Kumar v Electrical Home-Aids Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kumar v Electrical Home-Aids Pty Ltd [2023] NSWPIC 125
APPLICANT:	Kamal Kumar
RESPONDENT:	Electrical Home-Aids Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	28 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation, weekly benefits and medical expenses in respect of a psychological injury; respondent denies liability and relies on section 11A(1) with respect to transfer, performance appraisal and/ or discipline; Held – respondent has not placed into evidence the source material which it relied on to uphold disciplinary complaints against the applicant and to in dismiss his complaints against his manager; impossible to determine that conduct to have been reasonable; reasonableness must be determined objectively with regard to all of the evidence; Ritchie v Department of Community Services followed; insufficient evidence offered by the respondent to satisfy the onus of proving the substance of the matters; the respondent has not discharged the onus of proving those actions were reasonable, and the defence under section 11A therefore fails; permanent impairment claim remitted to the President of the Personal Injury Commission for referral to a Medical Assessor (MA) to determine the permanent impairment arising from the applicant’s injury; no exceptional circumstances having been established; the surveillance film served with the Reply will not be referred to the MA; Rule 109 of the Personal Injury Commission Rules 2021 applied; Erskine v Cozwine Pty Limited followed; claims for weekly compensation and medical expenses are listed for further telephone conference after the issuing of a Medical Assessment Certificate per Jaffarie v Quality Castings Pty Ltd.
determinations made:	1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 18 August 2022. 2. The injury referred to in [1] above was not caused by the respondent's reasonable actions with respect to performance appraisal, transfer and/or discipline. 3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 18 August 2020 (deemed). Body systems: psychological injury. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments, and (d) respondents Application to Admit Late Documents dated 14 February 2023. 5. The surveillance film attached to the Reply is not to be referred to the Medical Assessor. 6. The claims for weekly benefits and medical and treatment expenses are adjourned to a date after the issuing of the Medical Assessment Certificate.

STATEMENT OF REASONS

BACKGROUND

Kamal Kumar (the applicant) claims weekly payments, a general order for medical expenses and permanent impairment compensation in respect of a psychological injury with a deemed date of injury of 18 August 2020. He alleges the injury was caused by bullying, harassment, targeting, humiliation and discrimination.
The fact of injury is not an issue; however, the respondent denies liability on the grounds the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with respect to performance appraisal, transfer and/or discipline (s 11A (1) of the Workers Compensation Act 1987 (the 1987 Act)).
The applicant's pre-injury average weekly earnings (PIAWE) are agreed at $833 per week. The respondent has, however, placed in issue the applicant’s alleged incapacity for employment.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant's injury was wholly or predominantly caused by the respondent's reasonable actions with respect to performance appraisal, transfer and discipline (s 11A(1) of the 1987 Act), and
(b) if the s 11A defence is unsuccessful, what was the level of the applicant’s incapacity?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the hearing, the applicant was represented by Mr Livers, solicitor. The respondent was represented by Mr Robison of counsel instructed by Ms Faapito.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments, and
(c)    respondents Application to Admit Late Documents (AALD) dated 14 February 2023 and attachments.
The parties agreed the Commission would also view and take into consideration a surveillance DVD lodged by the respondent with the Reply on 22 December 2022.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Defense under s 11A

The respondent carries the onus of satisfying the requirements of s 11A(1) that section provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers."
The defence under s 11A consists of two limbs, and the respondent must satisfy both in order to successfully rely on the defence. The first limb is to establish the conduct relied on was the whole or predominant cause of the applicant's injury. If that step is satisfied, the respondent must also successfully establish the conduct which was the whole or predominant cause of the injury was reasonable.
“Wholly” and “predominantly” are separate concepts and the finding of one or the other needs to be considered: see Smith v Roads and Traffic Authorityof NSW [2008] NSWWCCPD 130.
