slips. He makes submissions about his sleep difficulties, referring to the bar graphs and oral submissions at the hearing on 31 May 2022. He submits the Member’s decision on the issue of earning capacity involved forcing him “to work in an environment that he accepted was aggravating my condition”. The appellant’s fundamental submission is that he was totally incapacitated.[66]
(e)    The appellant seeks to defend Dr Bird’s report dated 20 June 2022 against the respondent’s criticism that it was “argumentative”. He submits the report was balanced and based on evidence. It dealt with changes in the severity of symptoms over time. Some of the documents were not available until after 31 May 2022. The appellant submits the report could not have been produced before the Member’s decision as it went to “future management of the claim”. The appellant submits the report proves that sleep issues deteriorated severely and would have resulted in a different outcome, a finding that the appellant had no earning capacity. The respondent submits that, if the respondent had obtained a further report from Dr Gorman (or another IME), the doctor “would simply have followed the respondent’s letter of instruction (as Dr Gorman did to a tee) and repeated the respondent’s position that there was no incapacity and the aggravations had discontinued”. The respondent’s position would have remained unchanged.[67]

Consideration – fresh or additional evidence

[62] Appellant’s submissions in reply, pp 1–7.

[63] [2018] FCA 819, [334].

[64] [1978] FCA 29; 34 FLR 294.

[65] Appellant’s submissions in reply, pp 8–10.

[66] Appellant’s submissions in reply, pp 11–15.

[67] Appellant’s submissions in reply, pp 15–18.

2022 certificates of incapacity

The fact that the appellant describes himself as “unrepresented” (see [47] above) does not constitute a submission in favour of granting of leave.
The certificates are at pages 1 to 10 of the fresh evidence, which commences at p 162 of the Appeal Application. The appellant submits the certificates were created after the ARD was filed (8 February 2022). The certificates demonstrate the appellant’s variable, actual work capacity from 1 December 2021 to 30 June 2022. The appellant submits he was unaware that he needed to address the issue of work capacity. The listed certificates are dated 15 February 2022, 19 April 2022, 10 June 2022 and 20 June 2022. The respondent submits the certificates prior to 15 June 2022 could have been obtained with reasonable diligence for use in the proceedings. It submits the certificate dated 20 June 2022 could not be relevant to whether there was error of fact, law or discretion in a decision dated 15 June 2022.
The certificates dated 15 February 2022, 19 April 2022 and 10 June 2022 are all signed by both the appellant and Dr Bird. On their face they were available for use in the proceedings and the first limb of the test in Strickland is not satisfied. Alternatively, the documents may be admitted on the basis of the second limb of the test in s 352(6), if the unavailability of the evidence would cause ‘substantial injustice’. Applying Strickland, this would require that the decision that would emerge would be different if the evidence were taken into account.
The various certificates the subject of the application for leave (pages 1 to 12 of the fresh evidence) indicate that, in Dr Bird’s view, the appellant had no current capacity for any work. The Member’s analysis of the appellant’s capacity for work was, in any event, predicated on the understanding that that this was Dr Bird’s opinion. The Member referred to Dr Bird’s report dated 31 October 2021, in which the doctor said “[c]urrently, with the removal of treatment, he has been unable to work. I will review my position in my next certificate. Currently he is not fit for duties.”[68] The Member, in his reasons at [118], referred to Dr Bird’s certificate dated 15 December 2021. This certified the appellant “as having no current work capacity from 11 November 2021 to 15 March 2022”.
[68] Reasons, [119].
The Member gave reasons for not accepting Dr Bird’s opinion on this topic. He referred to inconsistency between the certification that the appellant was “not fit for any duties” and the appellant’s Schedule of Earnings. He referred to a lack of specificity in Dr Bird’s view that the removal of treatment caused a decline in the appellant’s work capacity. The Member referred to internal inconsistency in the description of whether the appellant had ceased work during December 2021. He made a finding of fact that the appellant had “some partial capacity for work since 1 December 2021”.[69] The Member did not accept Dr Bird’s opinion on work capacity from 1 December 2021. It could not be concluded that the result would be different if Dr Bird’s further certificates were taken into account. It follows that leave is not granted in respect of these certificates of Dr Bird.
[69] Reasons, [122]–[127].

2022 email correspondence

The appellant submits this material (pages 13 to 23 of the fresh evidence) goes to the acceptance of diabetes and orthostatic intolerance, whether money had been obtained fraudulently, and credit. I cannot see how this material has any relevance to the appeal. Whether benefits had at any time been obtained fraudulently was not an issue before the Member. It was not a topic that was referred to in his reasons. Most (although not all) of these documents postdate the Member’s decision. Correspondence deals with whether the insurer, on the basis of the Member’s decision, accepted that treatment costs relating to diabetes and orthostatic intolerance were payable. The respondent submits correspondence relating to the administration of the claim by the insurer is irrelevant and is unlikely to affect the outcome. I accept that submission. I cannot see a basis on which the interests of justice favour the granting of leave in respect of these documents. Leave is refused in respect of these documents.

Travel reimbursement forms

These consist of two documents (page 25 of the fresh evidence) from the appellant directed to icare. The documents claim the cost of return travel between Goonellabah (where the appellant resides) and Ballina, to receive physiotherapy. The distance claimed is 29 kilometres in each direction. The dates are 8 April 2021, 12 April 2021, 19 April 2021, 22 April 2021 and 14 October 2021. The appellant submits that these documents establish a gap in treatment and time off work. The respondent submits these documents are irrelevant.
One could not infer, from these documents, that there was a break in treatment or time off work. I accept the respondent’s submission that they are not relevant. The appellant cannot establish that they were not available in advance of the proceedings. The documents are both dated in 2021 and the appellant is the author. There is no logical basis on which they could satisfy the second limb of the test in s 352(6), that a different result would emerge if they were taken into account. The application for leave in respect of these documents is refused.

