Hernandez v State Rail Authority of NSW
[2023] NSWPICPD 61
•3 October 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Hernandez v State Rail Authority of NSW [2023] NSWPICPD 61 |
APPELLANT: | Albert Hernandez |
FIRST RESPONDENT: | State Rail Authority of NSW |
FIRST RESPONDENT’S INSURER: | QBE TMF |
SECONDRESPONDENT: | Adstock Pty Ltd formerly known as GL Cooper Sales Pty Ltd |
SECOND RESPONDENT’S INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A2-6144/20 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 3 October 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 20 July 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – scope of remitter to a non-presidential Member for re-determination from a decision of a Presidential Member – whether renal and cardiac conditions related to ingestion of medication prescribed to treat back injury |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Wilson Fox Lawyers | |
| First respondent: | |
| Ms F King, solicitor | |
| Moray & Agnew Lawyers | |
| Second respondent: | |
| Ms L Goodman, counsel | |
| Rankin Ellison Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr B Batchelor |
DATE OF MEMBER’S DECISION: | 20 July 2022 |
INTRODUCTION
This is an appeal from a Certificate of Determination dated 20 July 2022.
The matter has a very long history in, firstly, the Workers Compensation Commission and, subsequently, the Personal Injury Commission. It is unnecessary to set out that history at length. The Member summarised the procedural history under the heading “Background” in his Statement of Reasons.[1]
[1] Hernandez v State Rail Authority of NSW [2022] NSWPIC 393, decision of Member Batchelor dated 20 July 2022 (reasons).
For the purpose of this appeal, it is only necessary to note two prior Certificates of Determination.
On 2 June 2021 a Member (Mr Sweeney) of the Personal Injury Commission issued a Certificate of Determination[2] in the following terms:
“1. The applicant suffered injuries to his back arising out of and in the course of his employment with the first respondent on 18 December 1973, 16 August 1976 and 8 December 1987 in the employ of the first respondent and on 27 April 1992 in the employ of the second respondent.
2. As a result of these injuries the applicant aggravated a pre-existing condition of hypertension which became labile in 2001 and 2005.
3. The applicant has not established that he suffered a consequential medical condition of his shoulders or consequential cardiac or renal conditions as a result of the injuries in 1 above or that the need for treatment of these conditions result from these injuries.
4. Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to section 60 in accordance with order 2.”
[2] Hernandez v State Rail Authority of NSW [2021] NSWPIC 159 (Hernandez No. 1).
On 17 February 2022 the Personal Injury Commission determined an appeal against the Member’s decision.[3] Deputy President Wood on appeal made the following orders:
[3] Hernandez v State Rail Authority of NSW [2022] NSWPICPD 5 (Hernandez No. 2).
“1. The Member’s Certificate of Determination dated 2 June 2021, paragraphs 1 and 2 are confirmed.
2. The Certificate of Determination, paragraphs 3 and 4 are revoked and in their place the following orders are made:
(a) Award for the respondents in relation to the allegation that the applicant’s bilateral shoulder conditions resulted from the injury;
(b) Award for the respondents in respect of the allegation that the applicant’s renal condition and cardiac condition resulted from the applicant’s hypertension;
(c) The matter is remitted to another member for determination of whether the applicant’s
(i)renal condition, and
(ii)cardiac condition
resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992.”
Pursuant to the remittal, on 20 July 2022 a further Certificate of Determination was issued by Member Batchelor as follows:
“1. The applicant has not established on the balance of probabilities that the renal condition and his cardiac condition from which he suffers results from injuries to the back arising out of and in the course of the applicant’s employment with the first respondent on 18 December 1973, 16 August 1976 and 8 December 1987 and on 27 April 1992 in the employ of the second respondent.
2. Award for the respondents in respect of the applicant’s claim for expenses pursuant to s 60 of the Workers Compensation Act 1987 for treatment of the applicant’s renal condition and cardiac condition.
3. Liberty to apply, if necessary, in respect of quantification the applicant’s entitlement to compensation pursuant to s 60 of the Workers Compensation Act 1987 in respect of any claim that the applicant may have for expenses for treatment of aggravation of a pre-existing condition of hypertension which became labile in 2001 and 2005.”
Although the order for remittal was simply expressed, the parties were unable to agree on the precise issue for determination by the Member pursuant to that order.
As recorded by the Member the dispute was as follows:
“11. The applicant submits that his case with respect to these two conditions ‘… is effectively that they were sustained as a result of the lumbar spine injuries, and this includes being as a result of the hypertension.’ [Member’s emphasis] His case includes the assertion that the ingestion of medication for the treatment of his injuries and conditions materially contributed to his renal and cardiac conditions. The applicant emphasises this assertion in oral submissions on 18 May 2022, saying:
‘Effectively this is the applicant’s case Member. The control or the poor control of the applicant’s hypertension by way of the medications that he’s been prescribed had a material contribution to the disputed conditions.’
12. The reference to treatment for hypertension, in addition to treatment for his back injuries, as being causative of the renal condition and cardiac condition, is strongly contested by the respondents. The first respondent submits that the error into which Member Sweeney fell is most specifically articulated in the final two sentences of [192] of Hernandez No. 2. Those sentences follow the Deputy President’s acknowledgement that the Member was correct to find that the applicant had not established that aggravated hypertension had made a material contribution (to the renal and cardiac conditions). The first respondent notes the Deputy President’s final two sentences in [192] as follows:
‘However, he (Member Sweeney) did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.’ (emphasis in submission)
13. The second respondent adopts the first respondent’s written submissions dated 5June 2022.”
The Member did not explicitly resolve the conflict as to the precise issues to be determined. He did explicitly rule that the “applicant may not argue that medication for his hypertension had contributed to the renal and cardiac conditions” because that matter had previously been determined by the Commission.[4] Otherwise implicit in the outcome is that the Member preferred the contention of the respondents as to the issue to be determined on the remitter.
