Holcim (Australia) Pty Ltd v Plain
[2025] NSWPICPD 4
•20 January 2025
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| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |||
CITATION: | Holcim (Australia) Pty Ltd v Plain [2025] NSWPICPD 4 | ||
APPELLANT: | Holcim (Australia) Pty Ltd | ||
RESPONDENT: | Owen Lindsay Plain | ||
INSURER: | Holcim (Australia) Holdings Pty Limited | ||
FILE NUMBER: | A1-W6732/23 | ||
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood | ||
DATE OF APPEAL DECISION: | 20 January 2025 | ||
ORDERS MADE ON APPEAL: | 1. The Principal Member’s Certificate of Determination dated 18 January 2024 is confirmed. | ||
CATCHWORDS: | WORKERS COMPENSATION – factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 discussed and applied – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied – standard of proof – Briginshaw v Briginshaw [1938] HCA 34 discussed – cl 9 of Sch 3 to the Workers Compensation Act 1987 (the 1987 Act) “current work capacity” and “no current work capacity” – s 32A(1) of the 1987 Act “suitable employment” | ||
HEARING: | On the papers | ||
REPRESENTATION: | Appellant: Mr T Ainsworth, solicitor, and Ms L Fung, solicitor | ||
| Hall & Wilcox Lawyers | |||
| Respondent: | |||
| Mr T Hickey, counsel | |||
| MBT Lawyers | |||
DECISION UNDER APPEAL: | Plain v Holcim (Australia) Pty Ltd, W6732/23, 18 January 2024 | ||
PRINCIPAL MEMBER: | Mr J Harris | ||
| DATE OF PRINCIPAL MEMBER’S DECISION: | 18 January 2024 | ||
INTRODUCTION AND BACKGROUND
Mr Owen Lindsay Plain (the respondent) was employed by Holcim (Australia) Pty Ltd (the appellant) as a machine operator. On 30 November 2012, the respondent suffered an injury to his left arm, shoulder and neck in the course of his employment when he slipped and fell while re-fuelling an excavator from a fuel tank in the back of a utility truck. The respondent underwent surgery to his left shoulder on 5 February 2013 and was off work for approximately 8 weeks, following which he returned to work under a return-to-work program arranged by the appellant. The respondent continued to work for the appellant despite continuing symptoms until 20 December 2018, when he ceased work. After ceasing work, the respondent utilised his long service leave and annual leave entitlements until 30 April 2019 then claimed weekly payments of compensation. The appellant declined his claim but subsequently agreed (by consent) to pay weekly payments at the rate of $800 per week on an ongoing voluntary basis and consent orders were entered into between the parties on 27 February 2020.
On 21 December 2017, an Approved Medical Specialist appointed by the former Workers Compensation Commission assessed the respondent as having 21% whole person impairment. The respondent was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). That assessment qualified the respondent for ongoing weekly payments beyond the first 260 weeks of payments by operation of s 39 of the 1987 Act.
On 7 March 2023, the respondent (through his legal representatives) claimed an increase in past payments of weekly compensation from 27 July 2020 on a continuing basis, asserting that there had been a deterioration of his condition. He was certified by his general practitioner as having no capacity for work from 13 March 2023.
The appellant disputed the claim on the basis that the certification that the respondent had no or limited capacity for work was inconsistent with the fact that the respondent, according to the appellant, had been travelling with his wife around the country driving for long distances apparently without difficulty and with no apparent restrictions in his left arm. The appellant formed the view that the respondent could have performed his pre-injury duties had he not retired.
The respondent brought proceedings in the Personal Injury Commission (the Commission) seeking weekly payments on the basis that he had no capacity for work. The dispute was heard and determined by a Principal Member of the Commission, who found that the respondent had some capacity for work until 11 November 2021 and thereafter no capacity for work and entered an award of weekly payments accordingly.
The appellant appeals that decision.
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.”
Both parties submit that the appeal can be determined on the basis of the documents and their submissions. I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, the submissions made in the appeal and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
A preliminary matter
The appellant asserts that the recording of the arbitration on 16 January 2024 ceased before the appellant had completed its submissions and submits that it is difficult to recall or refer to those submissions. The respondent’s response in respect of the transcript is that no submissions were made after the transcript ceased.
The appellant had the opportunity to respond to the respondent’s response but did not say anything further in respect of the issue. I note that counsel who appeared for the appellant at the arbitration does not appear in the appeal which is not ideal. I further note that the Principal Member summarised the parties’ submissions in detail. I have read the recorded transcript of submissions, and the submissions made by the appellant recorded in the transcript are consistent with those summarised by the Principal Member. I note also that the appellant indicated that the appeal could be determined ‘on the papers’ and that an oral hearing is not required.
The opportunity to make further submissions on receipt of the transcript is not an opportunity to raise additional grounds of appeal and the parties are expected to take sufficient note of what transpires in a hearing.[1] In those circumstances, and in the absence of any complaint from the appellant that the appeal cannot proceed, I am of the view that it is in the interests of justice to proceed with the appeal.
THE EVIDENCE
[1] University of New South Wales v Lee [2021] NSWPICPD 4, [29]; BBY v The GEO Group Australia Pty Ltd [2023] NSWPICPD 60, [72]; Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287, [14] –[15].
The respondent’s statements
The respondent provided a statement dated 19 September 2017.[2] He described the circumstances of the injury in which he slipped and fell. He said he extended his left arm to break the fall but got the arm caught in the fuel hose that he was attempting to return to the utility truck, and he fell to the ground, experiencing immediate severe pain in the left arm, shoulder and in the area of the neck.
[2] Application to Resolve a Dispute (ARD), pp 3–4.
The respondent described the medical treatment he received thereafter, advising that he returned to work on suitable duties with his arm in a sling. He said that he underwent x-rays, an ultrasound and an MRI scan of the left shoulder, and was referred to Dr Alex Jovanovic, orthopaedic surgeon who performed surgery on the left shoulder on 5 February 2013. He stated that he returned to work after about 8 weeks, performing selected duties. He said that after the surgery, he continued to suffer from severe pain and numbness in the left arm and he had difficulty working. He said that he consulted a number of treatment providers who were unable to offer him any beneficial treatment.
The respondent indicated that his symptoms deteriorated over time, and he was unable to perform many of his pre-injury activities, including having difficulty with setting up his campervan, because it aggravated his pain.
The respondent provided a second statement dated 11 December 2019.[3] He advised that the pain and restrictions in his left arm, hand, shoulder and neck had persisted and worsened. He referred to the assessment of his whole person impairment by the Approved Medical Specialist on 21 December 2017 and said that, despite the fact that he was certified as having 21% whole person impairment, he had continued to work with ongoing pain and restrictions, and it was becoming increasingly more difficult. He described a number of tasks involved in his pre-injury work that he was unable to perform and said that he would do whatever he could to continue to work, sometimes having to take pain killers to cope with the pain.
[3] ARD, pp 5–7.
The respondent confirmed that he ceased work on 20 December 2018 because of severe pain, which he was trying to manage by resting on weekends. He said that he accessed his long service leave and annual leave up until 29 April 2019. He advised that he attended Dr Brett Anderson, who certified him as having some capacity for work for four hours per day, five days per week. He added that the appellant declined to pay him weekly payments and on 23 May 2019, the appellant issued a separation certificate.
The respondent described his ongoing restrictions and continuing symptoms which he said were constant and included symptoms of depression. He stated that he believed that he could no longer work as an excavator driver because of his pain and restrictions. He advised that he had sought other work, but no prospective employers would employ him because he had a work injury. He said that he believed that realistically, he would be unable to secure suitable work in the Coffs Harbour area where he resided.
The respondent made a further (third) statement dated 29 August 2023.[4] He advised that he continued to consult his general practitioner, Dr Justin Oughton, by video link, who provided him with certificates of capacity and prescriptions for his medication. He said that his condition had worsened in his neck, left arm, and shoulder, he had difficulties with his left hand and would constantly drop things he was holding, he was troubled with depression, and he was to see a neurosurgeon in respect of his increasing neck symptoms. He described an array of tasks that were difficult for him to perform including getting in or out of vehicles, reversing vehicles and checking the side mirrors.
[4] ARD, pp 8–9.
The respondent advised that he believed that he could not perform his role as an excavator driver because of his restrictions and said that he was not qualified to perform any other work. He added that he had looked for work, but prospective employers would not offer him work because of his workers compensation claim.
The respondent provided a fourth statement dated 11 December 2023.[5] He sought to clarify his third statement dated 29 August 2023 in which he referred to his lifting and carrying restrictions. He explained that those restrictions related to his left arm, and he had no restrictions whatsoever in his right arm. He added that the vehicles he drove at work were very different to his own four-wheel drive. He explained that his vehicle had power steering, and a reversing camera, which made it easy to drive and the height of the seat made it easier for him to get in and out of the vehicle, whereas the appellant’s machinery had ladders to climb up into the cabin. He further referred to his statement that he constantly dropped things he was carrying in his left hand and said that he meant that it was a regular occurrence rather than constant, but he did carry things in his left hand as it was recommended by his physiotherapist to use his left hand in order to maintain the capability that he had.
[5] Respondent’s Application to Admit Late Documents (AALD) dated 19 December 2023, pp 2–4.
The respondent referred to the video surveillance footage. He described what he had seen on the footage. Nothing in the appeal raises an issue about the respondent’s description of what was depicted on the footage, which was consistent with the footage. It is not necessary to summarise that evidence.
The respondent’s oral evidence
The respondent was cross-examined at the arbitration on 16 January 2024 and a transcript of the cross-examination was made available. It was put to the respondent by the appellant that the respondent did not appear to be in pain while performing the activities seen in the footage. The respondent replied that he was always in pain but agreed that he did not display signs of pain in the footage.
The respondent did not agree that the restrictions he described in his statement dated 29 August 2023 were inconsistent with the activities seen on the surveillance footage. The respondent indicated that he did not need to turn his neck in order to reverse his vehicle because he had reversing cameras and extended mirrors.
The respondent agreed that the footage disclosed that he lifted a barbecue in the Bunnings store and lifted items into the back of his vehicle, and those activities involved lifting things above his head. He agreed that he could lift a carton of beer weighing 14 kilograms with both hands. He did not agree that those activities indicated that he did not have restriction of movement in his neck, he did not agree that his description of his restrictions in his statement was misleading, and he did not agree that his capacity was greater than that described in his statement evidence. He further disagreed that he was exaggerating his restrictions when discussing those with his general practitioner. The respondent indicated that he could not return to his pre-injury role because it would be unsafe to work with the machines.
The video surveillance footage
The video surveillance footage, which I have viewed, comprised of periods of film recorded over several days which showed the respondent shopping with his wife, pushing the shopping cart, placing items in the back of his vehicle, entering his vehicle, and driving and reversing his vehicle. The Principal Member accepted that there was no inconsistency between the respondent’s activities recorded on the footage and the respondent’s reported restrictions. The appellant has not challenged the Principal Member’s finding in that regard. It is therefore not necessary to provide a full summary of what appears in the footage.
