Leuzzi v Primo Concrete Pty Ltd - [2025] NSWPICPD 62

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Leuzzi v Primo Concrete Pty Ltd [2025] NSWPICPD 62
APPELLANT:	Giuseppe Leuzzi
RESPONDENT:	Primo Concrete Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W27704/24
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	4 September 2025
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 10 January 2025 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – approach to be taken on appeal in respect of alleged errors of fact – State of New South Wales v Culhana [2025] NSWCA 157; Fox v Percy [2003] HCA 22; Warren v Coombes [1979] HCA 9 considered and applied – failure to refer to evidence may not always be indicative of error – Lu v Heinrich [2014] NSWCA 349 applied – failing to consider a point not raised does not constitute error of law – Brambles Industries Limited v Bell [2010] NSWCA 162 applied – where a party fails to provide appropriate assistance to the decision-maker in relation to the evidence – rule 67D of the Personal Injury Commission Rules 2021; Caruana v Darouti [2014] NSWCA 85 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr E McMahon, counsel
Turner Freeman Lawyers
Respondent:
Mr D Stiles, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Leuzzi v Primo Concrete Pty Ltd [2025] NSWPIC 9
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	10 January 2025

INTRODUCTION AND BACKGROUND

Mr Giuseppe Leuzzi (the appellant) was employed by Primo Constructions Pty Ltd (the respondent) as a concreter. The respondent employed one other employee, and the appellant and his wife held positions as the respondent’s directors. In 2022, the appellant was diagnosed with carpal tunnel syndrome but continued to work until approximately December 2022 when he was lifting timber onto a truck and injured his right shoulder, causing him to take time off work. For a period of time during 2023 the appellant worked for one day per week in a managerial capacity for the respondent and then from January 2024 he returned to work on a full-time basis as a manager performing light physical duties.
On 21 June 2023, the respondent advised the appellant that payments of weekly compensation were to cease on the basis that he was fit for full-time suitable work earning $1,840 per week as a residential site supervisor, which weekly amount was greater than his pre-injury average weekly earnings of $1,450. The appellant commenced proceedings in the Personal Injury Commission (the Commission), claiming weekly payments from 4 October 2023 to 25 January 2024, alleging injury to the right shoulder and neck, with a date of injury pleaded as 18 November 2022. The appellant also claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 13% whole person impairment resulting from injuries to the cervical spine, right upper extremity and left upper extremity.
The dispute proceeded to conciliation and arbitration before a Member of the Commission. The Member issued a Certificate of Determination on 10 January 2025, in which she:
(a)    entered an award in favour of the respondent in respect of the claimed injury to the cervical spine;
(b) declined to remit the claim pursuant to s 66 to the President of the Commission for referral to a Medical Assessor;
(c)    determined that during the period of the claim for weekly payments, the appellant had “current work capacity” and worked for less than 15 hours per week;
(d)    calculated the appellant’s current weekly earnings, and
(e)    ordered the respondent to pay the appellant $961.35 per week for the period from 2 November 2023 to 30 November 2023.
The appellant appeals only the Member’s findings and orders in respect of the weekly payments of compensation referred to in [3(e)] above.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that they are content for the appeal to be determined on the basis of their submissions and the documents available.
This appeal involves a factual determination as to the appellant’s capacity for work. After this appeal was lodged, the NSW Court of Appeal (Bell CJ, Leeming JA, Kirk JA, McHugh JA and Free JA) issued a decision in State of New South Wales v Culhana[1] in which prior authorities dealing with the function of a Presidential Member in determining errors of fact pursuant to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) were considered. The Court determined that the approach taken in those previous authorities (such as Workers Compensation Nominal Insurer v Hill,[2] Northern New South Wales Local Health Network v Heggie,[3] and particularly Raulston v Toll Pty Ltd),[4] was wrong.
[1] [2025] NSWCA 157 (Culhana).
[2] [2020] NSWCA 54.
[3] [2013] NSWCA 255.
[4] [2011] NSWWCCPD 25 (Raulston).
In order to provide procedural fairness to the parties, on 31 July 2025 I issued a Direction to both parties in which I directed that they were to lodge any further submissions they wished to make in respect of the application of Culhana to this appeal. Both parties provided written submissions.
I have had regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the written submissions by the parties, as well as the submissions that the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement dated 15 July 2024.[5] He advised that he had been working as a concreter for approximately 35 years, and for the respondent since about 2013. He said that the respondent employed one other worker, and the appellant and his wife were the respondent’s directors. He indicated that towards the latter part of 2022 he began to experience pins and needles in his left hand and was diagnosed as suffering from carpal tunnel syndrome. He said that his general practitioner, Dr Mazin Amir of Myhealth Edensor Park, referred him to a physiotherapist, he was provided with night splints and was referred to Dr Chris Scott, hand surgeon, who recommended non-operative treatment.
[5] Application to Resolve a Dispute (ARD), pp 1–3.
The appellant advised that the symptoms in his left hand improved with physiotherapy to the extent that he was able to manage his symptoms.
The appellant described an incident in December 2022 when he was removing a concrete pour frame and loading timber onto his truck. He said he lifted a piece of timber weighing about 30 kilograms, which caused pain in the right shoulder. He said that he stopped work in about January 2023 because the pain in his right shoulder worsened and began to radiate into the right side of his neck.
The appellant stated that Dr Amir referred him for an ultrasound which disclosed a tear in his right rotator cuff. He said that his shoulder showed improvement following physiotherapy and rest, but he continued with pain and restrictions, so from November 2022 until January 2023, he performed only light work. He said that he then went off work in January 2023 and did not return until October 2023.
The appellant advised that he underwent an MRI scan of the right shoulder on 19 August 2023 which disclosed a partial thickness tear in the right shoulder and Dr Amir referred him to Dr Chandra (sic, Jay) Davé, orthopaedic surgeon, who prescribed a cortisone injection and advised the appellant to perform no physical work and to commence physiotherapy exercises at home.
The appellant indicated that between October 2023 and January 2024, he worked only about one day per week performing managerial tasks. He added that by about November 2023, after he received a cortisone injection, his shoulder improved and in about January 2024 he returned to full-time work for the respondent in a managerial role, performing light physical work. He said that he was no longer able to perform concreting work, and that Dr Davé recommended that he limit lifting to no more than 7 kilograms and avoid lifting above shoulder height.
The appellant stated that he had not returned to heavy work, and he continued to experience right shoulder pain, had difficulty lifting above shoulder height and the base of his neck was often stiff and sore. He described difficulties with sleeping, driving with his right arm, performing household maintenance, cleaning and gardening. He said that he took Nurofen Plus for pain management when required.
The appellant provided a supplementary statement dated 4 December 2024.[6] He described his family history and his limited schooling, which took place in Italy. He said that he commenced his trade as a concreter in Italy but moved to Australia when he was about 18 years old and worked for various employers as a concreter. He said that he started his own concreting business in 1999. He described the heavy nature of concreting work and referred to muscle aches and pain and discomfort after work, which would usually resolve with rest. He said that pain in the left wrist was common, particularly after prolonged heavy lifting or gripping. He repeated the history of the worsening of the left wrist in about mid November 2022, the treatment provided and the additional diagnosis of right carpal tunnel syndrome.
[6] Appellant’s Application to Admit Late Documents (AALD) dated 4 December 2024, pp 1–3.
The appellant said that he continued to work, using his right arm more frequently when lifting. He advised that he began to feel discomfort in his right shoulder, which he said probably occurred about one or two months after the onset of left wrist symptoms. He repeated the history of treatment for the right shoulder.
The appellant indicated that his weekly compensation payments ceased in October 2023. The appellant said that he would struggle with the jobs of a building associate, a residential site supervisor and a delivery driver, which were suggested by the respondent, because of his shoulder pain and physical restrictions and because those roles required handling of heavy equipment and materials, including suitcases and boxes. He denied having good computer skills and said that his daughter performed most of the computer work for the respondent. He added that his only work experience was in the concreting industry.
The appellant referred to his evidence that for a period between October 2023 and January 2024, he worked in a managerial capacity for about one day per week. He explained that his work at that time was limited to handling paperwork and taking important client calls for about six hours of those days. He confirmed that, following his return to work in full-time managerial duties only, he no longer performed heavy work and focussed on light tasks such as estimating and quoting jobs, supervising on-site work and providing instructions.
The appellant advised that he continued to experience flare-ups of pain in his left wrist, particularly with frequent use, and he continued to wear night splints on some nights of the week. He indicated that his right shoulder was improved but he experienced occasional pain and stiffness so that he tried to avoid aggravating activities such as lifting weights above shoulder height and overuse of the right arm.