Payslips

There are two payslips from the University of Sydney (pages 26 to 27 of the fresh evidence). That dated 5 May 2022 describes “This Pay” as $154.52 gross and the year to date total as $7,493.02 gross. That dated 16 June 2022 (the day immediately following the decision) describes “This Pay” as $174.92 and the year to date total as $7,667.94. The Member, in the reasons at [134] to [135], found the appellant’s earnings from Sydney University, from 5 November 2021 to 10 December 2021, “around the time that liability was disputed” were $340 per week. The Member quoted s 37 of the 1987 Act, which governed the weekly award he was required to assess. He made a clear finding that the appellant retained some partial capacity for work since 1 December 2021, which he was required to assess.[70]
[70] Reasons, [121], [127]–[128].
The Member gave reasons for finding the figure of $340 per week represented the appellant’s work capacity (not his actual earnings). There were periods when he earned more ($989 per week in one instance, $700 per week during another six-week period) and periods when he earned less. The Member noted the figure of $340 per week represented “about 5.5 hours of work per week”. The Member said this was within the restrictions set by Dr Bird in his certificates of capacity before 15 December 2021, when he started certifying the appellant as having no current work capacity.
The appellant submits the payslips were “generated” after the ARD was filed. It would have been possible, with reasonable diligence, for the appellant to obtain and rely on documentary evidence of his actual earnings with the University of Sydney. The payslips do not fall within the first limb of the test in s 352(6) of the 1998 Act. In any event, the Member’s assessment of the appellant’s weekly entitlement was not based on his actual earnings, but on the Member’s assessment, on the evidence overall, of his ability to earn. The appellant has not established that a different result would emerge if the payslips were taken into account. It follows that the application for leave in respect of these documents is refused.

Dr Bird’s report dated 20 June 2022

This report is found at pages 29 to 41 of the fresh evidence. Annexures to the report are at pages 42 to 88 of the fresh evidence. The doctor (whose rooms are in Hawthorn, Victoria) referred to having conducted six telephone conferences with the appellant since liability was terminated in October 2021. He said there had been a deterioration. He said he certified the appellant was unable to work from 15 December 2021. He referred to complaints involving muscle pains and diabetes. He discussed the appellant’s sleeping difficulties at some length. He referred to fatigue, “ME/CFS”, neurocognitive issues and orthostatic intolerance. Dr Bird made recommendations for future management. The doctor described the appellant as unable “to effectively work since November/early December 2021”. Dr Bird made a number of recommendations consistent with the claim run before the Member (for example the appellant’s workstation, mattress, IV saline solution and Isagenix diet). The doctor recommended multiple referrals to further specialists and health professionals.
Consent orders made in the subsequent proceedings (see [35] above) provided that the respondent pay continuing weekly compensation from 16 June 2022 (the day following the Member’s decision in the current proceedings) on the basis the appellant had no current work capacity. The consent orders, in the subsequent proceedings, made provision for expenses pursuant to s 60 of the 1987 Act consistent with the further claims pursued at that time. These matters were the subject of Dr Bird’s report dated 20 June 2022. The only period when the appellant was not compensated on the basis of total incapacity was from 1 December 2021 to 15 June 2022.
The Member dealt with the appellant’s work capacity during that period, in his reasons at [111] to [135]. The Member’s reasons were, to an extent, critical of Dr Bird’s explanation of the change in the doctor’s assessment of the appellant’s work capacity, from having some work capacity to having no capacity for work (see the reasons at [122] to [127]). Dr Bird discussed the deterioration in his report dated 20 June 2022. He said that with the removal of treatments, mattress issues, sleep issues and diabetes issues the appellant’s “ME/CFS declined”. Dr Bird said the appellant was now “worse than when the aggravation of the spinal issues first began”.[71]
[71] Dr Bird’s report 20/6/22, fresh evidence, pp 30–34.

The respondent’s submissions raise a valid difficulty with the admission of Dr Bird’s report dated 20 June 2022 as fresh evidence on the appeal. The respondent submits much of the information in the report could have been obtained with reasonable diligence, prior to the hearing. It submits that if the report is admitted on the appeal, the respondent is deprived of the opportunity to seek further evidence to meet it (see [54] above).
The appellant responds to this, submitting that if the respondent obtained a further report from Dr Gorman, or another Independent Medical Examiner, the doctor “would simply have followed the respondent’s letter of instruction (as Dr Gorman did to a tee) and repeated the respondent’s position that there was no incapacity and the aggravations had discontinued”. The appellant submits the respondent’s position would be unchanged (see [55] above). This submission simply amounts to conjecture, it is offensive and it should not have been made. I do note the appellant is unrepresented.
Dr Bird’s report dated 20 June 2022 identifies six telephone consultations from 11 November 2021 to 20 June 2022. That on 20 June 2022 post-dated the decision, that on 1 June 2022 post-dated the hearing, the balance predated the hearing. On its face, there is force to the respondent’s submission that with reasonable diligence the report could have been obtained for use in the proceedings before the Member. There is a more fundamental difficulty raised by the respondent’s submission going to procedural unfairness. It raises issues the respondent would not be in a position to meet in the current proceedings. In those circumstances it would be unfair to permit its use. That does not, of course, otherwise prevent its use, the appellant relied on it in the subsequent proceedings. The application to rely on Dr Bird’s report dated 20 June 2022 on this appeal is refused.

CPAP Bar Graphs

This material is described in the index of fresh evidence as page 86 of the fresh evidence, dated “Nov 21 – Feb 22”, with its author being “F & P”. The material appears to be at pages 86 to 88 of the fresh evidence. The marking on the stationary is “Fisher & Paykel Healthcare”. It is not, on its own, informative. Similar, but more fully completed, documents are attached as annexures to, and are discussed in, Dr Bird’s report dated 20 June 2022. They appear to be measurements associated with monitoring sleep. They are described in Dr Bird’s report dated 20 June 2022 as “Annexures 1–6”, “extracts from CPAP data reports”. Dr Bird’s report of 20 June 2022 not being in evidence, these annexures are not either. The appellant’s submissions state that “Dr Bird’s report of 20 June 2022 explains incapacity and investigations”. There are not separate submissions which explain the bar graphs. There is no basis to admit the bar graphs pursuant to s 352(6). That application is refused.