The phrase “wholly or predominantly caused” has been held to “mainly or principally caused”. The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
The line of authority commencing with Hamad v Q Catering Limited [2017] NSWWCCPD 6 establishes that mere reliance on factual material alone will often be insufficient to make out a s 11A defence. Factual evidence alone may be adequate in cases where there is an allegation of a single event which has given rise to psychological injury, however, in cases such as the present one where a course of conduct is sought to be relied upon, Deputy President Snell's decision in Hamad makes it clear that medical evidence is required which addresses the relative causative contributions of various matters before a finding as to whether the reasonable actions of a respondent wholly or predominantly caused the injury at issue can be made.
The meaning of “reasonableness” was discussed by Geraghty J in Irwin v Director General of Education NSWCC 14068/97, 18 June 1998, were his Honour said:
"...The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."
In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss CCJ said:
"In my view when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was affected."
These passages were quoted with approval by the Court of Appeal in Commissioner of Police v Minahan [2003] NSWCA 239, were Foster AJA (Sheller and Santow JJA agreeing) said:
"I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in His Honour's judgement. The words are a 'reasonable action', in a statute dealing with workers compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon a breach of duty of care."
In Ritchie v Department of Community Services [1998] 16 NSWCCA 727, Armitage J said:
"It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent's conduct against the reasons given for it. If follows of course from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue."
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action (see Burke J in Melder v AusBowl Pty Ltd [1997] 15 NSWCCR 454). As Armitage J noted in Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45, “Only if the employer's action in all the circumstances was fair, could it be said to be reasonable”. (See also Northern NSW Local Health Network v Heggie [2013] NSWCA 255, where it was held that the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken).
The conduct sought to be relied on by the respondent in this matter is set out in the relevant dispute notices. In particular, the respondent relies on performance appraisals set out on 7 November 2019 and 21 November 2019, noting the applicant was placed on these plans but did not meet their requirements.
The respondent's Independent Medical Examiner (IME) Dr G George provided an opinion that the applicant's symptoms developed more severely after the November 2019 performance appraisals.
Additionally, the respondent relied on disciplinary action said to have been taken by it against the applicant as set out in letters to him dated 2 July 2020 and 29 July 2020, together with an interview with the applicant which took place on 27 July 2020.
Dr G George opined, having examined this evidence and having examined the applicant, that the condition “came about due to disciplinary reaction taken by the employer on those dates”.
The applicant applied for a review of the respondent's decision. On 18 December 2020, a s 287A review notice was issued which confirmed the original decision, after taking into account the report of the applicant's treating psychiatrist, Dr A George.
As noted, the question of wholly or predominantly caused is a test of causation. In the workers compensation context, the appropriate approach to questions of causation as set out in the decision of Kirby P (as he then was) in Kooragang is that a common sense evaluation of the causal chain must be undertaken.
For the respondent, Mr Robison submitted his client had satisfied the requirements of s 11A. He noted the applicant's IME, Dr Canaris did not engage with the findings of Dr G George re the whole/predominant cause of the applicant's injury being performance appraisal and disciplinary acts relied on by the respondent.
Mr Robison took the Commission to the applicant's statement evidence which recorded him commencing employment with the respondent in July 2018. Mr Robison noted the applicant's perception of being singled out is relevant to whether he suffered a psychological injury, however, in the context of a defence under s 11A, the applicant's perception is irrelevant, and the evidence must be examined with the objective test of reasonableness in mind.
The respondent noted the applicant's own statement evidence from [21] to [31] actually set out the reasons why the applicant needed performance improvement plans. Mr Robison submitted the Commission would not accept the views of Dr Canaris, who did not have at his disposal particulars of the performance appraisal and improvement plans put in place for the applicant, nor did he take into account any matters outside the applicant's workplace as potential causes of his condition. Mr Robison noted Dr Canaris' history of the applicant reporting to his IME that he was bullied is an insufficient basis to ground an opinion, given there is no mention of the performance appraisal being put in place by the applicant's IME.
On 13 August 2020, the applicant attended Dr D'Silva, psychologist. He provided at that time the following history:
"Work-related stress
Manager keeps sending him to various stores.
First commence work at the Punch Bowl Store and Hurstville.
Then moved to Miranda Store.
A year ago, a new manager was appointed. Feels like the manager wanted to get rid of him. Was changing his shifts. Took him off weekend shifts, et cetera.