The relevant medical evidence

The clinical notes of Myhealth Edensor Park

The clinical notes of Myhealth Edensor Park were in evidence.[7]
[7] ARD, pp 87–132.
On 16 November 2022, the appellant complained to Dr Evelyn Banares, general practitioner, of pins and needles at night. Dr Banares arranged for the appellant to undergo an ultrasound of the left wrist.[8]
[8] ARD, pp 119–120.
On 21 December 2022, the appellant consulted Dr Mazin Amir, general practitioner, who took a history of the appellant’s manual work and noted wrist pain and numbness, mostly at night worse in the left wrist than in the right. Dr Amir recorded that the ultrasound of the left wrist confirmed the diagnosis of carpal tunnel syndrome and considered that bilateral carpal tunnel syndrome was the likely diagnosis.[9] A subsequent ultrasound of the right wrist arranged by Dr Amir and dated 29 December 2022 confirmed that the results suggested right carpal tunnel syndrome.[10]
[9] ARD, p 120.
[10] ARD, p 121.
On 11 January 2023, Dr Amir recorded that the appellant was also complaining of right shoulder symptoms which were likely work-related.[11] Dr Amir referred the appellant for a right shoulder ultrasound. On 18 January 2023, Dr Amir noted that the ultrasound disclosed a partial thickness tear of the supraspinatus tendon with mild subacromial-subdeltoid bursitis with impingement.[12]
[11] ARD, p 121.
[12] ARD, p 122.
On 8 February 2023, 15 February 2023, 8 June 2023, 17 August 2023 and 5 October 2023 Dr Amir participated in case conferences with the respondent’s rehabilitation provider and issued Certificates of Capacity accordingly. On 2 November 2023, Dr Amir downgraded the appellant’s work capacity, with the notation that Dr Davé had recommended that the appellant had “no work capacity”.[13]
[13] ARD, p 130.

The WorkCover Certificates of Capacity

A bundle of Certificates of Capacity issued between 21 December 2022 and 30 November 2023 were annexed to the ARD.[14] Certificates issued between 21 December 2022 and 17 April 2023 certified the appellant as having capacity to work 8 hours per day for 5 days per week with restrictions on lifting, carrying, pushing and pulling limited to 2 kilograms.[15] Certificates covering the period from 17 April 2023 to 11 June 2023 indicated that the appellant could work 8 hours per day, 5 days per week but his ability to lift, carry, push and pull was increased to 7 kilograms,[16] and that ability was increased to 7.5 kilograms in certificates covering the period from 11 June 2023 to 5 November 2023.[17]
[14] ARD, pp 243–317.
[15] ARD, pp 243–265.
[16] ARD, pp 271–280.
[17] ARD, pp 281–300; 303–307.
In a certificate dated 2 November 2023, the appellant was certified as having no capacity for work from 2 November 2023 to 30 November 2023.[18] On 30 November 2023, the appellant was certified as having capacity to work 3 hours per day 3 days per week with lifting restrictions from 30 November 2023 to 23 December 2023.[19]
[18] ARD, pp 309–312.
[19] ARD, pp 313–317.
Further certificates were annexed to the ARD, some of which were duplicates of the certificates referred to above.[20] Relevantly, a certificate dated 18 April 2024 certified that the appellant was fit for work 8 hours per day 5 days per week with restrictions on lifting, carrying, pushing and pulling of 7 kilograms for the period 23 December 2024 to 2 May 2024. Given the date the certificate was issued and the end date of 2 May 2024, the date of 23 December 2024 must have been a typographical error and was intended to be 23 December 2023.[21]
[20] ARD, pp 360–409.
[21] ARD, pp 381–385.

Dr Chris Scott, hand surgeon

Dr Scott, the specialist to whom the appellant was referred in respect of his diagnosed carpal tunnel syndrome, reported to the respondent on 7 March 2023. In respect of the question of the appellant’s incapacity, Dr Scott referred to his letter to the appellant’s general practitioner dated 18 January 2023 (which is not in evidence) and relevantly advised that he had cleared the appellant for full pre-injury duties on 18 January 2023.[22]
[22] ARD, pp 322–323.

Dr James Bodel, orthopaedic surgeon

Dr Bodel examined the appellant on 14 December 2023 at the request of the appellant’s legal representatives and provided a report dated 20 February 2024.[23] In respect of the issue of the appellant’s capacity for work, Dr Bodel noted that the respondent ceased payments on the basis of the medical assessment conducted by Dr Richard Powell, who was of the view that the appellant had capacity for work but could not to return to his full pre-injury duties. Dr Bodel referred to an assessment conducted by Pinnacle Rehab, which identified suitable alternate work duties as a building associate (residential site supervisor), personal transport driver or delivery driver. He commented that the appellant had worked for most of his life as a concreter and wanted to return to his normal duties rather than the proposed alternate duties. He observed that the appellant’s prospects of being successfully retrained were unlikely.
[23] ARD, pp 41–50.
Dr Bodel advised that the appellant was not, and would never be, fit for his pre-injury employment and had no capacity for work that was appropriate, given his physical limitations and his education, training and experience. He noted the current restrictions certified by the general practitioner of limited use of the right arm, especially overhead, and minimising pushing and pulling. He considered that the appellant did not have the capacity to work as a concreter and while the recommendations made by Pinnacle Rehab were appropriate, they would require retraining and there would be a risk of aggravation to the shoulder. He concluded that:
“There is a possibility for him to work in some capacity but he would have to be retrained. He would struggle to work more than 20 to 25 hours a week. He would need to begin four hours a day, three days a week and slowly upgrade, but I think it unlikely he will ever get past 20 or 25 hours a week.”[24]
And:
“The training alternatives offered by Pinnacle Rehab include residential site supervisor and I believe that would be a possible alternative. He would struggle to do more than 20 to 25 hours per week. Personal transport service may be unsuitable in the longer term because he cannot work any significant hours to earn an income without aggravating his shoulder. Similarly, the delivery van driver might be tolerable, but there would have to be short driving periods and light delivery work.”[25]
[24] Dr Bodel’s report dated 20 February 2024, p 6, [11], ARD, p 46.
[25] Dr Bodel’s report dated 20 February 2024, p 6, [12], ARD, p 46.
Dr Bodel provided a separate report in which he assessed the appellant’s whole person impairment, and a further report dated 14 September 2024 in response to questions posed by the appellant’s legal representatives. The matters addressed by Dr Bodel did not pertain to the appellant’s capacity for work.