[4] Reasons, [93].
THE MEMBER’S STATEMENT OF REASONS
The Member summarised the extensive submissions of the parties and identified the relevant findings from the determination of Member Sweeney.
Member Sweeney found in Hernandez No. 1 that the applicant’s (the appellant in this appeal) hypertension dated from a period before his significant injury in 1987 and well before his spinal surgery. This finding was not disturbed in Hernandez No. 2. It followed that the finding undermined Dr Herman’s opinion as to the causal nexus between the appellant’s injuries and the development of hypertension. Dr Herman’s opinion was posited on the assumption that the appellant developed the condition in the context of chronic pain, immobility, weight gain and anxiety following his spinal fusion.
On the history accepted by Member Sweeney, the appellant experienced hypertension for several years prior to the original surgery. He said that the evidence did not establish that the factors relied upon by Dr Herman existed at the time.[5]
[5] Reasons, [81].
The Member[6] quoted Member Sweeney at [93] of Hernandez No. 1 in the following terms:
“The primary difficulty confronting the [appellant] in respect of both conditions is that he experienced hypertension prior to his spinal surgery. In the absence of specific evidence addressing the issue it is impossible to determine whether the [appellant’s] renal and cardiac conditions have been caused by the underlying hypertension or the effects of the hypertension as aggravated by the [appellant’s] back injuries. In those circumstances, the Commission is unable to conclude that the [appellant’s] renal or cardiac conditions are consequential on his back injuries or that the need for medical treatment of these conditions result from the accepted back injuries.”
[6] At reasons, [85].
The Member then referred to the Determination by Deputy President Wood in Hernandez No. 2 and said:
“Notwithstanding these orders the [appellant] nevertheless submits that medications that he’s been prescribed for hypertension had a material contribution to the disputed renal and cardiac conditions. The [appellant] relies on what the Deputy President says at [193] of Hernandez [No.] 2, and in particular the last sentence thereof, with emphasis on the concluding words ‘and/or hypertension’.”[7]
[7] Reasons, [89].
Wood DP in Hernandez No. 2 said:
“192. It is apparent that, while the Member placed some focus on the appellant’s hypertension and gave cogent reasons for his conclusions in respect of that condition, he did not give full consideration to the case put to him by the appellant in respect of the cardiac and renal conditions. The Member appeared to accept that there can be a connection between hypertension and a renal condition but concluded that there was insufficient evidence to establish that, in this case, the aggravated hypertension materially contributed to the renal condition. That conclusion was open to him. However, he did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.
193. The appellant’s submission in this regard was clearly argued, was made on the basis of documentary evidence in the proceedings and was a significant part of the appellant’s case. A failure to deal with a significant submission in the appellant’s case constitutes an error of law and may constitute a denial of natural justice. It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.”
Wood DP made an award for the respondent “in respect of the allegation that the [appellant’s] renal condition and cardiac condition resulted from the [appellant’s] hypertension.” The Member observed that this followed logically from Member Sweeney’s conclusion that he was not satisfied.[8]
[8] Reasons, [91].
The Member accepted the first respondent’s submission as to the intended meaning of the concluding words in [193] “and/or hypertension”. He said:
“47. The first respondent theorised that counsel for the [appellant] may have been misled by [the] words of Wood DP in the last sentence of [193] in Hernandez [No.] 2, namely:
‘It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.’ (emphasis in submissions)
The use of this expression is used in the context of Wood DP confirming that while it was open to Member Sweeney to reject, as he was entitled to do, the causal link between medication for hypertension and the renal and cardiac conditions, he failed to give due consideration to another possible link, namely medication for the back injury making a direct contribution to either the renal or cardiac condition.”
The Member said:
“93. I accept the submission of the first respondent, supported by the second respondent, that for the reasons discussed above, the [appellant] may not argue that medication for his hypertension had contributed to the renal and cardiac conditions. This matter has been dealt with by the Commission.”
Under the heading “Did the renal and cardiac conditions result from the [appellant’s] injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992?” the Member said:
“97. The matter which must now be determined, having regard to the finding in [93] above and what Deputy President Wood said in last two sentences of [192] and in [193] of Hernandez [No.] 2, is whether the ingestion of medication prescribed to the [appellant] to treat his back injuries materially contributed to the renal condition and cardiac condition from which he suffers.”
Prior to addressing the appellant’s submissions, the Member recorded a number of matters which he required to be noted. These were:
“(a) Member Sweeney found at [78] of Hernandez [No.] 1, accepting the evidence of Dr Winer in his report dated 21 October 1988, that the [appellant’s] hypertension dates from a period before the [appellant’s] significant injury in 1987 and well before his first spinal surgery;
(b) Member Sweeney’s determination that as a result of the [appellant’s] back injuries the [appellant] aggravated the pre-existing condition of hypertension in 2001 and 2005 was confirmed on appeal;
(c) as referred to above at [58]–[59], the second respondent submits that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from his back injury. That is correct. Member Sweeney accepted that at [86] in Hernandez [No.] 1, and the [appellant] did not appeal from this aspect of the decision;
(d) it is the ingestion of medication prescribed to the [appellant] to treat his back injuries which must be considered to determine if this materially contributed to the renal condition and cardiac condition from which he suffers. In this regard, the inability to exercise as a possible material contribution to either the renal condition or the cardiac condition is not a factor to be considered, and
(e) the [appellant’s] counsel conceded with reference to the necessity to examine the treatment records and other relevant material that ‘… the nature of the [appellant’s] case is I do need to take [you] to these records and there’s no singular smoking gun that I can refer you to, I just have to go to these records’.”[9]
[9] Reasons, [99], citing transcript 18 May 2022 (T), T56.10.