GROUNDS NOS. 1 AND 9

The Member failed to expressly state his finding that the condition of diabetes was a consequential condition of the injury when finding the medication for diabetes, diabetes monitor and weight loss treatment was reasonably necessary to treat diabetes. (Ground No. 1)

The Member erred in failing to clearly express his finding that the medications claimed for Diabetes was due to his apparent finding that diabetes was a consequential condition arising out of the injury. (Ground No. 9)

Appellant’s submissions

The appellant refers to the finding at [203] of the reasons, that the respondent pay for “past medical expenses as claimed”. The appellant submits the claimed expenses included “Medications for diabetes … Diabetes monitor”.[72] The appellant quotes at length from Dr Bird’s report dated 31 October 2021. He submits that Dr Bird considered the diabetes had been accelerated by the work-related injuries. He submits the Member accepted Dr Bird on “the cause and ongoing effects of the injury”.[73] He refers to Dr Gorman’s report dated 19 October 2021 where the doctor said that “diabetes is related to his weight gain and his previous documented glucose resistance”.[74] He quotes multiple lengthy passages from Dr Bird that are submitted to support the causal link between the work-related injuries and the condition of diabetes.[75]
[72] Appellant’s submissions, Ground No. 1, [1].
[73] Appellant’s submissions, Ground No. 1, [6].
[74] Appellant’s submissions, Ground No. 1, [13].
[75] See, by way of example, Ground No. 1, [15]–[20].
The appellant submits the Member’s failure to expressly state that diabetes was a consequential injury has emboldened the respondent to assert that diabetes was not work-related. He submits the weight of the evidence supports the argument that diabetes is a consequential condition resulting from the work injury. He refers to Bouchmouni v Bakhos Matta t/as Western Red Services[76] in which Roche DP explained the nature of a consequential condition resulting from an injury. He submits an aggravation of the spine led to weight gain and sleep disturbance, which aggravated glucose and insulin levels, resulting in diabetes. He submits there should be a finding that diabetes was a consequential condition.[77]
[76] [2013] NSWWCCPD 4 (Bouchmouni), [52]–[76].
[77] Appellant’s submissions, Ground No. 1, [23]–[27].
The appellant, dealing with Ground No. 9, refers to Ground No. 1 and submits the Member “self-evidently found the diabetes to be a consequential condition”. The diabetes monitor should have been expressly included in the order.[78]
[78] Appellant’s submissions, Ground No. 9, [3]–[7].

Respondent’s submissions

The respondent acknowledges that the Member found that medication for diabetes, diabetes monitor, and weight loss treatment were reasonably necessary for treatment of the diabetes. It submits the Member’s view on the diabetes and its relationship to employment was clear from the decision. The Member’s failure to specifically state that there was ‘a consequential injury’, consisting of the aggravation of diabetes, is not an error of fact, law or discretion within the meaning of s 352(5) of the 1998 Act.[79]
[79] Respondent’s submissions, Ground No. 1, [1]–[5].

Appellant’s submissions in reply

The appellant lodged submissions dated 24 August 2022. The appellant refers to the transcript of the hearing. He submits it was indicated in oral submissions that the issue of treatment costs for diabetes would be dealt with by way of a general order.[80]
[80] Appellant’s further submissions dated 24 August 2022, [6]–[8].
The appellant in his submissions in reply dated 3 October 2022 submits that, if the Presidential Member finds that the Member clearly expressed a finding that diabetes was a consequential condition, and gave adequate reasons, Ground No. 1 fails because it is wrongly asserted.[81]
[81] Appellant’s submissions in reply, Ground No. 1, [17].

Consideration

The Member’s reasons at [63] referred to the following passage from Dr Bird’s report dated 31 October 2021:
“The current diagnosis, subsequent conditions and consequential conditions are consistent with the aggravation of the underlying pre-existing (previously asymptomatic) spinal injury and ME/CFS with FM.
But for the aggravation, the spinal injury was asymptomatic. But for the aggravation of the spinal injury, the deterioration of sleep would not have occurred and the aggravation of the ME/CFS would not have occurred. But for the aggravation of the spinal injury, the headaches and migraines would not have been as frequent and severe. But for the spinal injury and aggravation of the ME/CFS, his self-managed exercise program would not have ceased and his weight would not have increased as rapidly as it did (and it was going down as evidenced by the drop from February to April 2020). But for the sleep issues, his weight would not have increased rapidly. But for all these issues, the diabetes would not have occurred because glucose had been in control and stable for many years below a diabetic level (if it would have occurred, it would not have been accelerated as it was by the work-related injuries).
The current symptoms are solely due to the work-related events that have transpired from 27 March 2020 until present and remains ongoing.” (emphasis added)
In his reasons at [89] the Member said:
“… Dr Bird does provide a compelling opinion on causation in his report dated 31 October 2021. That opinion, which has been quoted in paragraph 62 [sic, [63]] of this decision, does identify the unbroken chain of events from the [appellant] being required to work from home in an unsuitable chair to the onset of significant pain throughout his spine, and then to the aggravation of ME/CFS symptoms such as swelling of the lower limbs, because of decreased activity and weight gain due to his spinal pain.” (emphasis added)
In the reasons at [95] the Member said:
“I accept the opinion of Dr Bird on the cause and ongoing effects of the [appellant’s] injury because he appears to have a much better understanding of the work being undertaken by the [appellant] at his home.” (emphasis added)
In Bouchmouni Roche DP explained the difference between “an ‘injury’ and a condition that has resulted from an ‘injury’”.[82] The term ‘consequential condition’ has become a convenient shorthand way of describing the latter of these. The difference is important as there are multiple statutory provisions (s 9A of the 1987 Act for example) that require consideration in the proof of ‘injury’. The phrase ‘consequential condition’ is not a term of art and is not to be found in the relevant legislation. State of New South Wales v Bishop[83] involved a worker who, following a work injury to her back, periodically suffered leg symptoms that would cause her to collapse. In one such episode she fell, injuring her left ankle and foot. In the Court of Appeal, Basten JA described the issue of the causal link between the back injury and the later events in which the ankle and foot were hurt, as “pre-eminently a question of fact”.[84] Emmett JA (Gleeson JA agreeing) described the “essential fact in issue” as “whether there was a causal connection between the 2004 Injury and the 2011 Injury”.[85] Their Honours did not describe the situation as one involving an alleged ‘consequential condition’.
[82] Bouchmouni, [52]–[67].
[83] [2014] NSWCA 354; 14 DDCR 1 (Bishop).
[84] Bishop, [6].
[85] Bishop, [92].
When the Member’s reasons are read as a whole,[86] the passages quoted above make it clear that the Member accepted the causal chain as spelled out by Dr Bird. This involved acceptance that the necessary causal link was established, between the employment injury on which the appellant relied and the acceleration of diabetes identified by Dr Bird. It made it clear that the effects of this acceleration were “ongoing”. It was not necessary that the Member use the terminology of finding a ‘consequential condition’. He did not err in dealing with the causation issue in the way that he did. The Member made an appropriate causation finding together with a general order for medical and related expenses. There could be no valid doubt of this on the respondent’s part, having regard to the Member’s findings and orders.
[86] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), 444.
In a more general sense, the requirement to give reasons is found in s 294 of the 1998 Act which 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.”
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.