Dr Jay Davé, orthopaedic surgeon

Dr Amir referred the appellant to Dr Davé in respect of the appellant’s right shoulder symptoms. Dr Davé, together with Dr Richard Allom, orthopaedic surgeon, examined the appellant on 26 October 2023 and reported to Dr Amir on that day.[26] They diagnosed the appellant as having a partial thickness tear of the supraspinatus with tendinopathy in the supraspinatus and biceps, a tear of the subscapularis and acromioclavicular joint arthritis. Dr Davé and Dr Allom recommended the appellant undergo a steroid injection into the acromioclavicular joint and a rotator cuff stretching and strengthening program through his physiotherapist. They considered that the appellant should refrain from any physical work for the time being and should not undertake any lifting, carrying or overloading the shoulder but said that he could continue performing a management role. Dr Davé indicated that he would review the appellant in the New Year.
[26] ARD, pp 77–78.

Dr Davé provided a report dated 6 November 2023 at the request of the respondent.[27] With respect to the appellant’s capacity for work, Dr Davé advised that the appellant could continue in his management role, as well as perform office-based duties until he was to be reviewed on 16 January 2024. He said that, at the time of the appellant’s last visit, he was fit for normal hours on selected duties, with no lifting greater than 5 kilograms, and no lifting above shoulder height.
[27] Reply to Application to Resolve a Dispute (reply), pp 117–118.
On 18 January 2024, Dr Davé wrote to Dr Amir, informing Dr Amir that the appellant felt that he was ready to return to a managerial position with a restriction on lifting no greater than 7 kilograms.[28]
[28] ARD, p 79.
Dr Davé provided a report dated 29 February 2024 directed to the appellant’s legal representatives.[29] He gave a history of the appellant’s shoulder injury and of the treatment provided. He advised that the appellant underwent an acromioclavicular joint injection on 10 November 2023 with very good results. Dr Davé confirmed that the appellant attended for review on 18 January 2024 and reported that the pain relief had been maintained, he had full range of motion of the shoulder with minimum pain and only mild weakness. He advised there was no indication for surgical intervention at that stage. He reported that the appellant wished to return to work in a management role with a lifting limit of 7 kilograms, which he was found fit to undertake. Dr Davé observed that the appellant was not fit to undertake concreting work or any overhead work such as loading or unloading trucks.
[29] ARD, pp 81–83.
Dr Davé confirmed that the appellant was fit to return to work as a manger on a full-time basis, avoiding lifting greater than 7 kilograms and avoiding overhead work. He advised that the appellant “has already returned back to work as a manager within his concreting company and he is ideally suited to this. This is also at his own volition as he feels quite capable to do this type of work.”[30] He added that he did not consider it relevant for the appellant to look for alternate work such as a building associate, personal transport service or delivery driver when the appellant was happy to return to work in his own business in a full-time management role.
[30] ARD, p 82.

Mr Anjel Alias, physiotherapist, High Performance Health

Mr Alias assessed the appellant on 12 December 2023 and 15 December 2023 and provided a functional and vocational assessment report directed to the appellant’s legal representatives.[31] He recorded a history of the appellant’s injury and treatment regime. He observed that the appellant ceased work on 26 October 2023 because of pain and inability to function, as recommended by Davé. He noted that the appellant received a cortisone injection into the shoulder in November 2023, resulting in a reduction of the pain and improved range of motion as well as overall function.
[31] ARD, pp 53–72.
Mr Alias assessed the appellant’s physical capacity. He assessed the appellant as being unfit for his previous work as a concreter. He considered that the appellant had the capacity to perform sedentary work or physical work at a low level, such as a director and manager of his own company.

Dr Alan Skapinker, general practitioner and injury management consultant

Dr Skapinker reported to the respondent on 13 December 2023.[32] He noted that a work capacity decision was issued in October 2023, indicating that the appellant could perform work for 40 hours per week, and that Dr Amir had approved the duties of a building associate/site supervisor, in personal transport service and as a delivery driver. He further noted that Dr Amir had downgraded the appellant’s capacity to nil hours per week from 2 November 2023 on the basis of advice from Dr Davé. Dr Skapinker observed that Dr Amir had misunderstood Dr Davé’s opinion recorded in reports dated 26 October 2023 and 6 November 2023, which was that the appellant could continue his managerial role and office duties and was fit for normal hours performing those duties with no lifting greater than 5 kilograms.
[32] Reply, pp 122–125.
Dr Skapinker expressed the view that he did not agree with the Certificate of Capacity which certified the appellant as having no capacity and agreed with Dr Davé that the appellant had the capacity to work in office-based work and supervisory roles for 8 hours per day, 5 days per week, with lifting limited to 5 kilograms and no above shoulder work. He was of the opinion that work as a building associate or site supervisor was suitable, but not the two other roles identified.
Dr Skapinker reported again to the respondent on 23 January 2024. The opinions expressed by him in that report do not touch upon the issues relevant to this appeal.[33]
[33] Reply, pp 126–130.

Dr Richard Powell, orthopaedic surgeon

Dr Powell examined the appellant and provided a report dated 18 July 2023 at the request of the respondent.[34] He provided a consistent history of the appellant’s work history and the injuries to the appellant’s left wrist and right shoulder and recorded the appellant’s current symptoms and treatment. He performed a physical examination of the left wrist and the right shoulder. He expressed the view that the right shoulder condition was work-related and likely to be suggestive of rotator cuff pathology, but the left wrist was idiopathic.
[34] Reply, pp 131–136.
Dr Powell indicated that he would not recommend that the appellant return to his pre-injury duties but said the appellant could perform full-time work avoiding repetitive use of the right arm, in particular using his arm away from the body or overhead, with a lifting restriction of 2 to 3 kilograms. He recommended the appellant undergo an MRI scan in order to determine the exact pathology present.
Dr Powell provided a further report dated 26 September 2023, in which he reviewed the results of the MRI scan.[35] He confirmed that the scan disclosed rotator cuff pathology, bicipital pathology and subacromial bursitis and expressed the view that the nature and conditions of the appellant’s employment as a concreter over a period of time aggravated the underlying degenerative process. He noted the appellant’s treatment to date and recommended further specialist review. He advised that the MRI scan did not lead him to change his opinion expressed in his earlier report as to the appellant’s capacity for work.
[35] Reply, pp 137–138.
On 26 April 2024, Dr Powell again examined the appellant and reported to the respondent on 24 July 2024.[36] He noted that the appellant had enjoyed left wrist and right shoulder improvement through conservative treatment measures. Dr Powell described the symptoms in both as “intermittent” and mildly symptomatic. He believed that the appellant’s injuries had reached maximum medical improvement and proceeded to assess the appellant’s whole person impairment.
[36] Reply, pp 139–146.