Thereafter the Member said:
“101. Member Sweeney commented at [68] of Hernandez [No.] 1 that
‘One obvious difficulty confronting the Commission in determining whether hypertension, a cardiac condition, or a renal condition results from the accepted back injury is that the only positive, comprehensive medical opinion evidence addressing causal nexus is found in the report of Dr Herman, the cardiologist, obtained in 2017. For reasons that are unexplained, there is no medico-legal report from the [appellant’s] treating cardiologist, his treating renal surgeon, or any other of the many specialists who have treated the [appellant] over the last 25 years. Importantly, there is no report from the [appellant’s] general practitioner, although he appears to have been treated regularly for many years by Dr Linda Pope. Where the time and causes of the onset of hypertension are both contested, evidence as to the origins and course of that condition may have been invaluable.’
102. The same comments could be made in respect of the absence of reports from treating practitioners in respect of a possible link between the ingestion of medication for the [appellant’s] back injuries and the renal and cardiac conditions. My conclusion from examination of the medical evidence on which the [appellant] relies on this issue which I have summarised above is that there is a possible link between the ingestion of Vioxx and the renal condition raised by Dr Pope in her clinical notes, and that the [appellant’s] inability to exercise is a factor in his cardiac condition. I have been unable to locate any other evidence as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions.
103. I have held it is not open to the [appellant] to argue that medication for his hypertension had contributed to the renal and cardiac conditions.
104. The [appellant] relies on the opinion of Dr Herman in his report dated 3 August 2017. The applicant principally relies on that report to establish a link between hypertension and his cardiac condition. That link has been rejected by Wood DP. There is an award in favour of the respondents for the allegation that the [appellant’s] renal and cardiac conditions resulted from his hypertension.”
After further referring to the evidence of Dr Herman and to the material of Associate Professor Gillin, the Member concluded as follows:
“109. In my view the [appellant] has not produced evidence to demonstrate, on the balance of probabilities, that as a result of ingestion of medication for his undisputed back injuries, he suffered a renal condition or a cardiac condition consequent upon those back injuries.”
On the issue of the relationship between the treatment for the back injury and the aggravation of the pre-existing condition of hypertension which became labile in 2001 and 2005 the Member said:
“111. There is no evidence to which I have been directed to indicate what treatment, if any, that the [appellant] has undergone in respect of aggravation of the pre-existing condition of hypertension which became labile in 2001 and 2005. If there is any such treatment, the [appellant] will have liberty to apply to the Commission in the absence of agreement for the payment of the cost of such treatment pursuant to s 60 of the [Workers Compensation Act 1987].”
PROCEDURAL MATTERS
There is no dispute that the monetary threshold stipulated by s 352(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) has been satisfied.
There is no dispute that the appeal was lodged within 28 days, the time limit imposed by s 352(4) of the 1998 Act.
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 parties have indicated that the appeal can be determined on the basis of the documents before me. I have had regard to the Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions of the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing and that this is an appropriate course in the circumstances.
NATURE OF THE APPEAL
The appeal is pursuant to s 352(5) of the 1998 Act and is an appeal limited to 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. There is no jurisdiction to review.
In Northern New South Wales Local Health Network v Heggie[10] Sackville AJA stated at [72] that:
“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 …”.
[10] [2013] NSWCA 255.
GROUNDS OF APPEAL
The appellant relies on eight grounds of appeal, namely:
Ground 1 – The Member committed errors of law by misinterpreting/misconstruing Wood DP’s decision in Hernandez No. 2 and the scope of the remitter.
Ground 2 – The Member committed errors of law by confining the issue for determination in respect of the appellant’s renal and cardiac conditions to whether they were related to the ingestion of medication prescribed to treat the appellant’s back injuries only.
Ground 3 – The Member committed errors of law by making findings/determinations which the appellant was not on notice of.
Ground 4 – The Member committed errors of law by failing to respond to substantial, clearly articulated arguments.
Ground 5 – The Member committed errors of law by treating the findings of Member Sweeney that an aclasta infusion or a Reandron treatment as being binding.
Ground 6 – The Member committed errors of fact by determining the appellant “has not established on the balance of probabilities that the renal condition and his cardiac condition from which he suffers results from injuries to the back.”
Ground 7 – The Member’s decision that he could not have regard to the appellant’s inability to exercise as a possible material contribution to the renal and cardiac conditions and he could only have regard to whether the ingestion of medication to treat the accepted back injuries materially contributed to the renal and cardiac conditions was a decision that was so unreasonable that no reasonable body could have come to.
Ground 8 – The Member committed errors of law by failing to provide adequate reasons for his determination that the renal and cardiac conditions did not result from the accepted back injuries.
Ground 1 – The Member committed errors of law by misinterpreting/misconstruing Wood DP’s decision in Hernandez No. 2 and the scope of the remitter
Appellant’s submissions as to Ground 1
After quoting the Member’s reasons at paragraph [97], the appellant submits that Wood DP at [192] to [193] of her decision indicated that Member Sweeney did not address the question of whether the treatment of the appellant’s lumbar spine injury materially contributed to his renal and cardiac conditions.
The appellant submits that the Deputy President did not limit the remitter and that the matters to be considered were not confined. The appellant relies on the “orders made on appeal” as well as paragraphs [196] and [198] and the terms of the remitter at paragraph [200(c)] of Hernandez No. 2.
The appellant quotes the order made by the Deputy President at [200(c)], emphasising the words “resulted from the applicant’s injuries to the back on 18 December 1973, 16 August 1976, 8 December 1987 and 27 April 1992” and submits:
“However, the Member did not have regard to this when deciding the matter.
The Appellant submits that the Member misinterpreted/misconstrued Wood DP’s decision and the scope of the remitter. Therefore, it is submitted, he committed errors of law by limiting the enquiry about whether the renal and cardiac consequential conditions were causally related to the treatment of the Appellant’s lumbar spine injury only.”[11]
[11] Appellant’s submissions, [33]–[34].