The relevant medical evidence
Dr Don Radford, general practitioner
Dr Radford provided a medical report at the request of the respondent’s legal representatives dated 12 July 2019.[6] He advised that the respondent first consulted him on 6 December 2012 following his work-related injury to the left shoulder. He said that the respondent had been taken to hospital following the injury and was released with his arm in a sling. He said that the respondent consulted a general practitioner in Coffs Harbour and underwent an x-ray and ultrasound of the left shoulder, with the ultrasound revealing a full thickness supraspinatus tear with nerve impingement.
[6] ARD, pp 82–85.
Dr Radford confirmed that the respondent was referred to Dr Alex Jovanovic, orthopaedic surgeon, who arranged for an MRI scan of the left shoulder and performed surgery to repair the shoulder on 5 February 2013. Dr Radford described the respondent’s recovery path and post-surgery treatment, noting that the respondent continued to experience restriction of motion in the shoulder and was receiving physiotherapy. Dr Radford said that by August 2016, the respondent was suffering from increased left hand and forearm symptoms and clawing in the hand, which the respondent said had been present since the splints were removed post-surgery in 2013. Dr Radford recorded that the respondent experienced aching down the ulnar border of the arm, weakness in the hand and paraesthesia in the second, third and fourth fingers. He noted that the respondent denied experiencing neck pain.
Dr Radford summarised the report of the MRI scan undertaken on 22 June 2016 and the opinions of Dr Simon and A/Prof Eftekhar. He said that the respondent last consulted him on 9 January 2019 when he was still complaining of significantly restricted shoulder movement with 50% reduction in flexion, extension, abduction and internal rotation, as well as paraesthesia in the left hand and symptoms of depression. Dr Radford expressed the opinion that the respondent was fit for full-time work but with permanent restrictions of no heavy lifting over 20 kilograms and no lifting over chest height. He said that the incident at work was the total cause of the respondent’s symptoms, the pre-existing pathology in the cervical spine had never caused symptoms prior to the incident and the pre-existing pathology had little relevance to the respondent’s current disability. He indicated that the respondent’s condition was stable, and no further surgery was indicated.
Dr Justin Oughton, general practitioner
The respondent commenced consulting Dr Oughton following Dr Radford’s retirement in November 2019. On 2 December 2019, Dr Oughton wrote to Dr Andre Loiselle of the Mid North Coast Specialist Outreach Clinic seeking an opinion and management of the respondent’s grip strength and numbness in the four fingers of the left hand and in the left shoulder tip. He said that the issues began at the time of the shoulder surgery in February 2013 but had progressively worsened over time.[7]
[7] ARD, p 98.
On 27 July 2020, Dr Oughton reviewed the respondent following a functional assessment performed by Ms Sarah Gulbinas, exercise physiologist, which was abandoned because of the respondent’s inability to participate. Dr Oughton recorded in his clinical notes:
“Struggled with work function assessment initially ok then struggling more as approached the 3 hour mark.
Then started to become depressed and teary.
mood has been more down - doubled pristiq.
report from HOLCIM suggests capacity is significantly restricted”.[8]
[8] ARD, p 221.
On 29 July 2020, Dr Oughton wrote to Ms Kristie Clarke, psychologist, advising that the respondent was experiencing left cervical radiculopathy and left shoulder pain which was causing him significant pain and disability. He said that the respondent had become more dysthymic and despondent and would benefit from psychological input.[9]
[9] ARD, p 101.
On 26 August 2020, Dr Oughton recorded in his clinical notes:
“Pain scores are still 9/10 - 10/10 when lifting predominately left shoulder and neck
getting physiotherapy - which gives some relief but unfortunately this appears to be short term
[The respondent and his wife] expressed some frustration at process and feel that [the respondent’s] capacity is less than what is currently stated on the certificate.
I explained that the certificate reflects the level at which the functional assessment confirmed and although the true function is likely to be lower than this it is difficult for me to quantify this.
I informed [the respondent] that if he is placed in unsuitable employment or has to go through another functional assessment and he is struggling with this we can change the restrictions at this time.”[10]
[10] ARD, p 222.
On 11 November 2021, Dr Oughton recorded in his clinical notes that:
“[The respondent] feels his overall pain and strength is much the same, and this is reflected in the physio report
driving tolerance has increased a little and [the respondent] is generally [tolerating] about an hour at the wheel, though can sometimes drive for 2 hours but discomfort forces breaks.
[The respondent] has essentially lost all capacity for overhead lifting as [reflected] on the recent physio report.
I have suggested keeping the time the same as we have not had a chance to trial a work placement at this stage, although given [the respondent’s] current restrictions and the chronicity of the disability and his advancing age, l am not confident he will be able to get suitable employment before reaching retirement age.”[11]
[11] ARD, p 231.
On 12 January 2022, Dr Oughton referred the respondent to Mr Sean Wiffen, hand physiotherapist. He advised that the respondent was experiencing significant discomfort, in particular when lifting any weight above waist height and he had limited ability to lift any object with his arm above shoulder height. He added that the respondent’s ability to drive was limited to two hours.[12]
[12] ARD, p 104.
Dr Oughton provided a report dated 24 May 2023 to the respondent’s legal representatives.[13] He confirmed that he had first seen the respondent on 26 August 2016 and took over his care on 20 November 2019 when Dr Radford retired. He advised that he was aware of the respondent’s injury and the consequent surgery. He said that the respondent’s initial symptoms included left shoulder and arm pain, radiating to the thumb, and the symptoms persisted and steadily worsened over time. He advised that he had referred the respondent to the following treatment providers:
(a) Prof Marcus Stoodley (neurosurgeon) for review of the left C6/C7 radiculopathy on 25 November 2019;
(b) Dr Andre Loiselle (neurologist) for nerve conduction studies on 2 December 2019;
(c) Mr Sean Wiffen (physiotherapist) for a capacity assessment on 12 January 2022 and on 13 March 2023 for increased left arm and shoulder pain and weakness;
(d) Ms Michelle Luc (psychologist) on 17 June 2022 for six sessions of counselling for low mood associated with his pain;
(e) Dr Eric Guazzo (neurosurgeon) for review of worsening shoulder and arm pain and weakness, and
(f) Dr James Price, orthopaedic surgeon on 14 April 2023 in respect of the carpal tunnel syndrome.
[13] ARD, pp 117–119.
Dr Oughton added that the respondent’s shoulder, arm and hand pain and discomfort was the most significant factor affecting his capacity for work, but his low mood and loss of self-esteem also contributed to his lack of capacity for work. Dr Oughton considered that the respondent was completely unfit for his pre-injury duties from 23 March 2023, when the respondent reported a significant deterioration in his function. He conceded that age-related factors may also be impacting his level of disability. He opined that due to the increasing effects of the respondent’s injury, together with his age, work experience and qualifications, the respondent had no realistic capacity for work and the respondent’s condition would worsen.
Dr Alex Jovanovic, orthopaedic surgeon
Dr Jovanovic reported to the respondent’s general practitioners over the period from 17 January 2013 to 18 September 2014.[14] In a report dated 4 February 2013, Dr Jovanovic confirmed that the respondent underwent surgery to the left shoulder that day. He advised that the findings at operation were of a massive tear of the supraspinatus and subscapularis, a tear of the long head of the biceps and subluxation. Dr Jovanovic considered that following the surgery, the respondent could return to work on suitable duties but he would be unable to return to normal duties for at least four to six months, depending upon his progress.[15]
[14] ARD, pp 54–65.
[15] ARD, p 57.
On 10 April 2013, Dr Jovanovic reported that the respondent was making good progress and was experiencing minimal discomfort. He was of the view that the respondent was fit to return to work on suitable duties, avoiding tasks requiring elevation of the left arm above the shoulder, as well as work involving heavy lifting and repetitive tasks.[16]
[16] ARD, p 63.
Dr Jovanovic reviewed the respondent again on 3 July 2013[17] and 18 September 2014. He recorded that by the time of the latter consultation, the respondent had recovered most of his range of movement, however complained of limited forward flexion. Dr Jovanovic expressed the view that the respondent had made remarkable progress, given the serious pathology but there was nothing further he could offer the respondent to improve his condition.[18]
[17] ARD, p 64.
[18] ARD, p 65.
Dr Neil Simon, neurologist and neurophysiologist
The respondent’s general practitioner, Dr Don Radford, referred the respondent to Dr Simon. Dr Simon reported to Dr Radford on 5 October 2016.[19] He recorded the history of injury, describing the injury as quite significant. He noted that the respondent complained of reduced range of motion in the left shoulder, tingling in the palm of his left hand since the injury and had developed clawing of his fingers, cramping and reduced control of the hand, as well as decreased strength with the tendency to drop things. He took the history that the respondent would frequently be woken during the night with left hand numbness and would wear a wrist splint at night. Dr Simon performed neurological examination, finding diffuse changes in sensation to pinprick from the cervical (C5 and C6) region, over the left shoulder and in the left hand, as well as reduced range of motion in all movements in the left shoulder. He noted that the MRI scan of the cervical spine disclosed multiple disc protrusions and that there was stenosis affecting the right C5 nerve root and bilateral C6/7 nerve roots. He referred to nerve conduction studies that revealed what he described as a significant left carpal tunnel syndrome.
[19] ARD, pp 70–71.
Dr Simon expressed the view that the respondent’s symptoms were complex. He diagnosed the respondent as suffering from a frozen left shoulder, significant left carpal tunnel syndrome, a possible brachial plexus injury and a number of pathological changes in the cervical spine. He said, however, that there was no evidence of brachial plexus injury on objective nerve conduction testing. He did not consider that the bulk of the respondent’s symptoms were caused by the pathology in the cervical spine and therefore no specific treatment was necessary. Dr Simon made recommendations for treatment of the left carpal tunnel syndrome.
Associate Professor Behzad Eftekhar, spinal specialist
The respondent was referred to A/Prof Eftekhar by Dr Radford, who examined the respondent on 2 August 2017 and reported to Dr Radford on that date.[20] He noted the respondent’s injury and recorded that the respondent had been experiencing left shoulder and arm pain since the injury, mainly down to the left thumb, with tingling and numbness in the left hand that woke him at night. A/Prof Eftekhar examined the respondent and reviewed the MRI scan undertaken in 2016. He formed the view that the respondent’s shoulder pathology, the left carpal tunnel syndrome and the left C6 radiculopathy all contributed to the respondent’s symptoms. He did not consider that cervical surgery would be beneficial but recommended continuing physiotherapy.
[20] ARD, p 74.
Professor Marcus Stoodley, neurosurgeon
The respondent was referred to Prof Stoodley by Dr Oughton. Prof Stoodley reported to Dr Oughton on 31 January 2020.[21] He recorded the history of injury and the respondent’s symptoms, consistent with the history of injury and symptoms recorded by Dr Simon. Following his examination of the respondent, he concluded that the respondent’s cervical pain and stiffness was consistent with facet joint inflammation, which required further investigation. He noted that the nerve conduction studies showed a severe left median nerve compression at the carpal tunnel. He opined that the arm symptoms were consistent with severe median nerve compression at the carpal tunnel, particularly when the respondent’s cervical pathology was most pronounced on the right side, and the right side was asymptomatic.