Tried to communicate with manager and resolve issues.
Manager talks to him in a rude and defensive manner. Condescending and patronising behaviour.
Was ill and could not attend work. A medical certificate was submitted. Manager called him a liar and was rude to him. Feels like he is being discriminated against. Manager was giving more opportunities to another employee.
Feels harassed, bullied, targeted, threatened and intimidated."
Mr Robison submitted an examination of the lay evidence reveals that contrary to the applicant's assertions, he was not singled out but rather continually failed to meet his key performance indicators (KPIs), leading to him being placed on a performance improvement plan (PIP). Mr Robison referred the Commission to the statement evidence of Mr Patamianos, the applicant's manager, and Mr Gearen, People and Culture Manager.
Mr Gearen, the New South Wales people and culture manager, stated that on 10 February 2020, the applicant was called to a meeting regarding complaints made against him by fellow staff members in store. He noted that after the meeting was arranged, the applicant then forwarded an email with a list of his own grievances of the following day. Mr Gearen stated the applicant only wished to address his own grievances when the meeting was held, and became frustrated.
Mr Gearen noted the applicant forwarded four complaint emails to the respondent between 10 February 2020 and 27 February 2020. The letters culminated in a meeting on 27 February 2020 with the applicant's wife present as support person.
At the meeting, Mr Gearen informed the applicant the complaints against him had been upheld. That finding was separate to the applicant's own issues which were raised. The meeting lasted approximately three hours, and according to Mr Gearen:
"40. During the meeting, Kamal was very frustrated, somewhat aggressive, he raised his voice continually. He kept saying it wasn't true, and that Andy [Mr Patamianos] was doing this. I spoke with Kamal for three hours to help understand what the concern was with Andy.
41. This is when Kamal said, 'This is what I am talking about in the letters, there are all of these circumstances where Andy is treating me and singling me out and this investigation is just one of them.’ His concern was 'was his complaint going to be investigated the way these complaints were? Was he going to get the same opportunity'?
42. I understood what Kamal was saying was he believed that the investigation against him was fabricated and there were a number of other circumstantial bits of evidence that would point to a bigger problem. I was trying to keep the two separate, Kamal's complaint and the complaint against Kamal. Kamal said he had many other problems and now Andy was asking team members to write things against [him].
43. I asked Kamal why he thought Andy was doing that, and Kamal said he believed it was racially driven. At this point, I offered Kamal to place the current outcome on hold and I could investigate all his complaints and wouldn't make an outcome until I had completed a full investigation.
44. During the meeting, Kamal was frustrated and not very articulate, Kamal's wife helped the conversation in two ways, she helped clarify some of Kamal's concerns, and the second thing she did was help Kamal understand the process of investigating things like this.
45. As a result, we discovered that Kamal had a lot of things he wanted to discuss, so we agreed Kamal would put together one final letter with everything he wanted me to look at. During the meeting, Kamal had brought up things which were not in the letters he had already sent to me. We agreed on one final reference complaint would give me a launch page to start a formal investigation.”
The applicant did not forward his letter containing all of his complaints until 16 March 2020. According to Mr Gearen, each allegation raised by the applicant was investigated.
Ms Meares people and culture advisor also provided a statement. Mr Robison noted the following as evidence the applicant was not singled out, but rather subject to the same standards as other employees:
“10. In November 2019, Godfrey launched a productivity project. The productivity project was focused on the retail group as the key drivers of our business and in particular focused on longstanding under performers. The first action was to compile a report of the bottom 50 performers. This was driven and compiled by the finance department, GM Finance at the time. People and culture (my department) was then called upon to support driving this project in conjunction with state/area managers. 11. The goal of the project was to get the underperforming team members to a level where they were performing at the required standard. 12. It was tasked to our area managers to support underperforming team members to achieve the standard of productivity required by the business. 13. I became aware of Kamal during the performance management process, his name was flagged on our productivity project and following his area manager, Andy Patamianos, was in contact with me regarding Kamal's performance improvement plan (PIP).”
