Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) & Another

[2023] NSWPICPD 65

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Husnain Pty Ltd v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 65
APPELLANT:	Husnain Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (icare)
SECOND RESPONDENT:	Xi Yuan Weng
FILE NUMBER:	A1-W1225/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	26 October 2023
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 10 November 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – ‘disease’ provisions, application of s 15(1)(a) of the Workers Compensation Act 1987 to fix a date of injury – GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187, P&OBerkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481, Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701, Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166; alleged determination of a matter outside the submissions – application of Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1, alleged error going to factual finding of ‘suitable employment’ – application of Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55, whether weekly payments during a period of notice are payments of compensation – section 80 of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
First respondent:
Mr S Grant, counsel
Hall & Wilcox
Second respondent:
Mr C Tanner, counsel
Masselos & Co Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms Elizabeth Beilby
DATE OF MEMBER’S DECISION:	10 November 2022

INTRODUCTION AND BACKGROUND

1. Xi Yuan Weng (the worker) was employed at the Coco Cubano restaurant from 2013 as a barista. The entity that employed her became Husnain Pty Ltd (the employer) from about November 2019, when that company acquired the franchise to the business. The principal of that company was Aftab Ahmad (Mr Ahmad).[1] The worker stated that she made coffees, operated the cash register, assisted with food preparation, took orders, served food and drinks to customers, assisted at the bar and also did some cleaning. She is right-handed. She normally worked 20 hours per week, from 9am to 2pm over five days.[2] The business closed for two to three months during the COVID-19 pandemic and re-opened in about late May or early June 2020. The worker then worked longer hours, about 30 per week, which reduced to about 25 per week from when more staff were put on.[3]

   [1] Worker’s statement, executed 23/2/21, Application to Admit Late Documents (AALD) 24/3/22, pp 4–13, [14]-[15].

   [2] Worker’s statement, [12]–[17], [20]–[21].

   [3] Worker’s statement, [22]–[23].

2. The worker developed right wrist and forearm pain from about 2017 or 2018, before the employer took over the business. The pain would go away during holidays and return during work times. The worker stated that, on re-opening after the COVID-19 shutdown, there was “an unusually large number of customers, and we were short-staffed”. She said that “a couple of days” after re-opening she experienced right wrist and forearm pain. She had to make coffee constantly every day.[4] Following a lull, associated with COVID-19 cases in other nearby restaurants, Coco Cubano was again very busy from about September 2020. The worker stated her right forearm and wrist pain worsened and she wore a wrist brace from October 2020. She attended acupuncture. On 27 November 2020 she saw Dr Kwan, a general practitioner.[5]

   [4] Worker’s statement, [25]–[30].

   [5] Worker’s statement, [32]–[39].

3. Dr Kwan gave the worker a medical certificate, told her to rest the arm, referred her for physiotherapy, prescribed medication and told her to wear a brace. He told the worker to have her employer record the injury. The worker said she resumed work on 2 December 2020 and asked her manager, Romesa Khan (Ms Khan) to record the injury. The worker said that a few days later Ms Khan said, “We can’t backdate”. The worker stated, “To my knowledge they did not make any record of my injury.” Dr Kwan gave the worker a claim form which she emailed to the employer. She stated she asked for a claim number so she could claim for her medical expenses.[6]

   [6] Worker’s statement, [40]–[45].

4. The worker stated that she was on a waiting list for surgery for a matter unrelated to her employment. In December 2020, whilst at work, she needed to take a telephone call relating to an offer of a place on a surgical list and she went outside to do so. She stated this call took “about two minutes”. When she returned inside the restaurant Ms Khan spoke to her about taking the call at work and the two exchanged words. The worker said that thereafter Ms Khan bullied her at work. The worker said that Mr Ahmad left her a message in which he “basically abused me and accused me of being disrespectful to [Ms Khan]”. The worker attended work on 18 December 2020 and was told that she should go home until a meeting which was to be held later that day. There was a meeting on 18 December 2020 involving the worker, Mr Ahmad and Ms Khan. Accusations were made. The worker’s shifts were cancelled. She did not return to work thereafter. On 23 December 2020 Dr Kwan again suggested that the worker should make a workers compensation claim, and provided her with a Workcover certificate of capacity. She said she immediately provided this to Ms Khan, Mr Ahmad and “head office”.[7]

   [7] Worker’s statement, [46]–[70].

5. The worker stated that on 22 December 2020 she received a formal warning letter. On 30 December 2020 she received a further formal warning letter for attending work on 18 December 2020 and allegedly refusing to leave.[8] The worker lodged a claim form on the uninsured liabilities scheme dated 27 January 2021.[9] On 15 February 2021 she received a letter of termination from Mr Ahmad, which also stated that a claim had been made on her behalf to icare. She stated that she was informed by icare that the employer arranged a workers compensation policy on that date.[10]

   [8] Worker’s statement, [69], [71].

   [9] Nominal Insurer’s reply, pp 1–6.

   [10] Worker’s statement, [72]–[73].

6. The Workers Compensation Nominal Insurer – Uninsured Liabilities (Nominal Insurer) issued a letter to the employer dated 23 April 2021 accepting the worker’s claim for benefits.[11] The date of injury was given as 27 November 2020. The Nominal Insurer decided the employer “should have held a policy of insurance for workers compensation at 27/11/2020” and that the employer was “an uninsured employer as at 27/11/2020”. The Nominal Insurer determined a weekly payment amount of $502.81.

   [11] AALD 31/5/22, pp 1–3.

7. On 9 February 2022 the Nominal Insurer forwarded a notice to reimburse, issued under s 145(1) of the Workers Compensation Act 1987 (the 1987 Act), to the employer (the Notice).[12] The attached certificate pursuant to s 145(5) of the 1987 Act was also dated
   9 February 2022.[13] It specified an amount of $37,965.62 which it sought to recover, representing $24,986.69 in compensation and $12,978.93 in medical expenses.[14]

   [12] Miscellaneous Application, pp 1-2.

   [13] Miscellaneous Application, p 3.

   [14] Miscellaneous Application, pp 5–10.

8. The employer lodged a Miscellaneous Application dated 2 March 2022. It sought an “Order that reimbursement of the compensation referred to in the Notice is not required. In the alternative, an Order that the amount for reimbursement is reduced.”

9. The matter was listed for hearing on 1 August 2022. Mr Macken, solicitor, appeared for the employer. Mr Grant, barrister, appeared for the Nominal Insurer and Mr Tanner, barrister, appeared for the worker. Mr Grant’s application to tender a further statement of the worker dated 27 July 2022 was opposed by Mr Macken and was refused.[15] Mr Macken also submitted that submissions should not be permitted from both Mr Grant and Mr Tanner. The Senior Member concluded that all of the parties were entitled to make submissions.[16] The legal representatives of all parties addressed and the Senior Member reserved her decision.

   [15] Transcript (T), T 3.15–30.

   [16] T 4.2–32.

10. The Commission issued a Certificate of Determination dated 10 November 2022, accompanied by 13 pages of reasons.[17] The Senior Member held that the employer was liable to reimburse the Nominal Insurer the sum specified in the Notice.

    [17] Husnain Pty Ltd v Workers Compensation Nominal Insurer & others [2022] NSWPIC 627 (the reasons).

THE SENIOR MEMBER’S REASONS

1. The Senior Member summarised the factual background. She noted that, from November 2020, there were some “work issues” and it was accepted by all parties that there was “some disagreement and discord between [the worker] and the owner of the business”.[18] The Senior Member noted the “weekly payments were made with a range from 22/1/21 to 1/2/22”.[19]

   [18] Reasons, [8].