At [37] the appellant submits:
“The Member ought to have not restricted the enquiry in this manner and he ought to have had regard to whether the lumbar spine injury at large materially contributed to the Appellant’s renal and cardiac conditions.”
The appellant submits that the Member should have had regard to the totality of the submissions as to whether the lumbar spine injury at large materially contributed to the worker’s renal and cardiac conditions.
First respondent’s submissions as to Ground 1
The first respondent makes a combined submission with respect to Grounds 1 and 2 of the appeal and then submits:
“In making the determinations outlined above, DP Wood clearly defined the issues that were to be remitted to a different Member for determination.
The first respondent expressly disputes the submission made by the appellant at paragraph 119 of the appeal that there was no limit to the issues for determination as placed by the Member.”[12]
[12] First respondent’s submissions, [7]–[8].
Otherwise the first respondent asserts the correctness of the Member’s determination.
Second respondent’s submissions as to Ground 1
The second respondent does not concede that the Member limited the question to be determined. The second respondent refers to the appellant’s submission to the Member of 21April 2022. It says paragraphs [6] and [7] thereof show a broader scope to the enquiry undertaken by the Member.
The second respondent refers to the appellant’s argument that “the accepted back injuries inhibited his capacity to exercise and that this materially contributed to the renal and cardiac conditions”. The second respondent submits:
“11. … that there was no medical evidence before the Commission that the accepted back injuries inhibited his capacity to exercise and that this materially contributed to the renal and cardiac conditions.
12. Although there was evidence that the back injuries inhibited his capacity to exercise, there was no evidence that this materially contributed to the renal and cardiac conditions.
13. It is therefore submitted that the Member was correct in noting that the inability to exercise as a possible material contribution to either the renal condition or the cardiac condition is not a factor to be considered.”
Appellant’s submissions in response
The appellant submits with respect to Grounds 1 and 2 that the first respondent has failed to grapple with the substance of the submissions made by the appellant and that those submissions ought not be accepted.
Consideration
The appellant correctly points out that the jurisdiction exercised by Deputy President Wood in remitting the matter for further determination by another member of the Commission is provided for in s 352(7) of the 1998 Act.[13]
[13] Appellant’s submissions, [46].
That provision, which is expressed to be an alternative to s 352(6A), provides as follows:
“Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).” (emphasis added)
It is important to have regard to the decision and in my view the statement of reasons for decision given by the Deputy President.
The appellant’s submission at [47] that subs 352(7) confines the Member’s statutory duty to the terms of the remitter is correct. However, the subsection provides that the Member is to determine the issue remitted “in accordance with” the Deputy President’s decision.
In paragraphs [192] and [193] the Deputy President said:
“192… [Member Sweeney] did not take into consideration the allegation that the medication prescribed to the appellant to treat the appellant’s back injuries materially contributed to the appellant’s renal condition. Nor did he give consideration to whether the medication prescribed to treat the back injuries materially contributed to the cardiac condition.
193… It follows that the Member erred by failing to determine whether the renal and cardiac conditions resulted from the ingestion of medication prescribed for the treatment of the appellant’s back injuries and/or hypertension.” (emphasis added)
In my view the Member’s conclusion at reasons [97] was a correct understanding of the matter remitted for determination from Deputy President Wood.
It follows that the appellant’s primary submission in respect of Ground 1 at [34], that the Member misinterpreted/misconstrued Wood DP’s decision and the scope of the remitter, is rejected. It follows the Member was correct to limit the scope of the enquiry in the manner in which he did at paragraph [97].
Ground 1 of the appeal is dismissed.
Ground 2 – The Member committed errors of law by confining the issue for determination in respect of the appellant’s renal and cardiac conditions to whether they were related to the ingestion of medication prescribed to treat the appellant’s back injuries only
Appellant’s submissions as to Ground 2
The appellant submits that the confining of the issue for determination in respect of the appellant’s renal and cardiac conditions to whether they were related to the ingestion of medication prescribed to treat the appellant’s back injury only was a constructive failure by the Member to exercise jurisdiction.
The appellant refers to Norrington v QBE Insurance (Australia) Limited[14] at [30], a passage from Brereton JA.
[14] [2021] NSWSC 548.
The appellant submits that the Member erred by not having regard to the lumbar spine injuries as a whole and only considering the effects created by the appellant’s ingesting medication for treatment of his lumbar spine injuries and therefore did not have proper regard to the terms of Wood DP’s remitter.
It is submitted that the Member misunderstood the nature of his jurisdiction and that he applied the wrong test because he confined the enquiry to the effects of ingesting medication only and whether this materially contributed to the disputed conditions. It followed that he misconstrued the remitter and did not address the issue of causation “for the disputed conditions on the basis of the back injuries as a whole”[15] and that he therefore failed to apply himself to the real question that was to be decided having regard to the terms of the remitter.
[15] Appellant’s submissions, [44(c)].
The appellant cites s 352(7) of the 1998 Act, correctly observing that the Member’s statutory duty was confined to the terms of the remitter.
The appellant quotes from Allianz Australia Insurance Limited v Cervantes[16] at [21] that a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms.
[16] [2012] NSWCA 244.
First respondent’s submissions as to Ground 2
The first respondent made combined submissions with respect to Grounds 1 and 2 which need not be recited at this point (see above).
Second respondent’s submissions as to Ground 2
The second respondent submits that Member Batchelor did not confine the issues for determination. He considered whether the appellant’s accepted back injury inhibiting his capacity to exercise materially contributed to the renal and cardiac conditions and rejected the proposition. The second respondent refers to paragraph [99(d)] of the reasons.