Pinnacle Rehab documents and reports

Extensive work capacity assessments, return to work plans and reports commencing from February 2023 were generated by Pinnacle Rehab rehabilitation providers.[37] In a Comprehensive Progress Report dated 24 October 2023, the agreed return to work goal identified the proposed vocational options as that of a building associate (residential site supervisor), personal transport service or delivery driver.[38] The report noted the appellant’s restrictions in place for the period from 5 October 2023 to 5 November 2023, as certified by Dr Amir. The rehabilitation services ceased at that time as the appellant did not want to pursue job seeking with a different employer.
[37] Reply, pp 8–104.
[38] Reply, pp 99–104.

LEGISLATION

Clause 8 of Sch 3 to the 1987 Act defines “current weekly earnings” as:
“8 Meaning of ‘current weekly earnings’
Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a) the worker’s actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
Clause 9 of Sch 3 to the 1987 Act defines “current work capacity” and “no current work capacity” as follows:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 32A 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.”

THE MEMBER’S REASONS

The Member provided a detailed background and summary of the issues in dispute. As the only issue in this appeal is the appellant’s entitlement to weekly compensation from 4 October 2023 to 25 January 2024, it is not necessary to summarise the whole of the Member’s reasons.
Following a review of the medical and medico-legal opinions, the Member proceeded to determine whether the appellant had suffered a cervical injury and concluded that she was not satisfied that the appellant suffered a work-related injury to his cervical spine. She further determined that there was no basis upon which to refer the claim for a lump sum in respect of the left wrist injury for assessment by a Medical Assessor because there was no evidence of an assessment of the appellant’s whole person impairment of that injury pursuant to s 66(1) of the 1987 Act.
The Member summarised the appellant’s statement evidence, together with the available rehabilitation and medical evidence.
The Member reviewed the Certificates of Capacity from 5 October 2023 to 2 May 2024, but did not include the Certificate of Capacity issued on 30 November 2023. She noted that the appellant was certified as having no capacity for work from 2 November 2023 to 30 November 2023, and in the certificate issued on 18 April 2024, the appellant was certified as having capacity for employment for 8 hours per day 5 days per week with lifting restrictions from 23 December 2023 to 2 May 2024 in a management role performing office duties.
The Member turned to the question of the appellant’s degree of incapacity and his entitlement to weekly compensation. She summarised the submissions of the parties and reproduced s 33, s 37(3) and s 32A of the 1987 Act. She noted the definition of “current weekly earnings” defined in cl 8 of Sch 3 to the 1987 Act. The Member referred to the appellant’s wages schedule and the respondent’s list of payments. She observed that the respondent made payments to the appellant pursuant to s 36 and for a further 27.9 weeks pursuant to s 37. She noted that the appellant sought a further 16 weeks of compensation pursuant to s 37(3) of the 1987 Act for the period from 4 October 2023 to 25 January 2024. She said that the respondent did not dispute that s 37(3) applied in this case and that there was no dispute that the appellant returned to full-time work in a managerial role for the respondent immediately after the expiration of the period claimed.
The Member referred to the evidence that the appellant actually worked 6 hours per week earning $222.65 per week in a management role throughout the period claimed, including the period when he was certified by Dr Amir as having no capacity.
The Member observed that there was a considerable body of evidence supporting the assertion that the appellant could work in a managerial role during the period claimed. The Member referred to the joint evidence of Dr Davé and Dr Allom in their report dated 26 October 2023 that the appellant could continue in a managerial role, and the opinion of Dr Davé in his report dated 6 November 2023 that the appellant could continue work in a managerial role, together with office-based duties until 16 January 2024. The Member indicated that Dr Alan Skapinker also expressed the opinion in his report dated 13 December 2023 that the appellant was fit for managerial and office-based work until January 2024, and that on 9 January 2024 Mr Alias, physiotherapist from High Performance Health, also considered that the appellant could work as a director and in supervisory roles, such as that of a general manager for the respondent. She noted that Dr Davé in January 2024 and February 2024, as well as Dr Skapinker in January 2024 were also of the view that the appellant could perform managerial work such as he was performing for the respondent on a full-time basis. The Member observed that Dr Davé’s opinion expressed in February 2024 was after the period of the claim but said that the opinion was consistent with the appellant having similar capacity during the period of the claim.
The Member referred to the evidence of Dr Bodel that it was unlikely that the appellant would only ever be able to work more than 20 to 25 hours per week, which she said was inconsistent with the fact that the appellant did actually return to full-time work the day after the examination. She indicated that she did not find Dr Bodel’s opinion persuasive.
The Member said that having considered the whole of the evidence, that evidence strongly supported the conclusion that the appellant had capacity to perform managerial work on a full-time basis, apart from the period between 2 November 2023 and 30 November 2023. She concluded that during the period from 2 November 2023 to 30 November 2023, the appellant actually performed managerial work for 6 hours per week, which reflected his true capacity for work during that time, despite the fact that it was inconsistent with the Certificate of Capacity certifying him as having no capacity.
The Member considered that the managerial work performed by the appellant during the period of the claim was consistent with the appellant’s age, education, skills and limited work experience. She observed that the appellant returned to full-time work, and that he did not deny that he could perform that work on a full-time basis. She concluded that the appellant did have the capacity to work in a managerial role for the respondent without performing physical work. She noted that the appellant did not dispute that if he had been performing full-time managerial work for the respondent, his earnings would have been $1,960 per week.
The Member referred to the matters set out in s 32A of the 1987 Act and determined that:
(a) the appellant’s current weekly earnings for the period from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2023 were $1,960 per week, which was the amount the appellant was able to earn in suitable employment on a full-time basis with the respondent, and
(b) the current weekly earnings for the period from 2 November 2023 to 30 November 2023 were $222.65 for 6 hours per week.
The Member determined the appellant’s weekly entitlement to compensation for the period from 2 November 2023 to 30 November 2023 to be $961.35, and nil per week for the remaining periods claimed.
The Certificate of Determination issued on 10 January 2025 records:
“The Commission determines:
1. Award for the respondent in relation to the claimed injury to the cervical spine pursuant to ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act);
2.      There is no basis to remit any part of the matter to the President for referral to a Medical Assessor for determination of whole person impairment;
3.      During the claim period, the [appellant] had current work capacity and returned to work for less than 15 hours per week, and
4.      The ‘current weekly earnings’ that should be applied in this case for calculation of the [appellant’s] entitlement to weekly benefits compensation pursuant to s 37(3) of the 1987 Act:
(a)              for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024, is $1,960 per week, being the weekly amount that the [appellant] would be able to earn during the claim period in ‘suitable employment’, specifically managerial work with the respondent on a full-time basis, and
(b)              for the period from 2 November 2023 to 30 November 2023, is $222.65 per week, being the weekly amount that the [appellant] would be able to earn during the claim period in ‘suitable employment’, specifically managerial work with the respondent on the basis of six hours work per week.
The Commission orders:
5.      The respondent to pay the [appellant] weekly compensation pursuant to ss 33 and 37 of the 1987 Act as follows:
(a) $961.35 per week from 2 November 2023 to 30 November 2023.
6.     Liberty to apply within 14 days in respect of calculation of the weekly compensation amounts.”

