Harm v Secretary, Department of Education
[2025] NSWPICPD 14
•20 February 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Harm v Secretary, Department of Education [2025] NSWPICPD 14 |
APPELLANT: | Meral Harm |
RESPONDENT: | Secretary, Department of Education |
INSURER: | Allianz Australia Workers’ Compensation (NSW) Limited |
FILE NUMBER: | A2-W8175/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 20 February 2025 |
ORDERS MADE ON APPEAL: | 1. The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – extension of time to appeal a decision of a Member – s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021; Bryce v Department of Corrective Services [2009] NSWCA 188 discussed; Gallo v Dawson [1990] HCA 30 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr C Lehmann, solicitor | |
| Gerard Malouf & Partners | |
| Respondent: | |
| Ms K Balendra, counsel | |
| Bartier Perry Lawyers | |
DECISION UNDER APPEAL: | Harm v Secretary, Department of Education [2024] NSWPIC 101 |
MEMBER: | The Honourable L Drake |
DATE OF MEMBER’S DECISION: | 4 March 2024 |
INTRODUCTION AND BACKGROUND
Ms Meral Harm (the worker) suffered an injury in the course of her employment as a teacher with the Secretary, Department of Education (the employer). The injury was diagnosed as muscle tension dysphonia with vocal fold inflammation (a voice/speech disorder). Liability for the injury was accepted by the employer.
The worker developed a major depression with anxiety caused by the stress associated with her voice/speech disorder and by the loss of her employment. The parties agreed that the psychological condition was a secondary psychological condition as defined in s 65A of the Workers Compensation Act 1987 (the 1987 Act).
The worker also developed a sleep/arousal disorder, otherwise described as insomnia.
The worker made a claim for lump sum compensation pursuant to s 66 of the 1987 Act in respect of 21% whole person impairment, consisting of 10% whole person impairment resulting from the voice/speech disorder and 12% whole person impairment resulting from the sleep/arousal disorder. In a Notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the employer disputed the claim, asserting that there was no entitlement to compensation in respect of the voice/speech disorder because it was below the 11% threshold required to be entitled to bring a lump sum claim and because the sleep/arousal disorder was consequent upon the worker’s psychological injury, which was a secondary psychological condition. The employer relied on s 65A of the 1987 Act, which provides that no compensation is payable for permanent impairment that results from a secondary psychological condition.[1]
[1] Application to Resolve a Dispute (ARD), pp 10–16.
The worker commenced proceedings in the Personal Injury Commission (the Commission) and the dispute proceeded to arbitration. The Member issued a Certificate of Determination dated 4 March 2024 in which she found in favour of the worker and remitted the claim to the Commission’s President for referral to a Medical Assessor for assessment of the worker’s whole person impairment.
The worker appealed the Member’s decision. The employer also appealed the decision (in appeal A1-W8175/23). I determined the appeal in A1-W8175/23 (Secretary, Department of Education v Harm).[2] The appeal was successful, the Member’s Certificate of Determination was revoked, and I remitted the matter to a different non-presidential member for re-determination.
[2] [2025] NSWPICPD 13.
In this appeal, the appeal was lodged out of time. Section 352(4) of the 1998 Act provides that the appeal must be made within 28 days after the decision appealed against is made, or a longer period determined in accordance with the Commission’s rules. A compliant appeal was lodged on 5 April 2024, together with submissions seeking an extension of the time to file the appeal.
This appeal decision is to be read together with my decision in Secretary, Department of Education v Harm.
GROUNDS OF APPEAL
The grounds of appeal raised by the worker are as follows:
(a) Ground One: The Member erred in law by misidentifying the central issues for determination, which were:
(i)(a) whether the worker’s sleep/arousal disorder was causally related to and consequential to her accepted speech/vocal cord injury, and
(ii)(b) whether the worker was precluded from permanent impairment compensation for her sleep disorder due to the operation of s 65A of the 1987 Act;
(b) Ground Two: The Member erred in law, fact and/or discretion by failing to make a finding that the worker’s sleep/arousal disorder was causally related and consequential to her accepted speech disorder, and
(c) Ground Three: The Member erred in law, fact or discretion in finding that the worker’s sleep/arousal disorder was a separate injury and not consequential to her accepted speech disorder.
It is also relevant to refer to the grounds of appeal raised by the employer in Secretary, Department of Education v Harm. The employer in that appeal raised three grounds of appeal. I considered it unnecessary to determine Ground Two (a) or Ground Three in that appeal because the errors on the part of the Member as asserted in Ground One and Ground Two (b) were identified and the appeal succeeded on those grounds. Those grounds were pleaded as follows:
(a) Ground One: Jurisdictional error by finding that the worker suffered an injury for the second time in her employment in circumstances where that was not a matter in issue, and
(b) Ground Two (b): Error of fact by determining that the worker had a second injury in circumstances where there was no basis for the finding.