The second respondent submits that the appellant did not point to any specific evidence that supports a link between the appellant’s inability to exercise and thereby weight gain as materially contributing to his renal and cardiac conditions. The second respondent submits that the Member did not constructively or otherwise fail to exercise the jurisdiction afforded to him.
Appellant’s submissions in response
The appellant makes joint submissions with respect to Grounds 1 and 2 referred to above.
Consideration
For the reasons given in respect to Ground 1, in my view, the Member did not commit error in confining the issues for determination in the manner in which he did. The remitter was not as wide as the appellant submits and the Member was correct to limit the enquiry to whether the ingestion of medication for the purpose of the back injury materially contributed to the renal and cardiac conditions.
Ground 2 of the appeal is dismissed.
Ground 3 – The Member committed errors of law by making findings/determinations which the appellant was not on notice of
Appellant’s submissions as to Ground 3
The appellant submits that the Member denied him procedural fairness by confining the enquiry with respect to the cause of the consequential conditions to the ingestion of medication to treat his back injuries only.
The appellant submits that he did not frame his case on this limited basis and that this is evident from the submissions made to the Member. The appellant refers to his submission at T22.10 as follows:
“So how the [appellant] says it’s related. So one, as you’ve noted, is the medication treatment for the hypertension, the other way is the medication consumed for the back injury itself and the third way, Member, is the back injury itself including the inability to exercise and the weight gain which the [appellant] experienced.”
The appellant submits that the Member was taken to various pieces of evidence addressing the effects of the appellant’s inability to exercise and weight gain, by virtue of his back injury so as to demonstrate the causal link between the back injuries and the consequential conditions.
Later the appellant refers to his submission at T51.27 that:
“… it’s not simply medication, it’s also the disabilities created by the [appellant’s] back injuries had a material contribution to his cardiac condition but you also note from the opinion of Dr Puranik that the treatment of the back condition also affected his renal condition.”
The appellant quotes from the reports of Associate Professor Gillin and from his clinical entries.
The appellant submits that the respondent “did not submit or indicate that the Member’s enquiry with respect to the lumbar spine injuries was constricted to the ingestion of medication to treat same.”[17] However, the appellant concedes[18] that the first respondent focused upon the ingestion of medication but the appellant submits that the first respondent did not submit that the question with respect to causation was limited to the ingestion of medication to treat the back injuries.
[17] Appellant’s submissions, [57].
[18] Appellant’s submissions, [67].
The appellant quotes passages from Minister for Immigration and Citizenship v SZGUR,[19] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam,[20] Re Refugee Review Tribunal; Ex parte AALA[21] and Ucar v Nylex Industrial Products Pty Limited.[22]
[19] [2011] HCA 1; 241 CLR 594 (SZGUR), [9].
[20] [2003] HCA 6; 214 CLR 1, [37].
[21] [2000] HCA 57; 204 CLR 82 (AALA), [100].
[22] [2007] VSCA 181, [43].
He submits:
“Noting the factual circumstances in this matter, including the submissions that were made by the parties and the manner in which the parties conducted their respective cases, and also noting the, it is submitted, clear and unambiguous terms of Wood DP’s remitter, the Appellant submits that the Member denied him procedural fairness by confining the question of causation in the manner that he did. This was adverse to the Appellant, and clearly affected the Member’s findings with respect to causation.”
The appellant submits that he was not on notice that the Member would restrict the relevant enquiry in the manner he did and the Member did not put the appellant on notice that he would only have regard to ingestion of medication to treat the appellant’s back injury when considering causation.
The appellant submits that the Member did not put the appellant on notice that he would specifically disregard the effects of the appellant’s inability to exercise and weight gain due to the accepted back injuries. It is submitted:
“The Member, therefore, made adverse findings without warning the Appellant of the risk of such findings being made and he did not afford him the opportunity to adduce evidence or make submissions addressing these findings.
These findings have caught the Appellant by surprise.”[23]
[23] Appellant’s submissions, [79]–[80].
First respondent’s submissions as to Ground 3
The first respondent makes submissions with respect to Grounds 3 and 4.
The first respondent disputes the appellant’s claim that the Member denied the appellant procedural fairness and natural justice by confining the question of causation in the manner he did. The first respondent submits that the appellant’s submissions rely on a link through the appellant’s hypertension (a link not available by virtue of the Deputy President’s decision) or alternatively “the evidence simply does not establish that any potential contribution made by medication, inability to exercise and/or weight gain have altered his renal or cardiac condition in such a way that the appellant’s present renal or cardiac conditions can be said to result from the back injury.”[24]
[24] First respondent’s submissions, [13].
Second respondent’s submissions as to Ground 3
The second respondent submits that the Member heard all of the appellant’s submissions and dealt with them. The fact that he was not satisfied for instance that the inability to exercise materially contributed to either the renal or cardiac condition was open to him on the evidence.
The second respondent said:
“In this case there was no evidence, and the Appellant points to none, supporting the Appellant’s inability to exercise and therefore gain weight as providing the causal link between the Appellant’s back injuries and his cardiac and renal conditions.”[25]
[25] Second respondent’s submissions, [19].
The second respondent says that there must be medical evidence to satisfy the Commission and that in this case there was no medical evidence supporting the proposition that the appellant’s inability to exercise and therefore weight gain was a materially contributing factor to the appellant’s conditions.
Appellant’s submissions in response
The appellant says that the first respondent has failed to provide any references to the Member’s decision or to any authority that would support its propositions. The appellant does not address the second respondent’s submissions.
Consideration
A constructive failure to exercise jurisdiction is more than a failure to consider evidence or address an argument or submission. The question is whether the failure to consider and address certain issues or arguments involves a failure to address central or critical elements of the case. However, as the passage cited by the appellant at [72] from AALA at [100] makes clear a decision maker is not required to warn the person the subject of the adverse finding where “the risk necessarily inheres in the issues to be decided.” A similar proposition is advanced in the passage from SZGUR at [9], cited by the appellant at [70].
