lnghams Enterprises Pty Ltd v Mella - [2023] NSWPICPD 32

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	lnghams Enterprises Pty Ltd v Mella [2023] NSWPICPD 32
APPELLANT:	lnghams Enterprises Pty Ltd
RESPONDENT:	Susana Mella
INSURER:	Self-insured
FILE NUMBER:	A1-W6464/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	8 June 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 30 May 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 4(b)(ii) of the Workers Compensation Act 1987 – aggravation of a disease injury – alleged failure to provide adequate reasons – no error identified on appeal – Kowalski v Repatriation Commission [2011] FCAFC 43 and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied – appeal dismissed
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr P Stockley, counsel
Fern Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Young
DATE OF Member’s DECISION:	30 May 2022

INTRODUCTION

The respondent, Mrs Susana Mella, was employed by the appellant, Inghams Enterprises Pty Ltd, as a process worker for approximately 27 years between 1992 and 2019. During the course of this employment the respondent says that she contracted a disease, namely degenerative spondylolisthesis, which was due to the nature and conditions of her employment as a process worker. The respondent also alleges that there were two specific incidents involving aggravations of the disease, the first in 2014 when she fell off a chair, the second on 15 August 2018 when she slipped on a piece of chicken skin. The respondent ceased employment on or about 24 June 2019. As a consequence of the above circumstances, the respondent alleges that she suffered a consequential psychological injury. The appellant denied these claims. In a dispute notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 2 March 2020, the appellant disputed that employment was either a substantial contributing factor or the main contributing factor to the contraction or aggravation of a disease, and asserted that the effects of any aggravation had resolved.[1] In a subsequent dispute notice of 19 May 2020, the appellant maintained this declinature, and also disputed liability for a secondary psychological injury.[2] Both dispute notices relied on independent medical reports and argued that the respondent was no longer incapacitated for work, nor required any medical treatment.
[1] Section 78 Notice, Application to Resolve a Dispute (ARD), p 34. This dispute notice relies on s 9A and the disease provisions of ss 15 and 16 of the Workers Compensation Act 1987 but does not refer to s 4(b) in respect of “main contributing factor”.
[2] Section 78 Notice, ARD, p 40. This dispute notice relies on ss 4, 9A, 11A, 15 and 16 of the Workers Compensation Act 1987.
A review was sought by the respondent pursuant to s 287A of the 1998 Act. The appellant maintained its denial on 11 August 2020.[3]
[3] ARD, p 53.
Proceedings commenced in the Commission, and the matter was listed for hearing before Commission Member Mr P Young on 31 March 2022. As the matter was unable to complete in the time allocated on that date, the parties were directed exchange and file written submissions. The Member delivered his decision on 30 May 2022, finding in favour of the respondent. The Member held that the respondent sustained injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a lower back condition as a result of the incident in 2014; the nature and conditions of employment between July 2014 to August 2017, and significantly, the incident in 2018. Awards were made in favour of the respondent in respect of weekly compensation and medical treatment expenses. It is from this decision that the appellant appeals.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. I note the appellant has expressed a desire for an oral hearing,[4] which the respondent opposes. Having considered the appeal papers, I am satisfied I can decide this matter on the papers and will proceed to do so.
[4] Appellant’s submissions 24 June 2022, [3].