GROUNDS OF APPEAL

The appellant asserts two grounds of appeal, expressed as follows:
(a) Ground One: “the determination relied on an erroneous reading of the certificates of capacity”, and
(b) Ground Two: “the factual error concerned a matter that was material within the process of reasoning adopted by the Member in reaching the determination appealed against, amounting to a legal error.”

SUBMISSIONS

As To Ground One

The appellant’s submissions

The appellant asserts that the Member made a factual error in relation to the certification of the appellant’s capacity for the period 1 December 2023 to 23 December 2023 and submits that that error was material to the Member’s reasoning process and her ultimate determination. The appellant points to the Member’s Certificate of Determination, in which the Member concluded that:
“Having carefully considered the evidence as a whole and counsel’s submissions, I do feel a sense of persuasion and I am satisfied on the balance of probabilities that the [appellant] was able to earn income, performing the work of manager of the respondent for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024 on a full-time basis, and for the period from 2 November 2023 to 30 November 2023 on the basis of six hours per week because:
(a) during the entire of the claim period, the [appellant] was certified to have capacity to work full-time hours of eight hours per day, five days per week, subject to physical work restrictions, with the exception of the period from 2 November 2023 to 30 November 2023 when the [appellant] was certified to have no current work capacity for any employment;
…”.[39]
[39] Leuzzi v Primo Concrete Pty Ltd [2025] NSWPIC 9 (reasons), [104].

The appellant submits that the factual error lies within sub-paragraph (a). The appellant indicates that for the period from 1 December 2023 to 23 December 2023, the Certificates of Capacity certified him as having a capacity to work for 3 hours per day, 3 days per week, and not the capacity to work 8 hours per day, 5 days per week. The appellant submits that:
“The misapprehension of the certification of capacity across part of the claim period affects the entire determination, because it changes the Member’s characterisation of the appellant’s capacity across the entire claim period as being full-time, subject to a four week exemption.”[40]
[40] Appellant’s submissions, [16].
The appellant asserts that in fact, he did not have the capacity to work full-time for almost half of the period of the claim. The appellant says that the importance of that Certificate of Capacity to the Member’s ultimate determination is evident from the fact that the Member dealt with the certificates at the beginning of her reasons.

The respondent’s submissions

The respondent submits that a review of the Certificates of Capacity shows that there are some inconsistencies within some of those certificates which are difficult to reconcile. The respondent points to:
(a)    the certificates in respect of the period from 15 September 2023 and 5 November 2023, which indicate that the appellant was fit for work in suitable duties for 8 hours per day, 5 days per week;
(b)    the certificate for the period from 2 November 2023 to 30 November 2023, certifying that the appellant had no capacity for work;
(c)    the certificate for the period 30 November 2023 to 23 December 2023, which the respondent submits could be read as certifying either nil capacity or capacity for some work 3 hours per day, 3 days per week, and
(d)    the certificate bearing date 23 December 2024, which the respondent says should be read to be 23 December 2023, and which certified the appellant as having either no capacity or capacity for suitable employment for 8 hours, 5 days per week from 23 December 2023 to 2 May 2024.
The respondent asserts that it is unclear whether the certificates from 30 November 2023 were intended to indicate that the appellant had no capacity for work or had capacity to work in suitable employment. The respondent points out, however, that the certificates were just part of the evidence the Member considered when dealing with the question of whether the appellant had capacity for suitable employment.
The respondent refers to the Member’s reasons from paragraph [92] of her Certificate of Determination, in which she noted that during the period of the claim, the appellant was performing work for six hours per week in a management role for the respondent. The respondent indicates that the Member concluded that the appellant had current work capacity and had returned to work for less than 15 hours per week, which enlivened the operation of s 37(3) of the 1987 Act. The respondent says that s 37(3) prescribed the method of calculation of the appellant’s weekly compensation. The respondent says that, in accordance with s 37(3)(a), the Member calculated 80% of the pre-injury earnings to be $1,184.00 and proceeded to consider the evidence in relation to the appellant’s ability to earn in suitable employment.
The respondent submits that the Member concluded that the appellant was able to work full-time as a manager for the respondent for the period excepting the period from 2 November 2023 to 30 November 2023. The respondent asserts that the Member did not only take into account the Certificates of Capacity, but also gave regard to the other medical evidence, which supported the conclusion that the appellant had capacity to work on a full-time basis in suitable employment. The respondent points out that there was also no direct evidence from the appellant in the form of an explanation as to why he could not work full-time for the respondent, particularly when the appellant did in fact return to full-time suitable employment on 25 January 2024.
The respondent submits that, while there was some discrepancy in the Member’s analysis of the Certificates of Capacity, the discrepancy was not sufficient to disturb her finding that the appellant had the capacity for full-time suitable work during the relevant periods. The respondent reiterates that the Certificates of Capacity were far from clear and were not the only evidence relied upon by the Member in reaching her conclusion.
The respondent asserts that the Member’s conclusions should stand and that there ought to be no alteration to the award entered by the Member.