In the present matter the appellant’s complaint is that he was denied procedural fairness by the Member “confining the enquiry with respect to the cause of the consequential conditions to the ingestion of medication to treat his back injuries only”. That limiting of the enquiry however, in my view, was inherent in a proper understanding of the remitter.
The remitter is limited to an enquiry into whether the ingestion of medication for the treatment of the back injury materially contributed to the development of the renal and cardiac conditions. It did not extend to the effects of the appellant’s inability to exercise or weight gain. The Member noted at reasons [99(d)] that in Hernandez No. 1 Member Sweeney had excluded exercise as a possible factor to be considered.
The appellant does not complain that if the issue was correctly confined to the ingestion of medication that he was denied procedural fairness. It is only if the remitter demanded a general enquiry as to the relationship between the cause of the cardiac and renal conditions and the back injury that arguments about inability to exercise and weight gain become relevant. However, as the matter before the Member was not a general enquiry into the causation of the renal and cardiac conditions with respect to the back injury, in my view, the Member did not deny the appellant procedural fairness.
Ground 3 of the appeal is rejected.
Ground 4 – The Member committed errors of law by failing to respond to substantial, clearly articulated arguments
Appellant’s submissions as to Ground 4
The appellant submits that in his written and oral submissions he framed his case on the basis that the accepted back injuries materially contributed to the renal and cardiac conditions. The appellant refers to the transcript and various submissions contained therein.
After citing Dranichnikov v Minister for Immigration and Multicultural Affairs,[26] the appellant at paragraph [91] says:
“The Appellant, as has been identified in the submissions made in respect of grounds 1–3, submits that the Member, by failing to have regard to his submissions as to the cause of his consequential conditions, aside from those in relation to the ingestion of medication for his accepted back injuries, failed to respond to substantial, clearly articulated arguments relying upon established facts.”
[26] [2003] HCA 26; 77 ALJR 1088, [24], [27].
At paragraph [94] the appellant submits:
“If the Member had regard to the complete submissions that had been made by the Appellant with respect to what materially contributed to the renal and cardiac conditions, it is submitted that his findings with respect to causation would have [been] different.”
First respondent’s submissions as to Ground 4
The first respondent made submissions with respect to Grounds 3 and 4 referred to above and they need not be repeated.
Second respondent’s submissions as to Ground 4
The second respondent submits that the appellant does not in this ground identify error and that, in the circumstances, the ground ought be dismissed.
Appellant’s submissions in response
The appellant submits in reply that in his initial submissions he summarised the submissions that the Member had not considered and which had been made on the appellant’s behalf and provided references to the transcript and the written submissions that had been made. It is submitted that the second respondent’s submissions are misconceived and demonstrate that it failed to consider the appellant’s submissions.
Consideration
For the reasons given with respect to Ground 3 above, in my view the Member was not required to address arguments, evidence or submissions wider than an enquiry into whether the ingestion of medication for the purpose of the back injury materially contributed to the renal and cardiac conditions.
The appellant sought to widen the enquiry beyond that defined by a proper understanding of the issue remitted by Deputy President Wood. The Member was not required to do more than determine the issue which had been remitted to him.
There was no failure, constructive or otherwise, to exercise the jurisdiction to make a determination of the issue remitted. The fact that the Member heard submissions which were much wider than the issue to be determined did not mean that the decision-making process engaged upon by the Member, which did not respond to those irrelevant arguments, was a failure to exercise jurisdiction.
The jurisdiction was limited to the matter to be determined. Arguments not relevant to that issue were not required to be responded to.
Ground 4 of the appeal is rejected and dismissed.
Ground 5 – The Member committed errors of law by treating the findings of Member Sweeney that an aclasta infusion or Reandron treatment as being binding
Appellant’s submissions as to Ground 5
The appellant submits that upon Member Sweeney’s determination with respect to the renal and cardiac conditions not being causally related to the accepted back injuries being set aside, the foundational facts that made up Member Sweeney’s determination in respect of the lumbar spine injuries were also set aside.
The appellant admits in the circumstances where the ultimate decision was set aside on appeal, the factual findings that formed the ultimate decision were also set aside.
It is submitted accordingly that the issue of whether the aclasta infusion and the Reandron treatment were causally related to the accepted back injuries and whether they materially contributed to the disputed condition was a matter the Member was permitted to determine on the basis of the submissions made by the parties.
First respondent’s submissions as to Ground 5
The first respondent submits that there was an absence of expert medical evidence which states that the aclasta infusion (used to treat osteoporosis) and the Reandron (hormonal treatment that contains testosterone) were reasonably necessary as a result of the injury to the appellant’s back or indeed that the prescription of these medications made a material contribution to the appellant’s renal and/or cardiac conditions.
The first respondent submits that it was open to the Member to come to the decision that he did and his finding in this regard was open to him on the evidence.
Second respondent’s submissions as to Ground 5
The second respondent submits that there was no evidence establishing the link between the Aclasta infusion and the Reandron treatment and the appellant’s cardiac and/or renal conditions. Although there was evidence that these treatments may have affected his kidney function, there was no evidence that these treatments were reasonably necessary as a result of the appellant’s back condition.
The second respondent submits that the appellant has not pointed to any evidence supporting the proposition that these treatments were necessary as a result of the appellant’s back condition.
Appellant’s submissions in response
The appellant does not seem to have made a response to the submissions with respect to Ground 5.
Consideration
I have set out (at [21] above) paragraph [102] from the Member’s reasons. Of particular importance in relation to this ground of appeal is that the Member said:
“… My conclusion from examination of the medical evidence on which the [appellant] relies on this issue which I have summarised above is that there is a possible link between the ingestion of Vioxx and the renal condition raised by Dr Pope in her clinical notes, and that the [appellant’s] inability to exercise is a factor in his cardiac condition. I have been unable to locate any other evidence as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions.”