   [19] Reasons, [10].

2. The Senior Member dealt initially with a “[p]reliminary issue – date of injury”. She referred to the statutory notice which identified 27 November 2020 as the date of injury. The Senior Member noted the claim was “mounted as a disease of gradual process” so the provisions of s 15 of the 1987 Act were enlivened. On 27 November 2020 Dr Kwan opined the worker was unfit for work from 27 November 2020 to 1 December 2020 with a “noninfective medical condition”. The Senior Member said it was “an obvious inference on the basis of the treating notes together with the medical certificate that the worker was assessed as being unfit for work as a result of her work as a barista”.[20]

   [20] Reasons, [16]–[22].

3. The Senior Member referred to the employer’s reliance on a Presidential decision of Inghams Enterprises Pty Ltd v Thoroughgood.[21] She said the employer sought to rely on Thoroughgood for the proposition that the deemed date of injury, in a s 15 case, was not the actual date when a worker became incapacitated, but rather when he or she claimed compensation in respect of that incapacity. The employer submitted that, as no claim was made for weekly compensation in respect of the period from 27 November 2020, that date could not be the deemed date of injury. The employer referred also to the doctor’s notes, which referred to other non-work-related co-morbidities that may be the basis of the period of incapacity.[22]

   [21] [2013] NSWWCCPD 29 (Thoroughgood).

   [22] Reasons, [25]–[30].

4. The Senior Member said Dr Kwan’s opinion contained an obvious inference that the incapacity related to the workplace injury. She said the employer asked her to find that the actual date of incapacity is not relevant to determining the deemed date of injury in a s 15 case. The Senior Member said that Thoroughgood did not involve a claim for weekly compensation, but a claim for lump sum compensation. There was no economic incapacity in that case. She said s 15 provided an objective and readily ascertainable basis for deeming a date of injury.[23] The Senior Member said:

   [23] Reasons, [31]-[34].

   “That is, the relevant date will be, in the case of a claim for weekly compensation, the date of incapacity or in respect of a claim for lump sum compensation, the date of the claim for lump sum compensation.”[24]

   [24] Reasons, [33].

5. The Senior Member rejected the employer’s argument that the statutory notice was defective on the basis of an incorrect date of injury.[25]

   [25] Reasons, [35].

6. The Senior Member engaged in a thorough summary of the medical evidence, from Dr Shahzad (occupational physician retained by the Nominal Insurer), the general practitioners’ notes (from My Health Macarthur Square), Dr Haig (orthopaedic surgeon retained by the Nominal Insurer) and a vocational assessment report from Rehabilitation Services by Altius (obtained by the Nominal Insurer).[26] She said:

   [26] Reasons, [37]–[68].

   “It is quite evident that when you put all the evidence together, that is, the obvious gradual onset of pain, indicating a gradual process of injury which has resulted in the diagnosed condition of the [worker’s] right upper extremity, that an injury has occurred pursuant to s [4(b)] of the 1987 Act.”[27]

7. Dealing with ‘main contributing factor’ the Senior Member said “there are no competing sources of aggravation of the underlying condition”. She referred to the opinion of Dr Haig, which was submitted to confirm “a mechanism of injury consistent with the activities the [worker] performs”. She said Dr Haig considered there was a constitutional problem but also contemplated an exacerbation within the ambit of s 4(b) of the 1987 Act. The Senior Member was satisfied that the worker had sustained an injury.[28]

   [28] Reasons, [73]–[78].

8. The Senior Member then dealt with incapacity. She noted the opinion of Dr Haig that the worker could continue to do her normal job if she was willing to put up with her symptoms and pain. The Senior Member said this did not assist her in assessing incapacity. She accepted a submission by the Nominal Insurer that, having received that opinion, the next reasonable step it could take was to arrange a vocational assessment report. This it did, that report being dated 11 August 2021 (the vocational assessment report). The Senior Member said that the Nominal Insurer, after receiving that report, was obliged to give the statutory period of three months’ notice in compliance with s 80(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There was also an additional period of seven days to communicate the decision to the worker. The Nominal Insurer paid the worker up to 22 February 2022. The Senior Member said that following the process through from the vocational assessment to the nominated treating doctor’s involvement, and then the statutory requirement of three months’ notice, the Nominal Insurer’s position was entirely reasonable.[29]

   [29] Reasons, [79]–[83].

9. The Senior Member dealt with what work the worker may have been fit for. She noted the decision in Wollongong Nursing Home v Dewar,[30] that it was necessary to consider whether there were real jobs the worker was fit for.

   [30] Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar).

10. The Senior Member considered the suggestions made in the vocational assessment report. The first was the occupation of a checkout operator. The Senior Member described this as necessarily involving repetitive use of the right wrist and hand. It would be inappropriate for a right-hand dominant person who experienced pain on such activities. The second suggested option was that of a customer service representative. The Senior Member noted the worker’s history. She had worked as a barista for 7.5 years, there was little indication of any additional skills she may have. The Senior Member noted the comments in the vocational assessment report about the worker’s written and oral skills. The third option was the position of a sales assistant. The Senior Member said that “to some extent the same concerns would apply”. The vocational assessment report commented on the worker’s verbal reasoning results, which were below average. The report said she “should not pursue jobs where there is written and verbal communication”. She had below average abstract reasoning and poor computer skills. She had never used programs such as Microsoft Word. The Senior Member said this did not show that the worker was employable as a sales assistant or customer service representative. The Senior Member noted medical opinion on the suitability of these occupations was based on the physical requirements of the occupations, rather than the worker’s experience and training.[31]

    [31] Reasons, [85]–[88].

11. The Senior Member referred to a submission by the employer dealing with some entries in the banking records under the heading “Taobao”, an online selling platform. The employer submitted this “may indicate some sort of capacity and/or employment”. The Senior Member said she had looked at the documents and the entries. She considered “the amounts are not consistent with any real remuneration”. She declined to find the worker had employment as an online seller. She referred also to a submission that the worker was the main carer for her elderly parents, assisting with medical appointments, toileting and showering. She declined to find that this sounded in capacity for employment. She said she was unaware of what the worker’s duties in this regard were, how long they took, or who else provided assistance. She found it was not reliable evidence to ground a finding regarding capacity.[32]

    [32] Reasons, [89]–[91].

12. The Senior Member found the employer was liable to reimburse the Nominal Insurer the sum claimed in the notice.[33]

    [33] Reasons, [92].

ON THE PAPERS

1. 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.”

2. The employer initially submitted, in its submissions dated 30 November 2022 which formed part of the Appeal Application, that the appeal required an oral hearing. It submitted the transcript was not available at the time submissions were prepared. It submitted the transcript was required to “finalise submissions” and additionally that the grounds were such that they required an oral hearing.[34] This submission was framed in general terms without any specific identification of why an oral hearing was said to be required.

   [34] Employer’s submissions, 30/11/22, [3].

3. The employer lodged a further document dated 15 December 2022, headed “Appellant’s submissions as to transcript”. The employer submitted that the submissions made on behalf of the Nominal Insurer before the Senior Member were “largely un-transcribable”. It “suggested” there should be an oral hearing where the Nominal Insurer’s submissions could be “played as part of the conduct of that oral hearing”.[35] The Nominal Insurer and the worker both submitted the appeal could be determined on the basis of the written material.

   [35] Employer’s submissions as to transcript, 15/12/22, [2].

