Inghams Enterprises Pty Ltd v Smith - [2023] NSWPICPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Inghams Enterprises Pty Ltd v Smith [2023] NSWPICPD 9
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Julie Smith
INSURER:	Self-insured
FILE NUMBER:	A1-W1225/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	28 February 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 5 April 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Clause 44 of the Workers Compensation Regulation 2016 – restrictions on reliance on forensic medical reports – s 43 of the Personal Injury Commission Act 2020 – the Personal Injury Commission (the Commission) may inform itself of any matter – alleged denial of procedural fairness – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; Chanaa v Zarour [2011] NSWCA 199 applied – acceptance of evidence – Shellharbour City Council v Rigby [2006] NSWCA 308 applied – the Commission may have regard to evidence that would not be admissible in a court – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 applied – section 32A of the Workers Compensation Act 1987 – Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr T Hickey, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF Member’s DECISION:	5 April 2022

INTRODUCTION AND BACKGROUND

Ms Julie Smith (the respondent) was employed as a process worker and leading hand by Inghams Enterprises Pty Ltd (the appellant) from 1989. She ceased work on 20 May 2019 at the direction of the appellant. At the time the respondent was stood down, she was working normal hours but with restrictions. During the period of her employment and thereafter, she lodged several notices of injury and made claims for compensation as a result of those injuries. She alleged an injury to her back in the form of an aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) resulting from her duties during her entire period of employment, with a deemed date of injury of 23 October 2018. She also asserted injury to the right knee on 7 February 2019 when (she alleged) a co-worker pushed a steel processing tub at her. She further alleged a psychological injury which she said she incurred as a result of bullying in the workplace over the period of her employment and as a result of the incident on 7 February 2019. She claimed weekly compensation, treatment expenses and a lump sum in respect of 16% whole person impairment resulting from the psychological injury.
The appellant issued notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 20 May 2019[1] and 31 March 2020,[2] in which it denied that:
(a)    the respondent suffered any of the injuries alleged;
(b)    the respondent’s employment was a substantial contributing factor to any injury sustained, or
(c)    if the injury was a disease injury within the meaning of s 4(b) of the 1987 Act, then the respondent’s employment was not the main contributing factor to her disease injury.
[1] Application to Resolve a Dispute (ARD), pp 106–109.
[2] ARD, pp 78–79.
The appellant also asserted that the respondent had suffered no impairment, was not incapacitated for work, and did not require medical treatment.
The respondent lodged proceedings in the Workers Compensation Division of the Personal Injury Commission (the Commission). The matter could not be resolved and proceeded to arbitration before a non-Presidential Member of the Commission. The Member accepted that the respondent suffered a psychological injury as pleaded, a right knee injury and an aggravation of a pre-existing disease condition in the lumbar spine. He found that the respondent had no capacity for work from 20 May 2019.
The appellant appeals the decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The respondent is content for the appeal to be determined ‘on the papers.’ The appellant asserts that the appeal requires an oral hearing, on the basis that, firstly, the transcript was not available at the time the appeal was drafted and, secondly, because the appeal involves evaluation of closed-circuit television (CCTV) footage. The appellant submits that an oral hearing is required so that the Presidential Member and the parties can jointly view the footage and the parties can make such submissions as are relevant.
In respect of the availability of the transcript, the appellant was provided with the opportunity to file further submissions upon receipt of the transcript, and it did so. There is no proper reason proffered by the appellant as to why the absence of the complete transcript at the time of lodgment of the appeal is of any consequence.
Both parties have seen the CCTV footage and made submissions to the Member in respect of what they observed, and the submissions were transcribed. In submissions to the Member, the appellant indicated that it was content for the Member to view the footage in his own time.[3] I do not consider it appropriate that the parties be given the opportunity to make further submissions in relation to that evidence. The appeal is not a review or a re-hearing.[4] In circumstances where the parties have made submissions about that evidence, and the Member, after viewing the footage, reached a conclusion about that evidence, as he was invited to do, it is sufficient for me to view the evidence in the absence of an oral hearing.
[3] Transcript of proceedings dated 24 January 2022 (T2), T2 8.23–28.
[4] Section 352(5) of the 1998 Act.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, and the documents and submissions that are before me. 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 1998 Act have been met. Neither party asserts that the decision appealed is interlocutory in nature.

THE EVIDENCE

The appellant’s allegations of error on the part of the Member are limited to the conclusions the Member reached in respect of:
(a)    the CCTV footage and surveillance evidence (Grounds A and B);
(b)    the finding that the respondent had no capacity for work (Ground B);
(c)    the admission of the statements of Mr Michael Lakis and Ms Margaret Allen (Ground C);
(d)    the refusal to admit the entire report of Dr John Albert Roberts (Ground C), and
(e)    the Member’s reasons in relation to the matters referred to in (c) and (d) (Ground D).
It is therefore not necessary to review the whole of the evidence relied upon in the proceedings.

The respondent’s statement evidence

The respondent provided three statements, dated 25 May 2020,[5] 13 November 2020[6] and 3 February 2021.[7]
[5] ARD, pp 1–16.
[6] ARD, p 17.
[7] ARD, p 21.
In her first statement, she provided a history of physical injuries she said were sustained in the course of her employment with the appellant. In particular, she complained of lower back pain. She attributed the onset of pain to the nature of the work she performed. She said the pain became excruciating by 23 October 2018, after a day of pushing tubs at work, which prompted her to lodge a workers compensation claim. She said that the claim was accepted. She added that she was able to continue working because she was in a position to delegate her physical duties.
The respondent described the incident on 7 February 2019, when she had asked one of the workers, Ms Angela Gibbons, to use a steel tub, rather than a blue tub. The respondent stated:
“Angela, wearing a fluro yellow vest, came around with the pallet jack and began to push a blue tub towards the end of the line. I was walking back towards that end of the line and I walked towards her to repeat my instructions as Angela was ignoring me.
Suddenly Angela pulled the steel EURO tub and shoved it into my path, causing a[n] impact on my knees and legs which forced me backwards and to hunch forward. The EURO stainless steel tubs weighed around 40kg when empty.
I immediately called out to Angela ‘You just hit me with the EURO tub’ and Angela replied ‘You deal with it.’
Angela walked off, I walked around to get the bathtub and brought it around, and again I said to Angela again ‘You hit me with the EURO tub’ but Angela ignored me and walked off.”[8]
[8] Statement dated 25 May 2020, [74]–[77].
The respondent said that her knees and legs were swollen after this incident, and she sought first aid treatment. She nominated three other workers who she said observed the bruising and swelling in her legs. The respondent stated that she had seen the CCTV footage of the incident and, although it was “grainy,” it showed the steel tub hitting her knee.
The respondent described her continuing symptoms of lower back pain which affected her daily activities and regularly flared up. She also described pain and spasms in her right knee and complained that the right knee occasionally gave way.
The respondent also provided a long list of incidents at work since the commencement of employment which she described as bullying and harassment by Ms Angela Gibbons and by Ms Kaylene Wood, her supervisor. The respondent referred to the incident on 7 February 2019, which she termed “the final incident.” The respondent gave an account of the psychological effect of that incident, which caused her to have a week off work.
The respondent reported that at the appellant’s instruction, she was medically examined by Dr Roberts in respect of her psychological injury on 26 March 2019 and Dr Kim Edwards in respect of her physical injuries.
The respondent said that on 20 May 2019, she was called to a meeting with the floor manager and two other employees of the appellant and was advised that suitable duties were withdrawn, and she was stood down. The respondent said that she queried whether she could return to work if she was given a medical clearance and the floor manager advised that she could, but not as a leading hand.
The respondent made comments in relation to a surveillance report dated 30 April 2019, of which she had only seen still photographs, of her at her daughter’s football match. She disputed several aspects of the report, including the make of her vehicle and her height. The respondent pointed out that the surveillance was conducted in April 2019 when she was still working and her condition at that time did not reflect her current condition, but in any event, she would have been taking pain medication at the time. The respondent disputed that she was standing for two hours, as asserted in the report.
The respondent referred to an investigator’s report about the CCTV footage dated 27 February 2019. She asserted that the investigator was wrong because the footage clearly showed Ms Gibbons, who was wearing a yellow fluorescent vest, pulled and forcibly pushed the steel tub into her. The respondent further disputed various statements made by employees of the appellant. Relevantly, she disputed the assertions made by Ms Gibbons who stated that the respondent may have been injured by another worker earlier in the morning and pointed out that Ms Gibbons had not mentioned the respondent having come into contact with the steel tub. The respondent listed her ongoing physical and psychological symptoms.
The remaining statements by the respondent do not add to the evidence relevant to the appeal.

Statement of Mr Michael Lakis, former employee of the appellant

Mr Lakis made a statement dated 5 November 2020.[9] He stated that he worked for the appellant for 13 years and had known the respondent during that time. He said that he had witnessed the respondent being bullied by Ms Gibbons and the supervisor, Ms Kaylene Wood. He recalled that he often saw the respondent and both Ms Wood and Ms Gibbons arguing, the arguments were instigated by Ms Gibbons and, on a number of occasions, he observed that the respondent was upset.
[9] ARD, p 37.
Mr Lakis said that he did not see the incident when the respondent was hit by the tub but asserted that the respondent was an honest person and would not have lied about the incident 7 February 2019. He added that the respondent had shown him a red mark on her leg the next day.