GROUND NO. 2

The Member failed to expressly state his finding that the condition, orthostatic intolerance (also known as Postural Orthostatic Intolerance) had been aggravated by the injury when making his finding that the treatments for orthostatic intolerance, being IV saline and AirRelax and the Ottoman for elevation of legs, were all reasonably necessary.

Appellant’s submissions

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].
The appellant also filed submissions in reply that briefly restate his position.

Respondent’s submissions

The respondent repeats the submissions it made in respect of Ground No. 1. It submits the absence of an express statement in the reasons, that “orthostatic intolerance” was aggravated by the injury, does not constitute error within the meaning of s 352(5) of the 1998 Act.

Consideration

The reasons dealing with this ground should be read together with those above dealing with Grounds Nos. 1 and 9. The respondent does not argue against the appellant’s position, that the Member made findings supporting the causal link between the injury and aggravation of orthostatic intolerance. As with Ground No. 1, this finding on causation was sufficient to entitle the appellant to the payment of expenses pursuant to s 60 of the 1987 Act in respect of that aggravation. As with Ground No. 1, there was no requirement that the Member make a finding employing the language of a ‘consequential condition’. The Member’s findings dealt with the causation issue regarding orthostatic intolerance and decided that issue in the appellant’s favour. To the extent to which the insurer may have misunderstood the effect of the Member’s finding, this does not indicate there was appealable error on the part of the Member.
The Member has not erred in how he dealt with this aspect of the matter. It follows that Ground No. 2 fails.

GROUND NO. 3

The Member erred in his finding that the Curved 49” Monitor was not reasonably necessary.

Section 60 of the 1987 Act

Section 60(1) of the 1987 Act provides:
“Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
The Member in the current matter referred to the decision of Burke CCJ in Rose v Health Commission (NSW).[93] His Honour referred to the word ‘includes’ at the commencement of the definition in s 10(2) of the Workers’ Compensation Act 1926 (the equivalent provision in the earlier legislation). His Honour noted that whilst the definition “purports to ‘include’ the matters thereafter enumerated, that definition is in fact exhaustive: Lamont v Commissioner for Railways [1964] NSWR 406; Thomas v Ferguson Transformers Pty Ltd [1979] 1 NSWLR 216.” The ongoing relevance of Thomas, albeit in a different context, was confirmed in Pacific National Pty Ltd v Baldacchino.[94]
[93] [1986] NSWCC 2; 2 NSWCCR 32 (Rose).
[94] [2018] NSWCA 281 (Baldacchino), [34].
In Rose Burke CCJ, following a careful analysis of s 10 of the Workers’ Compensation Act 1926, set out the following “general principles”:
“In determining whether a particular regimen is medical treatment and whether it is reasonably necessary that such be afforded to a worker and that such necessity results from injury, it appears to me some general principles can be stated:
1. Prima facie, if the treatment falls within the definition of medical treatment in section 10(2), it is relevant medical treatment for the purposes of this Act. Broadly then, treatment that is given by, or at the direction of, a medical practitioner or consists of the supply of medicines or medical supplies is such treatment.
2.      However, though falling within that ambit and thereby presumed reasonable, that presumption is rebuttable (and there would be an evidentiary onus on the party seeking to do so). If it be shown that the particular treatment afforded is not appropriate, is not competent to alleviate the effects of injury, then it is not relevant treatment for the purposes of the Act.
3.      Any necessity for relevant treatment results from the injury where its purpose and potential effect is to alleviate the consequences of injury.
4.      It is reasonably necessary that such treatment be afforded a worker if this Court concludes, exercising prudence, sound judgment and good sense, that it is so. That involves the Court in deciding, on the facts as it finds them, that the particular treatment is essential to, should be afforded to, and should not be forborne by, the worker.
5.      In so deciding, the Court will have regard to medical opinion as to the relevance and appropriateness of the particular treatment, any available alternative treatment, the cost factor, the actual or potential effectiveness of the treatment and its place in the usual medical armoury of treatments for the particular condition.”[95]
[95] Rose, 47–48.