4. The submission that the Nominal Insurer’s oral submissions were “largely un-transcribable” was somewhat overstated. I have read the transcript. The submissions were largely successfully transcribed. Whilst some parts were not, the overall meaning of the Nominal Insurer’s submissions was ascertainable. The parties have been able to frame their submissions on appeal. The Nominal Insurer and the worker do not join in the employer’s application for an oral hearing.  In Kounnas v Citywide Civil Engineering Pty Ltd Allsop P said:

   "Practitioners are required to keep notes of the essentials of what occurs in court. This includes, in particular, the terms of judgments and the elements of arguments put to judicial officers".[36]

   [36] [2012] NSWCA 287, [15].

5. The above was applied in the former Workers Compensation Commission of New South Wales by Keating P in Wynyard Properties Pty Ltd v Reyes.[37] There is no developed argument made regarding why an oral hearing should be held in the circumstances. I am not persuaded that it is appropriate to conduct an oral hearing because of the state of the transcript.

   [37] [2013] NSWWCCPD 23, [35].

6. Having regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the respondents 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

1. There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met. The worker additionally does not challenge the fact that the monetary threshold is satisfied.

1. The Nominal Insurer, in its Notice of Opposition, submitted the appellant had not demonstrated that the monetary threshold in s 352(3) of the 1998 Act was met. In further submissions lodged on 24 January 2023 the Nominal Insurer withdrew that submission and conceded the threshold in s 352(3) was satisfied.

2. I am satisfied that the threshold requirements in subss (3) and (4) of s 352 have been met.

GROUNDS OF APPEAL

1. The employer raises the following grounds of appeal:

   (a)    Error of law in determining the deemed date of injury. (Ground No 1)

   (b)    Error of law in determining the matter on a basis not put by or to the parties. (Ground No 2)

   (c)    Error of fact in the determination of capacity. (Ground No 3)

   (d)    Error law and fact in considering payments made during a notice period as being compensation. (Ground No 4)

LEGISLATION

1. Section 4 of the 1987 Act relevantly provides:

   “In this Act—

   injury—

   (a)     means personal injury arising out of or in the course of employment,

   (b)     includes a disease injury, which means—

   (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

   (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,

   …” 

2. Section 15 of the 1987 Act relevantly provides:

   “15    Diseases of gradual process—employer liable, date of injury etc

   (cf former ss 7 (4), (4C), (5), 16 (1A))

   (1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—

   (a) the injury shall, for the purposes of this Act, be deemed to have happened—

   (i) at the time of the worker’s death or incapacity, or

   (ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and

   (b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.

   …

   (4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.

   (4A)  In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.”

3. The definition of ‘suitable employment’ in s 32A of the 1987 Act reads:

   “suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—

   (a)     having regard to—

   (i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and

   (ii) the worker’s age, education, skills and work experience, and

   (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and

   (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and

   (v) such other matters as the Workers Compensation Guidelines may specify, and

   (b)     regardless of—

   (i) whether the work or the employment is available, and

   (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and

   (iii) the nature of the worker’s pre-injury employment, and

   (iv) the worker’s place of residence.”

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

1. Section 352(5) of the 1998 Act provides:

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. In Raulston v Toll Pty Ltd,[38] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[39] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [40]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:

   [38] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).

   [39] (1966) 39 ALJR 505 (Whiteley Muir), 506.

   [40] [1996] HCA 140; 140 ALR 227.

   “(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’.”[41]

   [41] Raulston, [19].

3. The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[42]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:

   [42] [2020] NSWCA 54 (Hill).

   “With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[43]

4. In Northern NSW Local Health Network v Heggie[44] Sackville AJA said:

   “A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.

GROUND NO 1 – THE DATE OF INJURY ARGUMENT

Employer’s submissions

[43] Hill, [20].

[44] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

1. The employer submits the Senior Member sought to distinguish the decision in Thoroughgood on the basis there was no economic incapacity in that case. The employer describes the fact that Thoroughgood was a claim for lump sum compensation only as “not to the point”. It submits that Thoroughgood (at [1]) considered the meaning of ‘incapacity’ for the purpose of determining a deemed date of injury. The employer submits that in Thoroughgood, as in the current matter, the worker sought to rely on a period of incapacity for which compensation was not claimed. It submits the first instance decision-maker in Thoroughgood found a deemed date of injury on the basis of economic incapacity.[45]

   [45] Employer’s submissions, 30/11/22, [7]–[8].

2. The employer submits there is no proper basis for distinguishing Thoroughgood on this issue. The reference point is the incapacity for which compensation is claimed. It is common ground in the current matter that no compensation is claimed in respect of the period commencing on 27 November 2020. The first period of incapacity for which compensation was claimed was that commencing on 22 January 2021.[46]

   [46] Employer’s submissions, 30/11/22, [9].

Nominal Insurer’s submissions

1. The Nominal Insurer submits the current matter relates to reimbursement of weekly payments and medical expenses, whereas Thoroughgood related only to lump sum compensation. It submits that in Thoroughgood there was no incapacity to trigger a deemed date of injury on that basis. In the current matter there was incapacity from 27 November 2020, triggering that date as the deemed date of injury. The Nominal Insurer submits the issue of a deemed date is dealt with at [69] to [78] of the reasons, the finding was based on contemporaneous evidence available at the hearing and is unappealable.[47]

   [47] Nominal Insurer’s submissions, 16/1/23, [1]–[4].

Worker’s submissions

1. The worker describes the employer’s proposition as one that, in a weekly compensation claim, the deemed date of injury is based not on the date of actual incapacity, but rather the date when the worker happens to claim weekly compensation. The worker submits this is not supported by the words of s 15 itself or the decision in Thoroughgood. The worker attaches a copy of her submissions before the Senior Member, submitting that the Senior Member accepted these, particularly paragraphs [23] to [32] of those submissions. The worker submits there is no legal error. The Senior Member’s decision was based on a correct factual finding that the worker became incapacitated on 27 November 2020.[48] The worker also attaches a copy of her submissions at first instance, which deal largely with the identification of a deemed date of injury.

   [48] Worker’s submissions, 16/1/23, [6]–[10].

Employer’s submissions in reply

1. The employer submits that, although Thoroughgood involved a claim for lump sum compensation only, the worker sought to establish a deemed date of injury by reference to the first period of incapacity (as in the current matter). The employer submits that in Thoroughgood, although there was incapacity, it was not incapacity for which compensation was claimed. This precluded the period of incapacity giving rise to a deemed date of injury.[49]

   [49] Employer’s submissions in reply, 23/1/23, [4]–[5].

Direction for further submissions

1. On 3 October 2023 the following Direction was issued to the parties:

   “In the submissions before me in this matter, reference is made to Deputy President Roche’s decision in Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29.

   Those proceedings subsequently involved an application for leave to appeal in the Court of Appeal that was refused in the decision of Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166^[[50]].

   The following direction is made in this matter:

   1.     By 4.00 pm on Friday 6 October 2023, the parties may lodge and serve any submissions should they wish, dealing with the Court of Appeal decision in Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166.”

   [50] Thoroughgood No. 2.

2. The employer, on 6 October 2023, lodged submissions in response to the Direction. It submitted the Court of Appeal approved the reasoning of Roche DP in Thoroughgood, which the employer relies on in the current matter, in circumstances where the current claim relates only to weekly payments based on incapacity. The employer submits that the limited criticism of the decision of the Deputy President was on the basis that he failed to have regard to the statement of Hodgson JA in Stone v Stannard Brothers Launch Services Pty Ltd.[51] The reasoning applied by the Deputy President applied if the claim was for weekly compensation based on incapacity. The employer submits the reasons in Thoroughgood No. 2 support its position.[52] The other parties did not make further submissions in response to the Direction.