Statement of Ms Margaret Allen, union delegate

Ms Allen provided a statement dated 17 September 2019.[10] She stated that she was advised by the respondent that a co-worker was intentionally interfering with the respondent’s ability to perform her duties. Ms Allen further stated that on 7 February 2019 the respondent had said that the same co-worker pushed a tub that hit the respondent’s legs, causing injury to her knees.
[10] Application to Admit Late Documents (AALD) dated 27 August 2021, p 2.

Statement of Ms Angela Gibbons, process worker

Ms Gibbons provided a statement dated 13 February 2019.[11] She indicated that there was a long history of conflict between her and the respondent and said that the respondent was constantly attacking her.
[11] Reply to Application to Resolve a Dispute (reply), pp 3–6.
She referred to the incident on 7 February 2019. She said:
“I pushed the big blue tub to the end of that line, where it is supposed to go. There was a euro tub in the place where the big blue tub should be, so as I went to move (pull) the euro tub, and [the respondent] has come from behind me, without me noticing that she was there and said in an aggressive loud tone, words to the effect ‘Don’t put the blue tub in that spot.’ I replied in a normal tone ‘I can. Glenn [Chuter, plant manager] said we have to do this.’
When [the respondent] had said this to me, I just walked away …”.[12]
[12] Statement dated 13 February, [19]–[20].
Ms Gibbons denied any knowledge of the tub hitting the respondent, denied she threw the tub at the respondent and asserted that the respondent did not mention anything to her at the time. She stated that the respondent left the floor for a while and when she returned, she was limping. Ms Gibbons advised that she attributed the limp to an earlier incident involving another worker in which the respondent had apparently come in contact with a tub.
Ms Gibbons said that she watched the CCTV footage with the floor manager, and it showed that she had not done anything wrong.
Ms Gibbons provided a further statement dated 23 November 2020 in response to the statement of Mr Lakis.[13] She denied that she behaved in the manner described by Mr Lakis and said that it was not in her nature to behave that way. She denied that she argued with the respondent and that she “targeted” her. Ms Gibbons asserted that the respondent was the instigator of the contretemps between them and described the respondent as incompetent.
[13] Reply, pp 60–63.
Ms Gibbons reiterated that she did not hit the respondent with the tub. She added that she and Mr Lakis had been in a relationship and that she believed that the allegations made about her by him were an attempt at retribution for her ending the relationship.

Statement of Ms Kaylene Wood, supervisor

Ms Wood made a statement dated 13 February 2019.[14] Ms Wood advised that she had seen the CCTV footage of the incident alleged by the respondent, and she believed that Ms Gibbons had moved the steel tub away, the respondent had walked into the tub, putting her hands down to prevent the tub from touching her. Ms Wood said that there was then a conversation between the two, then the respondent walked away. She said that the respondent was not limping, but she did observe the respondent limping later that day. She said that she was made aware that the respondent had sought first aid treatment that day, complaining of an incident involving one of the tubs.
[14] AALD dated 27 August 2021, pp 32–36.
Ms Wood said that, after she watched the CCTV footage, the respondent and Ms Allen, the union delegate, came into the room and watched it. She mentioned that Ms Allen argued that she had seen Ms Gibbons make a motion of pushing the tub into the respondent, and Mr Chuter argued that he did not think that the incident was deliberate.

Ms Wood advised that there had been a long-standing conflict between the respondent and Ms Gibbons, and some of the incidents were formally investigated. She described Ms Gibbons as being a “minor party” in the reported conflicts. She indicated that, in her investigations about the respondent’s complaints, the complaints were usually not substantiated.
In a second statement, dated 23 November 2020,[15] Ms Wood denied the allegations that she and Ms Gibbons bullied the respondent and denied the allegations made by Mr Lakis. She advised that it was the respondent who was the instigator of problems at work.
[15] Reply, pp 64–68.

Statement of Mr Glen Chuter, plant manager

Mr Chuter provided a statement dated 27 February 2019.[16] Mr Chuter described a long history of conflict between the respondent and Ms Gibbons, and numerous complaints made by the respondent about incidents with Ms Gibbons and, at times, other workers. Mr Chuter said that allegations of physical incidents were not substantiated by CCTV footage. He considered that the incidents involving verbal conflicts were “normal day to day interaction between people”,[17] and described Ms Gibbons as a “minor party in the alleged conflicts.”[18]
[16] AALD dated 27 August 2021, pp 13–17.
[17] Statement, [12].
[18] Statement, [15].
Mr Chuter referred to the complaint made by the respondent in respect of an alleged incident on 7 February 2019. He said the respondent came to his office, walking with a heavy limp, and handed him a written complaint that Ms Gibbons threw a tub at her. He said that he and Ms Wood viewed the CCTV footage and it was clear that there had not been a tub thrown at the respondent and there was no visible contact. He observed that the respondent had walked up to the tub, rather than the tub being thrown at her. He said that he then spoke to Ms Gibbons, who said that she was not aware of any physical incident having occurred.

Statement of Ms Natalie Haywood, process worker

In a statement dated 13 February 2019, Ms Haywood advised that she had been told by Brad Howlett that he had accidentally bumped into the respondent with a tub. She said that shortly afterwards, on the same day, she observed Ms Gibbons and the respondent, one pushing and the other pulling a blue tub at the end of the boning line.[19]
[19] AALD dated 27 August 2021, pp 27–29.

Statement of Mr Brad Howlett, process worker

Mr Brad Howlett provided a statement dated 18 February 2019.[20] He stated that, at about 5.30 am on 7 February 2019, he bumped into a tub, which caused other tubs to move about a half a metre. He said that the respondent was walking near the tubs, she moved out of the way and extended her arm toward the tub. He thought that the tub had not made contact with the respondent, but if it had, it would have made minimal contact. He said that the respondent appeared to be walking normally afterwards.
[20] AALD dated 27 August 2021, pp 39–41.

Statement of Ms Kylie Napoli, trainer, process worker and first aid officer

In her statement dated 18 February 2019,[21] Ms Napoli advised that on 7 February 2019 at about 9.10 am she was approached by the respondent who requested first aid. She said that the respondent was not limping at that time, but when she observed her later that day, she was then limping. She stated that she was advised by the respondent that a fellow employee had purposely and forcibly pushed a tub into her, hitting her upper thighs.
[21] AALD dated 27 August 2021, pp 44–46.

The surveillance material

Surveillance undertaken by Virtual Intelligence investigators consisting of about two hours of video was conducted of the respondent’s activities on 7 April 2019 and 12 April 2019, when the respondent attended her daughter’s football games. Surveillance was also attempted on 6 April 2019 and 28 April 2019, but the respondent was not sighted. A surveillance report dated 30 April 2019 was generated.[22]
[22] Reply, pp 21–30.
On 7 April 2019, the respondent was filmed between 10.30 am and 12.30 pm. The respondent was seen walking and standing in the spectator area. At 10.34 she bent to pick something up from the ground. On 12 April 2019, the respondent was observed from approximately 7.00 pm, standing at a fence with both arms resting on the fence, bending several times to pick up her drink bottle. The respondent walked to the other end of the field, where she sat with her daughter who had been injured. She was seen standing, sitting and bending from time to time. For a short period, she nursed her daughter’s leg, with her left leg crossed over her right leg. The respondent was also seen walking back to her car after the game.

The CCTV footage

I have viewed both the footage from camera 7 and that from camera 8. The footage shows that the silver/grey tub came in contact with the respondent’s body. For the reasons set out below, I do not consider it necessary to provide an in depth commentary of the incident, save to say that the footage is not inconsistent with the description provided by the Member.

The relevant medical evidence

Dr Malak Makarious, general practitioner

The respondent attended Dr Makarious, her treating general practitioner, on 7 February 2019. Dr Makarious diagnosed a soft tissue trauma to the right knee and thigh, together with an adjustment disorder. She attended again on 11 February 2019, and Dr Makarious noted bruising to the lateral aspect of the right knee.[23]
[23] ARD, p 395.
A number of certificates of capacity were issued by Dr Makarious. On 7 February 2019, 11 February 2019 and 13 February 2019, Dr Makarious certified that the respondent had no capacity for work because of trauma to the right knee and thigh, and an adjustment disorder.[24] The mechanism of injury was described as a tub being thrown at the respondent by a co-worker following a workplace disagreement. From 18 February 2019 to 20 May 2019, Dr Makarious certified the respondent as being fit for normal hours of work, in accordance with a return to work plan, which required the respondent to not work with or in the same section as Ms Gibbons.[25]
[24] ARD, pp 152–160.
[25] ARD, pp 161–180.

Dr Majella Soumakiyan, general practitioner

The respondent consulted a different general practitioner from 19 June 2019, Dr Majella Soumakiyan. Dr Soumakiyan certified that the respondent had no capacity for work from 19 June 2019 to 13 April 2020 as a result of a right knee tear of the posterior horn of the lateral meniscus and anxiety due to workplace bullying.[26]
[26] ARD, pp 181–194.

First aid treatment note

An entry made on 7 February 2019 at 9.10 am in the appellant’s first aid treatment notes recorded:
“Julie presented herself to First Aid stating that a fellow employee pushed a euro tub with force into both of Julie’s upper legs. Slight swelling in the right leg.
Treatment - ice pack 15 mins on both legs, informed Julie to return for further treatment if required.”[27]
[27] ARD, p 504.