[21] ARD, pp 75–76.
Prof Stoodley reported again to Dr Oughton on 28 February 2020, following a bone scan and further nerve conduction studies.[22] He referred to the respondent’s ongoing symptoms of neck pain and stiffness and left arm symptoms. He advised that the bone scan showed widespread discogenic inflammatory changes but no facet joint arthropathy and the nerve conduction studies confirmed bilateral carpal tunnel syndrome with the left side less serious than the right side. He recommended carpal tunnel decompression if the symptoms worsened.
[22] ARD, p 77.
Mr Sean Wiffen, physiotherapist
On 3 February 2020, Mr Wiffen provided a functional assessment of the respondent’s restrictions, his cervical, thoracic and shoulder range of movement, his grip strength, and upper limb lifting capacity. He noted that the respondent reported that his shoulder was becoming more painful, his cervical symptoms had increased, he required increased medication and was self-medicating with alcohol. Mr Wiffen made recommendations as to further treatment, which included referral to a chronic pain management clinic.[23]
[23] ARD, pp 143–145.
Ms Sarah Gulbinas, exercise physiologist
Ms Gulbinas reported by facsimile on 9 July 2020 to Dr Oughton following an assessment performed on behalf of Konekt, a rehabilitation and injury management service. Ms Gulbinas advised Dr Oughton that the session could not be completed because of the respondent’s high pain levels, reported as 9 out of 10 and 10 out of 10 on bilateral lifting of a 5 kilogram weight from waist to shoulder and chest, escalated blood pressure and visible signs of distress. Ms Gulbinas advised that the respondent declined ambulance transportation, and she recommended that the respondent undergo early further review by Dr Oughton.[24]
[24] ARD, pp 342–343.
The relevant certificates of capacity
The following certificates of capacity issued mainly by Dr Oughton, which diagnosed the injury as left cervical radiculopathy and left shoulder pain, are relevant to the Principal Member’s decision:
(a) certificates dated 2 April 2020 and 29 June 2020 certifying the respondent as having capacity to work for five hours per day three days per week, with weight restrictions on lifting floor to waist and waist to shoulder, no lifting overhead and driving limited to 30 minutes;[25]
(b) certificates dated 27 July 2020 to 12 October 2021, certifying the respondent as having capacity to work for two hours per day three days per week, with weight restrictions on lifting floor to waist and waist to shoulder, with no lifting overhead and driving limited to 30 minutes;[26]
(c) certificates dated 11 November 2021 to 13 February 2023 certifying the respondent as having capacity to work for two hours per day three days per week, with weight restrictions on lifting floor to waist and waist to shoulder and a driving ability of up to one hour;[27]
(d) certificates dated 13 March 2023 to 3 August 2023 certifying that the respondent had no capacity for work;[28]
(e) a certificate dated 5 October 2023 certifying that the respondent had some capacity for work from 4 October 2023 to 3 November 2023, with weight restrictions on lifting floor to waist and waist to shoulder and driving ability up to one hour,[29] and
(f) a certificate dated 8 November 2023, certifying that the respondent had no capacity for work.[30]
[25] ARD, pp 251–256.
[26] ARD, pp 257–275.
[27] ARD, pp 276–326.
[28] ARD, pp 327–341.
[29] Respondent’s AALD dated 9 November 2023, pp 2–4.
[30] Respondent’s AALD dated 9 November 2023, pp 5–7.
Dr AG Hopcroft, general surgeon
Dr Hopcroft was asked by the respondent’s legal representatives to examine the respondent and provide an opinion in respect of the respondent’s injuries. He reported to the legal representatives on 16 June 2016.[31]
[31] ARD, pp 28–31.
Dr Hopcroft recorded the history of injury, describing the injury as a severe abduction of the left shoulder with the respondent at one stage hanging by his left arm with his feet off the ground. Dr Hopcroft noted that the respondent was unable to use his left shoulder and had severe pain in the left shoulder and left side of his neck down his left arm and into the hand. He said that the respondent was taken to hospital.
Dr Hopcroft discussed the results of the x-ray, ultrasound and MRI scan investigations and, the ongoing treatment regime, including details of surgery to the left shoulder performed on 5 February 2013. He recorded the respondent’s ongoing difficulties and symptoms of pain in the left shoulder area as well as restriction of movement of the joint, clawing of the left hand, significant numbness and paraesthesia in his left hand, severe weakness of the left forearm and hand and left sided pain and spasms in the neck.
Dr Hopcroft performed a physical examination. He observed that the symptoms of clawing in the left hand were highly suggestive of either a brachial plexus palsy or of a major cervical disc protrusion. Dr Hopcroft described the symptoms as a “post traumatic organic problem”[32] and considered that those potential diagnoses had been overlooked by his treatment providers.
[32] Dr Hopcroft’s report dated 16 June 2016, p 4, ARD, p 31.
Dr Hopcroft arranged for the respondent to undergo an x-ray and an MRI scan of the cervical spine and nerve conduction studies in order to investigate the cause of the respondent’s symptoms.
Dr Hopcroft reported to the respondent’s legal representatives again on 3 August 2016 following receipt of the radiological investigations.[33] He noted the presence of pathology at the C5/6 and C6/7 levels of the cervical spine and opined that there was no doubt that the respondent suffered two injuries in the incident on 30 November 2012, describing an injury to the left shoulder and a “severe wrenching injury to a pre-existent, asymptomatic cervical spondylitic problem” which he said “rendered his neck problem the vital and overwhelming cause of the significant problems he has had with his left arm down to his fingertips since the day of the accident.”[34] He made recommendations for further treatment of the respondent’s symptoms, including neurological review and the potential for surgery in the form of a left sided foraminotomy at the C6/7 level of the cervical spine.
[33] ARD, pp 32–33.
[34] Dr Hopcroft’s report dated 3 August 2016, p 1, ARD, p 32.
Dr Hopcroft provided a further report dated 21 December 2016.[35] He discussed a neurological assessment report provided by Dr Neil Simon, neurologist, and expressed the view that he did not agree with Dr Simon’s assessment of the cause of the respondent’s symptoms.
[35] ARD, pp 34–35.
Dr Hopcroft confirmed his opinion and diagnoses provided in his report dated 3 August 2016 and confirmed that the likelihood was that the respondent’s treatment regime would ultimately lead to surgery of the cervical spine. He assessed the respondent’s total whole person impairment as 28%.
Dr Hopcroft reported again to the respondent’s legal representatives on 29 October 2019.[36] He noted that the respondent continued to complain of significant ongoing pain and restrictions in the left shoulder, as well as significant ongoing left sided neck pain with increasing numbness from the left side of the neck to the left shoulder, paraesthesia and numbness in the fingers of the left hand (excluding the thumb), loss of grip strength and clawing of the left hand. He reviewed the respondent’s ongoing treatment, the results of the nerve conduction studies undertaken 5 October 2016, and the medical assessments conducted by Dr Frank Machart, Approved Medical Specialist, A/Prof Eftekhar, the respondent’s treating spinal specialist, and Dr Simon. He explained why he disagreed with Dr Simon’s conclusions.
[36] ARD, pp 36–39.
Dr Hopcroft confirmed the respondent’s ongoing symptoms and recorded the results of his physical examination of the respondent. He diagnosed the respondent as suffering from an aggravation of asymptomatic pre-existing spondylitic changes associated with radicular symptoms in the left arm, post-operative marked restriction of movement in the left arm, and rotator cuff tear with no evidence of brachial plexus palsy or left carpal tunnel compression. He concluded that the respondent was unfit for his pre-injury employment because a return to that work would accelerate the cervical and upper left limb symptoms. He added that the respondent would remain significantly incapacitated in respect of the hours and duties he could perform and observed that the respondent would be fit for only the lightest, part-time physical work using his right arm only. He confirmed that the respondent suffered injury in the form of a primary tear to the left rotator cuff and a severe aggravation of a pre-existing but asymptomatic cervical spine condition.
Dr Frank Machart, Approved Medical Specialist
The respondent was examined by Dr Machart, orthopaedic surgeon and Approved Medical Specialist appointed by the former Workers Compensation Commission. He was asked to perform a “further assessment or reconsideration” of an earlier assessment and issued a Medical Assessment Certificate dated 21 December 2017.[37] The body parts referred for assessment were recorded as the left upper extremity and the cervical spine. Dr Machart reviewed the available medical records and assessed the respondent. Relevantly, Dr Machart identified signs of radiculopathy. He concluded that the respondent suffered from 7% whole person impairment of the left upper extremity and 16% of the cervical spine (after 10% deduction because of the presence of the pre-existing pathology), arriving at a combined whole person impairment of 21%.
[37] ARD, pp 10–17.
Dr John F Davis, consultant in occupational medicine
Dr Davis was qualified by the respondent’s legal representatives to provide an assessment and opinion. He provided a report dated 19 May 2023 following an assessment by way of a Zoom conference.[38] Dr Davis took a history of the injury on 30 November 2012, described by him as a “significant jarring, tearing injury to [the respondent’s] left shoulder.”[39] Dr Davis noted that the respondent also developed clawing in the left hand and pins and needles in the four fingers of the left hand, but not the thumb. He recorded that the respondent returned to work in April 2013, performing work for 4 hours per day 5 days per week on restricted duties in the office, gradually increasing his hours to full time and then returning to work on a 50 tonne excavator, which severely aggravated his symptoms. He noted that the respondent ceased work in December 2019.
[38] ARD, pp 40–49.
[39] Report dated 19 May 2023, p 3, ARD, p 42.
Dr Davis recorded the respondent’s complaints, which included left-sided upper cervical pain, radiating to the trapezius and the left upper limb to the hand, with tingling affecting three fingers of the left hand and clawing of the left hand, as well as pain in the shoulder. He reviewed the radiological investigations of the left shoulder and the cervical spine. He diagnosed the respondent as suffering from cervical trauma with C7 radiculopathy and left shoulder rotator cuff injury, as well as left carpal tunnel syndrome, and observed that the respondent’s employment was a substantial contributing factor to the injury.
Dr Davis formed the view that, taking into account the respondent’s age, qualifications, employment history and the effects of the injury, the respondent had no capacity for work and his prospects of improvement were poor. He concluded that the respondent had achieved maximum medical improvement.
Dr Davis provided a supplementary report dated 2 November 2023 following the provision of further material consisting of:
(a) an updated statement of the respondent dated 29 August 2023;
(b) the Medical Assessment Certificate provided by Dr Machart;
(c) the Certificate of Determination dated 25 January 2018 awarding the respondent lump sum compensation pursuant to s 66 of the 1987 Act, and
(d) various medical reports.[40]
[40] Respondent’s AALD dated 9 November 2023, pp 14–17.