   [51] [2004] NSWCA 277; 1 DDCR 701 (Stone).

   [52] Employer’s submissions in response to Direction, 6/10/23, [1]–[5].

Consideration

1. The Senior Member’s finding of ‘injury’ was made pursuant to s 15 of the 1987 Act. There was no lump sum claim brought. The Senior Member’s finding regarding the occurrence of injury is not challenged on this appeal (although the correctness of the found date of injury is). It is uncontroversial that incapacity resulted from the injury. It follows, on the plain words of s 15(1)(a) that the injury is deemed to have happened at the time of the worker’s incapacity.

2. The Senior Member made relevant findings. She said the worker attended Dr Kwan on 27 November 2020, when the doctor gave her a certificate of unfitness from 27 November 2020 to 1 December 2020 inclusive. The doctor diagnosed lateral epicondylitis, saying there were “[m]ultiple issues … mostly related to work as a barista”. The Senior Member concluded the incapacity was “clearly work-related”. She found the worker had “an incapacity as certified by Dr Kwan from 27 November 2020”.[53]

   [53] Reasons, [16]–[24].

3. Ms Khan was the worker’s manager at the time. The two exchanged words on 27 November 2020 regarding the worker’s use of a mobile phone. Ms Khan said the worker “left around 12.00 pm to 12.30 pm” on that day after saying “she was not feeling well”. Ms Khan said she received a medical certificate from the worker later that night. It referred to a “noninfective medical condition”. This was the certificate of Dr Kwan. Ms Khan said the worker was absent on 1 and 2 December 2020 and resumed on 3 December 2020. She said she received a further certificate (dated 4 December 2020) on Saturday 5 December 2020 indicating the worker had De Quervain’s tenosynovitis and carpal tunnel syndrome. The worker continued to work until 18 December 2020.[54] A statement from Mr Ahmad (a director of the employer) confirmed the provision of the certificates on 27 November 2020 and 5 December 2020.[55] Dr Shahzad, occupational physician, examined the worker at the request of the Nominal Insurer. In his report dated 21 April 2021 the doctor recorded a history that the worker submitted the certificate dated 27 November 2021, after which she returned to work on “either 2 or 3 December 2020” and requested the matter be recorded in the injury book.[56]

   [54] Ms Khan’s statement 19/2/21, AALD 1/6/22, pp 19­–21, [9], [25]–[30].

   [55] Mr Ahmad’s statement 23/2/21, AALD 1/6/22, p 27, [23]–[24].

   [56] Dr Shahzad’s report 21/4/21, AALD 1/6/22, p 5.

4. The worker’s claim form was dated 27 January 2021.[57] It gave the date of injury as “27/11/2020 (deemed)”. It gave the date the worker stopped work as “27/11/2020”. It described the worker as having no capacity for work from 23 December 2020 to date and continuing.

   [57] Nominal Insurer’s Reply, pp 1-6.

5. On its face, the above sequence of events appears consistent with an uncomplicated application of the deeming provisions in s 15, on the basis that the worker’s incapacity commenced on 27 November 2020. On that date she saw a doctor who gave her a certificate putting her off work, she submitted the certificate to her employer, and she was off work until resuming on 3 December 2020. The employer’s argument to the contrary is that the worker did not claim compensation during this initial period of incapacity. It submits the first period for which weekly compensation was claimed commenced on 22 January 2021.

6. The Senior Member’s reasons involved acceptance that s 15 of the 1987 Act provided “an objective and readily ascertainable basis for deeming a date of injury”.[58] In a claim for weekly compensation the date would be the date of incapacity. In a claim for lump sum compensation it would be the date of claim for lump sum compensation. In the matter of Thoroughgood there was no claim for weekly compensation and no economic incapacity resulting from the injury. The Senior Member accepted paragraphs [23] to [32] of the worker’s submissions on this point. In those circumstances, the worker has included her submissions at first instance in the material on appeal. It is appropriate to briefly summarise paragraphs [23] to [32] of the worker’s submissions at first instance.

   [58] Reasons, [33].

7. The worker submitted that in Thoroughgood there was no claim for weekly compensation and no basis for such a claim as there was no economic incapacity. Incapacity, not resulting in economic loss and not being the subject of a weekly claim, could have no bearing on the determination of a deemed date of injury in Thoroughgood. The only date that could conceivably be deemed on those facts was the date of claim for lump sum compensation, there was no competing alternative date. As a general proposition there may be differing deemed dates, one for a lump sum claim and another for economic loss resulting from incapacity. This was not available in Thoroughgood as there was, in that case, no available claim for economic loss. This is distinct from the current matter, in which the worker had a work-related incapacity as at 27 November 2020. The worker submitted there is no statutory requirement that a worker claim weekly compensation from the date on which he or she is assessed to have had incapacity. Thoroughgood is not authority that the deemed date of injury is subject to arbitrary vagaries as to when a certificate was served claiming weekly payments.

8. The worker submitted s 15 provides an objective and readily ascertainable basis for deeming a date of injury. It is a date of incapacity (in a claim for weekly compensation) or the date of claim for lump sum compensation (if that is the claim). That the worker did not immediately enforce her entitlements in respect of her incapacity on 27 November 2020 does not affect the operation of s 15. The worker’s submissions noted Ms Khan’s statement indicated the worker, on returning to work on 3 December, worked 15 hours per week rather than 20 as the employer “attempted to comply with the demands of her GP”. That is, there was continuing incapacity when she resumed work on 3 December 2020. The source of this was the same injury and incapacity noted on 27 November 2020.[59]

   [59] Worker’s submissions at first instance, attachment to worker’s Notice of Opposition to Appeal, [24]–[34].

9. I note the worker’s submission that, for the employer’s submissions to have any plausibility, s 15(1)(a)(i) would need to be read as meaning that the injury is deemed to have happened “at the time of the claim for death or incapacity”.

10. In Thoroughgood No. 2 Basten JA (McColl and Meagher JJA agreeing) reviewed the Court of Appeal and High Court authorities that were discussed by Roche DP in Thoroughgood (the operative deeming provision in Thoroughgood was s 16 rather than s 15 – “incapacity had the same meaning in ss 15 and 16”[60]). His Honour said:

    “… the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.”[61]

    [60] Thoroughgood No. 2, [42].

    [61] Thoroughgood No. 2, [46].

11. The Senior Member did not err in accepting the worker’s submissions on this issue. In Stone, Hodgson JA said “GIO^[[62]] shows that one must relate the question of the time of death or incapacity under s 16(1)(a)(i) to what is being claimed”.[63] In the same case, Hodgson JA said that “Berkeley Challenge^[[64]] shows that, if the claim under consideration is for weekly compensation based on incapacity, the relevant incapacity for the purposes of s 16(1)(a)(i) is incapacity giving rise to entitlement to weekly compensation.”[65] (emphasis added) In Stone, Handley JA said:

    “The evident purpose of s 16(1)(a) is to fix a precise date for a s 16 injury. Where the worker claims or could claim weekly compensation for incapacity the section enables this to be done.”[66] (emphasis added)

    [62] GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO).

    [63] Stone, [36].

    [64] P&OBerkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Berkeley Challenge).

    [65] Stone, [37].

    [66] Stone, [7].

1. The Senior Member’s findings in this matter establish injury pursuant to the ‘disease’ provisions. They establish an entitlement to the payment of weekly compensation and medical expenses from 27 November 2020. The date of injury which the Senior Member found is consistent with her factual findings and with the above authorities. The Senior Member did not err in this regard.