The appellant refers to ‘Suitable Employment’. He submits the Member speculated as to work capacity and erred in fact.
The appellant submits the Member “deducts $340/week, being 5.5 hours work”. The appellant refers to the Member’s reasons where the Member referred to the definition of ‘suitable employment’. He submits the Member “speculated as to work capacity and has erred in fact”. He submits he was lied to about whether there were new students available, and was falsely accused, and ultimately exonerated, of fraud. He submits the respondent discontinued providing him suitable employment. He submits that despite this, he continued to seek employment within his capacity, which was variable. He submits it was “between 0 and 15 hours per week, then reduced to 0–9 hours per week in October 2021 and then to zero hours per week from 9 December 2022 [sic, 2021].” He submits there was “deterioration after the removal of my management and treatment and continued aggravation from an unsuitable work environment”.[150]
[150] Appellant’s submissions, Ground No. 10, [9]–[18].
The appellant refers to Dr Bird’s report dated 31 October 2021. Dr Bird refers to certifying the appellant “fit for up to 15 hours per week from 18 May 2020 in the 1 July 2020 Work Capacity Certificate”. He quotes passages from Dr Bird’s report that speak of ongoing aggravation, including from unsuitable chairs. The appellant submits the finding that there was no medical evidence dealing with capacity from 18 May 2020 to 30 June 2020 was erroneous. He submits there should be an award in accordance with the wages schedule.[151]
[151] Appellant’s submissions, Ground No. 10, [19]–[25].
The appellant submits the Member relied on the opinion of Dr Gorman, in the respondent’s case. The appellant was critical of Dr Gorman’s opinion.[152]
[152] Appellant’s submissions, Ground No. 10, [26]–[28].
The appellant submits at length that there was ongoing injury occurring due to the continuing duties performed in unsuitable conditions. He submits this pushed “the injury to the point of collapse” and he could no longer participate in employment as of 16 December 2021.[153] The appellant refers to Dr Bird’s certificate dated 15 December 2021. That certificate is referred to in the reasons at [122]. The Member there referred to Dr Bird, as at 15 December 2021, changing his certification from “some work capacity to no current work capacity”. The Member observed there were “no other details provided in that certificate as to the reason for a deterioration”.[154]
[153] Appellant’s submissions, Ground No. 10, [30]–[45].
[154] Appellant’s submissions, Ground No. 10, [46]–[50].
The appellant submits at length on what he describes as the ‘Work Capacity Certificate Issue’.[155] He speaks of “inconsistencies in the dates” and “cross-over in error”, he says the wages schedule showed “monies were earned during that period”. This appears to be a reference to the reasons at [123] in which the Member identified an inconsistency between the certification and the Schedule of Earnings showing work carried out by the appellant between 5 November 2021 and 10 December 2021. The certificate dated 15 December 2021 described the appellant as having “no current capacity for any work from 11/11/21 to 15/03/22”. The appellant submits the form of the certificate did not allow space for the relevant “plethora of information”.
[155] Appellant’s submissions, Ground No. 10, [46] to [65].
The appellant makes submissions relating to Dr Bird’s report dated 3 October 2021. He refers to graphs depicting his sleep patterns, a gap in access to physiotherapy and the onset of Type 2 diabetes. He quotes at length from Dr Bird’s report dated 31 October 2021. He is critical of the Member for not referring to a report of Dr Lee, an endocrinologist.[156]
[156] Appellant’s submissions, Ground No. 10, [66]–[78].
The appellant submits Dr Bird’s opinion, in his report dated 31 October 2021, went to there being no work function “at the time”, “up to 31 October 2021”. The appellant states that he resumed “some work in early November”, consistent with the certification of 9 September 2021 for “0 – 15 hours per week”.[157]
[157] Appellant’s submissions, Ground No. 10, [79]–[81].
The appellant refers to the reasons at [124]–[125]. He submits these findings are factually incorrect. At [124] the Member said Dr Bird referred to the removal of treatment as the reason the appellant was unable to work, but the doctor did not say what specific treatment was now required. At [125] the Member said that the appellant deteriorated across the board since October 2021, yet he kept working at Sydney University for 11 hours per fortnight until 10 December 2021. The appellant refers to Dr Bird’s report dated 31 October 2021, which refers to the purpose of physiotherapy, chiropractic and exercise physiology and the impact of the termination of treatment. The appellant refers to Dr Bird’s report dated 31 October 2021 and the doctor’s certificate dated 15 December 2021,[158] which he submits set out the requirements for treatment”.[159]
[158] ARD, pp 93–95.
[159] Appellant’s submissions, Ground No. 10, [82]–[89].
The appellant submits that for half of the period from 8 October 2021 to 9 December 2021 he did not work and for the other half he worked 5.5 hours per week on average. The appellant submits Dr Bird’s statements were “correct as at the time they were made”.[160]
[160] Appellant’s submissions, Ground No. 10, [90]–[95].
The appellant refers to what he describes as “EVIDENCE OF GORMAN”, referring to the Member’s discussion of Dr Gorman’s opinion at [120] of the reasons. The appellant discusses this at length. He submits on why Dr Bird’s opinion should be preferred to that of Dr Gorman. The appellant submits Dr Gorman’s report “should be accorded no weight at all”. I will not repeat the discussion here. The appellant refers to the reasons at [120].[161]
[161] Appellant’s submissions, Ground No. 10, [96]–[138].
The appellant quotes at length from Dr Bird’s reports dated 31 October 2021 and 14 November 2021. He refers to sleep graphs. He refers to a letter of complaint he made to Medicins Legale about his medicolegal appointment with Dr Keller. He submits he became “completely dysfunctional”.[162]
[162] Appellant’s submissions, Ground No. 10, [139]–[159].
The appellant makes submissions going to Dr Bird’s report dated 20 June 2022. These submissions assume that this report (along with other fresh evidence) was the subject of leave pursuant to s 352(6) of the 1998 Act, which it was not.[163]
[163] Appellant’s submissions, Ground No. 10, [160]–[178].
The appellant makes submissions dealing with “Contract Availability”. He refers to the Member speculating regarding the contracts available, and refers to the reasons at [133] in which the Member said:
“The variations in earnings each week may be due to the amount of contract work made available to the [appellant] by those two universities. However, the definition of ‘suitable employment’ in section 32A of the 1987 Act requires a determination of the work a worker is currently suited for regardless of whether the work is available and whether the work is generally available in the employment market.” (underlining and bold type appearing in original of the submissions, but not in the reasons)
The appellant submits there were no submissions dealing with “any contract limitations or working for more than one University in 2022”. The appellant submits the above involved factual error by the Member. The appellant refers to various factual matters going to the work that may have been potentially available to him. He submits “the assumption that there was an absence of contractual offers is not correct”. He submits there were “functional limitations”. The appellant submits the Member concluded there was “unemployment and not disability such that no work hours were possible”, a finding that was “not open to him”. He submits Dr Bird’s report dated 20 June 2022 “fully explains what the capacity of the [appellant] was from December 2021 until 20 June 2022, … the Member’s speculation is unwarranted”. [164]
[164] Appellant’s submissions, Ground No. 10, [179]–[195].
The appellant submits he was in “decline” on the afternoon of the hearing and did not put significant submissions to the Member. He submits he was not asked about the period he did sporadic work. He submits he attempted what he could and failed. He had a capacity of 1–2 hours for about 4 weeks. He had to stop because he could not do the job. He submits the work capacity certificate should be read in conjunction with Dr Bird’s explanation. He submits his capacity was one hour per week “from the April certificate to 1 June 2022” and zero hours thereafter.[165]
[165] Appellant’s submissions, Ground No. 10, [196]–[198].
The appellant submits the Member erred in the reasons at [136] to [137]. The award he made failed to take account of an indexation adjustment.[166]
[166] Appellant’s submissions, Ground No. 10, [199]–[207].