Dr Davis briefly repeated the history recorded in his earlier report. He referred to Dr Brett Anderson’s certification that the respondent could work on restricted duties and reduced hours in July 2019 and that on 22 August 2019 Dr Jamie Crow had certified the respondent as having no capacity for work at all. He noted that Dr Anderson’s subsequent view in September 2023 was inconsistent with his earlier view that the respondent could perform restricted duties on a part-time basis. Dr Davis referred to the report of an MRI scan conducted subsequent to his assessment of the respondent which showed foraminal encroachment at the C5 and C6 nerve root levels of the cervical spine.
Dr Davis referred to the report of Dr Christopher Cunneen dated 6 October 2023. He observed that Dr Cunneen placed no significance on the respondent’s left shoulder symptomology, which Dr Cunneen attributed to degenerative cervical spondylosis and left sided radiculopathy. Dr Davis pointed out that Dr Cunneen recorded a history of the respondent returning to full quarry work with the appellant in mid-2013, which Dr Davis said was inconsistent with the history that he had recorded. He observed that the respondent’s symptoms were increasingly aggravated after he returned to his duties as a plant operator to the point where he could no longer work and ceased duties in December 2018.
Dr Davis noted that Dr Cunneen took into account pathology that was not related to the injury, such as the respondent’s osteoarthritis in the carpometacarpal joint which Dr Cunneen indicated would prevent the respondent from performing his normal duties. Dr Davis considered that that notion was credible but irrelevant because the symptoms arising from the injury, such as the radiculopathy found by the respondent’s treating surgeon, and the likelihood of cervical surgery, were sufficient of themselves to prevent the respondent from performing his usual duties. Dr Davis commented that he was not appraised on any documented history of unrelated limitations on the respondent’s capacity for work prior to the injury on 30 November 2012. He confirmed his view that, given the respondent’s age, his qualifications, work experience, and ongoing pain and restrictions resulting from the work-related injury, the respondent had no realistic ability to return to work.
Dr Davis was asked by the respondent’s legal representatives to consider the surveillance material relied upon by the appellant. On 15 December 2023, Dr Davis provided a summary of the respondent’s activities captured in the surveillance footage and advised that the respondent did not perform any activities that would not be expected of him, and the activities performed were in his view “entirely appropriate to his presentation.” He considered that there was no basis upon which to alter his opinions expressed in his earlier reports.[41]
[41] Respondent’s AALD dated 19 December 2023, pp 5–8.
Dr Christopher Cunneen, occupational and environmental physician
Dr Cunneen was qualified by the appellant to provide an opinion in respect of the respondent’s claim. He provided a report dated 6 October 2023.[42]
[42] Appellant’s AALD dated 5 December 2023, pp 1–24.
Dr Cunneen noted the respondent’s employment history with the appellant, the respondent’s retirement in 2019 with the intention to travel around Australia, obtaining work at the appellant’s other locations, which Dr Cunneen said did not eventuate because of the respondent’s cervical issue. He recorded a history of the injury on 30 November 2012, the surgery to the shoulder in February 2013 and the respondent’s post operative recovery, which he described as “uncomplicated.” Dr Cunneen noted that the respondent returned to work several months later, performing his pre-injury role.
Dr Cunneen commented that the respondent first noticed symptoms of weakness and restricted range of movement in the left shoulder, muscle wasting, and weakness of the left hand causing him to drop things he was carrying, when he commenced travelling. Dr Cunneen reviewed excerpts from the evidence of Dr Oughton, Dr Price, Dr David Anderson, and Dr Robert Kaplan, psychiatrist. He said that the respondent reported constant left-sided cervical pain radiating to the left shoulder and down the arm, the neck was stiff and sore, range of movement was restricted, and he experienced headaches when the neck pain was severe. He said that the respondent also complained of weakness in the left shoulder region as well as restricted range of motion and worse pain in the shoulder when the neck pain was severe.
Dr Cunneen assessed the respondent’s left wrist, hand and thumb and commented that the pain and sensory distribution did not support left carpal tunnel syndrome and said that the symptoms were clinically more consistent with left-sided cervical disc radicular symptoms with nerve root irritation.
Dr Cunneen reviewed the respondent’s current treatment and assessed the limitations on the respondent’s activities of daily living. He reviewed the radiological investigations and performed a physical examination. He observed that the respondent’s presentation was consistent and appropriate. He concluded that the respondent suffered from symptomatic degenerative multilevel cervical spondylosis with radiculopathy into the left shoulder and upper arm involving the C6 and C7 nerve roots and an osteoarthritic left thumb with wrist involvement. He considered that those conditions were all constitutional in nature. He noted the diagnosis by Dr Kaplan of a psychological condition attributable to the left shoulder injury. Dr Cunneen considered that the left shoulder had been surgically addressed, so the psychological condition was no longer relevant.
Dr Cunneen concluded that the medical investigations, particularly those undertaken in June 2023, indicated that the respondent’s current complaint of symptoms were due to the respondent’s age-related underlying cervical spondylosis and age-related osteoarthritic changes in the left wrist and base of the left thumb. Dr Cunneen opined that the left shoulder injury now had no relevance to the respondent’s current condition. He formed the view that the respondent did not have the functional capacity to return to work in his pre-injury role or any similar manual roles and that situation would probably be permanent. He added that unless further targeted treatment led to a resolution of the left upper limb radiculopathy, which resulted from the pre-existing degenerative and symptomatic cervical spondylosis, he could not support the notion of the respondent returning to any paid employment. He considered that the respondent’s prognosis was poor.
Dr Robert Kaplan, psychiatrist
Dr Kaplan was asked by the appellant to examine the respondent and provide an opinion in respect of the respondent’s allegation that he had developed a psychological condition as a result of his physical injury. Dr Kaplan reported to the appellant on 29 June 2023.[43] He recorded a consistent history of the respondent’s injury and the commencement of anti-depressant medication in the context of worsening physical symptoms and the difficulties experienced by the respondent in dealing with the appellant. Dr Kaplan said the respondent and his wife commenced a trip around Australia in 2019, noting that the respondent advised that he could only drive for four hours per day, for two hours at a time and his wife assisted with the driving.
[43] Reply to Application to Resolve a Dispute (Reply), pp 32–40.
Dr Kaplan assessed the respondent as being neither clinically depressed nor anxious. He briefly reviewed the evidence as to the respondent’s activities and his capacity.
Dr Kaplan diagnosed the respondent as suffering from depression resulting from chronic shoulder and neck pain, which was a secondary psychological disorder. He recommended a future treatment regime and opined that the respondent’s capacity for work was not affected by his psychological condition. He concluded that the respondent’s incapacity for work arose solely from his physical state.
The respondent’s wife’s bank records
The respondent’s wife’s bank records were in evidence under cover of an AALD dated 5 December 2023 lodged by the appellant. The appellant relied on those records, commencing from p 161, to show that the distance over which the respondent travelled between 10 November 2021 and 11 December 2021 was approximately 4,800 kilometres.
THE PRINCIPAL MEMBER’S REASONS
The Principal Member delivered his reasons for determination orally on 17 January 2024 and the reasons were recorded. The Principal Member indicated that the only issue in dispute was the respondent’s capacity for work. He noted that the appellant had sought to adduce late evidence consisting of material arising from surveillance of the respondent’s activities and admitted the material into the proceedings. He noted the documentary evidence and also noted that the respondent gave oral evidence at the arbitration.
The Principal Member reviewed the background of the claim. He referred to the Medical Assessment Certificate issued by Dr Machart on 21 December 2017, in which the respondent was assessed as having 21% whole person impairment. He noted that:
(a) the assessment comprised of assessments of the whole person impairment of the left upper extremity (shoulder) and the cervical spine, after the cervical spine assessment being reduced by one tenth deduction to allow for the asymptomatic pre-existing multilevel spondylosis;
(b) the Approved Medical Specialist had found two signs of radiculopathy in the left upper limb, and
(c) a Certificate of Determination was issued by the former Workers Compensation Commission on 28 January 2018 (sic, 25 January 2018), recording that the respondent had 21% whole person impairment as a result of the injury.
The Principal Member observed that s 39(1) of the 1987 Act provided for the cessation of weekly payments after five years, but that did not apply to the respondent because, pursuant to s 39(2), the respondent was assessed as having more than 20% whole person impairment, which qualified him to continue to receive weekly benefits. The Principal Member further observed that the respondent had brought proceedings for weekly payments in 2019, following which the parties entered into a voluntary agreement that the respondent was to be paid $800 per week from 29 April 2019 and continuing.
The Principal Member summarised the respondent’s statement evidence, noting that the respondent complained of constant and continuing neck, left arm and left shoulder pain, which was worsening, the pain had increasingly affected his ability to perform his pre-injury employment and caused him to take strong painkillers. The Principal Member observed that the respondent said that at work he would arrange with co-workers to change duties with him in order to avoid operating machinery when he was affected by medication. The Principal Member noted the respondent’s evidence as to his ongoing restrictions in respect of lifting, carrying, and raising his left arm above shoulder height, as well as his restricted neck movement. The Principal Member further noted the evidence from the respondent in relation to his ability to drive his four-wheel drive vehicle, which the respondent said was far easier than operating work machinery.
The Principal Member referred to the surveillance evidence and the respondent’s response to that evidence. The Principal Member recorded that the respondent was cross-examined. He remarked that many of the propositions put by the appellant to the respondent were denied, particularly the propositions that he was exaggerating his symptoms, he was not in pain, that he had full neck movement and that his statement evidence was inconsistent. The Principal Member observed that the respondent agreed he could drive for up to an hour because the vehicle was modified to accommodate his restrictions and agreed that he could lift a carton of beer weighing 14 kilograms with both hands.
The Principal Member turned to the medical evidence. He referred to the history recorded by Dr Davis in respect of the respondent’s past employment, the treatment the respondent had undergone, the medications prescribed and the consistent history of the respondent’s injury. The Principal Member summarised the findings made by Dr Davis on examination and the restrictions and limitations reported by the respondent to Dr Davis. He particularly noted that Dr Davis formed the view that the respondent did not display any evidence of exaggeration.
The Principal Member referred to Dr Davis’ diagnosis of the respondent having suffered a significant left rotator cuff injury, as well as a cervical trauma with C7 radiculopathy. He quoted a passage from Dr Davis’ report in which Dr Davis assessed the respondent’s work capacity, taking into account the respondent’s age, qualifications, employment history and his pain and impairment arising from the injury. The Principal Member noted that Dr Davis considered that the respondent did not have any partial ability to return to “formalised” work, his prognosis was poor, and his symptoms would in time increase, particularly in the cervical spine.
The Principal Member observed that Dr Davis took into account that:
(a) in Dr Cunneen’s extensive report, Dr Cunneen diagnosed the injury as a significant rotator cuff injury and cervical trauma, with clawing of the hand and, following surgery, the respondent returned to work on a gradual return to work program;
(b) Dr Cunneen’s history that the respondent returned to full employment in 2013 was inconsistent with the recorded history;
(c) the respondent’s treating surgeon, Dr Price, diagnosed left-sided C6/7 radiculopathy and an adjustment disorder, and
(d) Dr Anderson diagnosed left-sided radiculopathy and recommended a cervical fusion.