Ms Meares also gave evidence surrounding the steps taken regarding the allegations made against the applicant by other staff members. After setting out these complaints and the steps taken surrounding them, Ms Meares noted:
"59. It is a standard response if a team member has not followed reasonable management instruction, if they happen provided by company processes, we move to a formal meeting. Danny told me that on two occasions he made the request to Kamal but the task, which was an inherent responsibility of the team member role, had not been completed [the role being the completion of a process known as category cycle counts].
60. During the meeting with myself, Danny, Kamal and his wife as support person, was held via Microsoft Teams. [sic] I ran through the formalities of the meeting and explained why we were there, I covered off that Kamal had 24-hours meeting notice which is a company standard. I asked if he had a support person which he did, she was present by the video link as well. I took a moment to advise of the role of the support person during the meeting. This was the first meeting that Kamal had brought a support person that I had been at, so I wanted to make the role very clear."

The particulars of the issues with the applicant's performance are found in the statement of Ms Meares at paragraphs 19 to 32, 57 to 59 and 62 to 78.
As a result of the outcome of Ms Meer's investigation, the applicant was issued with the first warning letter on 29 July 2020.
Having taken the Commission to the relevant steps taken by the respondent, Mr Robison submitted the respondent had acted reasonably and based on the totality of the evidence, it was these reasonable actions which were the predominant cause of the applicant's injury.
Mr Livers provided written submissions to which he spoke at the hearing. He submitted the defence pursuant to s 11A had not been made out.
The applicant relied on an incident which took place in September 2019, before any performance appraisal or disciplinary action had been taken. That incident was the subject of an email the applicant forwarded to himself, found at page 460 of the Application. The applicant had intended to forward this email to the respondent but had not done so.
Mr Livers' written submissions noted the applicant saw his general practitioner (GP) about this incident in or about September 2019 and he was then referred to Dr D'Silva, psychologist. However, an examination of the clinical records of the applicant's GP Dr Gill at Forest Mall Medical Centre reveal the first mention of any workplace issue was in fact on
12 July 2020, where the reason for contact was given as “low back pain and bullied at work” (see Application page 161).
The next entry regarding the applicant's mental health is dated 10 August 2020, when the following entry was recorded:
"Came re MHP [Mental Health Plan] to see Joseph.
He complained to H/R and waiting for hearing re being bullied and always being transferred from store to store."
Additionally, the applicant's own statement confirms, contrary to the written submissions upon which he arrived, that he did not consult a doctor after the incident in September 2019. After recounting his versions of his conversation with Mr Patamianos which the applicant alleges upset him, the applicant said:
"14...I was in shock and was very upset at what AP had said to me. I believe I am an honest, reliable and hardworking person. I had never been accused of dishonesty before. I was humiliated. After the phone call, PK asked what was going on. I told him that AP had accused me of lying about a sick day. PK agreed that AP should not speak to me in this manner and it was not right. I was not sure why my dignity and integrity were in question. The abuse and aggression by AP affected me badly. I was disturbed by the abuse. I recall I had an RTA parking fine on the very next day, 19 September 2019, as I had difficulty in concentrating. I was shocked with the accusation of taking sick leave as well as the language AP used. I believe that AP had made up his mind about me and I was being targeted. Since this time, I believed AP treated me differently and made things gradually worse for me. That night, I had bad night sleep. I told my wife about it. I did not see a doctor as I thought it would work out and it can be sorted out. 15. I recall that when I took a call from AP I would be fearful. If I took the call, AP would hardly say hello and simply say 'I don't want to speak to you, transfer me to Peter or Zach'. I felt ignored and dismissed. I felt I was being excluded and treated differently. I was of equal rank with Peter and Zack. AP and Peter are of the same ethnic background and were very friendly to each other. I felt isolated, targeted and excluded from the team."
It is apparent from the clinical records that the applicant did not consult Dr D'Silva until 13 August 2020.