Respondent’s submissions

The respondent submits the appellant was paid weekly compensation from 1 July 2020 to 30 November 2021, weekly compensation was claimed in the ARD from 1 December 2021. It refers to the reasons at [111]. Dr Bird certified partial incapacity from 15 December 2021, due to the appellant’s deteriorating condition. Dr Gorman reporting on 6 September 2021 said there was a partial incapacity. The appellant admitted he was able to work spasmodically (reference is made to the reasons at [126]).[167]
[167] Respondent’s submissions, [33]–[37].
The Member accepted that the appellant was, from 1 December 2021, partially (rather than totally) incapacitated. The Member noted there were periods when the appellant had worked in a reduced capacity at times when Dr Bird considered the appellant to be totally incapacitated. The Member noted the appellant conceded working spasmodically although certified unfit by Dr Bird. The respondent referred to the appellant’s ability to prepare and conduct the hearing on 31 May 2022 himself. The respondent submitted this indicated an ability to work at least in some restricted capacity from December 2021 to date.[168]
[168] Respondent’s submissions, [38]–[42].
It was then necessary to quantify the partial capacity. The respondent submits Dr Bird’s report dated 20 June 2022 should be ignored. It was not in evidence and should not be considered now. During the period shortly prior to 1 December 2021 the appellant had earned $340 per week, the equivalent of 5½ hours per week, a little more than one hour per day. The respondent submits the appellant, in his submissions at [197], conceded being able to work one to two hours per day in the period from April to June 2022. The Member found this figure of $340 per week was a proper measure of the appellant’s capacity from 1 December 2021. The award he entered represented the statutory maximum less $340 per week. It submits this was within the limits of a sound discretionary finding of true earning capacity. [169]
[169] Respondent’s submissions, [43]–[46], [51]–[52].
The respondent concedes the Member erred in the statutory maximums he applied. It concedes the figures in the appellant’s submissions at [207] are correct. After deducting the figure of $340 per week, the weekly award should have been $1,942.90 from 1 December 2021 to 31 March 2022, and $1,978.10 from 1 April 2022 to date and continuing. It submits this error could have been corrected as an ‘obvious error’ pursuant to s 294(3) of the 1998 Act and Practice Direction No. 4. It submits an appeal was an inappropriate way of addressing the issue and the appeal on this ground should be dismissed.[170]
[170] Respondent’s submissions, [47]–[50].

Appellant’s submissions in reply

The appellant has lodged a further 14 pages of submissions, in reply, dealing with this ground. I have read these. I will not seek to describe them in detail, I will note the general content. There are generally argumentative and repetitive assertions dealing with the Member’s finding regarding ability to earn. There are submissions that seek to argue the admission of Dr Bird’s late report, already dealt with as part of the appellant’s application pursuant to s 352(6) of the 1998 Act.[171] The appellant asserts the respondent is in breach of obligations as a model litigant.[172] The appellant asserts his partial incapacity was not put in issue in the respondent’s dispute notice. The appellant submits he was ‘ambushed’ by the respondent’s argument on partial incapacity. The appellant submits the assessment of work capacity of 5½ hours per week was against the weight of the evidence.[173]
[171] Appellant’s submissions in reply, [71]–[90].
[172] Appellant’s submissions in reply, [90].
[173] Appellant’s submissions in reply, [90].