The Principal Member quoted from the report by Dr Davis, in which Dr Davis said that the respondent increasingly aggravated his symptoms performing his duties until he ceased work and, taking into account the respondent’s age, qualifications, experience and ongoing work-related pain and restrictions, Dr Davis had formed the view that the respondent had no realistic capacity to return to work. The Principal Member referred to Dr Davis’ observations and comment in relation to the surveillance that the respondent’s activities seen in the video did not cause him to change the views he had expressed in his earlier report.
The Principal Member reviewed Dr Cunneen’s evidence, noting the history recorded by Dr Cunneen in respect of the respondent’s work history, the history of injury and the treatment provided, with the respondent returning to his pre-injury role with minimal restrictions. The Principal Member referred to Dr Cunneen’s notation that the respondent suffered from progressive weakness in the left shoulder and hand and to Dr Cunneen’s observations that the respondent suffered from extensive multilevel pre-existing degenerative cervical spondylosis, in particular at the C5/6 and C6/7 levels of the cervical spine. The Principal Member referred to Dr Cunneen’s summary of the respondent’s complaints and Dr Cunneen’s opinion that the cervical changes were constitutional and unrelated to his employment injury. The Principal Member observed that, in this case, the question of causation was not in dispute and Dr Cunneen’s view that the cervical symptoms were constitutional was plainly inconsistent with the previous court orders made in respect of the respondent’s whole person impairment. The Principal Member pointed to Dr Cunneen’s conclusion that the left shoulder injury was not a factor in the respondent’s capacity and that the symptoms were solely due to age-related cervical degenerative changes. The Principal Member said that that opinion implied that Dr Cunneen accepted that the respondent had weakness in the left shoulder, albeit not work-related, and that Dr Cunneen accepted the respondent had cervical spondylosis affecting the left shoulder and left upper limb.
The Principal Member quoted Dr Cunneen’s observation that the respondent’s functional capacity was insufficient to enable a return to paid employment, in particular the type of work the respondent had performed for the appellant, which was likely to lead to further workplace aggravations, and that situation would probably remain indefinitely. The Principal Member observed that Dr Cunneen was of the view that specialist treatment such as a cervical fusion, pending a good outcome, may enable the respondent to return to paid employment. The Principal Member noted, however, that Dr Cunneen recorded that the respondent’s situation had not improved in the last six months and that Dr Cunneen had expressed the view that the respondent was not displaying any abnormal illness behaviour, and his presentation was consistent and appropriate. The Principal Member referred to Dr Cunneen’s opinion that the respondent suffered from a severe constitutional cervical spondylosis, which was constitutional, with radicular pain, weakness and sensory changes in the left shoulder and upper limb, that the respondent was unfit for employment in any capacity and had a poor prognosis. The Principal Member concluded that it was clear that Dr Cunneen, on the basis of his medical examination of the respondent, accepted that the respondent suffered from left sided radiculopathy and that acceptance was consistent with other medical evidence in this case.
The Principal Member turned to the certificates of capacity. He noted that:
(a) in October 2013, the respondent was certified by his general practitioner as having restrictions on lifting;
(b) in April and July 2020, the respondent’s general practitioner placed various restrictions on his capabilities, and limited the work to five hours per day, three days per week;
(c) from 27 July 2020 to 13 February 2023 the respondent’s general practitioner reduced the respondent’s capacity to two hours per day, three days per week;
(d) from March 2023, the respondent’s general practitioner certified that the respondent had no capacity for work, and
(e) on 5 October 2023 the general practitioner certified that the respondent had capacity to work for four hours per day, three days per week however amended that certificate in November 2023 to certify that the respondent had no capacity, in accordance with the opinion of Dr Davis.
The Principal Member discussed the respondent’s submissions made at arbitration in respect of the entries in the respondent’s clinical records and the evidence relating to the respondent’s ongoing, worsening symptoms and work restrictions. He reviewed the findings and opinion of Prof Stoodley, noting that Prof Stoodley’s finding was consistent with Dr Machart’s finding, who also identified that the finding was indicative of signs of radiculopathy.
The Principal Member summarised the treating general practitioner’s observations of worsening symptoms in 2020, and the difficulties recorded by the respondent’s physiotherapist. He observed that a functional assessment performed by Ms Sarah Gulbinas, was unable to be completed because of escalation of the respondent’s pain levels.
The Principal Member summarised the submissions of the parties. The Principal Member rejected the appellant’s submission that the respondent was exaggerating his evidence and rejected the assertion that the surveillance material showed an inconsistent presentation. He noted the respondent’s reference to right arm symptoms in his third statement and observed that, in his view, that was clearly meant to be a reference to the left arm. He said that the totality of the evidence showed that the respondent had never suggested that he had restrictions in his right arm. The Principal Member summarised the submissions of both parties.
The Principal Member indicated that he was cognisant of the fact that the respondent bore the onus of proving his case. He rejected the appellant’s assertion that the respondent exaggerated his oral and statement evidence and said that he did not accept that the surveillance footage showed an inconsistent presentation. The Principal Member referred to the respondent’s responses in cross-examination about the movement of the respondent’s neck and observed that the respondent explained that he had modified his vehicle in order to avoid having to turn his neck. The Principal Member added that, in the appellant’s submissions, the appellant did not identify any inconsistency between the respondent’s evidence about his neck and the surveillance footage, and the appellant did not address in relation to the presence of radiculopathy and the movement of the left arm. The Principal Member said that he indicated to the appellant during its submissions that it was not self-evident that the surveillance footage was inconsistent with the respondent’s complaints of radiculopathy, which had been found by a number of medical experts, including Dr Davis, Dr Cunneen, Dr Machart and the respondent’s general practitioner.
The Principal Member said that the appellant relied upon the footage showing that the respondent lifted his arm above his shoulder, picked up a carton of beer on two occasions, rested his arm for a period on a letterbox and on a shopping trolley. The Principal Member said that he asked the appellant to identify how those activities were inconsistent with the radiculopathy and the appellant was unable to identify the inconsistency. The Principal Member indicated that he thought that the appellant had confused the concept of radiculopathy with restriction of movement resulting from shoulder pathology, such as when the respondent lifted his left arm above his head twice. The Principal Member considered that the activity was brief and did not require a forceful movement, and it was not self-evident that those actions were inconsistent with left-sided radiculopathy.
The Principal Member referred to Dr Davis’ evidence that he had viewed the surveillance footage and there was nothing shown in it that would change his opinion. He agreed with Dr Davis and accepted Dr Davis’ opinion. The Principal Member described the movements as “modest”, and again, not inconsistent with the presence of left-sided radiculopathy.
The Principal Member referred to the appellant’s submission that the limitations recorded in the respondent’s third statement included right arm restrictions and the respondent had only sought to restrict the complaints to the left arm after he had seen the surveillance footage. The Principal Member indicated that he agreed with the respondent’s submission that, when read in context, in the respondent’s third statement, he was only referring to the left arm.
The Principal Member rejected the appellant’s submission that, because the respondent did not display signs of pain in footage, he therefore was not in pain.
The Principal Member concluded that the respondent was a witness of truth, and his evidence was reliable.
The Principal Member noted the appellant’s submission that the respondent’s activities recorded in the surveillance footage were inconsistent with the certificates of capacity. He said that the appellant did not point to any particular activity shown that was inconsistent with the medical evidence, especially the recent evidence from Dr Davis and Dr Cunneen. He added that Dr Davis had viewed the surveillance footage and confirmed his opinion. He pointed out that Dr Cunneen had expressed the opinion that the respondent had no capacity for work as a result of the cervical spine condition, and that Dr Cunneen had examined the respondent and found restricted range of movement of the left shoulder, but had formed the view that the restriction was not work-related. The Principal Member reiterated that there was no issue raised in respect of causation. He observed that, when Dr Cunneen’s report was read properly and in context, it seemed that Dr Cunneen had accepted that the respondent’s capacity for work was restricted by the left shoulder, however, that Dr Cunneen considered that the respondent had no capacity for work solely because of the cervical condition.
The Principal Member said that the appellant also submitted that the evidence showed that the respondent was working in full-time employment until the end of 2018 and then retired, which showed he had an established work capacity. The Principal Member observed that the submission ignored the respondent’s evidence as to the difficulties he was experiencing at that time and ignored the fact that the claim was for weekly payments in 2020. He referred to the medical evidence that he said established that the respondent’s condition was worsening over time, including the appellant’s own evidence from Dr Cunneen and the evidence of the respondent’s treating neurosurgeon, Prof Stoodley in September 2023, who considered that the respondent required cervical spine surgery at two levels. The Principal Member added that the appellant’s submission that the respondent was fit for his pre-injury duties was also inconsistent with the voluntary agreement reached in previous proceedings that the respondent had some degree of incapacity from 29 April 2019 and continuing. He noted that the appellant had conceded that that was evidence on what could be considered the issue of capacity.
The Principal Member concluded that, on the basis of the preponderance of the medical evidence which he had discussed in his reasons and the nature of the work duties summarised by Dr Davis in his report, the respondent at all times was unfit for his pre-injury employment. He said that, in reaching that conclusion, he took into account the nature of the respondent’s work duties, the respondent’s deteriorating symptoms in the cervical spine and the left shoulder, and the respondent’s age. He accepted that the preponderance of medical evidence supported the conclusion that the respondent suffered a chronic neck condition and left-sided radiculopathy and that the respondent’s restrictions resulting from his left shoulder and cervical spine were continuing. The Principal Member added that the findings recorded in the medical evidence were not contradicted by the surveillance footage.
The Principal Member recited the definitions of current work capacity, and no current work capacity provided by cl 9 of Sch 3 to the 1987 Act. He noted that the claim commenced from 27 July 2020. He accepted that on the basis of the clinical records of the respondent’s general practitioner and the respondent’s own evidence, the respondent’s condition had deteriorated at about that time. He further accepted that, in accordance with the meaning of “suitable employment” in s 32A of the 1987 Act, given the respondent’s age, education, qualifications and experience in the type of work he had undertaken, the respondent may have been unfit for any work in what was described as a “real job” by Roche DP in Wollongong Nursing Home Pty Ltd v Dewar.[44] He said, however, that he was reluctant to find that the respondent had no current work capacity from July 2020 because the general practitioner’s view at that time was that the respondent had a “mild” capacity for suitable work such as a driving job. He observed that, during submissions, he raised the extent of the respondent’s capacity with the parties and both parties agreed that he could apply his judicial knowledge of wage rates. He concluded that for the period from the start of the claimed period up until November 2021, the respondent had some capacity to engage in work as a truck driver for six hours per week at the rate of $25 per hour, that is, an ability to earn $150 per week for that period.
[44] [2014] NSWWCCPD 55 (Dewar).
The Principal Member referred to Dr Cunneen’s evidence and reasoned that the respondent’s condition, which had deteriorated over time, may be part of the aging process or the effects of the injury, however, in this case there was no issue as to causation. He therefore concluded that on the basis of his findings and the definition of “suitable employment” provided in s 32A of the 1987 Act, from the commencement of the claim for weekly payments until 11 November 2021, the respondent had a capacity for work earning $150 per week. He was further satisfied that on the basis of the evidence of Dr Davis and Dr Cunneen, the general practitioner’s clinical note dated 11 November 2021 (which he found to have “high relevance”), and the detailed clinical notes, the respondent’s condition was deteriorating. He concluded that, applying s 32A, on the balance of probabilities and “for all practical purposes”, the respondent had no current work capacity from 12 November 2021.