Ms Michele Jackson, psychologist

Ms Michele Jackson provided psychological counselling to the respondent regularly from 20 May 2019. She responded to questions posed by the respondent’s legal representatives in a report dated 23 March 2021.[28]
[28] ARD, pp 148–151.
She recorded a history of the respondent having experienced bullying and harassment by Ms Gibbons. Ms Jackson noted the respondent suffered from work related symptoms in her back and that on 7 February 2019, Ms Gibbons pushed a large stainless steel tub intentionally into the back of the respondent’s knee.
Ms Jackson diagnosed the respondent as suffering from panic attacks, an adjustment disorder with mixed anxiety and depression, as well as a chronic pain disorder. She advised that the respondent’s anxiety and depression were improving but that the respondent had not adjusted to her physical disabilities, which would prolong the recovery from her psychological condition. Ms Jackson was of the view that the respondent did not have any capacity for work and would not have any capacity in the long term. She added that the respondent’s chronic pain was persisting, an attempt to retrain the respondent did not succeed because of her mental health, and her fluctuating symptoms were unpredictable. Ms Jackson indicated that, as a result, the respondent was unable to work and, given her age and disabilities, she was not likely to be employable. Ms Jackson opined that the respondent’s incapacity resulted from the work-related injuries.

Dr Ashish Diwan, spinal surgeon

The respondent was referred to Dr Diwan for treatment of her back injury. He provided a report dated 5 May at the request of the respondent’s legal representatives.[29] He noted the history of injury to the back in October 2018 and that the respondent complained that her symptoms had worsened since that injury. He said that a further injury had occurred when her right knee was impacted by a bucket, causing additional pain. Dr Diwan diagnosed severe osteoarthritis in the lower back, with grade 2 listhesis, stenosis, and disc herniations at the L2/3, L3/4 and L4/5 levels of the back. He assessed the respondent’s capacity for work, recommending a limitation on bending and twisting movements and restricting repetitive lifting to 3–5 kilograms. He opined that the limitations on the respondent’s capacity were as a result of the respondent’s duties involving repetitive bending, lifting and twisting in the course of her employment.
[29] AALD dated 28 July 2021, pp 7–8.

Dr Richa Rastogi, consultant psychiatrist

Dr Rastogi examined the respondent at the respondent’s legal representatives’ request and provided a report dated 15 October 2019.[30] She noted the respondent’s physical injuries and recorded a long history of the respondent’s grievances and allegations of bullying. She reported that the respondent was stood down on 20 May 2019.
[30] ARD, pp 128–135.
Dr Rastogi recorded the respondent’s psychological issues and difficulties. She diagnosed the respondent as suffering from a chronic adjustment disorder with depressed and anxious mood. She was of the opinion that the respondent had no current capacity for work, but in the future, from a psychological perspective, may be able to work part-time with a different employer. Dr Rastogi pointed out that the respondent also had physical restrictions which made future vocational options challenging, so that overall, the respondent had very limited prospects of obtaining and keeping a vocational role in the future.
Dr Rastogi provided a further report, dated 23 October 2020,[31] following review of reports obtained by the appellant from Dr Kaplan and Dr Doron Samuell, psychiatrists, both of whom considered that the CCTV footage showed no evidence of the alleged incident on 7 February 2019. Dr Rastogi indicated that she had not seen the CCTV footage. She noted the various opinions that asserted the CCTV footage did not show evidence of the incident on 7 February 2019, but considered that the long history of perceived victimisation over time resulted in the respondent’s psychological injury. That is, the injury occurred as a result of the cumulative effect of her experiences in employment rather than the specific incident on 7 February 2019.
[31] ARD, pp 138–140.
On 11 November 2020, Dr Rastogi again reported to the respondent’s legal representatives, following provision to her of the CCTV footage.[32] She advised that she was unable to assess the evidence because of the quality of the footage, however she maintained her opinion previously expressed.
[32] ARD, p 141.
On 2 August 2021, Dr Rastogi reported that she had viewed the surveillance footage, which she said was taken when the respondent was partially incapacitated for work and prior to her assessment of the respondent on 15 October 2019. She noted that the respondent was not working at the time of her assessment because of her psychological condition, which post-dated the footage. Dr Rastogi confirmed her opinion that the respondent suffered a psychological injury as a result of the cumulative effects of her experiences in the employ of the appellant.[33]
[33] AALD dated 27 August 2021, pp 77–78.
On 5 August 2021, Dr Rastogi wrote to the respondent’s legal representatives, advising them that:
“This is further to my previous report provided on 2nd August 2021. My opinion is based on CCTV footage provided on 12th April 2019 and 28th April 2019 of one hour and 17 seconds.”[34]
[34] AALD dated 26 October 2021, p 1.

Dr Vijay Maniam, orthopaedic surgeon

Dr Maniam examined the respondent in respect of her back and right knee injuries at the request of the respondent’s legal representatives. He provided a report dated 10 August 2020.[35] He described the mechanism of injury to the right knee as follows:
“One of the workers, Angela, pushed a blue tub towards the end of the line. She was walking backwards at that time, and the tub was a steel euro tub, and it subsequently hit her knees. The impact was severe.”
[35] ARD, pp 110–125.
Dr Maniam diagnosed a soft tissue injury to the right knee, which may have been suggestive of pre-patella bursitis, and degenerative disease of the lumbar spine. He concluded that the right knee injury was caused by an impact on the knee from the stainless steel tub.
Dr Maniam noted that the respondent had minimal loss of work after the injuries but was stood down because of allegations of psychological harassment. He considered that her physical limitations rendered her unfit for work involving pushing, pulling, repetitive bending and twisting of the trunk, heavy lifting, working at a fast pace and standing all day.
On 30 October 2020, Dr Maniam responded to the respondent’s solicitor’s enquiry in relation to the CCTV footage.[36] Dr Maniam advised that he had reviewed the footage and considered that it did not cause him to alter his opinion expressed in his earlier report.
[36] ARD, pp 126–127.

Dr Vidyasagar Casikar, neurosurgeon

Dr Casikar was asked by the appellant to examine the respondent and provide an opinion in respect of the respondent’s back injury and the alleged injury to the right knee. He provided a report dated 9 May 2019.[37] He took a history of the respondent experiencing back pain for several months, which increased on 23 October 2018. He also noted that the respondent complained of an injury to the right knee in February 2019 when she was knocked by a steel tub. Dr Casikar observed that there was some inconsistency between the respondent’s account of what happened and “the report from the CCTV camera.” He diagnosed degenerative disease of the lumbar spine and a soft tissue injury to the right knee.
[37] Reply, pp 31–35.
Dr Casikar considered that the respondent’s work capacity was limited. He noted the respondent was performing work which was less demanding than her pre-injury duties. He was of the view that the respondent’s emotional issues needed to be addressed, following which the respondent could return gradually to her pre-injury duties. Dr Casikar noted that the right knee injury was “controversial.”

Dr Kim Edwards, surgeon

Dr Edwards provided a report dated 13 May 2019 at the request of the appellant.[38] Relevantly, he took the history that, on 7 February 2019, the respondent was performing her usual job when a co-worker grabbed a tub to move it out of the way and the tub made contact with the respondent’s legs, causing her knees to ache. Dr Edwards said that he had watched the CCTV footage from camera 8 and observed that a co-worker in a yellow vest moved a tub which appeared to be steel out of the way, the respondent moved a blue tub and then both workers walked away. He indicated that there was no footage of any incident.
[38] Reply, pp 36–42.
Dr Edwards opined that he could not find any objective clinical evidence of an injury to the right knee and considered that there was no evidence that the respondent suffered a right knee injury at work. He noted that the respondent was working normal hours in a rotating job, and, in his view, she was fit for normal work.

Dr Doron Samuell, psychiatrist

Dr Samuell was retained by the appellant to examine the respondent and provide an opinion on liability. He reported to the appellant on 25 March 2020.[39] He recorded a history of work-based issues causing psychological distress, including the incident on 7 February 2019. He described that incident as a co-worker forcefully pushing a tub backwards toward the respondent, hitting her on the knees. Dr Samuell reported that the respondent said that her anxiety had worsened since February and May 2019, and since being put off work on 20 May 2019. He considered that the respondent’s self-reporting of the incident on 7 February 2019 was unreliable and her complaint of symptoms was questionable. He advised:
“You have informed me that an investigation into the claimed incident, including a review of the CCTV footage that you have kindly provided to me, demonstrated that no such incident occurred. If the investigation findings are accurate, then Ms Smith’s claims at interview are puzzling. She was not experiencing clinically significant anxiety before going off work, and I note that she was able to return to work after the claimed incident. Therefore, if she is accurate about reporting her anxiety symptoms, given the evidence against her accusation, her anxiety could not be meaningfully connected to the workplace events.”[40]
[39] Reply, pp 47–56.
[40] Reply, p 55.
In respect of the respondent’s capacity to work, Dr Samuell remarked that it was difficult to assess, noting that the respondent was able to work until suitable duties were withdrawn. Dr Samuell was of the view that the respondent could work at least 20 hours per week without restrictions.
In a short report dated 25 March 2020, Dr Samuell opined that the respondent suffered no whole person impairment because she had not suffered a work-related injury.[41]
[41] Reply, p 57.