At paragraph [99(c)] the Member said this:
“… the second respondent submits that that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from his back injury. That is correct. Member Sweeney accepted that at [86] in Hernandez [No.] 1, and the [appellant] did not appeal from this aspect of the decision.” (my emphasis)
At paragraph [100(c)] the Member said:
“A/Prof Gillin … in his report dated 3 October 2016 refers to weight gain due to inability to exercise much and to risk of osteoporosis”.
The findings recited by the Member immediately above are not challenged by the appellant.
Member Sweeney in his decision, under the heading “Hypercholesteremia and renal”, said:
“85. While the respondent addressed on this issue there is little evidence that the [appellant’s] elevated cholesterol results from the employment injury or its sequelae. It might be assumed I suppose that it is related to the [appellant’s] hypertension. The respondent’s submission under this heading also deals with the alleged consequential renal condition. Ms Goodman submitted:
‘There is no evidence from a specialist nephrologist before the Commission and although the [appellant] has been seen on many occasions by clinical A/Prof Adrian Gillin, renal physician there is no opinion from Prof Gillin regarding causation of any condition the applicant suffers from. While Dr Herman had expressed the opinion that the applicant’s kidney disease related to the applicant’s back injury, he ‘does not have the expertise to do so’.’
86. The second respondent argued that there was no evidence that an aclasta infusion (for osteoporosis) or Reandron treatment (a testosterone replacement) resulted from the injury. That submission must be accepted.”
The appellant’s submission is that Member Sweeney’s determination with respect to the renal and cardiac conditions not being causally related to the accepted back injuries being set aside, the foundational facts that made up Member Sweeney’s determination in respect of the lumbar spine injuries were also set aside. In my view this is not correct.
It is significant that the appellant does not identify where it is said Deputy President Wood set aside Member Sweeney’s determinations with respect to renal and cardiac conditions. As I read the Deputy President’s decision, she did not set aside any of the findings of Member Sweeney, rather she determined that Member Sweeney should have but did not consider and make additional findings with respect to the appellant’s consumption of medication for his back and the effect this may have had on the renal and cardiac conditions.
Apart from a determination as to whether the appellant’s renal and cardiac conditions resulted from medication ingested for the purpose of the injuries to the back, the findings of Member Sweeney remained intact.
This included the finding by Member Sweeney at paragraph [86] that there was no evidence that an aclasta infusion or Reandron treatment resulted from the injuries. Deputy President Wood’s determination with respect did not reverse that finding by Member Sweeney.
Ground 5 of the appeal is dismissed.
Ground 6 – Determining that the appellant has not established on the balance of probabilities the renal condition and his cardiac condition results from injuries to the back
Appellant’s submissions as to Ground 6
The appellant submits that the Member failed to have regard to the complete basis upon which causation was sought to be established by the appellant and this meant that the Member overlooked and gave no weight to the submissions and evidence that he had been referred to. The appellant submits that the Member did not have regard to the evidence that the appellant submitted demonstrated causation was established because the evidence was related to the appellant’s weight gain and inability to exercise. The appellant refers to transcript references in support of this submission, being the same transcript references referred to in Ground 4.
First respondent’s submissions as to Ground 6
The first respondent submits that the evidence tendered by the parties regarding the connection between the appellant’s renal and cardiac conditions and medication and weight gain and ability to exercise were set out at paragraph [100] of the Member’s decision. The first respondent submits that it was open to the Member to come to the decision that he did and that his findings in this respect were open to him on the evidence.
Second respondent’s submissions as to Ground 6
The second respondent submits that the Member did consider all of the evidence including the appellant’s inability to exercise and his weight gain. The Member considered it all but was not actually persuaded as to the link being established between the appellant’s back injuries and his renal or cardiac conditions. It is further submitted there was no medical evidence establishing this link and the appellant does not point to any such medical evidence.
Appellant’s submissions in response
The appellant submits that the first respondent has not referred to any authority to support its submissions. The appellant submits that the second respondent has failed to have regard to the appellant’s actual submissions in respect of this ground and has failed to properly grapple with the submissions.
Consideration
The Member set out at paragraphs [99] and [100] of the reasons matters noted from the transcript of evidence to Member Sweeney recorded on 22 March 2021 and a summary of the records of medical practitioners relied upon by the appellant. At [101] of the reasons he recorded Member Sweeney’s conclusion at paragraph [68] in Hernandez No. 1 and repeated the same conclusion on his own part at [102] of the reasons.
What the Member said in those paragraphs was that there was a lack of evidence “as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions”.
The appellant’s reference to submissions made on his behalf to the Member asserting the relevance of the inability to exercise and of weight gain does not overcome the unchallenged finding on the part of both member Sweeney and Member Batchelor that there was a deficiency in the evidence such that neither was persuaded. The Member makes clear that there was very little relevant evidence in the reasons at paragraph [102]. Apart from the reference to Vioxx, there was no evidence “as to whether the ingestion of medication for the back injuries resulted in the renal and cardiac conditions.” The Member reasserts that position at [109] of the reasons.
Furthermore, this ground of appeal would seem to rely to an extent on the matters discussed in Ground 5.
Ground 6 of the appeal is rejected.
Ground 7 – The Member’s decision was so unreasonable that no reasonable body could have come to it
Appellant’s submissions as to Ground 7
The appellant relies upon Lord Green’s remarks in Associated Provincial Picture Houses Limited v Wednesbury Corporation.[27] The appellant submits that the principles apply to the Personal Injury Commission members, citing James Bromfield v New South Wales Gun Club.[28]
[27] (1948) 1 KB 223, 229–230.