Mr Patamianos responded to the applicant's allegations regarding the conversation concerning sick leave in 2019. He said:
"61. I recall a conversation about Kamal taking a Thursday off, I received a text from Kamal the day before when he was finishing his shift saying I am going to be sick tomorrow. I did not know how someone could have pre-empt being sick. My reaction may have been sceptical as I have been around for a long time and notices what some people do in this situation. I definitely did not call Kamal a liar, but I did mention to him he needs a doctor's certificate."
Regarding his interactions with the applicant during the implementation of the PIP, Mr Patamianos said:
"65. I did get angry with Kamal once when I went into the store. He was being so defiant. He was just responding 'no' to my attempts to help him. I found it hard with Kamal not treating me as respectfully as I was treating him, which is another reason why I had him moved to another area.
66. When I speak to a team member about a PIP, there is no private room. We usually sit behind the counter, colleagues are in the store doing other things. It is unfortunate there is nowhere else to do it.
67. Kamal's figures did start to improve at Caringbah, unfortunately some of the sales were made by Kannu Sharma, and Kamal demanded they be credited to him. Also, his targets were more achievable at this store. We did provide him with the opportunity to do well by moving him to this store, but unfortunately the personality clashes became a problem here as well.
68. The business decision was made to move Kamal to Burwood to accommodate his requested roster. There were only two people in this store. It was a reasonably good store at which you can make money and it was a reasonable distance from his home. He was given two weeks' notice. I did not just give him a notice; I went prior to the two weeks’ notice to discuss this with him. He was very defiant.
69. I tried to sell him the opportunity and the benefits of moving to Burwood to him. The benefits were more opportunities to see, more money, close to home. Kamal just said 'no, I'm not going to do it'.
70. While Kamal was in my team, he worked at Miranda most of the time, he spent one month at Caringbah and then two weeks in Burwood prior to lockdown. He then left my area."
The fact the applicant made complaints about issues in the workplace only after complaints about his behaviour were raised by co-workers is not determinative of the veracity of any of the complaints to be considered. Nevertheless, the timing of the applicant's own complaints is something to be taken into account. The respondent sent a letter to the applicant on 7 February 2020 outlining complaints made against him by co-workers, and received correspondence from him making his own complaints the following day.
It should be noted that the time taken to consider and deal with workplace issues is a factor relevant to whether an employer's conduct was reasonable. In this instance, it is noteworthy the initial discussions surrounding the complaints against the applicant and his own complaints took place in February 2020 and the applicant submitted a letter fully outlining his complaints on 16 March 2020. It was not until 2 and 3 July 2020 that written outcome letters were provided to the applicant after an outcome meeting took place on 23 June 2020. In this instance, however, it is important to keep in mind the respondent's business was shut down from 6 April 2020 to 14 May 2020 owing to the COVID-19 pandemic.
Moreover, Mr Gearen, the people and culture manager for the respondent sets out in his statement at [48] to [66] the lengthy ends to which the respondent went to investigate the matters put to it by the applicant.
In his statement, Mr Gearen referred to a number of documents relating to the investigation. They include notes of interviews with co-workers and formal meeting notes of the discussion he had with Mr Patamianos. None of that source material is in evidence before the Commission.
In his written submissions, Mr Livers traversed the absence of direct evidence from the applicant's colleagues. He submitted the lack of direct evidence and reliance on hearsay was problematic for the respondent in its assertion the conduct upon which it relied was reasonable.
I accept that submission. Even if I found the performance appraisal, transfer and discipline were the predominant cause of the applicant's condition, the respondent must demonstrate its conduct was reasonable.
I have no difficulty accepting Mr Gearen's evidence at face value, however, in assessing the reasonableness or otherwise of the respondent's conduct with respect to performance appraisal, transfer and discipline, the failure of the respondent to annexe source documentation to its reply is problematic. In circumstances where the respondent carries the onus of proving the defence under s 11A, evidence such as records of interview and the actual complaints of employees made against the applicant and notes of meetings with the manager against whom the applicant complained is vital in determining whether the employer acted reasonably on that material. As noted in Ritchie (see [18] above), the test of reasonableness is objective, based on the evidence before the Commission. The perceptions of the respective parties of the actions taken by the respondent are irrelevant.