As to Ground Two

The appellant’s submissions

The appellant refers to the Member’s further reasoning that the Member considered that:
“… the performance of such managerial work for the respondent on a full-time basis for the whole claim period, with the exception of the period from 2 November 2023 to 30 November 2023, is substantially consistent with the [appellant’s] incapacity as certified for those periods”.[41]
[41] Reasons, [104(f)].
The appellant asserts that the certification of his capacity was influential and underpinned the Member’s ultimate determination. The appellant contends that the Member’s finding that there was a “substantial consistency” between the certificates was undermined by her factual error as to the Certificate of Capacity indicating that the appellant’s capacity for work was limited to 3 hours per day, 3 days per week and not full-time as found by the Member. The appellant submits that the compensable period should have been extended to 23 December 2023.
The appellant refers to the Member’s reasoning that the appellant’s ability to earn during the period 2 November 2023 to 30 November 2023 was “substantially consistent with what actually occurred and the [appellant’s] actual capacity during that period.”[42] The appellant asserts that this passage again shows that the Member placed importance on the Certificates of Capacity, in that the Member did not “disavow” that Certificate of Capacity but adjusted it to reflect what had actually happened.
[42] Reasons, [104(g)].
The appellant submits that the Member did not find the opinion of Dr Bodel persuasive in respect of the appellant’s work capacity, that is, that the appellant would need a graduated return to work and would be unlikely to return to more than 20 or 25 hours per week. The appellant says that the opinion that he would require a graded return to work was somewhat consistent with the certified incapacity for the period from 2 November 2023 to 25 January 2024. The appellant submits that that consistency would not have been obvious to the Member because of her factual error. The appellant says that a gradual return to work was consistent with the certification of his capacity over the period from 2 November 2023 to 25 January 2024 and contradicts the Member’s finding of work capacity over the entire period of the claim.
The appellant refers to the Member using a common-sense approach to draw the inference that the appellant had the capacity to work in a managerial role over the period of the claim. The appellant observes that while it is permissible to draw an inference from established facts, those facts must be proved. The appellant says that the fact relied upon by the Member was erroneous, so the Member’s “entire inferential reasoning process is invalidated.”[43] The appellant asserts that if the inference drawn is that he had the capacity for full-time work prior to 25 January 2024, then that inference is invalidated because of the Member’s reliance on factual error.
[43] Appellant’s submissions, [21].
The appellant submits that the Certificates of Capacity were influential in the Member’s reasoning process but were not determinative. The appellant asserts that: “It follows that the entire process of reasoning as to the appellant’s capacity for work throughout the claim period is invalidated by the factual error, and the determination reached must be revoked.”[44]
[44] Appellant’s submissions, [22].
The appellant refers to the Member’s observation that there was a considerable body of evidence that the appellant could perform managerial work over the period of the claim. The appellant asserts that that finding only goes to the kind of work the appellant could undertake and not the extent of his capacity, such as how many hours and how many days he could work. The appellant further asserts that the contemporaneous evidence of capacity during the period of the claim leads to the inevitable inference that that evidence was consistent with what actually occurred.
The appellant concludes that a new determination should be made that the appellant’s current weekly earnings throughout the entire claim period should reflect the appellant’s actual capacity and what work he actually performed.

The respondent’s submissions

The respondent submits that the appellant is seeking to have the Member’s entire determination as to the appellant’s capacity revoked on the basis of a discrepancy between the Member’s reasoning and one Certificate of Capacity. The respondent asserts that the appellant’s approach ignores the Member’s extensive analysis of the evidence as to the appellant’s capacity and the identification of suitable employment set out in the Member’s reasons at paragraph [104]. The respondent says that the Member explained her findings in relation to the appellant’s ability to work full-time, and that the suitable employment was as a manager in the employ of the respondent. The respondent submits that the Member did not simply focus on an analysis of the Certificates of Capacity. The respondent points to the Member’s reasoning that:
(a) Dr Bodel’s opinion was unpersuasive because it was inconsistent with the fact that the appellant worked throughout the entire period, even when he was certified as having no capacity, and
(b) the appellant provided no direct evidence as to why he would be unable to perform full-time work in a managerial capacity.
The respondent asserts that the totality of the Member’s reasons should be considered, particularly in respect of the inconsistencies in the evidence. The respondent says that the Certificates of Capacity were only a part of the Member’s reasoning process.
The respondent refers to the appellant’s submission that the Member ought to have afforded weight to what had actually happened, instead of making an assessment of the appellant’s capacity. The respondent submits that the approach suggested by the appellant falls contrary to the requirements of s 32A of the 1987 Act, which requires a consideration of suitable employment, regardless of whether that work is generally available in the open labour market.
The respondent submits that the Member found that the appellant had current work capacity to perform full-time work in suitable employment as a manager for the respondent for the periods identified in determination 4 of her Certificate of Determination and that that determination was supported by the evidence, despite the fact that the appellant was only working six hours per week in that suitable employment. The respondent asserts that, other than for the period when the appellant had no capacity for work, the evidence suggested that the appellant had a greater capacity for work than six hours per week.

The appellant’s submissions in respect of the application of Culhana

The appellant submits that this appeal should be determined in accordance with the principles set out in Culhana. That is, a review of all of the evidence is required, taking into account the advantages a primary decision-maker may have. The appellant says that, in this case, any advantage must be limited because there was no oral evidence adduced, the submissions were made orally and were transcribed. The appellant asserts that exchanges between counsel and the Member were not extensive. The appellant asserts that the Presidential Member who determines the appeal is not in a very different position to that of the Member who determined the dispute.
The appellant submits that the Member’s reasoning that it was a matter of commonsense to draw an inference that the appellant had work capacity in a managerial capacity during the requisite time was an inferential finding and was erroneous. The appellant asserts that the Member’s error has infected the whole process of inferential reasoning and her inferences drawn. The appellant adds that its submissions already made in respect of the distinction between factual error and legal error are of less significance because of Culhana. The appellant contends that, ultimately, this dispute is one where a different conclusion on a question of fact is eminently justified and the Presidential Member “should not shrink from giving effect to it.”[45]

The respondent’s submissions in respect of the application of Culhana

[45] Culhana, per Leeming JA, [91].

The respondent submits that the application of Culhana to this appeal “creates no controversy”[46] in the determination of this appeal. The respondent says that the Member made no findings in relation to the credit or reliability of witnesses, no oral evidence was taken, and the matter was determined on the basis of the oral submissions of the counsel who appeared at the arbitration. The respondent submits that the Presidential Member would be in as good a position to draw the proper inferences from the undisputed facts, or, where the facts are disputed, the facts that were found by the Member.
[46] Respondent’s submissions 14 August 2025, [2].

THE ORDERS SOUGHT

The appellant seeks to have determination 4 of the Certificate of Determination revoked and, in its place a new determination made that his current weekly earnings during the period 4 October 2023 to 25 January 2024 were $222.65, which was the amount the appellant was able to earn in suitable employment, that is, in managerial work with the respondent for six hours per week. The appellant also seeks an amendment to paragraph [5(a)] to delete the order that the respondent pay the appellant $961.35 per week from 2 November 2023 to 30 November 2023 and to insert instead “$961.35 per week from 4 October 2023 to 25 January 2024.
The respondent submits that the appeal should be dismissed.