Consideration

The Member’s reasons at [113] state:
“There is no medical evidence which sets out the extent of any incapacity for work during the period from 18 May 2020 to 30 June 2020 and therefore no award of weekly compensation can be made for this period. I also note from the Schedule of Earnings filed by the [appellant] that he earned in excess of the maximum weekly compensation amount for three of the seven weeks in that period, which allows for an inference to be drawn that he was able to earn at least the maximum weekly compensation amount pursuant to section 34 of the 1987 Act.”
Dr Bird’s certificate dated 1 July 2020[174] indicates the appellant was first seen at that practice for the current injury on 28 June 2012. It indicates the appellant stated the date of injury was 25 May 2020. Those parts of the certificate signed by the appellant are dated 6 July 2020. The certificate indicates the appellant “has capacity for some type of employment from 01/07/20 to 01/10/20 for up to 15 hours per week”. There is a part of the certificate that seeks information regarding whether the worker has “engaged in any form of paid employment, self employment or voluntary work for which I have received or am entitled to receive payment in money or otherwise since the last certificate was provided, that I have not yet declared to the insurer”. The appellant checked the document to the effect that he had not done so. The appellant handwrote on the certificate:
“NB. This is the first certificate – hence I have not engaged in any employment since the last certificate was issued – no such certificate exists with respect to this injury.”
[174] ARD, pp 54–56.
Dr Bird’s report dated 31 October 2021 referred to the period:
“I note I certified him fit for up to 15 hours per week from 18 May 2020 in the 1 July 2020 Work Capacity Certificate. However, his various employers provided students. He was concerned that he would be letting the students down and damage his reputation. He declined new students. He limited the work he did with students because he was not fit to do so.”[175]
[175] ARD, p 754.
The appellant’s statement dated 4 November 2021 offers limited assistance. It says that on 18 May 2020 the appellant sought assistance with a chair, he was no longer able to do “face to face work” with his students. It says that on or about 25 June 2020 Ms Watson told him he could utilise telehealth to communicate with his doctor in Melbourne.[176] In his statement dated 2 February 2021 the appellant refers to staff being sent home on 27 March 2020, he states he then worked “exclusively out of my office from home”. He says that on 18 May 2020 he “reached out to Terri Kosack and requested a chair and I described ‘suffering pain presently’”. He states that “[a]t that time my SCU hours increased to about 50% of my work time”. He refers to difficulties, including with chairs, and states he “made no complaints about these issues because I am casual … I did not want to draw attention to myself.” He describes how he organised meeting with students at the time. He discusses, in detail, events leading up to when he saw Dr Bird on 1 July 2020. He does not state that he was off work during the period from 18 May 2020 to 30 June 2020. [177]
[176] Appellant’s statement, 4/11/21, [21]–[32], ARD, pp 2–3.
[177] Appellant’s statement, 2/2/21, [103]–[134].
The Member’s failure to award weekly compensation from 18 May 2020 to 30 June 2020 was not simply based on a lack of certification. The Member referred to the absence of “medical evidence which sets out the extent of any incapacity for work during the period”.[178] The passage of Dr Bird’s report quoted above is potentially consistent with the appellant not restricting himself to the hours referred to in that passage. The Member considered that the earnings in the wages schedule around that time were consistent with a substantial earning capacity. This view was consistent with the appellant’s statements, Dr Bird’s certificate dated 1 July 2020 and Dr Bird’s report dated 31 October 2021 (see [183] above). The appellant carried the onus of establishing what his entitlement was.[179] The Member’s decision dealing with the period from 18 May 2020 to 30 June 2020 was open on the evidence and did not involve error within the meaning of s 352(5) of the 1987 Act.
[178] Reasons, [113].
[179] Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, [11].
The term ‘suitable employment’ is defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
The appellant’s submissions refer to the helpful decision of Wollongong Nursing Home Pty Ltd v Dewar.[180] Deputy President Roche in that case said:
“The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.”[181]
“Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.
The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence.”[182]
“There is nothing in the context of the definition of suitable employment to suggest that ‘available’ should be given anything other than its relevant dictionary meaning. The third meaning attributed to ‘available’ in the Shorter Oxford English Dictionary (Oxford University Press, 6^th ed, 2007) is ‘[a]ble to be used or turned to account; at one’s disposal; within one’s reach, obtainable’. Thus, just because the suitable employment the worker is able to perform is not ‘available’ in the labour market in which the employee was working or might reasonably be expected to work does not justify a finding that the worker has no current work capacity.
However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).”[183]
[180] [2014] NSWWCCPD 55 (Dewar).
[181] Dewar, [47].
[182] Dewar, [48]–[49].
[183] Dewar, [57]–[58].