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

Because of the nature of the issues raised in this appeal, it is not necessary to traverse the entirety of the evidence relied upon by the parties in this matter. The appellant makes a number of broad assertions about the evidence, particularly in Ground D. In reviewing the evidence I will concentrate on those aspects that are germane to the issues raised on this appeal.
First aid treatment notes dated 16 August 2018 provide some detail as to the incident occurring on 15 August 2018. The author did not see the incident, but it is recorded that the respondent slipped on a small piece of meat at 6:40 pm. The respondent was asked whether she fell, to which she said she did not, and her leg only twisted as she stepped on the meat. The note refers to another witness to the incident who also reported that the respondent did not fall onto the floor. The respondent did not seek first aid treatment, nor was there any sign of bruising or swelling in her leg. At approximately 7:10 pm, the author checked on the respondent, at which point the respondent asked for an icepack for “pain/tingling” in her left leg.[5]
[5] Reply to Application to Resolve a Dispute (Reply), p 13.
The respondent provided two statements detailing the history of her purported injuries.[6] The first statement, dated 2 October 2020, outlines the respondent’s role at Inghams as involving setting up machinery, monitoring sheets and supervising staff, pallet jack operation, and working in a chicken production line. The respondent refers to the incident in 2014 as a “previous work-related injury” where she fell back whilst sitting on a chair that rolled away from her, landing on her bottom and injuring her lower back. She says she recovered from this injury within three months and returned to normal duties.[7]
[6] ARD, pp 1 and 7.
[7] Respondent’s first statement, [1]–[10].
The respondent then refers to her “back injury” as the 15 August 2018 incident. She states that she slipped on a fatty piece of chicken on the floor. Although she tried to stop the fall with her hands, the force led her to land backwards onto her bottom. She felt pain in her lower back and down her left leg. She lodged a workers compensation claim on 17 August 2018 which was provisionally accepted.[8]
[8] Respondent’s first statement, [11]–[12].
She states that due to the pain, she consulted general practitioner, Dr Tuan Tran, who diagnosed her with a lower back strain with symptoms of sciatica in her left leg, and recommended conservative treatment. She says a CT scan on 22 August 2018 revealed multilevel degenerative disc and facet joint disease, and an MRI on 21 January 2019 revealed “symptoms of radiation” to her left leg “with tears and disc bulges” in her back.[9]
[9] Respondent’s first statement, [13]–[15].
The respondent was thus referred to Dr Renata Abraszko, neurosurgeon (who, I note, considered the respondent’s pain arose from a disc injury at L4-L5 and recommended facet joint injections in a report of 24 April 2019).[10] The respondent was then referred to Dr David Manohar, a pain specialist, who recommended a pain management program, and also administered two nerve blocks and two radiofrequency procedures, after which the respondent says the pain became more severe. The respondent thus began the use of a TENS machine. This did not alleviate the pain and she was required to use a walking stick.[11]
[10] ARD, p 594.
[11] Respondent’s first statement, [17]–[21].
Following denial of her claim in March 2020, the respondent says she still experienced pain and “as a result”, began to develop psychiatric symptoms, and underwent a surgery by Dr Anil Nair, neurosurgeon, in 2020 as she felt her treatment thus far was ineffective.[12] She was referred to a psychologist, Ms Evelyn Walker, who diagnosed her with clinical depression due to her “recurring thoughts of an unrealistic return to work plan and feeling unsupported in the workplace”. A secondary diagnosis was added to her certificates of capacity in the nature of adjustment disorder with mixed anxiety, depressed mood, disturbed sleep and spinal pain medication induced paranoia as a result of the injury sustained dated 15 August 2018.[13]
[12] Respondent’s first statement, [23]–[24].
[13] Respondent’s first statement, [27]–[33].
The respondent’s second statement of 11 June 2021[14] asserts that the nature and conditions of her employment, involving repetitive lifting, bending and twisting, also aggravated the fall off the chair in 2014 and caused back pain she complained of to Dr Esplago, general practitioner, in 2017.[15]
[14] ARD, p 1.
[15] Respondent’s second statement, [7].
The respondent says she has not felt a benefit from surgery performed by Dr Nair and is reluctant to proceed with another procedure recommended, due to the physical and mental strain. Despite continuing conservative treatment, her pain is described as 8 out of 10.[16]
[16] Respondent’s second statement, [9]–[20].