The Principal Member noted that the respondent’s pre-injury average weekly earnings figure was agreed between the parties. He indicated that he had calculated the respondent’s entitlement by reducing the pre-injury average weekly earnings figure to 80%, in accordance with s 38 of the 1987 Act.
The Certificate of Determination issued on 18 January 2024 records:
“Findings:
1. The [respondent] had an ability to earn $150 per week in suitable employment from 27 July 2020 to 11 November 2021.
2. The [respondent] had no current work capacity from 12 November 2021 to date and continuing.
Orders:
3. The [appellant to] pay the [respondent] weekly compensation pursuant to s 38 of the Workers Compensation Act, 1987 as follows:
(a)$1,002 per week from 27 July 2020 to 30 September 2020;
(b)$1,002 per week from 1 October 2020 to 31 March 2021;
(c)$1,010 per week from 1 April 2021 to 30 September 2021;
(d)$1,026 per week from 1 October 2021 to 11 November 2021;
(e)$1,176 per week from 12 November 2021 to 31 March 2022;
(f)$1,200 per week from 1 April 2022 to 30 September 2022;
(g)$1,240 per week from 1 October 2022 to 31 March 2023;
(h)$1,288 per week from 1 April 2023 to 30 September 2023; and
(i)$1,320 per week from 1 October 2023 to date and continuing.
4. The [appellant] is to have credit for any payments of weekly compensation during the respective periods set out in order 3.
5. The parties have liberty to apply to correct any mathematical errors in order 3.”
LEGISLATION
Clause 9 of Sch 3 to the 1987 Act defines “current work capacity” and “no current work capacity” as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 32A(1) of the 1987 Act relevantly defines “suitable employment.” The section provides:
“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.”
GROUNDS OF APPEAL
The appellant brings the following grounds of appeal:
(a) Ground One: The Principal Member made an error of fact or discretion in finding retrospectively that the respondent had no work capacity from 12 November 2021, and
(b) Ground Two: The Principal Member made an error of law by conflating incapacity with work capacity, and in his application of his judicial knowledge of the labour market.
SUBMISSIONS
As to Ground One
The appellant’s submissions
The appellant submits that the Principal Member based his decision that the respondent had no current work capacity on the expert opinions of Dr Davis and Dr Cunneen in 2023. The appellant further submits that the Principal Member “backdated” the period of no work capacity to 11 November 2021 on the basis of the clinical note recorded by Dr Oughton on 11 November 2021 (quoted at [34] above), that Dr Oughton was not confident that the respondent would be able to obtain suitable employment before reaching retirement age.
The appellant says that the Principal Member considered that evidence “of high relevance,” and submits that the note was an opinion about capacity and not about work capacity, which is the subject of Ground Two of the appeal.
The appellant asserts that there was no basis upon which to consider that evidence “of high relevance” and that in fact it was of little relevance when looked at in the context of Dr Oughton’s certificate of capacity dated 11 November 2021, in which he certified the respondent as having some capacity for work. The appellant points out that the clinical note was the result of a telephone call from the respondent, and there was no physical examination of the respondent. The appellant asserts that contemporaneous evidence shows that at that time, the respondent was able to travel in a four-wheel drive vehicle over long distances and set up a caravan or camper trailer.
The appellant refers to the bank records of the respondent’s wife, which it asserts showed that between 10 November 2021 and 11 December 2021, the respondent and his wife travelled between various places covering an area of approximately 4,800 kilometres, or 1,200 kilometres per week. The appellant submits that the respondent’s evidence was that he shared the driving with his wife but gave no evidence about the extent to which they shared the driving. The appellant indicates that, assuming the evidence was that they shared the driving on a 50/50 basis, then the respondent was driving for over 600 kilometres per week. [This submission was subsequently withdrawn in submissions made after receipt of the transcript].
The appellant points to the Principal Member’s finding that the respondent could drive for two hours per day in truck driving work. The appellant submits that the Principal Member erred in fact or discretion by accepting that the clinical note recorded of a telephone conversation was evidence that the respondent had no capacity for work in circumstances where the conversation did not cause the doctor to alter his view expressed in the contemporaneous certificate of capacity.
The appellant submits that:
“the allegation by the Respondent that he had no work capacity (in circumstances in which he did not intend to apply for, or seek, paid employment, had agreed that he had capacity to work, and had retired in order to travel around the country with his wife) is a significant allegation and, to satisfy such a proposition on the balance of probability, requires evidence and proof beyond a single entry in clinical records.”[45]
[45] Citing Briginshaw v Briginshaw [1938] HCA 34 (Briginshaw).
The respondent’s submissions
The respondent asserts that it is not apparent from the appellant’s submissions as to what is meant by the allegation that the Principal Member erred by “retrospectively” making a finding that the respondent had no capacity. He says that the Commission has jurisdiction to make such a finding.
The respondent identifies the matters raised by the appellant as:
(a) after ceasing work with the appellant, the respondent and his wife travelled on an “on and off fashion;”
(b) a number of telephone consultations were conducted by the general practitioner, which the appellant says should have carried less weight in the Principal Member’s consideration of the evidence;
(c) the clinical note recorded by Dr Oughton on 11 November 2021 was afforded too much weight because it was an opinion on incapacity, not work capacity, and
(d) the respondent’s evidence was that he could drive for one hour, when the evidence showed that he could drive for long distances and set up camp at caravan parks.
The respondent asserts that the appellant has failed to engage with the evidence that the respondent’s vehicle had been modified to assist him to drive and that he was unable to drive the vehicles and equipment required of him in his prior employment.
The respondent contends that the appellant’s complaint is, in essence, a complaint that the Principal Member erred by reaching a different conclusion to the case only partially advanced by the appellant in its submissions at arbitration. The respondent asserts that many of the matters raised on appeal were not put to the Principal Member at first instance.
The respondent submits that the issues raised by the appellant do not constitute appealable error. The respondent refers to the principles applicable to an appeal from a member’s factual determination as set out in Raulston v Toll Pty Ltd.[46] The respondent also cites passages from Young v Vietnam Veterans Keith Payne VC Hostel Limited,[47] and Shellharbour City Council v Rigby[48] in which the principles were also discussed.
[46] [2011] NSWWCCPD 25 (Raulston).
[47] [2020] NSWWCCPD 66.
[48] [2006] NSWCA 308.
The respondent submits that the appellant simply disagrees with the Principal Member’s conclusions and cannot point to any error of the kind required in order to set aside the decision.
The respondent asserts that the appellant has failed to engage with the legal requirements for the assessment of “current work capacity” and “no current capacity” as provided for in cl 9 of Sch 3 to the 1987 Act and the definition of “suitable employment” in s 32A of the 1987 Act. The respondent points to the Principal Member’s consideration of what the respondent describes as the totality of the evidence, including the evidence of the respondent’s deterioration in his condition over time. The respondent submits that he made lengthy submissions to the Principal Member about that evidence. He asserts that the appellant failed to traverse those submissions or that evidence except to suggest that the purported inconsistencies disclosed in the surveillance footage and the medical certificates of capacity issued by the general practitioner established a residual capacity. The respondent points out that the alleged inconsistencies were found not to have been established and that finding is not the subject of appeal.
The respondent submits that the appellant appears to assert that the fact that he remained at work on suitable duties until he stopped work and took long service leave establishes that a capacity existed at that time and by extension, somehow continued to be the case thereafter. The respondent says that he accepted that he had some capacity until his condition worsened in July 2020.
The respondent says that the difficulty with the appellant’s position is that it ignores the statutory test required by s 32A in an assessment of any residual capacity, as discussed in Dewar, Hume v CSR Limited,[49] and Broadspectrum Australia Pty Ltd v Skiadas.[50] The respondent cites the relevant legislation including cl 9 of Sch 3 to the 1987 Act and submits that in Dewar, Roche DP explained the difference in assessing a worker’s weekly entitlements following the amendments to the legislation in 2012. The respondent says that care should be taken when relying on older authorities because following the introduction of s 32A in 2012, whether the work is available is no longer a consideration.
[49] [2015] NSWWCCPD 7.
[50] [2016] NSWWCCPD 34.
The respondent submits that Roche DP identified the first question to be asked was whether a worker had current work capacity or no current work capacity. He adds that in Dewar, Roche DP said that suitable employment means “employment in work for which the worker is currently suited.”[51]
[51] Dewar, [58].
The respondent asserts that the Principal Member was aware of the statutory requirements and complied with his obligations in assessing the totality of the evidence. The respondent says that the Principal Member’s consideration of the task was the subject of detailed discussion with both counsel during the arbitration.
The respondent asserts that the error relied upon by the appellant is not made out and should be dismissed.
The respondent refers to the appellant’s allegation that the Principal Member erred in placing weight on the clinical note dated 11 November 2021 and should have found in accordance with the certificates of capacity. The respondent submits that the Principal Member was required to consider the totality of the evidence, and it was a matter for the Principal Member to consider and weigh that evidence and provide reasons for his ultimate conclusions, which the respondent says the Principal Member correctly did. The respondent says that in order to show error, the appellant must show that the Principal Member’s determination is affected by an error of fact, law or discretion before the power to interfere on appeal is enlivened.
The respondent refers to Australian Air Express Pty Limited v Langford[52] as authority to say that interference with a discretionary judgment should only arise when it is manifestly obvious that the discretion has miscarried in that it has not been exercised fairly or lawfully.
[52] [2005] NSWCA 96, [15].
The respondent refers to authorities in respect of the requirement to give reasons and submits that, in order to have the Principal Member’s decision set aside, the appellant must show that the Principal Member’s reasons are inadequate but must also show that the inadequacy discloses that the Principal Member failed to discharge his statutory duty to fairly and lawfully determine the matter. The respondent submits that the role of the Principal Member in the context of the informal and expeditious dispute resolution scheme is relevant, the reasons should be read as a whole, and it is not the role of a Presidential Member to comb through the reasons in search of error. The respondent contends that on a proper reading of the Principal Member’s reasons, together with the transcript, no error on the part of the Principal Member is disclosed.
The respondent asserts that the appellant has raised matters that were not the subject of submissions before the Principal Member, such as:
(a) the respondent was able to travel long distances by four-wheel drive and set up a caravan or campervan at a camp site;
(b) the consultation on 11 November 2021 was by way of telephone and not an in-person consultation;
(c) the clinical note recorded on 11 November 2021 should be rejected, and
(d) the respondent could have taken work as a light delivery driver.
The respondent asserts that those matters were not put to him in cross-examination nor were they the subject of submissions made to the Principal Member.
The respondent submits that whether the consultation was by telephone or not was an irrelevant consideration. He adds that the appellant’s argument about what work he could do was whether he could undertake work that was consistent with the restricted duties he was performing for the appellant.