The Member summarised the details in the Schedule of Earnings, relied on in the appellant’s case, with some care.[184] He referred to Dr Bird’s certificates. He said that during most of 2021 Dr Bird’s certificates described a residual capacity of “0–5 hours/day for 3–5 days/week”. On 10 November 2021 Dr Bird certified the appellant as fit for 0–3 hours/day for 1–3 days/week”. The Member referred to Dr Bird’s certificate dated 15 December 2021, which certified there was no current work capacity from 11 November 2021 to 15 March 2022, saying “he has deteriorated. He requires time to improve.” The Member referred to Dr Bird’s report dated 31 October 2021, which referred to the earlier certification for 0–15 hours per week, but also said “[c]urrently, with the removal of treatment, he has been unable to work. I will review my position in my next certificate”.[185]
[184] Reasons, [114]–[116].
[185] Reasons, [117]–[119].
The Member referred to Dr Gorman’s view that the appellant suffered a partial incapacity (which the doctor thought was due to sleep hygiene problems and not work related) such that the worker could do “partial duties” where he could work in the afternoon or at other times when alert.[186]
[186] Reasons, [120].
The Member expressed some difficulties with Dr Bird’s views. He said the doctor changed his certification from “some work capacity to no current work capacity” in his certificate of 15 December 2021, with no other details of the reason for any deterioration. Dr Bird, reporting “some six weeks earlier” (which I take to be on 31 October 2021) said the appellant was not fit for any duties. This was inconsistent with the appellant’s Schedule of Earnings, which showed him subsequently “working 11 hours during three separate fortnightly periods from 5 November 2021 to 10 December 2021”. The Member said that Dr Bird did not give details of what specific treatment the appellant lacked that resulted in him having no capacity for work when there was some capacity during most of 2021.[187]
[187] Reasons, [122]–[124].
The Member referred to some reservations regarding the appellant’s evidence. The appellant said he had “deteriorated across the board” since October 2021, when the insurer withdrew “physiotherapy and an exercise physiologist”. The Member noted the appellant continued working at Sydney University for 11 hours per fortnight until 10 December 2021. The Member referred to the appellant’s submissions in which he said that he ceased work in December [2021], but then said in submissions “I am doing sporadic work at the moment”. [The hearing was on 31 May 2022.] The Member rejected the submission that the appellant had no current work capacity since 1 December 2021.[188]
[188] Reasons, [125]–[127].
The appellant refers to Dr Bird’s report dated 31 October 2021, in which the doctor recorded that the appellant’s physiotherapy and exercise physiology had been cancelled by the insurer, leading to an increase in symptoms. The Member was clearly aware of this evidence, he referred to it in the reasons at [124]. Dr Bird recorded in this report that “no work hours [were] able to be worked in the past two weeks”.[189] Dr Bird, reporting on 31 October 2021, said that “[c]urrently he is not fit for duties.” He said the appellant’s workplace needs to be altered and “a suitable chair and desk is essential”. Dr Bird said the appellant “needs to lose weight, complete rehabilitation and be managed with physiotherapy. I certify him fit for 0 – 15 hours dependent on health.” The doctor said:
“I doubt, given the long term nature of the ME/CFS and other conditions, the severe and chronic nature of the aggravation and decline, that a return to normal hours is possible. A return to the duties is not necessary to comment on – [the appellant] has continued working in the same duties.”
[189] ARD, p 764.
The Member, in the reasons at [123], specifically noted Dr Bird’s view, in his report dated 31 October 2021, that the appellant was not fit for any duties. He said this was inconsistent with the wages schedule, which showed earnings during three separate fortnightly periods from 5 November 2021 to 10 December 2021. The Member was critical of Dr Bird’s certificate dated 15 December 2021, which certified ‘no current work capacity’, on the basis the certificate did not indicate a reason for the deterioration. The appellant’s submissions refer to Dr Bird’s report dated 31 October 2021. This does not deal with the Member’s criticism of the certificate dated 15 December 2021. The deterioration the Member referred to was one that post-dated 31 October 2021, as it post-dated the work performed from 5 November 2021 to 10 December 2021, which also was after 31 October 2021.
The Member identified a number of factors that led him to reject the allegation that the appellant was totally incapacitated from 1 December 2021. He identified inconsistencies between the earnings identified in the appellant’s wages schedule and Dr Bird’s certification from time to time (see the reasons at [123] and [127]). He identified inconsistency between the appellant’s statement that he ceased work in December [2021] and his statement in submissions that he was “doing sporadic work at the moment” (see the reasons at [126]). The Member in the reasons at [127] referred to the demonstrated work capacity during the last nine months of 2021, including November and early December when Dr Bird considered the appellant had no work capacity. The Member concluded there was a partial capacity for work since 1 December 2021. The view that the appellant was partially incapacitated was consistent with the opinion of Dr Gorman (see [189] above). The Member gave reasons that adequately explained why he formed this view. It was a conclusion that was open to him and does not reveal error. He then turned to determine the appellant’s ‘current weekly earnings’.
The Member quoted the statutory definition from cl 8 of Sch 3 to the 1987 Act. He correctly noted it was necessary to determine the greater amount of the appellant’s actual gross weekly earnings and what he is able to earn in ‘suitable employment’. He referred to evidence that arguably would justify finding current weekly earnings of $989 per week or “around $700 per week”.[190] He rejected these possibilities in favour of “a more realistic assessment” of $340 per week, being the appellant’s earnings with Sydney University from 5 November 2021 to 10 December 2021. The Member described this assessment as within the restrictions set out by Dr Bird in his certificates issued prior to 15 December 2021, when the doctor certified the appellant as having no current work capacity.[191] The way in which the Member dealt with the assessment of the appellant’s weekly entitlement was open on the evidence. It did not involve error within the meaning of s 352(5) of the 1998 Act.
[190] Reasons, [130]–[134].
[191] Reasons, [134]–[135].
The appellant is critical of the Member’s reasons at [133], where the Member speaks of the possibility that weekly variations result from the amount of contract work made available. The appellant submits there were no submissions dealing with the availability of contract work and it is incorrect that there was an absence of contractual offers, the appellant submits this involved factual error (see [173] above). Even if there was factual error in this regard it could not have affected the result. The definition of ‘suitable employment’ in s 32A of the 1987 Act requires that it be identified regardless of whether the work or the employment is available, and of whether the work or the employment is of a type or nature that is generally available in the employment market. The Member referred specifically to this in his reasons at [133].
The appellant also argues, in his submissions in reply on this ground, that partial incapacity was not put in issue in the respondent’s dispute notice. He submits he was “ambushed”. The respondent’s dispute notice dated 16 December 2021 includes:
“For an entitlement to weekly compensation there must be total or partial incapacity for work resulting from the work injury sustained 18/05/2020 pursuant to section 33 of the 1987 Act. In view of Dr Gorman’s opinion, we do not consider that you have an entitlement to weekly compensation. We therefore amend the decision of the insurer dated 20/07/2021 to include section 33 of the 1987 Act.”[192]
[192] ARD, pp 113–114.
The various substantive challenges in Ground No. 10 are not made out. Ground No. 10 is upheld to the extent of the conceded error regarding the rates of weekly compensation payable by the respondent (see [179] above). 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 subp (a) and the figure of “$1,978.10” for the figure of “$1,884” in subp (b).

THE PROPOSED GROUND NO. 11

The appellant lodged a document headed “Further Submissions” dated 24 August 2022. This was in addition to the submissions lodged in (or shortly after) its Appeal Application, and predated the respondent’s submissions, which were lodged on 12 September 2022. It was additional to the appellant’s submissions in reply dated 3 October 2012, lodged on 5 October 2022. The document dated 24 August 2022 was lodged without leave. In that document the appellant sets out an additional ground of appeal, Ground No. 11.[193] The additional ground of appeal is not dealt with in the respondent’s Notice of Opposition. The proposed Ground No. 11 is set out for convenience at [42] above.
[193] Appellant’s further submissions, 24/08/22, [16].
The proposed Ground No. 11 raises whether express findings of ‘consequential conditions’ should have been made by the Member. This subject matter is also raised in Grounds Nos. 1, 2 and 9 of the existing grounds. These grounds are dealt with in the above reasons. The proposed further ground does not have reasonable prospects of success. Even if there were an application for leave to add the ground (which there is not) it would not be appropriate to grant leave, as the proposed ground does not have reasonable prospects of success. It is appropriate to note that the proposed Ground No. 11 was raised without leave, was not the subject of any application for leave, and will not be considered.

DECISION

The decision on this appeal is as follows:
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 1998 Act 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 subp (a) and the figure of “$1,978.10” for the figure of “$1,884” in subp (b).
4.    Paragraph [3] of the Orders in the Certificate of Determination dated 15 June 2022 is amended at subp (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.

Michael Snell
ACTING PRESIDENT

18 September 2023