THE MEMBER’S REASONS

The appellant’s allegations of error on the part of the Member are limited to the conclusions reached by the Member in relation to the issues identified at [12] above. It is therefore not necessary to summarise the entirety of the Member’s reasons and the following summary is limited to a review of the findings and reasons that are the subject of this appeal.
The Member identified the matters in dispute. He summarised the respondent’s statement evidence, as well as that of Ms Gibbons, Ms Wood, Mr Chuter, Mr Lakis and Ms Allen. He considered that the statements of Mr Howlett and Ms Haywood were not probative or relevant and should be afforded no weight. He further summarised the medical evidence.
The Member referred to the CCTV and surveillance footage, noting that the surveillance footage was conducted in April 2019 and the CCTV footage was taken from a number of different camera angles on 7 February 2019, at the time the respondent alleged injury.
The Member indicated that he had:
“… closely watched the relevant CCTV footage, which was identified by counsel for the [appellant] as commencing at ‘Cam 7’ and ‘Cam 8’ at 9.05:15 on 7 February 2019. Cam 7 was of some assistance in providing a view of the location of the alleged incident in question and a somewhat longer distance view of the movements of the [respondent] and Ms Gibbons. Cam 8 provided an overhead somewhat wide angled view at a significantly closer distance than that of Cam 7, although the precise distance to the [respondent] and Ms Gibbons was not identified.”[42]
[42] Smith v Inghams Enterprises Pty Ltd [2022] NSWPIC 141 (reasons), [93].
The Member recorded in detail his observations of what was shown on each camera. In relation to Camera 7, he said:
“I observed from Cam 7 Ms Gibbons pushing the blue bin towards the end of the production line, visible near the top left of the screen, heading generally in a similar direction as the [respondent], ... Ms Gibbons ceased moving the blue tub and moved around it and reached with her left hand to an object located in front of the blue tub, that is closer to the [respondent] … Ms Gibbons reached towards the object, the [respondent] commenced to move towards Ms Gibbons. Ms Gibbons proceeded to pull the object backwards and to her right at the same time as the [respondent] approached Ms Gibbons, over about three or four steps. I observed the object, which is identified more clearly in Cam 8 as a silver grey bin, come into contact with the lower part of the [respondent]’s body. At this point in the footage the [respondent’s] body was next to that of Ms Gibbons and facing the silver grey bin. … I observed the object to come into contact with the [respondent’s] upper right leg, including her right knee, and I saw the [respondent’s] upper body move forward over the bin at the same time … .”[43]
[43] Reasons, [95].
In relation to Camera 8, the Member said:
“I observed from Cam 8 the [respondent] walked into the vision around the corner of the production line and then moved out of the picture at the bottom of the screen. Shortly afterwards, Ms Gibbons walked around the same corner moving in the same direction as the [respondent], and moved a blue bin, continuing in the same direction, towards the production line to a position close to an apparently smaller silver grey bin located in the bottom right of the picture. Ms Gibbons moved around the blue bin and took the edge of the silver grey bin with her left hand. At the moment Ms Gibbons took hold of the bin, her body was facing the bin and she was looking down at the bin. This footage appeared at the bottom right of the screen and the approach of the [respondent] could not be seen until the top of her head appeared at the bottom of the screen, apparently very close to the silver grey bin. The [respondent’s] left arm was outstretched towards the left side and to the closest short edge of the rectangular bin, close to where Ms Gibbons was pulling the left corner of the bin, closest to Ms Gibbons, as it appeared in the picture. At this time the [respondent] had moved to be close to Ms Gibbons and to her right. Ms Gibbons continued to pull the bin with her left hand back towards her right as the [respondent’s] upper body come into the upper picture. The [respondent’s] upper body obscured the part of the bin closest to her, and her lower body was not in the picture. I observed Ms Gibbons to release the hold of her left hand on the bin at the same moment as the bin appeared to move very close to the [respondent’s] lower body and as the [respondent’s] upper body moved over the bin. Ms Gibbons then moved away from the silver grey bin, and away from the [respondent]. … At no point did I observe Ms Gibbons to look towards the [respondent] until the [respondent] moved next to her at the blue bin. Ms Gibbons looked at the [respondent] at that time as the [respondent] pointed with her left hand. Ms Gibbons commenced to move away from the [respondent] and made a gesture with her left hand by raising her left lower arm and lowering it with the palm of her left hand facing down as she walked away from the [respondent]. It appeared to me that a brief conversation had taken place.”[44]
[44] Reasons, [96].
The Member referred to the respondent’s evidence that the impact was with a “Euro tub” and the evidence from Ms Gibbons that the tub she was moving was a “Euro tub”. He concluded that the silver-grey tub in the footage was a stainless steel Euro tub. He noted that there was no dispute the Euro tub weighed 40 kilograms. The Member reasoned that, as he had viewed the footage himself, the evidence of lay witnesses, who commented upon the footage and were not expert in the interpretation of CCTV footage, was of no assistance to him. He concluded that the Euro tub came into contact with both of the respondent’s legs, including her right knee.