The respondent refers to High Court Authority of Coulton v Holcombe[53] and submits that a party is bound by the conduct of its case at first instance. The respondent further submits that a party is not entitled to rely on a point not argued below in seeking to establish error by the primary decision maker, citing Brambles Industries Limited v Bell[54] as authority for that proposition.
[53] [1986] HCA 33, [9].
[54] [2010] NSWCA 162.
The respondent submits that the appellant has not identified any exceptional circumstance in which leave should be granted to permit it to raise a new point on appeal.
As to Ground Two
The appellant’s submissions
The appellant submits that the concept of capacity and the concept of work capacity are different concepts, citing Mid North Coast Local Health District v de Boer[55] as authority for that proposition. The appellant says that the Principal Member set out the definitions of “current work capacity” and “no work capacity” but did not reproduce s 32A of the 1987 Act, which defines the term “suitable employment”. The appellant submits that, pursuant to s 32A, the Principal Member was required to have regard to the certificates of capacity and those certificates of capacity certified that the respondent had work capacity up to 12 March 2023, when Dr Oughton issued the certificate dated 13 March 2023, which was the first certificate certifying that the respondent had no capacity for work. The appellant asserts that, while summarising the certificates of capacity, the Principal Member did not give proper regard to them.[56]
[55] [2013] NSWWCCPD 41 (de Boer).
[56] Citing Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16 (Cronje).
The appellant refers to the Principal Member’s finding that the respondent had a background in truck driving and could perform work as a truck driver in accordance with s 32A. The appellant asserts that the Principal Member was required to identify the suitable work the respondent could do as a truck driver, despite the Principal Member using his judicial knowledge as a member of a specialist tribunal. The appellant submits that in using his judicial knowledge to assess the earnings of a truck driver, the Principal Member ought to have described the work of a truck driver that he considered the respondent could do. The appellant refers to the evidence that the respondent could drive his own four-wheel drive vehicle and the evidence from the surveillance footage that the respondent could perform tasks of a light delivery job and contends that the Principal Member ought to have considered that the respondent could perform a range of jobs.
The appellant asserts that the Principal Member’s focus on the evidence as to whether the respondent was affected by cervical radiculopathy has led to a failure by him to consider the evidence as to the respondent’s work capacity.
The appellant submits that, in accordance with s 32A, the Principal Member was required to take into account that the respondent was unavailable to participate in a return to work or a rehabilitation plan because he was travelling through the country.
The appellant points out that the Principal Member relied upon the opinion of Dr Cunneen and Dr Davis that the respondent had no capacity for work, as well as the clinical note recorded by Dr Oughton. The appellant asserts that Dr Oughton’s note that the respondent would not be able to obtain suitable work before reaching retirement age is simply a reference to incapacity, and not work capacity. Referring again to de Boer, the appellant submits that “incapacity” relates to an inability to compete on the open labour market, and not an ability to perform work. The appellant says that the Principal Member conflated the concepts of incapacity and work capacity, unlike Dr Oughton who continued to certify that the respondent had some capacity for work.
The appellant refers to the evidence of Dr Davis, who took the view that the respondent was totally incapacitated for work, would never be able to find further employment and did not have a partial ability to return to formalised work. The appellant refers to the phrasing used by Dr Davis and submits that Dr Davis was providing an opinion as to whether the respondent had incapacity, rather than work capacity.
The appellant further refers to the respondent’s evidence that he did not believe that he could obtain suitable work in Coffs Harbour, that he was looking for work, but that he did not get a job because of his workers compensation claim. The appellant says that the fact that the respondent had been unsuccessful in obtaining work is also evidence of incapacity and not work capacity.
The appellant submits that the respondent conceded that he could drive for up to an hour and could lift a carton of beer weighing 14 kilograms. The appellant asserts that the Principal Member ought to have provided sufficient reasons to conclude that those activities did not represent a work capacity in accordance with the definition of that phrase.
The respondent’s submissions
The respondent seeks to rely upon its submissions made in respect of Ground One of the appeal.
In addition, the respondent points to the appellant’s submission that the Principal Member misunderstood the statutory requirements of cl 9 of Sch 3 to the 1987 Act, s 33 of the 1987 Act and s 32A of the 1987 Act. The respondent asserts that that is not the case because the transcript reveals that there was a lengthy exchange between the Principal Member and both counsel about the question of capacity in the arbitration and the Principal Member’s reasons for determination must be read as a whole. He says that the Principal Member was not expected to specifically set out the exact terms of the legislation. The respondent says that the Principal Member clearly referenced the relevant provisions and, as can be seen from the transcript of the arbitration and the Principal Member’s reasons, the Principal Member was alive to his statutory task.
The respondent refers to the appellant’s reliance on Cronje to show that the Principal Member erred in determining that the telephone consultation note was sufficient to establish that the respondent had no capacity for work. The respondent submits that the paragraphs of that decision referred to by the appellant do not support or constitute authority for the proposition put forward by the appellant.
The respondent submits that the appellant complains that the Principal Member should have applied his judicial knowledge and in doing so ought to have considered a range of driving jobs. The respondent says that no evidence of any such jobs was tendered by the appellant and no such submission was made by the appellant in the arbitration.
The respondent asserts that the appellant has failed to establish error on the part of the Principal Member and the appeal should be dismissed.
The appellant’s submissions following receipt of the transcript
The appellant submits that, during cross-examination of the respondent, the Principal Member asked the respondent as to the approximate percentage of his attendances on his doctor which were conducted in person and how many were over the telephone in the previous six months. The appellant says that the transcript shows that the respondent indicated that it was probable that 80% of the consultations were over the telephone, that while he was in Townsville the consultations were conducted over the telephone but when he was in Coffs Harbour, he would attend in person. The appellant asserts that this evidence shows that the respondent and his wife were travelling for extensive periods of time and the respondent was unavailable to attend the doctor in person. The appellant submits that less reliance should be placed on the evidence of Dr Oughton because a number of consultations were conducted as Telehealth consultations, including the consultation on 11 November 2021. The appellant says that the Principal Member considered the clinical note of that consultation was highly relevant and submits that that evidence formed the basis for the Principal Member’s finding that the respondent had no work capacity from that date.
The appellant also points to the transcript of the respondent’s oral evidence in which the respondent agreed that he could drive for an hour, which was the subject of submissions to the Principal Member, and the respondent did not limit that driving ability to no more than an hour. The appellant asserts that the respondent’s evidence, as well as the evidence from the bank records, indicates that he could drive for at least an hour, and the Principal Member failed to provide sufficient reasoning as to why that fact did not represent some work capacity within the meaning of suitable employment in s 32A of the 1987 Act.
The appellant indicates that it withdraws its submission that the respondent shared the driving with his wife and says that there was no evidence from the respondent that that was the case. The appellant says that, on the available evidence, it could be inferred that the respondent was the sole, or primary driver.
THE ORDERS SOUGHT
The appellant seeks to have the appeal allowed and findings and orders made that:
(a) the respondent had the ability to earn $400 per week from 27 July 2020 to 5 October 2023, and
(b) the respondent had the ability to earn $150 per week from 6 October 2023;
(c) the appellant is to pay the respondent $1,170 per week from 6 October 2023, and
(d) the respondent is to refund the appellant the overpayment of weekly payments pursuant to s 58 of the 1987 Act.
The respondent submits that the appeal should be dismissed. The respondent adds that the appellant seeks a finding that the respondent has capacity for work beyond 6 October 2023, when the appellant’s own medical expert, Dr Cunneen, determined that the respondent had no capacity for work because of his cervical condition from that date.
CONSIDERATION
Ground One: The Principal Member made an error of fact or discretion in finding retrospectively that the respondent had no work capacity from 12 November 2021
Section 352(5) of the 1998 Act provides that an appeal against a decision of a non-presidential member is limited to a determination of whether a member’s decision was affected by error of fact, law or discretion and to the correction of such error. It is not an opportunity to undertake a review of the decision or to conduct a new hearing and the Presidential Member is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.[57] In those circumstances, the question of whether the Principal Member committed an error of fact or discretion requires the application of the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[58] which have been consistently applied in the Commission. Those principles were summarised by Deputy President Roche in Raulston as follows:
[57] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [72].
[58] (1966) 39 ALJR 505.
“19. ...
(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.
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[59]
[59] Raulston, [19]–[20].
The appellant refers to the Principal Member’s conclusion that the clinical note recorded on 11 November 2021 was of “high relevance” and submits that there was no basis for the Principal Member to conclude that the note was highly relevant, in the context of the certificates of capacity issued by Dr Oughton. The appellant points to the certificate of capacity issued on the same day that the clinical note was recorded, in which Dr Oughton certified that the respondent could work for two hours per day, three days per week.
The appellant relies on the evidence of the respondent’s ability to travel as evidence that the respondent had at that time the ability to perform some work. The appellant calculates that the respondent and his wife were travelling for over 1,200 kilometres per week for four weeks. I do not consider that having the ability to drive for that distance over country roads in Australia, many of which have speed limits of at least 100 kilometres per hour, is inconsistent with the respondent’s evidence as to his ability to drive. It is consistent with the history provided by the respondent to Dr Kaplan that, in their travels, the respondent would drive for up to two hours per day, they would never travel more than four hours per day and his wife would assist in the driving.[60] It is also consistent with the contemporaneous history recorded by Dr Oughton on 11 November 2021 that the respondent was generally tolerating about an hour at the wheel, although at times he could drive for 2 hours but needed to take breaks because of discomfort. That evidence was not challenged by other evidence or in cross-examination. In oral evidence at the arbitration on 16 January 2024, the respondent also agreed that he could drive for one hour.[61] The evidence establishes that, when the respondent was travelling, he could at times drive for up to two hours provided he took breaks. I do not accept that that evidence necessarily indicates that the respondent had a capacity to perform a “real job”, as described in Dewar. The evidence must be considered in the light of the whole of the available evidence.
[60] Dr Kaplan’s report, p 2, Reply, p 33.
[61] Transcript of proceedings (T1), T1 20.20–22.
The appellant submits that it is relevant that the doctor consultation was conducted by telephone rather than in person and thus less weight should be afforded to the clinical note. I do not consider that medical opinions based on consultations conducted through telephone contact should necessarily carry less weight in circumstances where the general practitioner had been treating the respondent in respect of the consequences of his injury for a number of years. This is particularly so following the introduction and acceptance by medical professionals of “Telehealth” consultations as a satisfactory means of diagnosing and treating a patient. As discussed by Barwick J in Whiteley Muir, the weight to be afforded to the evidence is a matter for the primary decision maker and should not be disturbed unless there is a preponderance of evidence to the contrary. In this case, there is no such preponderance of evidence.
The appellant asserts that the Principal Member erred by “retrospectively” making the finding that the respondent had no capacity for work from 12 November 2021. The assertion was not developed further. If the appellant intended to say that the Principal Member could not find that the respondent had no capacity for work prior to some subsequent date, the suggestion must be rejected. The claim for weekly payments commenced from 27 July 2020, a date some months after the consent orders relating to the voluntary payments of weekly compensation were entered. The finding of no capacity for work fell within the period of the claim requiring determination and the Principal Member was required to determine the claim. There is no error in that approach.