CONSIDERATION

As this appeal asserts error in the Member’s findings of fact, it is important to consider the recent NSW Court of Appeal decision of Culhana, in which the Court set out the proper approach to be taken by a Presidential Member in the application of s 352(5) of the 1998 Act and the identification of error in the fact-finding process. The Court determined that the approach previously taken by following the authorities of Whiteley Muir & Zwanenberg Ltd v Kerr,[47] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[48] and Raulston was too narrow a test and was wrong, and it was not sufficient for an appeal to be dismissed on the basis that it was “open” to the Member to reach his or her conclusion. Leeming JA (with Bell CJ, Kirk, McHugh and Free JJA agreeing) said:
“Future appeals under s 352 should apply the approach in Warren v Coombes[49] and Fox v Percy.[50] Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”[51]
[47] (1966) 39 ALJR 505.
[48] [2001] FCA 1833.
[49] [1979] HCA 9.
[50] [2003] HCA 22 (Fox v Percy).
[51] Culhana, [91].
In Fox v Percy, the High Court observed:
“Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:
‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’”[52]
[52] Fox v Percy, [25].
Thus, where the relevant fact in issue on appeal is an inference to be drawn from the established facts, a Presidential Member is required to determine the correct outcome in respect of the relevant issue, while giving due allowance for any advantage the Member at first instance may have experienced. The High Court in Steven Moore (a pseudonym) v The King[53] referred to this approach as the “correctness standard.”
[53] [2024] HCA 30, [14].
In the present case, there was no oral evidence given and the dispute was decided on the basis of the oral submissions of the parties which did not develop into any discourse between the Member and either party. Both parties concede that the Member at first instance had little if any advantage over a Presidential Member in drawing inferences from the established facts. In those circumstances, I do not consider that the Member had any advantage over a Presidential Member in terms of evaluating the evidence of the witnesses and reaching her factual conclusions. I therefore need to determine whether the Member’s findings were correct without having to make any allowance for the Member having any advantage.

Ground One: The determination relied on an erroneous reading of the Certificates of Capacity

The appellant asserts factual error on the part of the Member in determining that, apart from the Certificate of Capacity covering the period from 2 November 2023 to 30 November 2023, the Certificates of Capacity covering the period of the claim (from 4 October 2023 to 25 January 2024) certified that the appellant had capacity for work on a full-time basis, eight hours per day, five days per week. The appellant points to the Certificate of Capacity dated 30 November 2023 in which the appellant was certified as having capacity to work 3 hours per day 3 days per week with lifting restrictions until 23 December 2023.
The Member did not refer to that certificate and appears to have overlooked it when considering the content of the bundle of certificates.
A decision-maker’s failure to refer to evidence may not always be indicative of error.[54]
[54] Lu v Heinrich [2014] NSWCA 349.
The Member was not taken to that certificate by either party and in fact the transcript discloses that the only reference at all to the Certificates of Capacity was a submission by the respondent that none of those certificates mentioned an injury to or symptoms in the neck, which injury was alleged by the appellant and contested by the respondent.
In his submissions relating to capacity, the appellant referred to the respondent’s work capacity decision, the report of Mr Alias, physiotherapist, the vocational assessment, and the evidence of Dr Bodel and of Dr Davé.[55]
[55] Transcript of proceedings (T) 10 December 2024, T 14.25–T 17.31.
The respondent referred to the evidence of Dr Davé, Dr Skapinker, Mr Alias, Dr Bodel, and the assessment by Pinnacle Rehab.[56]
[56] T 24.25–27.8.
The substance of the appellant’s submissions was that, on the basis of that identified evidence:
(a)    the appellant had only ever worked as a concreter;
(b)    the appellant had no prospects of being retrained and had limited ability to perform physical work such as reaching and lifting;
(c)    the appellant’s role as a director and manager of his own company was the only suitable role, which he took up immediately following the closed period, and
(d)    basically, the appellant would not be suitable for retraining and had physical limitations on his capacity.

The appellant made no submissions in relation to the Certificates of Capacity. More particularly, he did not refer to the Certificates of Capacity issued on 2 November 2023 and 30 November 2023 and did not draw the Member’s attention to either of those certificates, which were ensconced within the last quarter of 414 pages of the ARD.
In any event, the Member did not determine the appellant’s capacity solely on the basis of the certificates. The Member described the body of evidence that supported the notion that the appellant could work in a management role during the period claimed as “considerable.” She referred to the opinions of Dr Davé, Dr Skapinker, and Mr Alias. She noted that, during the period from 2 November 2023 to 30 November 2023, despite the Certificate of Capacity certifying the appellant as having no capacity, the appellant actually did work six hours per week. The Member also referred to the backdated certificate dated 18 April 2024 produced by Dr Amir, the appellant’s general practitioner, in which the appellant was said to have had capacity to work eight hours per day five days per week, subject to physical restrictions, from 23 December 2023. The Member further noted that the appellant did not deny that he could work full-time in managerial work over the whole period and in fact he did return to work in that capacity.
In accordance with Culhana, I am required to determine whether the Member’s finding as to capacity was correct, which involves a consideration by me of the available evidence. It is relevant to take into account, as did the Member, that the appellant himself did not challenge the assertion that he could work full-time in his own company as a manager and director.
The evidence relevant to the appellant’s capacity for work between October 2023 and 25 January 2024 is as follows:
(a)    The Pinnacle Rehab report dated 24 October 2023 recorded that the agreed return to work goal was either as a building associate (residential site supervisor), personal transport service or delivery driver,[57] with physical restrictions in place as certified by Dr Amir.
[57] Reply, pp 99–104.
(b)    On 2 November 2023, Dr Amir downgraded the appellant’s work capacity to “no work capacity” on the basis of Dr Davé’s recommendation.[58]
[58] ARD, p 130.
(c)    In the Certificate of Capacity dated 2 November 2023, the appellant was certified as having no capacity for work from 2 November 2023 to 30 November 2023[59] and on 30 November 2023, the appellant was certified as having capacity to work 3 hours per day, 3 days per week with lifting restrictions from 30 November 2023 to 23 December 2023.[60]
[59] ARD, pp 309–312.
[60] ARD, pp 313–317.
(d)    A certificate dated 18 April 2024 certified that the appellant was fit for work 8 hours per day 5 days per week with restrictions on lifting, carrying, pushing and pulling of 7 kilograms for the period 23 December 202[3] to 2 May 2024.[61]
[61] ARD, pp 381–390.
(e)    Dr Scott, who treated the appellant in respect of his carpal tunnel syndrome, cleared the appellant for full duties in respect of that condition from 18 January 2023.[62]
[62] ARD, pp 322–323.
(f)    Dr Bodel, who examined the appellant opined that:
(i)the appellant had no capacity for work that was appropriate, given his physical limitations and his education, training and experience;
(ii)there was a possibility of having some capacity, but he would require retraining;
(iii)the recommendation that the appellant was fit for work as a site supervisor was a possibility, but the other options were not suitable, and
(iv)the appellant would struggle with more than 20 to 25 hours per week.
(g)    Mr Alias, the appellant’s physiotherapist, recorded that the pain and overall function in the appellant’s shoulder had reduced following the cortisone injection. He assessed the appellant as being unfit for his previous work as a concreter. He considered that the appellant had the capacity to perform sedentary work or physical work at a low level, such as a director and manager of his own company.[63]
(h)    Dr Powell, who had first seen the appellant in July 2023, was of the view that he would not recommend that the appellant return to his pre-injury duties, but the appellant could perform full-time work avoiding repetitive use of the right arm, should restrict using his arm away from his body or overhead, and should not lift more than 2 to 3 kilograms.[64]
(i)    Dr Davé, the appellant’s treating orthopaedic surgeon, advised in a report dated 6 November 2023, that the appellant could continue in his management role, as well as perform office-based duties and that, at the time of the appellant’s last consultation, he was fit for normal hours on selected duties, with no lifting greater than 5 kilograms, and no lifting above shoulder height.[65] In a subsequent report dated 29 February 2024, Dr Davé advised that:
(i)the appellant had a very good result from the cortisone injection on 10 November 2023;
(ii)on review on 18 January 2024, the pain relief had been maintained and the appellant had full range of motion of the shoulder with minimum pain and only mild weakness, and
(iii)the appellant “has already returned back to work as a manager within his concreting company and he is ideally suited to this.”[66]
(j)    In his report dated 13 December 2023, Dr Skapinker agreed with Dr Davé that the appellant had the capacity to perform office-based work and supervisory roles for 8 hours per day, 5 days per week, with lifting limited to 5 kilograms and no above shoulder work. Dr Skapinker remarked that Dr Amir had downgraded the appellant’s capacity to nil hours on the basis of advice from Dr Davé. Dr Skapinker observed that Dr Amir had misunderstood Dr Davé’s opinion expressed in reports dated 26 October 2023 and 6 November 2023, which was that the appellant could continue in his managerial role and in office duties and was fit for normal hours performing those duties with no lifting greater than 5 kilograms.[67]
[63] ARD, pp 53–72.
[64] Reply, pp 131–136.
[65] Reply, pp 117–118.
[66] ARD, pp 81–83.
[67] Reply, pp 122–125.
It is clear from the above summary that the Certificate of Capacity issued by Dr Amir certifying that the appellant’s capacity for work for the period from 30 November to 23 December 2023 was limited to three hours per day, three days per week was at odds with the entire body of medical evidence. Apart from Dr Bodel, all of the medical experts considered that the appellant could work full-time in the role of a manager in his own business, with restrictions on lifting and overhead work. Dr Bodel’s opinion that the appellant would not be able to work more than 20 to 25 hours was somewhat flawed by the reality that the appellant did return to full-time work at about the time of Dr Bodel’s examination of the appellant.
In addition, the observation by Dr Skapinker that Dr Amir, who relied on Dr Davé’s advice as to the appellant’s capacity, misunderstood Dr Davé’s opinion expressed in Dr Davé’s reports dated 26 October 2023 and 6 November 2023 was an accurate observation. That also weighs against acceptance of the Certificate of Capacity dated 30 November 2023.
Considering the whole of the medical evidence, I am of the view that the Certificate of Capacity dated 30 November 2023, certifying the appellant as having capacity for work limited to three hours per day, three days per week is of no probative value, is against the weight of the evidence, and should not be accepted.
The appellant asserts that the Member’s error in failing to consider the certificate dated 30 November 2023 was a material error in the process of her reasoning and determination. Section 352(5) of the 1998 Act requires that an appeal pursuant to s 352 of the 1998 Act is limited to a determination of whether the Member’s determination was or was not affected by error of fact, law or discretion. The failure to refer to evidence may not always be indicative of error.[68] In the light of the lack of probative value of the certificate, the failure by the Member to consider that evidence cannot have affected her findings and ultimate determination. The appellant has failed to identify such error. It follows that the Member’s findings and determination were correct, and this ground of appeal fails.