The Member observed that, having found the incident took place he was not required to find that the tub was thrown at the respondent. He said, however, that in the light of the attack on the respondent’s credit and on the histories recorded by the medical experts, he would consider the issue.
The Member quoted from Tobias JA in Asim v Penrose & Anor[45] and observed that he should approach the CCTV and surveillance with “extreme caution.” He identified difficulties with the footage in respect of the distant view provided by camera 7 and the wide-angled view from camera 8, in which the respondent’s lower body was partially out of camera range.
[45] [2010] NSWCA 366 (Asim), [57]–[58].
The Member considered that the CCTV footage showing that the tub struck the respondent’s body was sufficient to accept that the respondent perceived, on the basis of a real event, that the tub had been thrown at her. He concluded that the evidence did not impugn the respondent’s credibility or reduce the weight to be afforded to the medical opinions which were based on the incident occurring. The Member added that, taking a cautious approach to the CCTV interpretation of the footage, it was not necessary to make a determination as to Ms Gibbons’ credibility because her denial of any intention was not inconsistent with the CCTV footage.
The Member referred to the evidence of Ms Napoli, who spoke with the respondent shortly after the incident and documented the first aid treatment, which note made reference to the tub being pushed “with force.” He concluded that he did not prefer the evidence of Ms Napoli over that of the respondent in relation to what had occurred. The Member said that, in the clinical note recorded by Dr Makarious on 7 February 2019, Dr Makarious diagnosed a soft tissue injury to the right knee and thigh and an adjustment disorder, which was consistent with the first aid note, the medical certificate issued by Dr Makarious that day and the respondent’s evidence.
The Member pointed to:
(a)    the first aid note, which recorded slight upper leg swelling;
(b)    the physiotherapist’s note on 7 February 2019 of the occurrence of a recent work injury which impacted the respondent’s progress;
(c)    Dr Markarious’ notation of bruising to the right knee on 11 February 2019, and
(d)    the evidence that the respondent was stressed and anxious.
He considered that that evidence was not inconsistent with an injury to the right knee on the pleaded date and concluded that he was satisfied the respondent suffered an injury to the right knee on 7 February 2019.
The Member proceeded to determine the issue as to whether the respondent suffered a psychological injury and was satisfied that the evidence of conflict in the workplace and the entries in the clinical notes from the Tahmoor Medical Centre was consistent with the emergence of a psychological injury occurring over time.
The Member referred to the submission made at arbitration that no weight should be afforded to the evidence of Mr Lakis and Ms Allen and rejected that submission. He said that Ms Allen confirmed that the respondent had complained to her of harassment by a co-worker over a period of two years, which was consistent with the evidence of Mr Chuter that there had been long standing conflict between the respondent and Ms Gibbons. The Member said that Mr Lakis also stated that he had seen the respondent and Ms Gibbons arguing, which was consistent with the evidence of Mr Chuter and with the respondent that there was a real conflict over the years between the respondent and Ms Gibbons. The Member considered that Mr Chuter’s evidence confirmed that the respondent had made complaints about Ms Gibbons, which, from December 2018, were not infrequent.
The Member said that he did not prefer the evidence of Ms Gibbons over that of the respondent. He referred to the respondent’s evidence that there had been three conversations with Ms Gibbons at the time of the incident on 7 February 2019. He referred to Ms Gibbons’ evidence that she walked away after the first conversation and that she denied that the respondent complained to her of being hit with the bin. The Member observed that her evidence was inconsistent with the CCTV footage, in which he observed that there had been a further conversation. He added that caution should be adopted in weighing the evidence of Ms Gibbons in response to the evidence of Mr Lakis. He said it was provided in response to leading questions posed by an investigator without being given in context and appeared to be an attempt to establish collusion on the part of the respondent and Mr Lakis. He added that any weight to be given to the evidence of Ms Gibbons that she would discuss work matters with the respondent, who would take offence at the feedback, would not assist the appellant. He determined that it was evidence of continuing conflict between Ms Gibbons and the respondent. The Member observed that Ms Gibbons was not the respondent’s supervisor. He noted that Ms Gibbons asserted that the respondent was not competent at her job, which was not suggested by either Mr Chuter, the plant manager, or Ms Wood, the respondent’s supervisor. He said that Ms Gibbons either did not like or did not respect the respondent, which called for caution in relation to the weight to be afforded to her evidence.
He concluded that he did not afford any weight to the statements of Ms Gibbons. He said that the same caution should be used in considering the evidence contained in Ms Wood’s statement dated 23 November 2020 because, other than a lengthy account of Mr Lakis’ cessation of employment and the reasons for it, Ms Wood only gave short answers to questions posed by the investigator. The Member said that in any event, her evidence did not assist the appellant. He referred to Ms Gibbons’ evidence that they had CCTV evidence that the respondent was the instigator of the dispute between Ms Gibbons and the respondent. The Member said that this evidence was inconsistent with the CCTV footage of the incident.
The Member further referred to the general practitioner’s clinical notes of complaints made by the respondent about feeling unsupported and the evidence of Mr Chuter and Ms Wood, which acknowledged that there was a long history of workplace conflict between the respondent and Ms Gibbons. He considered that Mr Chuter’s evidence about what was evident on the CCTV footage was not available on the evidence.
The Member rejected the submission that the respondent was not assisted by the absence of evidence from the union delegate, who had seen the CCTV footage on 7 February 2019, because in his view, Ms Wood recounted the arguments put by the union delegate. He also noted that Mr Chuter acknowledged that the union delegate was present but did not refer to the delegate raising an argument about what was seen on the footage.
The Member discussed relevant authorities as to what was required in order to establish a psychological injury, as summarised in Attorney General’s Department v K.[46] He concluded that the events complained of by the respondent were real, the respondent regarded the work environment as hostile, and, on the basis of the opinion of Dr Rastogi, he was satisfied that the respondent suffered a psychological injury as a result of the events and the work environment.
[46] [2010] NSWWCCPD 76, [52].
The Member referred to the surveillance evidence that was obtained in April 2019. He considered that the footage did not show anything that was inconsistent with the respondent’s allegations, or any strenuous activity performed by the respondent. He said that on at least one occasion, the respondent’s gait was not inconsistent with a limp. He rejected the assertion made by the appellant that the respondent returned to normal duties prior to May 2019. He pointed to the evidence that the respondent was working on restricted duties because of her back condition and that the entries in Dr Makarious’ clinical notes recorded complaints of continuing lower back symptoms on 8 January 2019 and 25 January 2019.
The Member rejected the view taken by Dr Edwards that it was difficult to see how the tub struck the respondent above the knee or on the knee on the basis that it was mere supposition. He accepted the opinions of Dr Diwan and Dr Maniam that the respondent suffered an aggravation of degenerative changes in the lumbar spine as a result of the requirements of her work over the period of her employment.
The Member provided reasons for determining that the respondent’s employment was the main contributing factor to the respondent’s psychological injury and the back injury, and a substantial contributing factor to the right knee injury, which constituted a disease injury within the meaning of s 4(b)(ii) of the 1987 Act.
The Member proceeded to consider the issue of the respondent’s capacity for work. He observed that the respondent had an injury to her right knee, lumbar spine and a psychological condition. He further observed that she had worked for the appellant for approximately 30 years, her skills and experience were limited to process work, and she was 58 years old. He noted that Dr Maniam, Dr Rastogi and Ms Jackson were of the opinion that the respondent was not fit for her pre-injury duties. He referred to Dr Maniam’s opinion that, on the basis of her physical injuries, the respondent was able to perform restricted duties and to Dr Rastogi’s opinion that the respondent had no capacity for work as a result of her psychological injury. He concluded that he was satisfied that the respondent was not fit for her pre-injury duties.
The Member referred to the definition of suitable employment in s 32A(b) of the 1987 Act, which in part provides that no regard is to be had as to whether suitable work is available and whether it is the type of work that is generally available in the employment market. He cited the Presidential authority of Wollongong Nursing Home Pty Ltd v Dewar,[47] which sets out the principles to be applied in determining capacity for work in accordance with s 32A and observed that the suitable employment must be a “real job”.
[47] [2014] NSWWCCPD 55 (Dewar).
The Member noted that the respondent was provided with duties until May 2019 which excluded the manual component of her job and removed her from working in contact with Ms Gibbons. He did not consider that the duties provided would be a “real job” in the outside world. He reasoned that, at that time she was stood down, the respondent had been working for the appellant for thirty years, was 56 years old at the time of cessation of that work, her experience was restricted to specific job skills and her restrictions were accommodated. He concluded that he was satisfied that the work the respondent was performing with the appellant up until May 2019 did not constitute “real” employment in the sense described in Dewar. He further concluded that on the basis of the respondent’s injuries to her knee and back and her psychological injury, together with the opinions of Dr Rastogi, Dr Maniam and Ms Jackson, the respondent was not able to return to suitable work and thus had no capacity since 20 May 2019.
The Member indicated that the respondent’s pre-injury average weekly earnings figure was $1,409.02, if based upon the taxation documents, or, if based upon the wage material, was $1,361.06. He noted that neither figure was the respondent’s pre-injury average weekly earnings because it was not calculated over the required pre-injury 52 week period, which commenced on 7 February 2018 and ceased on 6 February 2019. He considered that it was appropriate that, if the respondent’s pre-injury average weekly earnings could not be agreed between the parties, the parties should have liberty to apply in order to have the issue determined. He added that he could not determine the respondent’s rate of compensation after the first 130 weeks because certain criteria had to be satisfied pursuant to s 38 of the 1987 Act.
The Certificate of Determination issued on 5 April 2022 records:
“The Commission determines:
1. The [respondent] sustained chronic adjustment disorder with depressed and anxious mood, pursuant to section 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), deemed to have happened on 7 February 2019 as a result of her employment with the [appellant].
2.     The [respondent] sustained injury to her right knee on 7 February 2019 in the course of her employment with the [appellant].
3. The [respondent] sustained aggravation of pre-existing degenerative lumbar spine disease, pursuant to section 4(b)(ii) of the 1987 Act, deemed to have happened on 23 October 2018 as a result of her employment with the [appellant].
4.     [The appellant] to pay the [respondent] weekly payments of compensation:
(a)pursuant to section 36(1) of the 1987 Act, from 20 May 2019 to 18 August 2019 at the rate of 95% of pre-injury average weekly earnings (PIAWE), and
(b)pursuant to section 37(1) of the 1987 Act, from 19 August 2019 to 19 November 2021 at the rate of 80% of PIAWE.
5.     Liberty to the parties to apply in respect of PIAWE.
6.     Matter remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment in respect of primary psychological injury deemed to have happened on 7 February 2019. Documents to be included in the brief to the Medical Assessor are the Application to Resolve a Dispute and attached documents, the Reply and attached documents, and the Applications to Admit Late Documents dated 29 July 2021, 27 August 2021, 26 October 2021 and 17 January 2022, with attached documents.”

GROUNDS OF APPEAL

The appellant alleges that the Member erred on the following grounds:
(a)    Ground A: determining the matter on a basis not put by, or to, the parties;
(b)    Ground B: making a determination about the CCTV footage which was not based on any evidence or was against the weight of the evidence;
(c)    Ground C:
(i)excluding the evidence of Dr Roberts, and
(ii)accepting the evidence of lay witnesses, despite the appellant objecting to that evidence, and
(d)    Ground D: failing to give reasons “in respect of the evidentiary matters referred to in [G]round C”.

The appellant indicated in the appeal that it may bring a further ground of appeal after the transcript was issued. Following receipt of the complete transcript, the appellant lodged further submissions, said to be in relation to the transcript. In those submissions, the appellant agitated a further ground of appeal in respect of the Member’s finding of the deemed dates of injury.
The respondent submits that the appellant is out of time within which to raise a new ground of appeal and has failed to provide a reasonable basis upon which the ground could not have been raised within time. The respondent asserts that the argument now sought to be raised was not one that had been advanced at arbitration and causes prejudice to the respondent. The respondent cites various authorities that establish that a party is bound by the conduct of his or her case and that except in exceptional circumstances, it is contrary to all principle to allow a new argument on appeal.
The appellant did not formally seek leave to raise a new ground of appeal and did not provide reasons why this ground could not have been included at the outset. The appellant had in its possession the Certificate of Determination in which the findings were recorded, as well as the Member’s attached Statement of Reasons at the time it lodged the appeal. In the absence of any particular reference to the transcript it is difficult to comprehend why the ground could not have been relied upon at the outset.
The opportunity given to an appellant to lodge supplementary submissions following receipt of the transcript is not one to raise fresh grounds of appeal.[48]
[48] Handley v Canterbury City Council [2020] NSWWCCPD 59, [87]; Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4, [56]–[58].
The respondent indicates that it would be prejudiced if the appellant was permitted to raise this fresh ground of appeal.
In the absence of an application for leave to raise a new ground, accompanied by reasons as to why the ground could not have been raised at the outset, I decline to grant leave to the appellant to raise the further ground of appeal.

LEGISLATION

Section 32A(1) of the 1987 Act defines “suitable employment” as:
“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.”
Section 43 of the 2020 Act provides:
“43    Procedure before Commission generally
(1)     Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)     The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
Clause 9 of Schedule 3 to the 1987 Act provides:
“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.”
Clauses 43 and 44 of the Workers Compensation Regulation 2016 (the 2016 Regulation) provide as follows:
“43    Definitions
In this Part—
claim means a claim for compensation payable or claimed to be payable under the 1987 Act.
medical assessor has the same meaning as in the 1998 Act.
proceedings means proceedings before the Commission or the District Court.
work injury damages threshold dispute means a dispute within the meaning of section 314 of the 1998 Act.
44     Restrictions on number of medical reports that can be admitted
(1)     In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2)     A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3)     Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
(4)     In this clause—
forensic medical report, in relation to a claim or dispute—
(a)means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b)includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c)does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.”