2. Ground No 1 fails.

GROUND NO 2 – DETERMINING THE MATTER ON A BASIS NOT PUT

Employer’s submissions

1. The employer submitted the submissions on this ground could not be completed until the transcript was available as the ground requires comparison between the submissions and the Senior Member’s determination. It said it “can indicate” it relates to “the question of capacity including in respect of the consideration of the vocational assessment report and evidence”.[67] This is expanded on in the employer’s “Submissions as to Transcript” dated 15 December 2022.

   [67] Employer’s submissions, 30/11/22, [10].

2. The employer submits the “only evidence” regarding the worker’s ability to perform the work of a customer service representative was that she was able to perform the job “from a medical and from a vocational point of view”.[68] It refers to the reasons at [86] and [87] which state:

   “86.   In relation to the second option that is of a customer service representative, there is little evidence before me that the [worker] would be able to perform that job. She had worked in the role as a barista for some 7.5 years and I am left with little knowledge as to any additional skills that she may experience. I also observe the observations made in the report as to the [worker’s] level of skill so far as her written and oral skills.

   87.    The final option provided was that of a sales assistant and to some extent the same concerns would apply. Quite importantly, the same report makes comments on the [worker’s] vocational skill set which to my mind when I read it does not bode well for her being able to obtain a job in those markets. This includes her verbal reasoning results which were below average and caution was given that she should not pursue jobs where there is written and verbal communication. This really does resound for obtaining real employment as a customer service operator or a sales assistant. It was also observed that the [worker] has below average abstract reasoning and that she also has poor computer skills (including never having used programmes such as Microsoft Word). All these factors together to my mind [do] not show that the [worker] is employable as a sales assistant or customer service operator.”

   [68] Employer’s submissions as to transcript, 15/12/22, [4].

3. The employer submits it was not suggested by any party that evidence was needed to the effect that the worker was able to perform the job of a customer service representative. The employer submits there was factual error in the determination that the worker could not perform the job when the evidence indicated that she could. The employer submits it was legal error to determine this issue on a basis not put. It submits the same errors were repeated in the reasons at [87] dealing with the work of a sales assistant. The employer submits it was not open to the Senior Member to determine these issues “contrary to the uncontradicted evidence”.[69]

   [69] Employer’s submissions as to transcript, 15/12/22, [4]-[5].

Nominal Insurer’s submissions

1. The Nominal Insurer submits the roles of customer service officer and sales assistant became apparent after the vocational assessment report dated 11 August 2021. The roles were not approved by the general practitioner until 26 October 2021. The Senior Member carefully considered and discussed the roles, in the reasons at [37] to [62]. The worker had not recovered from the injury to her right dominant arm during the relevant period. The employer does not challenge that there were continuing effects from the injury as late as November 2021. This was consistent with Dr Haig’s opinion about the ongoing effects of injury. From when Dr Haig’s supplementary report was received on 26 May 2021, the Nominal Insurer had information to make a work capacity decision. The employer’s submission by implication concedes that until that time there was insufficient evidence to make such a decision.[70]

   [70] Nominal Insurer’s submissions, 16/1/23, [6]–[11].

2. The Nominal Insurer submits that, in arguing the worker was fit for work such as that of a customer service officer or a sales assistant, the employer conceded the worker was fit only for suitable employment. This necessitated examination of the worker’s capacity for employment having regard to s 32A of the 1987 Act. It was necessary to consider the worker’s age, education, skills, work experience and rehabilitation or injury management material that was available. The Nominal Insurer submits it did not have the necessary evidence to make a work capacity decision to reduce or cease benefits during the period payments were being made.

3. The Nominal Insurer submits there was no error in the Senior Member’s finding regarding the reasonableness of the Nominal Insurer’s payments for the period to 10 February 2022, having regard to when it received Dr Jia’s (general practitioner from the same practice as Dr Kwan) advice regarding the suggested roles, the operation of s 80(3) of the 1998 Act, and the time for service of a work capacity decision.[71]

   [71] Nominal Insurer’s submissions, 16/1/23, [13]–[15].

Worker’s submissions

1. The worker refers to the employer’s submission that whether the worker could perform the roles of a customer service officer or sales assistant was not the subject of submissions before the Senior Member. The worker refers to the submissions by her counsel made at the hearing:

   “As for customer services representative, well, again there is no evidence that the [worker] has the skills to perform that job. She’d been working as a barista for seven and a half years and then finally sales assistant. Well, the same concerns would apply and I’d ask you to turn to page 138 where there are comments on the [worker’s] vocational capacity which, in my submission, would indicate via [sic, why] those three suggested suitable employment options can be rejected.

   You’ll see some bullet points which commence with Ms Weng’s verbal reasoning results below average and it’s said that caution should be exercised ..(not transcribable 02:00:04).. pursuing occupations which require significant verbal or written communication requirements.

   Well, in that regard, how is a person with those limitations fit to be a customer service representative or a sales assistant. It’s also noted that her abstract reasoning results were below average.”[72]

   [72] T 43.14–34.

2. The worker submits there was a factual dispute regarding capacity which the Senior Member evaluated. She gave “cogent reasons” for deciding the worker lacked the skills to work as a customer services representative. Her decision was open and involved no error of fact or law. The worker submits this ground is simply an attempt to re-argue the merits of the incapacity issue and should be dismissed.[73]

   [73] Worker’s submissions, 16/1/23, [13]–[19].

Employer’s submissions in reply

1. The employer submits the reasons at [86] to [87] suggested further evidence was required to consider the worker’s ability to perform the suggested jobs. The general practitioner and the “Vocational Expert” considered the jobs were suitable and this was uncontradicted evidence. The employer submits the Senior Member gave no indication that she had formed a view contrary to this uncontradicted evidence.[74]

   [74] Employer’s submissions in reply, 23/1/23, [6]–[9].

Consideration

1. This ground raises a discrete point, that the Senior Member determined the matter on a basis not put. The fundamental submission is referred to above, that it was not suggested by any party (or the Senior Member) that further evidence was needed to the effect that the worker was able to perform the job of a customer service representative. In Seltsam Pty Ltd v Ghaleb Ipp JA (Mason P agreeing), after reviewing a number of authorities, said:

   “These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.

   A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result.”[75]

   [75] [2005] NSWCA 208; 3 DDCR 1, [78]–[79].

2. This ground of appeal is essentially inconsistent with the submissions made before the Senior Member by counsel for the worker, quoted above. Those submissions plainly went to whether the occupations nominated in the vocational assessment report could be regarded as ‘suitable employment’ within the definition in s 32A of the 1987 Act. The vocational assessment report was material to be taken into account in compliance with cl (a) of the definition. The worker’s submissions made it clear that the worker disputed these occupations were ‘suitable employment’. The employer’s submission, that it was not suggested by any party that evidence was needed on the topic of whether the worker was able to perform the job of a customer service representative, is untenable. The acceptability of the evidence in the vocational assessment report, suggesting certain specified roles, was challenged in clear terms by the worker.

3. The Senior Member was obliged to have regard to the matters described in cl (a) of the definition of ‘suitable employment’. This included the worker’s age, education, skills, work experience and any occupational rehabilitation services provided for the worker. The vocational assessment report specifically raised various of the matters referred to in the Senior Member’s reasons at [85] to [87]. There was little evidence of skills associated with the worker’s experience, beyond her experience as a barista. Her written and oral skills were limited. Her verbal reasoning results were below average. There would need to be caution in pursuing jobs where there was written and verbal communication. The worker had below average abstract reasoning and poor computer skills.