[28] [2019] NSWSC 430, [93].
The submission made by the appellant is that no reasonable Member would have come to his decision because coming to this decision meant the Member ignored the specific terms of Wood DP’s remitter and the matters addressed by the Deputy President under the headings “Conclusion” and “Decisions”.
Specifically the appellant complains:
“There was no limit to the issues for determination as placed by the Member and a reasonable Member would not have limited their enquiry in this matter for these reasons.”[29]
[29] Appellant’s submissions, [119].
First respondent’s submissions as to Ground 7
The first respondent says that at paragraph [100] of his decision the Member clearly referenced his consideration of a lack of exercise, weight gain and medication among other factors. The first respondent submits that the absence of evidence to support the connection between those forms of treatment and the worker’s current renal and cardiac conditions required the Member to find against the appellant.
Second respondent’s submissions as to Ground 7
The second respondent submits that the Member did not limit his enquiry to the ingestion of medication to treat the back injuries. He also considered not only the appellant’s weight gain and inability to exercise but also the aclasta infusion and Reandron treatment. He was not however persuaded these treatments were necessary as a result of the back injuries or that the weight gain and inability to exercise materially contributed to the cardiac and/or renal conditions.
The second respondent submits that it was not unreasonable for the Member to come to the conclusion the appellant’s medical evidence did not provide the necessary supporting link and in those circumstances it was appropriate that the Member accept submissions put to him by the respondents and not accept the submissions put to him by the appellant.
Consideration
The gravamen of the appellant’s complaint and this ground of appeal is the assertion that the Member “ignored the specific terms of Wood DP’s remitter and the matters addressed by the Deputy President under the subheadings ‘Conclusion’ and ‘Decision’.” I do not agree with that submission and for the reasons previously given, in my view the Member’s interpretation of the matters remitted by Deputy President Wood was correct.
For this reason Ground 7 of the appeal is dismissed.
Ground 8 – The Member committed errors of law by failing to provide adequate reasons for his determination that the renal and cardiac conditions did not result from the accepted back injuries
Appellant’s submissions as to Ground 8
The appellant quotes the Member’s reasons at paragraph [102] and submits:
“Notwithstanding the evidence of Dr Pope which the Member noted, he did not grapple with this evidence or indicate why this evidence was not sufficient to establish, on the balance of probabilities, at the very least, the renal condition being causally related to the ingestion of Vioxx.”[30]
[30] Appellant’s submissions, [121].
The appellant refers to NSW Police Force v Newby[31] and to Beale v GIO (NSW).[32]
[31] [2009] NSWWCCPD 75, [149]–[151].
[32] (1997) 48 NSWLR 430, 444.
The appellant submits that the Member did not reveal his reasoning as to why Dr Pope’s evidence pertaining to the ingestion of Vioxx was not accepted as demonstrating the back injuries were materially contributing factors to the disputed conditions. The effect of this is that the appellant does not know why this evidence was rejected and why he was unsuccessful.
First respondent’s submissions as to Ground 8
The first respondent submits that the references made by Dr Pope are insufficient to substantiate that the ingestion of medication prescribed for the appellant’s back injury have made a material contribution to the appellant’s renal condition. The appellant has been treated by A/Professor Gillin (renal physician). However the appellant sought to tender no evidence from A/Professor Gillin or indeed a qualified renal physician/nephrologist on the issue of causation. The first respondent submits the appellant requires and lacks the evidence of an expert to the effect that the ingestion of medication prescribed for the appellant’s back injury has made a material contribution to the necessity of treatment for a renal condition.[33]
[33] Citing Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, [57]–[58].
Second respondent’s submissions as to Ground 8
The second respondent submits that the Member did provide reasons, namely in paragraph [102]. The second respondent submits that the Member articulated the evidence providing a possible link between the ingestion of Vioxx and the renal condition raised by Dr Pope in her clinical notes and that the appellant’s inability to exercise is a factor in his cardiac condition. He was however unable to locate any other evidence as to whether the ingestion of medication for the back injury resulted in the renal and cardiac conditions. It is submitted there was no evidence establishing the required link.
Appellant’s submissions in response
The appellant submits that the first respondent does not grapple with the appellant’s submissions in respect of Ground 8 and that it has not attempted to demonstrate the Member’s reasons were adequate. The appellant makes no response to the second respondent’s submissions in relation to Ground 8.
Consideration
At paragraph [100(a)] the Member referred to Dr Pope’s evidence concerning her prescribing Vioxx and subsequently withdrawing the prescription because of a concern that it may be affecting his kidney (that is his renal condition) and subsequently re-prescribing it for a short 1 month period. He observed that she made a reference to Reandron in the clinical notes dated 17 November 2010.
The Member dealt expressly with these entries in his reasons [102] quoted above at [101].
It is difficult to see what additional reasons the Member should have given in respect of Dr Pope’s entries in relation to the ingestion of Vioxx. The appellant does not complain that the Member inaccurately recorded Dr Pope’s entry nor does the appellant complain that the Member overlooked some opinion evidence from Dr Pope linking on the balance of probabilities the renal condition causally to the ingestion of Vioxx.
A prophylactic withdrawal of the Vioxx prescription “because it may be affecting his kidney (that is, his renal condition)” and a subsequent further prescription for a short period of approximately one month hardly establishes on the balance of probabilities that the renal condition was causally related to the ingestion of Vioxx. Indeed, Dr Pope’s entries give rise to an inference to the contrary because the withdrawal of the prescription for Vioxx and the limited re-prescribing of the medication was presumably intended by her to avoid exacerbating the renal condition. That is what the doctor says that her concern was.
Ground 8 of the appeal is dismissed.
CONCLUSION
The appeal has been unsuccessful and fails.
DECISION
The Member’s Certificate of Determination dated 20 July 2022 is confirmed.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
3 October 2023
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