SUBMISSIONS

As to Ground A

The appellant’s submissions

The appellant submits that the reasons provided by the Member in relation to the CCTV footage and the surveillance were based on matters that were not the subject of submissions by the parties or raised with the parties by the Member, which is a denial of procedural fairness.
The appellant submits that, following a review of the transcript, it is apparent that the parties’ submissions were limited to addressing what could be seen on camera 8, and no reference was made to camera 7. The appellant adds that it has again reviewed the footage from camera 7 and says that what can be seen on the footage is not consistent with the respondent’s submissions, and in fact, is more consistent with the submissions made by the appellant. The appellant contends that the Member’s suggestion that the footage of camera 7 shows contact with the knees is not correct.

The respondent’s submissions

The respondent submits that the appellant’s submissions as to what was apparent on the footage are merely seeking to re-agitate its arguments made at arbitration. The respondent asserts that the appeal ground, which seems to raise issues of procedural fairness, is baseless.
The respondent points out that the appellant adduced evidence, without objection from the respondent, which included camera angles taken by camera 7 and camera 8. The respondent says that camera 7 and camera 8 were specifically identified by the Member as being relevant when the admission of the footage was considered. The respondent submits that, even though the appellant adduced that evidence, it now complains that the Member reviewed the evidence and made findings and observations about that evidence. The respondent asserts that, for that reason alone, the appellant’s ground of appeal should fail. The respondent refers to various authorities as to what constitutes procedural unfairness and submits that the matter about which the appellant complains was inherent to the dispute and the issue to be decided. That is, whether the steel tub came into contact with the respondent.
The respondent contends that, in any event, the appellant’s submission is contrary to the manner in which the matter proceeded. The respondent refers to the transcript, which she says confirms that:
(a)    the Member identified both camera 7 and camera 8 prior to the commencement of the proceedings;
(b)    the appellant did not assert that camera 7 was not relevant, or make any distinction between the camera angles;
(c)    the appellant’s counsel sought to make submissions in respect of both camera angles by identifying two camera angles and by referring to the evidence provided by the appellant’s factual investigator, and
(d)    the appellant invited the Member to review the footage in its entirety at his own leisure, and to form his own view based upon those observations.
The respondent asserts that the ground raised by the appellant cannot be substantiated and should be withdrawn, but if it is not, the appeal ground should be dismissed.

As to Ground B

The appellant’s submissions

The appellant submits that the evidence, particularly that contained in the CCTV footage, does not support the Member’s conclusion as to what was recorded on the footage, and in fact contradicts the finding. The appellant contends that the footage does not show the incident with the steel tub described by the respondent and establishes that no such incident occurred. The appellant points to the evidence of “multiple witnesses” and also nominates Dr Edwards and Dr Roberts, who all viewed the footage and came to that conclusion, which was consistent with the views of both the appellant’s solicitor and counsel.
The appellant asserts that, in the alternative, the Member’s finding was against the weight of the evidence. The appellant points to the Member’s reference to Asim and submits that that authority can be distinguished because in this case, the footage is not of poor quality and this case does not involve the rejection of expert evidence about the footage.
The appellant refers to the respondent’s evidence that the tub had been “thrown” at her, it was an intentional assault, and the impact was “severe”.
The appellant contends that the finding that the respondent had no capacity for work was also against the weight of the evidence. The appellant refers to the respondent’s ability to carry out her duties without complaint, performing unrestricted hours and without restrictions on her capacity until she was stood down. The appellant points to the evidence of Dr Samuell that the respondent could work 20 hours per week without restriction and the opinion of Dr Maniam that the respondent had some capacity for work but would possibly have some impairment to that capacity in the future. The appellant refers to the opinion of Dr Rastogi that the respondent had no capacity for work but submits that that opinion must be considered in the light of the respondent’s activities disclosed in the surveillance material. The appellant adds that both Dr Edwards and Dr Casikar were also of the view that the respondent had a capacity to work. The appellant submits that, in determining the respondent’s capacity, a consideration of the surveillance material should be conducted and the respondent’s presentation to doctors should be compared with the activities the respondent was performing when observed under surveillance.
In conclusion, the appellant reiterates that the Member’s findings in relation to the CCTV footage and in respect of the respondent’s capacity for work were not open to him on the evidence and were against the weight of the evidence.

The respondent’s submissions

The respondent asserts that this ground of appeal complains of error on the part of the Member by arriving at a conclusion that differed from the case advanced by the appellant, and that does not constitute appealable error. The respondent says that the appellant’s reference to “multiple witnesses” who did not share the Member’s conclusion and to the views held by the appellant’s legal representatives about the CCTV footage do not advance the appellant’s case.
The respondent submits that the appellant’s submission that the finding was against the weight of the evidence ignores the nature of the evidence relied upon. The respondent asserts that, just because some of the appellant’s witnesses formed a view of what was disclosed on the footage, that is irrelevant to the task of the primary decision maker in assessing the evidence of the footage. The respondent points out that evidence of an expert in CCTV footage was not adduced and asserts that the Member was in as good a position as any witness to determine what the footage demonstrated.
The respondent says that the Member reviewed the CCTV footage in detail and provided reasons as to the basis for his finding of fact, the reasoning process which underlined the finding and disclosed his legal obligation in relation to dealing with the evidence. The respondent asserts that the Member’s reasoning process was clearly available to him and was sufficient to support his factual conclusions.
The respondent refers to the authorities dealing with appeals from factual findings and what is required in order to disturb a primary decision-maker’s findings of fact. The respondent contends that the appellant’s appeal merely disagrees with the Member’s conclusions and cannot satisfy the requirements necessary to disturb those findings of fact, so that this part of the ground of appeal should be dismissed.
The respondent submits that the appellant’s complaint about the Member’s assessment of the respondent’s work capacity fails to engage with the legislation relevant to an assessment of no current work capacity. The respondent asserts that the appellant’s assertion that the respondent had capacity to work is reliant upon the fact that the respondent was at work on suitable duties prior to those duties being withdrawn. The respondent says that this submission ignores the Member’s statutory task in relation to an assessment of the capacity as set out in ss 36, 37, 33 and 32A of the 1987 Act and the concept of residual capacity as discussed in various decisions of the former Workers Compensation Commission. The respondent also refers to the definition of “current work capacity” and “no current work capacity” as defined in cl 9 of Sch 3 to the 1987 Act.
The respondent submits that the starting point for assessing the respondent’s capacity is to determine whether the respondent has “no capacity” or “current work capacity”, noting that s 32A excludes consideration of whether work is available or whether it is work that is generally available in the employment market. The respondent refers to the observations of Roche DP in Wollongong Nursing Home Pty Ltd v Dewar,[49] including that suitable employment is not restricted to light duties performed for the employer, which may or may not be suitable employment, and that a consideration of suitable employment must be determined by reference to work that the worker is physically and psychologically able to perform.[50]

As to Ground C

[49] Dewar.

[50] Dewar, [47].

The appellant’s submissions

The appellant submits that the Member was in error by excluding the report of Dr Roberts. It asserts that the Member failed to provide any reasons for its exclusion, except in relation to cl 44 of the 2016 Regulation, which provides that a party is limited to only one forensic report “in any proceedings on a claim”. The appellant asserts that these proceedings were in respect of more than one claim. The appellant says that Dr Roberts addressed the respondent’s initial claim for weekly entitlements and treatment expenses and that claim was denied, whereas Dr Samuell reported in respect of the respondent’s claim for lump sum benefit. The appellant contends that the proceedings were in respect of several claims so that the reports of both doctors should have been admitted.
The appellant submits that the Member failed to take into account Dr Robert’s view of the CCTV footage, which was relevant and should have been considered even if the report was only admitted on the basis of the history recorded. The appellant adds that the statements of Mr Lakis and Ms Allen should not have been admitted as they were of no evidentiary value because they significantly lacked specificity.

The respondent’s submissions

The respondent says that she raised an objection to the report of Dr Roberts before the recording of the arbitration commenced and some preliminary submissions were made. She submits that the Member expressed his view that the report would be rejected on the basis that it offended cl 44 of the 2016 Regulation. The respondent refers to the transcript, in which she says the background and preliminary views were recorded. She asserts that there was an agreement, which was recorded in the transcript, that if the report were to be rejected, it would be included on the basis of it being evidence of the history recorded. The respondent says that there was a discussion between the parties and the Member, following which the Member indicated he was inclined to reject the report. The respondent asserts that the appellant did not agitate the application of cl 44 to the report being admitted and instead submitted on what should be included in the history. The respondent asserts that the appellant cannot now complain about the exclusion of Dr Robert’s opinion.
The respondent submits that, in any event, cl 44 refers to “any proceedings on a claim”, and proceedings is defined in cl 43 of the 2016 Regulation to mean proceedings before the Commission or District Court. The respondent refers to Parker SC ADP’s observations in Pirie v State of New South Wales[51] that a grammatical construction of the text of cl 44 is to be applied, and the clause operates to limit the number of reports in evidence from the same specialty. The respondent adds that Parker SC ADP observed that cl 44 only operates to limit the reports to be admitted before the Commission or the District Court.
[51] [2022] NSWPICPD 4.
The respondent asserts that there was no error on the part of the Member in applying cl 44 because there was only one proceeding on a claim before the Commission in circumstances where the appellant was seeking to adduce evidence from two experts of the same speciality in these proceedings.
The respondent submits that the appellant’s allegation of error on the part of the Member in failing to allow the evidence of Dr Roberts’ observation of the CCTV footage should be rejected. The respondent contends that the Member was correct in restricting the evidence from Dr Roberts to the history taken by him once the determination about cl 44 was made and the evidence from Dr Roberts about what he observed in the footage was clearly not a matter of history. Further, Dr Roberts’ view of what was demonstrated did not constitute expert evidence and therefore could not be afforded greater weight than the Member’s own observations.
The respondent refers to the appellant’s assertion that the evidence of Mr Lakis and Ms Allen lacked specificity so should not be accepted. The respondent points out that the rules of evidence do not apply in the Commission, although the Commission should be guided by them. The respondent cites r 73 of the Personal Injury Commission Rules 2021, which requires the evidence to be logical and probative, relevant to the facts in issue and the issues in dispute, should not be speculative unsubstantiated assumptions, and provides that unqualified opinions are unacceptable. The respondent contends that the question is whether the evidence is of probative value in the context of the tribunal, citing authorities for that proposition. The respondent asserts that it is apparent that the statements referred to have significant probative value in relation to the matters in dispute and the Member provided detailed reasons for reaching that conclusion.