4. The employer submits the Senior Member failed to indicate she had formed a view contrary to the employer’s argument on this point. The employer points to no authority in support of its argument. In F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry, Lord Diplock said:

   “… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”[76]

   [76] [1975] AC 295 at 369 (F Hoffman-La Roche).

5. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[77] the High Court quoted the above passage from F Hoffman-La Roche and continued:

   “Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”[78]

   [77] [2006] HCA 63; 231 ALR 592; 81 ALJR 515 (SZBEL).

   [78] SZBEL, [48].

6. The Senior Member did not fail to afford the employer procedural fairness, in not informing the parties of any view she had formed relating to the evidence going to ‘suitable employment’.

7. The employer raised the fact that the material in the vocational assessment report dealing with suitable employment was uncontradicted. This does not, on its face, fall within Ground No 2. In the absence of objection from other parties I will deal with it.

8. In South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal the Full Court of South Australia (Kourakis J, Doyle CJ and Anderson J agreeing) said:

   “It cannot be emphasised enough that a trial Judge is not bound by the evidence of an expert witness, even if that evidence is uncontradicted. Leaving aside special statutory provisions for the determination of issues by assessors, arbitrators or medical panels, all factual issues, including those on which expert evidence has been led, are to be decided by the tribunal of fact.”[79]

   [79] [2009] SASC 213 (South Australian Fire), [59].

9. The above was applied by Roche DP in Pikus Pty Ltd v Bradica where the Deputy President said:

   “… except in respect of claims for lump sum compensation, an arbitrator [now a member] is not bound by the medical evidence, but must use his or her knowledge and experience to weigh up the whole of the evidence to determine factual issues according to law”.[80]

   [80] [2009] NSWWCCPD 120 (Pikus), [56]. See also Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, [87].

10. The employer has failed to prove error within the meaning of s 352(5) of the 1998 Act. I accept the worker’s submission that Ground No 2 is largely an attempt to re-argue the merits of the incapacity issue. The ground challenges a factual finding of the Senior Member. Such a challenge is subject to the principles governing appeals pursuant to s 352(5) of the 1998 Act, discussed above. The finding made by the Senior Member was open to her. She adequately exposed her reasoning. The employer has not demonstrated relevant error within the meaning of s 352(5). Ground No 2 fails.

GROUND NO 3 – ERROR OF FACT IN THE DETERMINATION OF INCAPACITY

Employer’s submissions

1. The employer refers to the reasons at [42] and [52]. It submits the medical evidence was consistent with the presence of some capacity for work from “at least” 12 April 2021, and arguably “long before that date”. (12 April 2021 was the date from which the medical certification changed from “no capacity to work” to “three hours per day, two days per week”.)[81] The employer submits roles identified from both a vocational and medical point of view included customer service representative and sales assistant. It submits the Senior Member “sought to exclude these roles without having regard to any evidence of any kind”.

   [81] Reasons, [51]–[52].

2. The employer submits the Senior Member “appeared to reverse the onus of proof” in the reasons at [86], where she said of the work of a customer service representative that there was little evidence that the worker would be able to perform that job. The employer submits that rather there was no evidence that the worker “was unable to perform that job”. The employer submits the evidence from the general practitioner and the vocational assessment indicated the worker could perform that job. The employer submits the best evidence of capacity was from Dr Haig, who reported on 26 May 2021 that the worker was fit for work without restriction, consistent with his examination findings.[82]

   [82] Employer’s submissions, 3/11/22, [12]–[14].

3. The employer makes further submissions on this ground in its submissions dated 15 December 2022, following receipt of the transcript. It refers to the reasons at [80] where the Senior Member said:

   “The first respondent says that the next reasonable step it could take after receiving Dr Haig’s report was to get a vocational assessment report. That vocational assessment report was obtained and is dated 11 August 2021. I agree with that submission.”

4. The employer submits there was no basis for the suggestion that a vocational assessment was required before a work capacity assessment could be made. It submits that decisions as to capacity are routinely made in the Commission without vocational assessment reports. It submits a work capacity decision could have been made in April/May 2021. Pre-injury average weekly earnings (PIAWE) were less than $500. There was more than enough medical evidence to determine an earning capacity that exceeded PIAWE from at least the date of Dr Haig’s report.[83]

   [83] Employer’s submissions as to transcript, 15/12/2022, [3].

5. The employer submits the Senior Member failed to consider the worker’s ability to work as a florist. The employer submits it addressed the Senior Member on this, such work was considered suitable by the general practitioner and such work would have paid in excess of the worker’s PIAWE.[84]

   [84] Employer’s submissions as to transcript, 15/12/2022, [6].

Nominal Insurer’s submissions

1. The Nominal Insurer submits this ground is similar to Ground No 2, and says it repeats its submission that the ground does not raise an error of fact or law. It refers to the employer’s submission that it was unnecessary to obtain a vocational assessment to determine whether it was appropriate to make a work capacity decision. It submits the employer’s medical evidence going to the types of roles the worker might perform was deficient. In those circumstances it was appropriate to arrange a vocational assessment and the Senior Member did not err in making such a finding. There was no relevant error of fact or law.

2. The Nominal Insurer submits there was no evidence that work as a florist was suitable. The general practitioner had suggested the worker “might consider undertaking a flower arranging/florist course”.[85] There was no evidence the worker undertook such a course or had such a qualification. Without the necessary training it was not appropriate to consider this as suitable employment.[86]

   [85] Reference is made to the general practitioner’s notes dated 8/5/21.

   [86] Nominal Insurer’s submissions, 16/1/23, [16]–[19].

Worker’s submissions

1. The worker submits the Senior Member carefully analysed the medical evidence and the vocational assessment report.[87] Her review was careful and thorough, it cannot be suggested that she failed to note any material detail. At [79] to [91] of her reasons the Senior Member considered the worker’s capacity having regard to the three roles suggested in the vocational assessment. Her decision was open to her, it cannot be reasonably asserted there was error of fact or law. The worker submits this ground, like Ground No 2, “is essentially an endeavour to reargue the merits of the issue of capacity.”[88]

   [87] Reasons, [63]–[68].

   [88] Worker’s submissions, 16/1/23, [20]–[24].

2. The worker refers to what is described as “the [employer’s] supplementary submission”, whether it was a reasonable step to obtain a vocational report after receiving Dr Haig’s report. The worker submits this can have no bearing on the determination of the worker’s capacity. The worker submits the Senior Member’s determination that this was a reasonable step was open and cannot be regarded as appealable error.[89]

   [89] Worker’s submissions, 16/1/23, [25].

Employer’s submissions in reply

1. The employer’s submissions in reply relating to Ground No 2 are described as also applying to Ground No 3.

Consideration

1. The employer’s submission that the Senior Member sought to exclude the suggested roles of customer service representative and sales assistant, without having regard to any evidence of any kind, is wrong. The Senior Member summarised the medical evidence.[90] She set out the roles suggested in the vocational assessment.[91] She described the comments of Dr Jia, the worker’s general practitioner, regarding the suggestions.[92] Dr Jia rejected the suitability of the roles of checkout operator and kitchen hand. Dr Jia approved the role of customer service representative and the role of sales assistant in a pharmacy. Dr Jia approved the role of sales assistant in a “food, drinks or general groceries position”, subject to a “need to avoid heavy lifting or repetitive tasks”.

   [90] Reasons, [37]–[62].

   [91] Reasons, [63]-[67].

   [92] Reasons, [68].