The respondent states that she had no psychological issues prior to the incident on 15 August 2018, after which her concentration, mood and mental health began to decline, culminating in a decision to take long-service leave in 2019 and diminishing her capacity to work. She says she did not continue treatment with her psychologist after the denial of liability for her claim, and describes feelings of paranoia, hopelessness, loss of motivation and energy, and an impact on her quality of life. The respondent asserts that despite her employer assisting with reasonable attempts to return to work, she could not continue and has had no work capacity since 10 July 2019.[17]
[17] Respondent’s second statement, [21]–[77].
The clinical records of Dr Tran, general practitioner, include a consultation note on 3 April 2014 confirming the mechanism of events for the 2014 incident, when she missed her chair when trying to sit down.[18] There is a consultation note from 17 August 2018 recording that on 15 August 2018, she “slipped on some chicken skin and tried to stop the fall with hands … She did ice her back on the day … she did not fell [sic] on her bottom”.[19] Dr Tran continued regular treatment of the respondent’s injury thereafter.
[18] ARD, p 127.
[19] ARD, p 121.
Dr Esplago’s hand-written clinical records are served in the ARD. Whilst almost illegible, I note there is reference to lower back pain and investigations undertaken in August of 2017.[20] In 2021, Dr Esplago prepared a report in which the doctor clarifies that the respondent complained of lower back pain on 11 August 2017, and again in 2018 after slipping on chicken which caused an onset of pain in her back.[21]
[20] ARD, pp 698–699.
[21] ARD, pp 102–103.
In disputing the respondent’s physical injury claim, the appellant relied on the independent medical opinion of Dr Vidyasagar Casikar, neurosurgeon, who first reported on 13 May 2019.[22] In this report, Dr Casikar recorded a history of the respondent slipping and falling to the ground on 15 August 2018, causing a work-related aggravation of pre-existing congenital pathology (L4/5 spondylolisthesis). The doctor expected the respondent to recover within a few weeks or months and recommended a review by a psychologist due to “pain focus”. Approximately a year and a half later, Dr Casikar re-examined the respondent. In a report of 27 February 2020, the doctor opined that the respondent’s continuing complaints were due to emotional issues, diagnosing the respondent with a “chronic pain focussed personality”.[23] I note that Dr Casikar appeared to re-diagnose the appellant’s back with a soft tissue injury arising on 15 August 2018, stating that the respondent had not “suffered an aggravation to a pre-existing condition”. No explanation is provided for this revised diagnosis. The doctor believed that the respondent had recovered from her physical injury and was fit for pre-injury duties if her pain focused issues were addressed.
[22] Reply, p 7.
[23] Reply, p 30.
The respondent came under the care of Dr Anil Nair, neurosurgeon, in April 2020. In his initial report, Dr Nair referred to an injury in 2018 when the respondent slipped at work, causing significant lower back pain. The doctor diagnosed a L4/5 spondylolisthesis with mechanical and radicular symptoms.[24] Dr Nair performed a lumbar decompression on the respondent on 10 August 2020, followed by debridement of a lumbar wound on 13 October 2020.[25]
[24] ARD, p 517.
[25] Operation Reports, ARD, pp 493 and 511.
On 5 May 2020, Dr John Roberts, psychiatrist, provided an independent medical report to the appellant, which the appellant relied on in disputing the respondent’s secondary psychological injury. Dr Roberts diagnosed paranoid schizophrenic illness, describing the respondent as having a “cluster of delusional belief systems which extends to involve those who are treating her”. This was not a work-related diagnosis but had resulted in an incapacity for work and would require lifelong treatment.[26]
[26] Reply, pp 32–46.
Dr Balsam Darwish, neurosurgeon, independently examined the respondent on instructions from her solicitors on 23 June 2020, prior to the surgery conducted by Dr Nair.[27] Dr Darwish opined that the nature and conditions of the respondent’s employment and the 2018 injury aggravated degenerative changes at the L4/L5 level of her spine, causing on-going pain. The doctor was supportive of surgery. In a subsequent report of 3 May 2021, Dr Darwish affirms his opinion as to causation, with additional reference to the 2014 injury, and also reported that the surgery conducted by Dr Nair was reasonably necessary.[28]
[27] ARD, p 66.
[28] ARD, p 84.
Dr Martin Allan, consultant psychiatrist, prepared an independent medical report for the respondent, dated 14 October 2020.[29] The doctor describes a decline in the respondent’s mental health and the complexity of her diagnosis due to barriers in her quality of English, ultimately concluding that the respondent has developed major depressive disorder with psychotic features and chronic somatic symptom disorder as a result of her physical injury.
[29] ARD, p 72.