I make no criticism of Mr Gearen, or indeed any of the respondent's lay witnesses who have provided statements. However, the standard of reasonableness being an objective one, I find the lack of source material lodged by the respondent telling.
Absent the source material, it is impossible to properly determine whether the respondent's findings in its investigations were reasonable in the circumstances, because among other evidence the details surrounding the complaints made about the applicant by his co-workers or the record of interview with Mr Potamianos in relation to his relationship with the applicant upon which Mr Gearen relied to dismiss the applicant’s complaints are not in evidence.
It is apparent from Mr Gearen's statement that lengthy and detailed efforts were made to provide the applicant with procedural fairness. However, the respondent must also demonstrate the reasonableness of the substance of the conduct upon which it relies is made out. Given the respondent carries the onus of proving its actions were reasonable, I am not satisfied on the balance of probabilities it has discharged the onus, as it has not presented the Commission with the source material upon which its decisions regarding the applicant concerning performance appraisal, transfer and/or discipline were based.
I reiterate that I do not criticise the respondent's witnesses in making the above finding. It may well be the case the respondent was reasonable in reaching the conclusions it did, however, without the source material, it is simply impossible to find this to be the case, as without it, the Commission is not in a position to determine whether the complaints against the applicant could reasonably be said to have been made out, or his complaints reasonably dismissed.
In relation to the requirement for whole or predominant cause, on balance I am satisfied that the respondent's actions with regard to transfer, discipline and performance appraisal were the predominant cause of the applicant's condition.
As noted, the applicant relied upon an interaction with Mr Patamianos in September 2019 as a basis for asserting the cause of his injury was multifactorial and included the applicant's manager treating him unfairly. However, there is no contemporaneous evidence aside from an email which the applicant only forwarded to himself, which shows the incident at issue caused anything more than passing distress and upset to the applicant.
Whilst corroboration is not necessary in a civil matter, I note there was no complaint of any symptoms to a doctor and that is something which I am entitled to take into account, albeit not as the solely determinative factor of causation and liability: see Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD56.
Moreover, the applicant was able to work full-time for the respondent and interact with his managers after the incident at issue. It was only once the performance appraisal, transfer and disciplinary action was taken that the applicant presented to his GP then Dr D’Silva and made complaints of bullying and harassment.
On balance, I am satisfied that the conduct relied on by the respondent was the predominant cause of the applicant's injury, however, because I am not satisfied that conduct was reasonable, the defence under s 11A must fail.

Permanent impairment claim

Given the above findings, the matter will be remitted to the President for referral of the claim for permanent impairment compensation to a Medical Assessor.
The respondent has lodged surveillance material in this matter. The applicant raises no objection to that material being considered by the Commission, given the applicant has had the opportunity to respond to its contents by way of further statement found at page 482 of the Application.
Nevertheless, the Commission has adopted an approach to surveillance material consistent with that adopted by the former Workers Compensation Commission. Regulation 109 of the Personal Injury Commission Rules 2021 states:
“(1) A surveillance recording may not be referred to a medical assessor in medical assessment proceedings for the purposes of the enabling legislation unless:
a.Exceptional circumstances exist, as determined by the Commission or the president; and
b.The Commission or the president orders that the surveillance recording may be referred.
In this matter, I am not satisfied exceptional circumstances exist. The phrase “exceptional circumstances” has been considered by Presidential Members of the Commission in cases such as Erskine v Cozwine Pty Limited [2018] NSWWCCPD 9. In that matter, Deputy President Snell dealt with an appeal lodged substantially out of time and noted at paragraph 20 that the party seeking to appeal out of time must show exceptional circumstances. The Deputy President adopted the definition of exceptional circumstances found in the Court of Appeal decision Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290. In that matter, Campbell JA said:
"Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered:
R v Kelly (Edward) [1999] UKHL 4.
Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Backlund [2000] 1 WLR 1262.
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388."