Ground Two: the factual error concerned a matter that was material within the process of reasoning adopted by the Member in reaching the determination appealed against, amounting to a legal error

[68] Lu v Heinrich [2014] NSWCA 349.

The appellant raises the same argument as raised in the first ground of appeal, that is, that the Member erred by failing to consider the Certificate of Capacity dated 30 November 2023, which was a material error. This ground of appeal asserts that the error amounts to an error of law. I have dealt with the allegation of error of fact set out in the first ground of appeal and determined that the Member’s failure to consider the certificate was not material to the outcome and there was thus no error on the Member’s part.
The appellant says that the Member placed importance on the Certificates of Capacity, such as when she “adjusted” the previous certification dated 2 November 2023 to reflect what had actually occurred. The appellant submits that the importance placed on the Certificates of Capacity was evident from the fact that that evidence was the starting point for her reasons. I do not accept that the order in which the Member dealt with the certificates has any relevance to the weight she afforded to that evidence. Further, there was a proper basis upon which the Member found that the certificate dated 2 November 2023 was inaccurate. That is, that it certified that the appellant had no capacity for work, when he actually worked.
The appellant further asserts that Dr Bodel’s opinion that a graded return to work was appropriate was also consistent with the certificates from 2 November 2023 to 25 January 2024. The only certificate in evidence as to the period beyond 23 December 2023 was the backdated certificate dated 18 April 2024, in which Dr Amir certified that the appellant was fit for work 8 hours per day 5 days per week with restrictions on lifting, carrying, pushing and pulling of 7 kilograms for the period 23 December 202[3] to 2 May 2024. It is not possible to ascertain any consistency between that certificate and Dr Bodel’s view that the appellant would require a graded return to work, or any consistency between Dr Bodel’s view and the extensive medical opinions, including that of Dr Davé, that the appellant was fit for full-time work as a manager in his own company. The submission is rejected.
The appellant submits that the Member’s finding that there was a considerable body of evidence that the appellant could perform managerial work over the period of the claim only went to the kind of the work for which the appellant was fit and not the extent of his capacity in terms of hours of work per week. This submission suggests an error on the part of the Member by failing to address all issues, which is a different ground of appeal and which has not been pleaded. In any event, the Member made no error. The Member said:
“Having carefully considered the evidence as a whole and counsel’s submissions, I do feel a sense of persuasion and I am satisfied on the balance of probabilities that the [appellant] was able to earn income, performing the work of manager of the respondent for the periods from 4 October 2023 to 1 November 2023 and from 1 December 2023 to 25 January 2024 on a full-time basis …”[69] (my emphasis).
[69] Reasons, [104].
Given the appellant asserts error of law, it is again relevant that the appellant did not draw the Member’s attention to the certificates issued on 2 November 2023 and 30 November 2023, or indeed the later relevant certificate dated 18 April 2024. Rule 67D(2) of the Personal Injury Commission Rules 2021 provides that:
“The appropriate decision-maker for proceedings is not required to have regard to a document not specifically referred to in submissions made by a party to the proceedings.”
Additionally, as McDougall J said (with Leeming JA agreeing) in Caruana v Darouti,[70]
“A party who fails to provide a trial judge with appropriate assistance in relation to evidence generally (and expert evidence in particular) should expect to have a difficult time in persuading an appellate court that some different approach to the expert evidence should be taken.”[71]
[70] [2014] NSWCA 85 (Caruana).
[71] Caruana, [125].
Further, in Brambles Industries Limited v Bell,[72] Hodgson JA observed that an inferior court does not commit an error of law by failing to consider a point not raised before it.
[72] [2010] NSWCA 162.
It follows that this ground of appeal, in which the appellant asserts error of law on the part of the Member, is not made out and fails.

CONCLUSION

The Member’s reasons and findings disclose no error of fact or law and her Certificate of Determination dated 10 January 2025 is confirmed.

DECISION

The Member’s Certificate of Determination dated 10 January 2025 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

4 September 2025