2. The Senior Member referred to the decision of Dewar and said “one must bear in mind an actual role that the [worker] could perform working. That is, are there real jobs that the [worker] is fit for.”[93] The Senior Member then referred to the three roles suggested in the vocational report, namely checkout operator, customer service representative and sales assistant. The Senior Member was under no compulsion to simply accept that the suggested roles constituted ‘suitable employment’. Consistent with the passages from South Australian Fire and Pikus quoted above, it was necessary that she, as the tribunal of fact, use her knowledge and experience to weigh up the whole of the evidence to determine this factual issue.

   [93] Reasons, [84].

1. The Senior Member drew on the vocational assessment report in considering the suitability of the suggestions. The vocational assessment report described the matters which should be taken into account in determining what is ‘suitable employment’. The report referred to a vocational assessment of the worker on 24 June 2021.

2. The report summarised the findings from the assessment that were “considered significant to the worker’s vocational capacity and return to work strategy”. The worker’s “verbal reasoning results were below average”. It was noted that “caution should be exercised around pursuing occupations which require significant verbal or written communication requirements”. The worker’s “abstract reasoning results were below average. She may require additional time and support when learning new tasks”. The worker “may be uncomfortable in roles where there are few opportunities to socialise or interact with others such as when working alone”. She had “a low level of skill with regards to operating computers”. She was “likely to be compassionate and empathic when working with others”. The injury to the worker’s dominant hand would “increase her risk of reaggravation”. English was the worker’s “second language, and she ha[d] some difficulties with high level reading and writing, and average computer literacy”. There were “nil issues communicating verbally face to face and over the phone”. She was described as self-reporting “good levels of mental wellbeing”. The worker’s education background consisted of three courses at “Gloria Jeans University” as “Certified Barista”, “Certified Maitre’d” and “Certified Purveyor”. Her work history was described as 7 years with Coco Cubano as a barista, and before that at Target Country for 11 years as a service assistant. Before that she had worked for 5 years as a sales assistant and 3 years as a hotel maid.[94]

   [94] Nominal Insurer’s Reply, pp 137–147.

3. The worker’s “overall computer skill level” was described as “poor”.[95] The report described the administration of a General Cognitive Ability Test (GCAT), an “untimed measure of ability [in] verbal, numerical and abstract reasoning”. The worker’s abstract reasoning and verbal reasoning were both described as “Below Average”, and her numerical reasoning was described as “Slightly Below Average”. The assessment of the worker’s “Transferable Skills” described the worker as self-reporting that she could work independently, manage or lead a team, train or teach others, be artistic or creative, solve problems and do financial management (for example, budgeting).[96]

   [95] Nominal Insurer’s Reply, p 150.

   [96] Nominal Insurer’s Reply, pp 150–152.

4. The report contained lengthy and detailed descriptions of the duties of a “Checkout Operator”,[97] “Customer Service Representative”[98] and “Sales Assistant (General)”.[99] I will not seek to reproduce all of the detailed descriptions here.

   [97] Nominal Insurer’s Reply, pp 154–160.

   [98] Nominal Insurer’s Reply, pp 160–166.

   [99] Reply, pp 166–172.

5. The duties of a checkout operator could include receiving and processing payments, counting and recording money received and balancing against register sales records and preparing money for deposit, recording and balancing petty cash disbursements and operating a computer terminal to administer the store’s financial transaction system. The physical demands summary included passing items across a scanner and packing goods into bags and boxes, lifting and carrying up to a “medium physical demand range” when packing goods, inserting and removing cash drawers at the commencement and end of shifts, operating adding machines or calculators, stretching and twisting movements “on an occasional to frequent basis if packing”, “frequent to constant repetitive hand and finger movements” when operating electronic tills and cash handling, and mental skills including cash handling ability and communication skills. The report referred to the lifting/carrying and pushing/pulling requirements of the role and noted that “[m]edical endorsement was unable to be obtained from treating physician; Dr Nancy Jai [sic, Jia]”. The report suggested a “medical case conference”. The three occupations nominated in the report all carried this caution, that a medical case conference should be held as Dr Jia had not endorsed them.

6. There is a discussion in Hendrix v Accuro Homecare Pty Ltd[100] in which I dealt with some authorities that go to the extent to which the Workers Compensation Division of the Commission may be viewed as a specialist tribunal. It is unnecessary to repeat that discussion for current purposes. It was, in my view, open to the Senior Member to draw on her experience in her role in understanding, in a general sense, the nature of the physical requirements of the duties of a checkout operator. She rejected the suitability of the role on the basis it “would necessarily involve the repetitive use of the right hand in processing commodities at the point of sale”.[101] This is generally consistent with the description of the duties of a checkout operator in the vocational assessment report. I note Dr Jia’s notes on 20 August 2021 state “multiple inappropriate job options on the rehab provider list struck off”, without stipulating which ones.[102]

   [100] [2023] NSWPICPD 48, [81]–[86].

   [101] Reasons, [85].

   [102] AALD1/6/22, p 88.

7. The vocational assessment described the duties of a customer service representative as selling the company’s goods and services, using directories and other sources to list prospective clients, acquiring and updating knowledge of employer’s and competitors’ goods and services and market conditions, visiting clients and retail outlets to establish selling opportunities, quoting prices and credit terms and arranging deliveries, following up and monitoring clients and competitor activity and reporting developments to sales and marketing management, preparing sales reports and submitting business expense records. The physical demands included repetitive movements when driving and using a computer. There was also constant use of hand-held objects, being writing implements, telephones, faxes, computers, photocopiers, scanners, calculators, and general office equipment. Cognitive demands included presentation, selling, product knowledge, communication and negotiation, organisational and planning skills. It was said that applicants for this job at an entry level were likely to require basic computer familiarity including smart phone technology, basic typing and emails and to have the ability to learn through on-the-job training. The vocational assessment again recommended a medical case conference as it was unable to obtain the endorsement of Dr Jia for this role.

8. The Senior Member dealt with this occupation in her reasons at [86]. She noted the worker had been a barista for 7.5 years. She said there was little knowledge of any other skills the worker may have. She noted the evidence in the GCAT test regarding the worker’s written and oral skills. The Senior Member, in her reasons at [87], dealt with the occupations of sales assistant and customer service representative. She referred to the vocational assessment report, including its comments regarding the worker’s verbal reasoning (which was below average). The Senior Member said the report cautioned against pursuing jobs where there was verbal and written communication. She also noted the worker had below average abstract reasoning and poor computer skills. The Senior Member said “[a]ll these factors together to my mind [do] not show that the [worker] is employable as a sales assistant or customer service operator.”

9. The vocational assessment report described the duties of a sales assistant (general) as selling “goods and services, such as food, clothing, hardware, household appliances, office supplies and cosmetics, in retail and wholesale establishments.” The duties were described as determining customer requirements and advising, locating merchandise, shelving product, setting up shop displays and receiving and processing payments. It was stated it may be necessary to wrap and pack goods and that lifting or pulling requirements will be occasional and generally of a light to medium nature. Repetitive hand and finger movements are necessary on tills, computers and pricing guns. There will be occasional use of hand-held objects such as pens and calculators. The necessary cognitive skills are said to be communication, memory, recording and calculating skills. The report stated that applicants for such jobs are likely to require basic computer familiarity. There would be training in cash handling, company policies, specific product knowledge and customer experiences. The report noted the actual requirements of the role vary depending on specific tasks, employers and industry need. It described the worker as “best suited to lighter roles whilst restricted in her physical tolerances”. Again, a medical case conference was recommended as Dr Jia’s endorsement had not been obtained. The occupations of customer service representative and sales assistant were rejected as unsuitable by the Senior Member in the discussion described above, dealing with the worker’s experience and the results of the GCAT. The Senior Member also dealt with Dr Jia’s acceptance that the worker could perform the occupations of customer service representative and sales assistant. She found this was the doctor’s response to the physical requirements of these jobs, as opposed to the worker’s experience and training.[103]

   [103] Reasons, [88].