As to Ground D

The appellant’s submissions

The appellant submits that the Member failed to give any reasons for excluding the evidence of Dr Roberts, except for his reliance on cl 44, and failed to give reasons for excluding the views of Dr Roberts in respect of what he observed on the CCTV footage. The appellant submits that the failure to give any, or any adequate reasons, constitutes an error of law. Further, the Member failed to give reasons why the statements of Mr Lakis and Ms Allen were admitted over its objection. The appellant submits that the Commission is not bound by the rules of evidence and is required to conduct itself in accordance with s 43 of the 2020 Act.

The respondent’s submissions

The respondent relies upon her submissions made in respect of Ground C of the appeal. She adds that the extent to which a Member of the Commission is required to give reasons is dealt with in the Presidential authorities of Avnell v The Star Pty Ltd,[52] and Fire and Rescue NSW v S.[53] The respondent says that, in any event, the appellant did not ask for reasons in respect of the finding not to admit the opinion of Dr Roberts and failed to agitate the matter when pressed.
[52] [2013] NSWWCCPD 17.
[53] [2015] NSWWCCPD 50.
The respondent submits that, in order to succeed, the appellant must not only establish that the reasons were inadequate, but that their inadequacy must be such as to disclose that the Member failed to exercise his statutory duty to fairly and lawfully determine the dispute. She submits that the standard of adequacy must be measured in relation to the nature of the decision and the decision-maker. The respondent describes the Commission as an “informal and expeditious dispute resolution scheme”[54] which she says is relevant.
[54] Respondent’s submissions, [63].
The respondent submits that the Member’s reasons must be read as a whole, and the Presidential Member is not required to comb through the findings and reasons to search for error. She adds that a proper reading of the Member’s reasons and the transcript shows that the Member did not err.

THE RELIEF SOUGHT

The appellant seeks to have the Certificate of Determination revoked and a new decision made in its place, or alternatively for the matter remitted to a different Member for determination.
The respondent seeks to have the appeal dismissed.

CONSIDERATION

Ground A: the Member erred in law in determining the matter on a basis not put by, or to, the parties

The appellant asserts a denial of procedural fairness in that the reasons given by the Member in relation to the CCTV footage and the surveillance were not based upon matters that were the subject of submissions by the parties or raised by the Member.
Section 43(2) of the 2020 Act expressly permits the Commission to “inform itself on any matter in such manner” it thinks fit. However, provisions such as s 43 of the 1998 Act do not release the Commission from the obligation to comply with the rules of procedural fairness.[55]
[55] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds), [88].
The respondent set out relevant authorities in respect of a denial of procedural fairness. She referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Lam,[56] where Gleeson CJ said:
“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. ... Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[57]
[56] [2003] HCA 6; 214 CLR 1 (Ex parte Lam).
[57] Ex parte Lam, [37].
The respondent further referred to Ucar v Nylex Industrial Products Pty Ltd, in which Redlich JA observed:
“Where the risk of an adverse finding being made does not necessarily inhere in the issues to be decided or where the facts or the inference which the judge contemplates drawing from the facts and which gives rise to such a risk is unknown to the party, the fundamental rule of fairness requires the decision-maker in some way to draw attention to the existence of that risk.”[58]
[58] [2007] VSCA 181, [43].
In Chanaa v Zarour,[59] Campbell JA observed (with Bathurst CJ and Tobias AJA agreeing):
“It is indisputable that a trial judge is required to conduct the proceedings in accordance with procedural fairness ... One aspect of that requirement of procedural fairness is that the decision should be given on the basis of issues that have been litigated in the course of the trial.” (references omitted)[60]
[59] [2011] NSWCA 199 (Chanaa).
[60] Channa, [13].
On the first day of arbitration, when dealing with the admission of documents prior to the parties commencing submissions, the Member said the following:
“Well, the one which is the subject of lively discussion and probably submissions is – I would describe it as a montage of camera angles with a date input on it being what appears to be 7 February 2019 and, in particular, interest – the camera angle, if I could call it – or angles in that montage would be camera angle 7 and 8 as indicated by the [appellant]. So that’s the first one I have.”[61]
[61] Transcript of proceedings dated 16 September 2021 (T1), T1 7.9–16.
After some discussion about how to describe that evidence, the Member admitted the footage in the proceedings.
The appellant’s counsel submitted that:
“As far as the allegation of the right knee is concerned, my submission is that you will not accept the [respondent] as a witness of credit. Credit is very much in issue in this case and that the objective evidence from the lay evidence that I’ll take you to, the witness statements as well as, of course, the CCTV footage of 7 February ’19 does not in any way disclose that the [respondent] was assaulted by, we’ll call her Angela, the fellow worker as alleged or at all and that the complaint that she made on the day is certainly not borne out by anyone who has had the opportunity of seeing the CCTV footage and I would include that as being myself and I would invite you, Member, to come to exactly the same conclusion and, therefore, that is a fabrication in respect of the injury to the right knee.”[62]
[62] T1 12.26–13.6.

The appellant’s counsel then took the Member to the various witness statements that asserted that the footage disclosed that the alleged injury on 7 February 2019 did not occur.
On the second day of arbitration, the appellant’s counsel made further submissions. In respect of the CCTV footage, he submitted:
“I won’t trouble you again with the comments on the CCTV footage, we’ve had that discussion on the previous occasion. You’ll look at that yourself if you’ve not already done so. No doubt you will view it again at your own leisure.”[63]
[63] T2 8.23–27.
The respondent’s counsel described what the respondent claimed to have observed in the CCTV footage and submitted that the footage would disclose a course of events that was entirely consistent with the respondent’s case. He further submitted:
“I will give you the time references and there’s two particular camera angles. There’s one in particular that I think everyone’s working from. I will give you that time stamp and I’ll allow you to review that in your own time.”[64]
[64] T2 15.26–30.
In reply to the respondent’s submissions, the appellant’s counsel submitted:
“And starting with the CCTV footage you will not find when you look at that footage that there’s any indication of either a deliberate or accidental pushing of the tub into the [respondent]. So that’s the fundamental and the crux really of this case.”[65]
[65] T2 73.1–5.
The above extracts from the transcript disclose that:
(a)    the appellant tendered the CCTV footage, which included footage taken by camera 7 and camera 8;
(b)    both parties made submissions about that footage;
(c)    the appellant had the opportunity to reply to submissions by the respondent about both camera angles, and
(d)    the appellant invited the Member to view the footage from both cameras and form a view about that evidence.
The issue raised by what could be seen in the CCTV footage (both camera 7 and camera 8) was clearly inherent to the issues requiring determination. It is apparent that the appellant not only had the opportunity, but took it, to address on that material that had been tendered in the appellant’s case. The appellant’s allegation that it has been denied procedural fairness in that the Member made findings about which it was denied the opportunity to address is baseless. This ground of appeal fails.

Ground B: making a determination about the CCTV footage which was not based on any evidence or was against the weight of the evidence