THE APPLICATION TO EXTEND THE TIME TO LODGE THE APPEAL
The legislation
Section 352(4) of the 1998 Act provides:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the Personal Injury Commission Rules 2021 (the 2021 Rules) relevantly provides:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a) an appeal under the 1998 Act, section 352,
…
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) An extension application—
(a) must be made at the same time as the relevant application to which it relates, and
(b) must be in the approved form, and
(c) must include full details of the arguments relied on in favour of granting the order, and
(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4) The extension application must be decided by the following (the decision-maker)—
(a) for an appeal under the 1998 Act, section 352—a presidential member,
(b) otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6) In this rule—
statutory period means—
(a) for the 1998 Act—the period specified in section 352(4)(a), and
…”.
The worker’s submissions
The worker explains that she originally filed her appeal on 2 April 2024, which was within the time prescribed by s 352(4) of the 1998 Act, however, the appeal was rejected because it did not satisfy the requirements of the Commission’s Procedural Direction WC3. The worker refers to rule 133A of the Personal Injury Commission Rules 2021 and submits that an extension ought to be granted because:
(a) an extension of time to appeal was required in order to do justice between the parties;
(b) the submissions in the amended appeal are substantially the same as those in the original appeal submissions except for the absence of sub-headings in the original appeal;
(c) the amended submissions dated 5 April 2024 were lodged as soon as it was practicable to do so;
(d) the unsealed copy of the amended submissions would be served on the employer when the amended appeal was filed, so that there would be no more than three days’ delay after the original appeal was rejected;
(e) the employer would suffer no prejudice if leave was granted, and on the other hand the worker would suffer an incurable prejudice if it were not;
(f) the issues raised are strongly arguable so that strict compliance with s 352(4) and the Commission’s rules would cause a substantial injustice to the worker because she would lose the opportunity to have the matter determined on its merits, and
(g) the grant of an extension of time would be consistent with the Commission’s overriding principle to facilitate the just, quick and cost-effective resolution of the real issues in dispute.
The employer’s submissions
The employer indicates that it makes no submission in relation to the worker’s application for an extension of time.
Consideration
Ground Three of this appeal asserts error of law, fact or discretion on the part of the Member in finding that the worker’s sleep/arousal disorder was a separate injury and not consequential to her accepted speech disorder.
It can be seen from the grounds of appeal recited above in both this appeal and in Secretary, Department of Education v Harm that both parties together assert error on the part of the Member by her determination that there was a second (separate) injury. In addition:
(a) in its opposition to this appeal, the employer joined with the worker indicating that it did not oppose Grounds One and Three of this appeal;
(b) in Secretary, Department of Education v Harm, the worker agreed with the assertion of error in Ground One of that appeal that the Member erred by finding a second injury, and
(c) in Secretary, Department of Education v Harm, the worker agreed with the assertion of error in Ground Two (b) of that appeal that there was no evidentiary basis for reaching the conclusion that there was a second injury.
Ultimately, there is little competition between the parties other than the issues as to whether the sleep/arousal disorder arose from a secondary psychological condition and whether the claim for lump sum compensation for the sleep/arousal was precluded by operation of s 65A of the 1987 Act. In accordance with my decision in Secretary, Department of Education v Harm, those issues are yet to be determined by a primary decision-maker.
Rule 133A(5) of the 2021 Rules provides that I may extend the time for lodgment of the appeal if I am satisfied that, in exceptional circumstances, to lose the right to appeal would work a demonstrable and substantial injustice. The worker asserts that she would suffer an incurable prejudice and a substantial injustice if leave to appeal were not granted and points out that the employer would suffer no prejudice if the grant of leave was made.
The phrase “exceptional circumstances” is not defined in the workers compensation legislation, but has been considered in a number of authorities.
As Allsop P (as his Honour then was) observed in Bryce v Department of Corrective Services:[3]
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, ...”.
[3] [2009] NSWCA 188, [10].
McHugh J considered the question of extending time to appeal in Gallo v Dawson.[4] His Honour observed that, in order to determine whether a strict application of time limits would work an injustice, it was necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties if the application to extend time was granted or refused;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the fact that the respondent has “a vested right to retain the judgment.”[5]
[4] [1990] HCA 30 (Gallo).
[5] Gallo, [2].
In accordance with the observations made by Allsop P and McHugh J in the authorities referred to above, in order for me to determine whether to grant leave to extend the time to lodge the appeal, I need to consider whether a demonstrable or substantial injustice would occur if leave were not granted.
The relief sought by the worker is for the Member’s Certificate of Determination to be revoked and for a new determination to be made in her favour, or alternatively, the dispute be remitted to a different member for re-determination. As discussed above, in Secretary, Department of Education v Harm, I determined that that appeal was successful, I revoked the Member’s Certificate of Determination, and I remitted the matter to a different non-presidential member for re-determination. While there is a significant commonality between both parties’ positions in both this appeal and in Secretary, Department of Education v Harm that could satisfy “exceptional circumstances,” I cannot accept that a substantial injustice would occur if leave were not granted. As a consequence of the decision in Secretary, Department of Education v Harm the worker has the right to the relief she is seeking in this appeal regardless of this appeal, so that a consideration of this appeal would be futile.
I therefore refuse to extend the time for lodgment of this appeal.
DECISION
The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
20 February 2025
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