10. The employer’s challenge in this ground raises whether there was evidence to support the Senior Member’s findings. The Senior Member’s analysis was consistent with the reasoning in Dewar, which is widely applied and accepted in the Commission. Her reasoning involved her considering the worker’s education, skills, work experience and the occupational rehabilitation services provided to the worker, all matters that she was specifically required to have regard to, in compliance with cl (a) of the definition in s 32A of the 1987 Act. The argument that the Senior Member somehow reversed the onus of proof on this issue is without substance and is rejected.

11. The employer submits the Senior Member failed to consider the worker’s ability to work as a florist. Dr Jia’s notes, on 12 April 2021, record “florist work could be appropriate”. On 8 May 2021 the doctor recorded the following discussion:

    “case conference on Wednesday

    - see if we can retrain Ms Weng

    discussed potential work options for Ms Weng

    art/craft classes for adults +I- children

    also can sell craft online

    Ms Weng can do this out of a home studio if needed, so she can still look after father with Dementia

    will need to attend a business course

    and potentially a flower arranging/floristry course

    - floristry is usually left arm/non dominant arm that requires strength, to hold the bouquet while the dominant hand arranges and then ties.”[104]

    [104] AALD 1/6/22, p 82.

12. The above clearly represented a general discussion about future work options. The next recorded consultation with Dr Jia was on 12 May 2021. It was described as a “case conference” and included “Amanda (Rehabilitation services)”. There was discussion of the “purpose of rehab service – to assist with future employment”. The worker was described as “very motivated to re-enter the workforce”. The “next steps” were described as “finding appropriate work for Ms Weng floristry or own business”.[105]

    [105] AALD 1/6/22, p 83.

13. Dr Jia’s produced notes thereafter span a period from 7 June 2021 to 14 December 2021, involving a further nine consultations. These include references to rehabilitation and possible work options. None of these relate to floristry.[106] The occupational rehabilitation reports in evidence do not suggest the worker had any experience in, or knowledge of, floristry. There was good reason why the Senior Member did not consider the worker’s ability to earn as a florist or consider whether such work might constitute ‘suitable employment’. If the Senior Member had considered the worker’s ability to earn as a florist it could not have affected the result.

    [106] AALD 1/6/22, pp 84-93.

14. The vocational report, and the Member’s fact-finding regarding the lack of suitability of the occupations there identified, demonstrated that the worker did not, at that time, have ‘current work capacity’. It follows that a valid work capacity decision, on the basis there was “current work capacity” could not, at the relevant time, have been made. In Dewar Roche DP referred to the concept:

    “suitable employment” must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited”[107] 

    [107] Dewar, [58].

15. Ground No 3 fails.

GROUND NO 4 – THE PERIOD OF NOTICE

Employer’s submissions

1. The employer submits that recovery pursuant to a s 145 notice is restricted to payments of workers compensation benefits. It submits the Senior Member erred in taking into account weekly payments during the period of notice. The entitlement was determined by s 37(3)(a) of the 1987 Act. Once the entitlement on that basis ceased, it being determined the worker no longer had a weekly entitlement, that ended the entitlement to workers compensation payments. Payments during the notice period were not workers compensation but administrative and should not be included for the purpose of s 145 of the 1987 Act.[108]

   [108] Employer’s submissions, 30/11/22, [15]–[16].

Nominal Insurer’s submissions

1. The Nominal Insurer refers to the reasons at [81] to [82], where the Senior Member referred to s 80(3) of the 1998 Act. That subsection required a period of notice when there was “reassessment by the insurer of the entitlement to weekly payments of compensation”. The notice period referred to payments of compensation. It submits s 37(3)(a) of the 1987 Act deals with alteration and suspension of payments and is irrelevant. The Senior Member correctly concluded that payments during the notice period should be included in the reimbursement.

2. The Nominal Insurer submits this argument is raised by the employer for the first time on appeal, it was not raised at first instance.[109]

   [109] Nominal Insurer’s submissions, 16/1/23, [20]–[26].

Worker’s submissions

1. The worker submits she was entitled to weekly compensation and that entitlement continued until expiry of the three month notice period pursuant to s 80(3) of the 1998 Act. Sums paid during that time were obviously weekly compensation calculated pursuant to the legislation at the rate payable prior to the giving of notice. The employer was bound to make those payments in accordance with the legislation until the notice period expired.[110]

   [110] Worker’s submissions, 16/1/23, [26]–[28].

Consideration

1. Section 37(3) of the 1987 Act provides:

   “The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—

   (a)     80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,

   (b)     the maximum weekly compensation amount, less the worker’s current weekly earnings.”

2. Section 80 of the 1998 Act provides:

   “Required period of notice

   (1)     An insurer must not discontinue payment to a worker of weekly payments of compensation, or reduce the amount of the compensation, unless the required period of notice (commencing when the notice of discontinuation or reduction is given in accordance with this Division) has expired.

   (2)     This section applies to a worker only if the worker has received weekly payments for a continuous period of at least 12 weeks.

   (3)     The required period of notice for a decision made on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer is 3 months.

   Note—

   See sections 81–83 for the effect of an internal review or determination of a dispute by the Commission on the required period of notice.

   (4)     In any other case, the required period of notice is—

   (a) for a worker who has been receiving weekly payments of compensation for a continuous period of less than 1 year—2 weeks, or

   (b) for a worker who has been receiving weekly payments of compensation for a continuous period of 1 year or more—6 weeks.

   (5)     The required period of notice of the discontinuation or reduction is required to be given in accordance with this Subdivision whether or not the notice also includes notice of a liability dispute.

   (6)     Subsection (1) does not apply to a decision of an insurer to discontinue or reduce the amount of weekly payments of compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable. However, notice of the decision must be given before the expiration of the period of incapacity that results in the discontinuation or reduction.”

3. Annexure A of the Particulars served by the Nominal Insurer, setting out its “Claim Under the Scheme”, indicates it made weekly payments from 22 January 2021.[111] The Senior Member took the relevant period of notice to be three months, on the basis that subs (3) of s 80 applied. She also said an additional seven days was allowed to communicate the decision to the worker. This aspect of the decision is not challenged. The employer accepts that payments of weekly compensation are potentially recoverable. It challenges the characterisation of weekly payments, made during the notice period, on the basis such payments do not represent ‘workers compensation’ but rather are some form of administrative payment. The employer refers to no authority and engages in no analysis of the statutory provisions, for the purpose of mounting this argument. It is inconsistent with the wording of s 80 of the 1998 Act.

   [111] icare letter 9/2/22, Miscellaneous Application, pp 1–10.

4. Subsection (1) of s 80 prevents the discontinuance or reduction of weekly payments of compensation unless the required period of notice has expired (emphasis added). Weekly payments prior to the date of expiry are appropriately characterised as weekly payments of compensation. The insurer could not discontinue or reduce these payments, consistent with the clear words of the legislation, prior to that point in time.

5. It follows that Ground No 4 fails.

DECISION

1. The appeal fails.

2. The Certificate of Determination dated 10 November 2022 is confirmed.

Michael Snell
DEPUTY PRESIDENT

26 October 2023