In my view, the circumstances of this matter are not exceptional. As noted in R v Kelly, exceptional circumstances cannot be regularly, routinely, or normally encountered. In my view, the circumstances in which the surveillance footage in this matter was obtained and the activities it discloses are of the kind which are regularly and routinely seen in the course of litigation in this jurisdiction. This being so, the surveillance footage will not be referred to a Medical Assessor, however, the factual investigation report will be referred, as the applicant has been given the opportunity to answer those matters in his supplementary statement found at page 482 of the application.

Claim for legal benefits and medical expenses

Although permanent impairment and incapacity are plainly different concepts, the Commission has held that in a contested matter such as the current proceedings where are claims for both weekly and permanent impairment compensation, the preferred course of action where a Member has found a s 4 injury is to refer the matter for medical assessment of the whole person impairment before final orders are made. In Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), Roche DP made the following comments which are equally applicable in this matter:
"264. The result is that, contrary to Peric, where there is a claim for weekly compensation and lump sum compensation and an arbitrator decides that, because the effect of the injury has ceased, there is no entitlement to weekly compensation and makes an award for the respondent in respect of that part of the claim, the assessment of Whole Person Impairment must still be referred to an AMS. Depending on the AMS's assessment, this could give rise to a significant problem.
265. If the AMS determines that, as a result of the injury the worker suffers from a permanent impairment, there will be a clear conflict between the AMS's finding, which is conclusively presumed to be correct as to the degree of permanent impairment of a worker as a result of an injury (s 326(1)(a)), on the one hand, and the arbitrator's finding that the effect of the aggravation has ceased, on the other. Assuming that the AMS has issued a valid MAC, the worker will be entitled to have the Commission enter an award for lump sum compensation in terms consistent with the MAC. That is because of a valid MAC is conclusively presumed to be correct under s 326(1) and ‘trump's any inconsistent findings by an arbitrator’(Haroun at [22]).
266. Once the award for lump sum compensation is entered, there will then be two inconsistent awards: the first, by an arbitrator, that, so far as the claim for weekly compensation is concerned, the effect of the injury has ceased and, the second, based on the AMS's assessment, that so far as the claim for lump sum compensation is concerned, the effect of the injury is continuing. Thus, the result offends both the principle that the law should avoid conflicting judgements (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 603-4) and the public interest in the finality of litigation. As explained by the High Court, 'a central and pervading tenant of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances.' (D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1).
267. To say that such an outcome is undesirable will be a serious understatement. The conflict can be addressed, but not solved, by the worker asking that the arbitrator's decision be reconsidered under s 350(3) of the 1998 Act. Thus, there will be further delay and expense while there is a second hearing to determine if the AMS's assessment makes any difference to the arbitrator's finding on weekly compensation and medical expenses. This will undermine two of the Commission's core statutory objectives, namely, the provision of a fair and cost-effective system for the resolution of disputes under the 1998 Act and the 1987 Act and the provision of a timely service ensuring that workers' entitlements are paid promptly (s 367(1)(a) and (c) of the 1998 Act.
268. I should add, although it should be obvious, that the fact that an AMS finds that there is permanent impairment in circumstances where the arbitrator has found that the effect of the injury has ceased will not automatically mean that the worker is entitled to a continuing award of weekly compensation or continuing medical expenses. There may will be cases where a finding of a modest Whole Person Impairment does not result in an economic incapacity. Moreover, the recovery of the medical expenses is not restricted by s 59A. Naturally, each case will depend on its own facts.
269. The uncertainty and delay that will result from the above can be reduced if, when there is a claim for weekly compensation and lump sum compensation, and the arbitrator finds that the worker has suffered a S4 injury, the matter is referred to an AMS for assessment of the Whole Person Impairment that has resulted from that injury before the arbitrator makes final orders. That is far from ideal, because it delays the final resolution of the claim, but it is better than forcing a worker to make a reconsideration application in the event that the MAC is inconsistent with the arbitrator's findings."

Consistent with the Deputy President's comments and Jaffarie, I consider the appropriate course of action in this matter is to remit the claim for permanent impairment compensation to the President for referral to a Medical Assessor on terms consistent with my findings, understand over the claim for weekly compensation and the claim for medical expenses to a date after the issuing of the Medical Assessment Certificate.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2023] NSWPIC 125

28 March 2023