The appellant disagrees with the Member’s observations and finding as to what the footage disclosed. The appellant says that the evidence of “multiple witnesses” contradicts those observations, nominating the evidence of Dr Edwards and Dr Roberts. In respect of Dr Edwards, the Member gave reasons for rejecting the evidence of Dr Edwards and his observation of the footage. The Member noted that Dr Edwards only referred to the footage from camera 8, and said:
“Dr Edwards opinion was based upon unexplained supposition as to measurements relating to the possibility of collision with the right leg and knee, and that such unexplained supposition is not a matter for a medico-legal opinion, and also his conclusion on viewing one aspect of the CCTV footage, in respect of which I have found otherwise, I do not place any weight upon the opinion of Dr Edwards.”[66]
[66] Reasons, [148].
Dr Roberts’ report was admitted only in respect of the history recorded. For the reasons set out below under Ground C of the appeal, Dr Roberts’ opinion and observations were quite properly excluded.
The appellant does not otherwise identify the “multiple witnesses” referred to by it. The Member noted his own observations of what was recorded in the footage, referred to the evidence of Mr Chuter and formed the view that Mr Chuter’s evidence about what was seen in the footage was not available on the evidence.[67]
[67] Reasons, [121].
In her statement dated 13 February 2019, Ms Wood said that she watched the CCTV footage. She described that Ms Gibbons had pushed the steel bin and the respondent had walked into it, then the respondent and Ms Gibbons had a conversation. She added that Ms Allen argued that the footage showed that Ms Gibbons pushed the tub into the respondent and Mr Chuter argued that the incident was not deliberate.
The appellant’s argument put to the Member was that there was no incident captured on the footage and maintains that position in this appeal. Contrary to the appellant’s position, the evidence of Mr Chuter and Ms Wood, as well as Ms Wood’s recollection of Ms Allen’s observation, all points to an event involving a steel tub taking place. In any event, the manner in which the case was run allowed the Member to reach his own conclusion as to what he observed.
It cannot be argued that the Member’s conclusion about the footage was not an evidence-based conclusion or was against the weight of the evidence referred to above.
In submissions, the appellant also asserts that the Member’s conclusion about the respondent’s capacity for work was against the weight of the evidence. The assertion goes beyond the pleaded ground of appeal. Nonetheless, the respondent has made submissions in response to those made by the appellant so that the assertion of error can be fairly dealt with in this appeal.
The appellant submits that, at the time the respondent was stood down, she was working normal duties with no restrictions. The assertion is not correct. As the Member pointed out, the respondent continued to complain of back pain to Dr Makarious. She worked in the position of a leading hand which enabled her to delegate the heavier aspect of the role of a process worker. After the injury on 7 February 2019, the respondent was also placed in duties where she did not have contact with Ms Gibbons.
The appellant submits that the finding of no capacity was contrary to the activities portrayed on the surveillance footage. The surveillance footage did not disclose any activity that would indicate that the respondent was fit for even part-time duties in process work, involving repetitive bending lifting and twisting or heavy lifting, which was the only work experience she had had.
The appellant points to the opinions of Dr Edwards and Dr Casikar that the respondent could perform some work. The Member dealt with those opinions as to the respondent’s physical capacity and noted that the respondent’s capacity was also affected by her psychological state. He determined that, on the basis of all of the respondent’s limitations, and in accordance with the requirements of s 32A of the 1987 Act as discussed in Dewar, the duties the respondent was performing prior to being stood down were not a “real job.” Further, on the basis of the respondent’s age and work experience, which was entirely limited to process work, there was no real work that she could do. The Member correctly applied s 32A and the authority of Dewar, took into account all of the evidence as to the respondent’s capacity and provided sound reasons for rejecting or accepting that evidence.
The appellant has failed to show error on the part of the Member in finding that the respondent had no capacity for work.
It follows that Ground B of the appeal fails.

Ground C: error in:

excluding the evidence of Dr Roberts, and

accepting the evidence of lay witnesses, despite the appellant objecting to that evidence

The appellant asserts that these proceedings were in respect of more than one claim. It submits that Dr Roberts assessed the respondent in respect of her claim for weekly payments and treatment expenses, whereas Dr Samuell assessed the respondent in respect of her lump sum claim, so that both reports should have been admitted. The appellant adds that, in any event, the Member ought to have considered Dr Roberts’ evidence about what he viewed in the CCTV footage.
It appears that the appellant relies on cl 44(4)(c) of the 2016 Regulation, which excludes a report from a medical practitioner from the definition of a forensic report if it has been obtained in order to prove or disprove an entitlement in respect of another claim or dispute. The appellant’s allegation that the reports were commissioned for different claims is not born out by the evidence. Both Dr Samuell and Dr Roberts provided an opinion on liability for a psychological injury resulting from many years of difficulties with a co-worker and an incident at work on 7 February 2019 when she alleged that she was hit by a steel tub. Dr Samuell considered that the respondent was not injured as alleged, was fit to work 20 hours per week at the very least and that she had no whole person impairment because she had not been injured on 7 February 2019. Dr Roberts assessed the respondent and took a history of both the event on 7 February 2019 and the conflict between the respondent and Ms Gibbons. He assessed her capacity for work and opined that the respondent had not suffered a psychological injury as a result of the incident on 7 February 2019 because the incident had not occurred.
It is readily apparent that both doctors were retained to assess the appellant’s liability in respect of the same psychological injury and the respondent’s entitlement to compensation in respect of that claim. The appellant disputed liability for the claim and the respondent brought proceedings in the Commission in order to have the dispute determined. The report of Dr Roberts was not obtained for the purpose of proving or disproving an entitlement in respect of another claim or dispute.
The appellant submits that, if the report of Dr Roberts was admitted on the basis of the history taken, then his views as to what was evident on the CCTV footage ought to have been taken into account by the Member. The Member rejected submissions about what Dr Roberts had observed on the CCTV footage because his observations were “commentary” rather than history. The Member was correct. Dr Roberts’ assessment of the evidence in the footage did not fall within the limited purpose for which the report was admitted. In any event, the probative value of Dr Roberts’ observation was questionable. His opinion was not an expert opinion. His conclusion was that the footage did not show that a tub had been thrown at the respondent. He did not comment on whether there was an incident where the tub hit the respondent’s knees. The Member was in just as good a position to observe the footage and form his own view of what he had seen, especially as he was invited to do so by the parties.
The appellant further asserts error on the part of the Member by accepting the evidence of Mr Lakis and Ms Allen over the appellant’s objection. The appellant says that the statements were of no evidentiary value because they lacked specificity.
As the respondent submits, the rules of evidence do not apply in the Commission so that the question is not one of admissibility of the statements but is of their probative value. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the primary decision-maker, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[68]
[68] Shellharbour City Council v Rigby [2006] NSWCA 308.
The Member found that the statement from Mr Lakis was supportive of the evidence that there were arguments between the respondent and Ms Gibbons over the years and Ms Allen’s evidence was supportive of the respondent having complained that she had been harassed and unsupported. The acceptance of that evidence was not so against the weight of the evidence that it constituted error. The evidence of Mr Chuter, Ms Wood, Ms Gibbons and the respondent herself was that, wherever the fault lay, there was a long history of conflict between Ms Gibbons and the respondent, and the respondent was aggrieved by that conflict.
The appellant has failed to show error on the part of the Member in respect of any of the matters referred to in this ground of appeal, and the ground fails.

Ground D: error of law by failing to give reasons “in respect of the evidentiary matters referred to in [G]round C”

The appellant submits that the Member failed to give any reasons in respect of his determinations to exclude the evidence of Dr Roberts (except the Member’s reliance on cl 44), and in rejecting Dr Roberts’ evidence as to what he observed on the CCTV footage.
At the commencement of the arbitration, the Member noted that the respondent had objected to the admission of the reports of Dr Samuell and Dr Roberts on the basis that cl 44 precluded reliance on more than one forensic report. He further noted the appellant’s argument that the reports were obtained in respect of different claims. The Member said that he had made a ruling that one of the reports was inadmissible because the reports were both “forensic reports.”[69] It is implicit that the Member was referring to the definition of “forensic report” in cl 44 of the 2016 Regulation and it is apparent that the Member had ruled on the admissibility before the transcription of the proceedings commenced. I have discussed the appellant’s argument that the reports were commissioned for different claims under Ground C of the appeal and rejected that proposition. The Member’s reasoning that the reports offended cl 44 was correct and was a sufficient reason for excluding Dr Roberts’ opinion. The appellant’s assertion that the Member failed to give reasons for rejecting the opinion of Dr Roberts is without foundation.
[69] T1 3.3–32.
The appellant also asserts that the Member failed to give any reasons for admitting the statements of Mr Lakis and Ms Allen over its objection. The statements were objected to by the appellant on the basis that they were of no probative value because they lacked specificity.
The Member discussed the admission of the statements at the commencement of the arbitration. The following discourse between the Member and the appellant’s legal representatives took place:
“[THE MEMBER]: Now, Mr Saul, in conciliation I’ve indicated that those documents will be admitted and that’s my ruling now. The documents of Mr [Lakis] – statement of Mr [Lakis] I’ve indicated, Ms Allen and the handwritten diary entries will be admitted and it will be a matter of submissions as to the weight; whether any weight at all is to be given or not noting that the [appellant] has voiced objections in relation to their probative value, amongst other matters. Is that sufficiently accurate, Mr Saul, or is there anything further you want to add?
Mr SAUL: I think I should note that my objections, as you’ve just indicated, were on the basis of they’re of such limited – of no probative value and self-serving that they should not go into evidence even though this is not a tribunal of strict pleading and we objected to those on the last occasion as well as today and that you’ll let them in subject to what you’ve just said in terms of weight. I’m content with that. Mr Macken – I don’t have Mr Macken next to me – are you content with that, Mr Macken?
MR MACKEN: Yes. No problem.”[70]
[70] T1 2.9–31.
From the above dialogue, it can be seen that the appellant did not maintain its position that the statements should not be admitted and was content for the documents to go into evidence, subject to the appellant having the opportunity to make submissions as to the lack of probative value. Thus, the Member was not required to provide reasons for admitting them.
In any event, s 43 of the 2020 Act provides that:
(a)    proceedings in the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits;
(b)    the Commission is not bound by the rules of evidence, and
(c)    the Commission may inform itself on any matter in the manner the Commission thinks appropriate.
As observed by Fleming DP in Aluminium Louvres & Ceilings Pty Ltd v Zheng,[71] cited by McColl JA in Edmonds at [128]:
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.”
[71] [2004] NSWWCCPD 26, [24].
Applying those principles, it was open to the Member to admit the statements and give consideration to the weight to be afforded that evidence. He was not in error in doing so and the appellant’s assertion that the Member erred by failing to give reasons for admitting the documents is not made out.
The appellant’s assertion that the Member failed to give reasons for excluding the evidence of Dr Roberts is also not made out. It follows that Ground D of the appeal fails.
The appellant has failed to establish error on the part of the Member and the Member’s Certificate of Determination is confirmed.

DECISION

The Member’s Certificate of Determination dated 5 April 2022 is confirmed.

Elizabeth Wood

Deputy President

28 February 2023