The appellant further submits that the asserted preponderance of evidence is such that the Principal Member was required to be satisfied to the standard set in Briginshaw that the evidence supported the conclusion he reached. In Briginshaw, Dixon J (as his Honour then was) made the following observations (citations omitted):
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: ‘No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct.’”[62]
[62] Briginshaw, 362.
Briginshawdoes not establish a third standard of proof, but is authority to say that, in circumstances where a serious allegation requires proof, a more careful approach must be taken in reaching the necessary conclusion that the allegation is made out. In Nguyen v Cosmopolitan Homes,[63] McDougall J (with McColl JA and Bell JA agreeing) considered Briginshaw and the requirement for a tribunal of fact to reach an actual persuasion of the existence of the fact. His Honour observed that:
“There are nonetheless judicial pronouncements, again of high authority, that suggests that proof on the balance of probabilities can be achieved merely by weighing the competing probabilities.”[64]
[63] [2008] NSWCA 246 (Nguyen).
[64] Nguyen, [49].
After consideration of the various authorities, his Honour summarised the position as follows:
“A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”[65]
[65] Nguyen, [55].
A review of the transcript of submissions made at arbitration on 16 January 2024 discloses that the respondent made submissions that despite the fact that the certificates of capacity issued from 11 November 2021 certified the respondent as having some capacity for work for six hours per week, the clinical records painted a different picture. The respondent pointed to a number of entries in the clinical notes that indicated that the respondent’s condition was worsening. In particular, he referred to entries on 27 July 2020 (in which Dr Oughton noted that a work function assessment conducted by the appellant suggested that the respondent’s capacity was significantly restricted), and on 26 August 2020 when Dr Oughton recorded that although the certificate of capacity reflected the level confirmed by the functional assessment, the true function was likely to be lower.[66]
[66] ARD, pp 221–222.
The appellant’s response to that submission was that the respondent’s ability to travel around Australia and the certificates of capacity indicated that the respondent could work and were proof that the respondent had some capacity for work.
The Principal Member did not determine that the respondent had no capacity for work solely on the basis of the clinical entry made by Dr Oughton in his notes on 11 November 2021. The Principal Member was satisfied that, applying s 32A of the 1987 Act and on the basis of the evidence of Dr Davis and Dr Cunneen, the recorded evidence of the respondent’s deteriorating condition, as well as the clinical note dated 11 November 2021, on the balance of probabilities and for all practical purposes it was established that the respondent had no current work capacity from 12 November 2021. The Principal Member came to a reasoned conclusion on the basis of the evidence before him, referred to in his reasons and on that balance of probabilities. I reiterate that the Principal Member’s conclusion that the respondent had no capacity from 11 November 2021 was not solely reliant upon the clinical note dated 11 November 2021. I do not consider that he was required to apply any higher standard when arriving at that factual conclusion. That reasoned factual conclusion was well-founded in the evidence and sufficient to satisfy the respondent’s onus.
For all of the above reasons, Ground One of the appeal is not made out and fails.
Ground Two: The Principal Member made an error of law by conflating incapacity with work capacity, and in his application of his judicial knowledge of the labour market
The appellant asserts error of law on the part of the Principal Member in respect of the application of his judicial knowledge of the labour market. The Principal Member did not apply judicial knowledge of the labour market in his decision-making process. The Principal Member determined that the respondent could, in the period prior to 12 November 2021, perform the work of a truck driver for two hours per day three days per week. With the consent of both parties, the Principal Member applied judicial knowledge of wage rates to fix an hourly rate that the respondent should be paid. Given the consent of the parties, that approach discloses no error on his behalf.
The appellant asserts that, in finding that the respondent was able to work as a truck driver, the Principal Member was required to identify what work that involved. The appellant cites no legislative requirement or authority for that proposition, and it is not accepted. It is sufficient that the Principal Member found that the respondent could do the work of a “truck driver.” The appellant points to the respondent’s ability to drive his own vehicle and says that the surveillance footage shows that the respondent could work as a light parcel delivery driver, which the Principal Member “ought” to have found. It is unclear whether the appellant says that this finding should have been made in respect of the whole period claimed or simply in respect of the period prior to 12 November 2021. It is even more unclear how that proposition supports an allegation of error of law on the part of the Principal Member in conflating the term of incapacity with that of work capacity or in the exercise of his judicial knowledge in respect of the earnings of a truck driver. The submission lacks merit and is rejected. The appellant is reminded that s 352(5) of the 1998 Act provides that an appeal is limited to a consideration of whether the decision is affected by error of fact, law or discretion and is not an opportunity to undertake a review of the decision or to conduct a new hearing.
The appellant submits that the Principal Member did not reproduce the definition of “suitable employment” as defined in 32A of the 1987 Act and that he was required to have regard to the certificates of capacity certifying that the respondent had some capacity for work until 12 March 2023. The appellant asserts that the Principal Member failed to give proper regard to those certificates.
In his reasons, the Principal Member dealt with the certificates of capacity issued by Dr Oughton in 2013 and from April 2020 to November 2023. He noted the restrictions in the hours the respondent was able to work, commencing at five hours per day three days per week on 2 April 2020 and reducing to two hours per day three days per week on 27 July 2020. The Principal Member observed that that certification remained in place until 13 March 2023, at which time Dr Oughton recorded that the respondent had no capacity for work.[67] The Principal Member referred to the respondent’s submissions made at arbitration and said:
“[Counsel for the respondent] referred to the clinical records of the general practitioner and other records in some detail. Given the nature of the submissions, it is necessary that I summarise these in some detail.”[68]
[67] Transcript of Reasons (T2), T2 16.19–T2 17.15
[68] T2 17.15–18.
It is clearly apparent that the submissions referred to were those put by the respondent that despite the certificates of capacity issued from 11 November 2021 certifying the respondent as having a capacity for work, the contemporary clinical records indicated that the respondent’s condition was worsening, and that evidence was sufficient to show that the respondent had no capacity for work at the relevant time. The Principal Member referred to:
(a) Dr Oughton’s progressive clinical records from November 2019, including the clinical notes recorded on 27 July 2020, 26 August 2020 and 11 November 2021;
(b) Dr Oughton’s reports;
(c) the pain and restrictions recorded by Prof Stoodley in his report dated 31 January 2020;
(d) the functional assessment provided by Mr Wiffen, physiotherapist, on 3 February 2020, and
(e) Ms Gulbinas’ facsimile directed to Dr Oughton dated 9 July 2020.
It is abundantly clear that the Principal Member paid due regard to the certificates of capacity, as he was required to do by s 32A(1)(a)(i) of the 1987 Act. In the circumstances where there was other probative evidence, however, the Principal Member was not obliged to accept the certifications. The opinion expressed in certificates of capacity must be read together with the other evidence in the case.[69] As indicated under Ground One of the appeal, the Principal Member did not conclude that the respondent had no current capacity for work solely on the basis of the clinical note dated 11 November 2021. After considering all of the available evidence, the Principal Member drew a rational inference from the evidence, referred to above at [169], that the respondent had no capacity for work from that date. That conclusion was open to him on the basis of the available evidence and thus was not erroneous.
[69] Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41.
The appellant submits that the Principal Member’s focus on the cervical pathology caused him to fail to consider the available evidence as to the respondent’s capacity for work, such as the surveillance footage. The Principal Member observed that the respondent’s activities recorded in the surveillance material were not inconsistent with the respondent’s complaints or the histories recorded by the medical practitioners. The Principal Member’s reasoning clearly shows that he considered that evidence.
The appellant also refers to the evidence that the respondent could drive his own four-wheel drive vehicle, which he conceded he could do for one hour. While that evidence could be considered evidence tending to show that the respondent might have had some capacity for work, it must be considered in the context of the remaining available evidence, which the Principal Member proceeded to do.
I accept that, in accordance with s 32A and the observations of O’Grady DP in Inghams Enterprises Pty Ltd v Sok,[70] the concepts of “no current work capacity” and “total incapacity” may not in all circumstances be equivalent in meaning. I do not accept, however, that the Principal Member’s reasons disclose that he conflated those terms. The Principal Member accepted that the medical evidence established that the respondent’s condition was worsening, and that the respondent was restricted by his chronic neck condition and left- sided radiculopathy. He recited the definition of “current work capacity” and “no work capacity” provided for in cl 9 of Sch 3 to the 1987 Act. He accepted that on the basis of a detailed analysis of the clinical records, the respondent’s condition deteriorated from about 27 July 2020. He referred to a submission made by the respondent that in accordance with the definition of suitable employment in s 32A, the respondent’s age, education and qualifications and the type of suitable work for which the respondent was qualified rendered the respondent unfit for what is referred to in Dewar as “a real job.” He expressed a reluctance to conclude that the respondent had no current work capacity as at July 2020 and instead determined that the respondent had some capacity for work as a truck driver for 6 hours per week until November 2021. The Principal Member proceeded to conclude that “by at least 12 November 2021, the [respondent] had no current work capacity.”[71] He explained the basis upon which he reached that conclusion, citing the evidence of both Dr Cunneen and Dr Davis, the clinical note recorded on 11 November 2021 and the evidence that the respondent’s condition was deteriorating. He expressly stated that he accepted the respondent’s submission that “for all practical purposes, given the matters in s 32A and the nature of his injuries, that the [respondent] had no current work capacity from at least 12 November 2021.”[72]
[70] [2013] NSWWCCPD 39, [88].
[71] T2 31.6–8.
[72] T2 31.13–16.
There is nothing in that reasoning that indicates that the Principal Member did anything other than determine the matter in accordance with s 32A of the 1987 Act. The assertion by the appellant that the Principal Member conflated the concepts of ‘no current work capacity’ and ‘incapacity’ is not made out.
The appellant refers to the evidence provided by the respondent that he believed that he could not find suitable work in Coffs Harbour and submits that this is evidence as to the respondent’s incapacity, rather than work capacity. On a review of the Principal Member’s reasons, it is not apparent from the Principal Member‘s reasons that he placed reliance on that evidence in finding that the respondent had no capacity for work.
The appellant also complains that the Principal Member failed to provide sufficient reasons for not concluding that the activities seen in the surveillance footage of the respondent lifting a carton of beer and that the respondent could drive for an hour were indicative of a work capacity. It is difficult to see how an allegation that the Principal Member failed to provide sufficient reasons supports either this ground of appeal or Ground One. In any event, for the reasons provided above in respect of both grounds of appeal, I am of the view that the Principal Member’s reasoning sufficiently supported his conclusions and there was no error.
The allegation that the Principal Member erred by conflating the concepts of incapacity and work capacity is not made out. The allegation that the Principal Member erred in the manner in which he exercised his judicial knowledge is also not made out. It follows that this Ground of appeal fails.
CONCLUSION
The appellant has failed to establish error of either fact, law or discretion on the part of the Principal Member. Consequently, the appeal is dismissed.
DECISION
The Principal Member’s Certificate of Determination dated 18 January 2024 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
20 January 2025
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