THE MEMBER’S REASONS

The Member identified five issues for consideration by the Commission, namely:[30]
(a)    whether the respondent suffered a lower back injury by reasons of the circumstances pleaded, and if so, to what extent;
(b)    whether the respondent’s employment was the main contributing factor to any such aggravation of a disease;
(c)    the respondent’s capacity for work;
(d)    the reasonable necessity of medical and treatment expenses claimed, and
(e)    if the respondent has incapacity for work, the appropriate award for weekly compensation, if any.
[30] Mella v Inghams Enterprises Pty Ltd [2022] NSWPIC 255 (reasons), [4].
Prior to considering these issues, the Member provided an overview of the procedural issues, some of which are on appeal before me. The Member noted that leave was sought by the respondent to amend the pleadings to include a consequential psychological injury, which was the subject of oral submissions between the parties at arbitration and which the Member ultimately allowed, despite the appellant’s objection. The Member also allowed into evidence records of St. Andrews Medical Centre which formed part of an Application to Admit Late Documents, on the basis that they were available to the appellant for some time and were of assistance to the determination of the matter. The Member noted that the Pre-Injury Average Weekly Earnings of the respondent were agreed at $1,202.34.
In turning to the issues, the Member reviewed the documents before the Commission, and chronologically traversed the respondent’s statement relating to the events alleged to have caused injury. The Member reviewed the evidence in respect of a “prior back condition” between 1998 to 2014, finding that Dr Esplago did record on-going problems except for singular complaints in October and November 1998, 2004 and 2014. The Member noted that these isolated incidents could have been a contributing factor to the development of the respondent’s degenerative back condition, however, the respondent was able to perform work without significant complaint during that time.[31]
[31] Reasons, [15]–[16].
The Member then referred to the evidence relating to the 2014 injury of falling back whilst sitting on a chair that rolled away from the respondent. The Member considered there was no evidence of pre-existing back disability at the time of this incident noting that there was no significant evidence pointed to by the parties in this regard, other than the isolated incidents recorded by Dr Esplago above.[32]
[32] Reasons, [17]–[18].
Noting the respondent’s own account of events in her statement, including her recovery from the incident, as well as the minimal degenerative changes noted in an x-ray report at the time (of 3 April 2014), the Member was satisfied that the 2014 incident aggravated the respondent’s underlying degenerative back condition, causing incapacity for three months, and held that this incident “and the employment which she was then undergoing” was the main contributing factor to this aggravation.[33]
[33] Reasons, [19]–[22].
The Member turned to the medical treatment the respondent stated she sought in 2017, noting it was supported by the records of Dr Esplago, including a consultation and a subsequent CT Scan of 18 August 2017. Although Dr Esplago does not reference degenerative changes or work in a subsequent report from 2021, the Member accepts the respondent’s position that the purpose of seeking this treatment was for “workplace activities”. According to the Member, there was no evidence to the contrary.[34]
[34] Reasons, [23]–[28].
The Member then considered the “more serious injury” occurring on 15 August 2018 and the appellant’s challenge to this mechanism of injury primarily based on the first aid treatment note (dated 16 August 2018) which indicated that the respondent did not fall to the ground. Taking into account the respondent’s proficiency in the English language, the Member commented that the note was “somewhat inelegantly expressed” and turned to other accounts of the injury, as recorded in the treatment records thereafter. These records mentioned lower back and radicular pain. The Member noted that the report of Mr Vu, physiotherapist, of 6 September 2018, indicated that the respondent had fallen in the incident. The Member referred to treatment with Dr Tran. The Member considered Dr Tran provided a “confusing” history by recording that the respondent tried to stop the fall with her hands, yet, did not fall. According to the Member, it was difficult to understand the doctor’s reference to the hands if they did not suffer some physical impact from falling backwards. Considering this, the Member accepted the respondent’s pleaded mechanism of injury of the fall, stating that the actual records were “in some respects, deplete for the reasons I have mentioned”.[35]
[35] Reasons, [33]–[44].

The Member was of the opinion that the independent medical opinions of Dr Casikar were inconsistent and unsatisfactory, noting the doctor’s change in opinion and as the doctor’s reports pre-dated the surgery performed by Dr Nair, who had commented on causation by referring to the respondent slipping at work in the context of developing significant lower back pain. Despite Dr Casikar finding work-related aggravation in the report of 13 May 2019, the doctor retreated from this opinion in his later report.[36] In this regard, the Member pointed to a number of other treaters who mentioned work, such as Dr Darwish who considered the respondent’s condition to be a degenerative condition aggravated by employment with reference to the 2014 and 2018 incidents.[37]
[36] Reasons, [45]–[49].
[37] Reasons, [50]–[51].
Having regard to the evidence traversed above, the Member concluded that the respondent suffered injury in the course of her employment in the following nature, before considering whether employment was the main contributing factor:
“(a)    aggravation, acceleration, exacerbation or deterioration of degenerative spondylolisthesis as a result of an incident when the [respondent] fell off a chair and confirmed by an X-ray report of 3 April 2014. The [respondent] recovered from this injury within three months and was not required to take any medication thereafter;
(b)     the nature and conditions of the [respondent’s] employment up until 11 August 2017 constitute aggravation, acceleration, exacerbation and deterioration of the [respondent’s] degenerative spondylolistheses culminating in medical treatment by Dr Esplago and radiological investigations consequent upon the [respondent’s] work activities and revealing further aggravation of the [respondent’s] degenerative back condition;
(c)     further aggravation (etc) of degenerative spondylolisthesis due to the nature and conditions of the [respondent’s] employment between August 2017 and 15 August 2018, and
(d)     a significant injury on 15 August 2018 being a further discrete aggravation of the [respondent’s] underlying degenerative disease when she slipped on chicken skin and fell to the ground.”[38]
[38] Reasons, [63].
In regard to the 2014 incident, the Member was satisfied that employment was the main contributing factor. In regard to the injury alleged to have occurred between 2014 to 2017, the Member was also satisfied that the nature and conditions of employment during this time were the main contributing factor to her lower back condition, noting the work-related complaints made to Dr Esplago.[39] However, the Member was not satisfied that employment was the main contributing factor to the further aggravation between 11 August 2017 to 15 August 2018 in the absence of contemporaneous records.
[39] Reasons, [64]–[68].
Finally, the Member held that the incident of 15 August 2018 was “clearly” the main contributing factor to the respondent’s condition, noting that it occurred in circumstances that the respondent would not have been exposed to if not at work.[40]
[40] Reasons, [69]–[70].
In respect of the finding in favour of the secondary psychological injury, the Member referred to the medical opinions of Dr Roberts and Dr Allan, the latter of whom considered that the respondent’s psychotic symptoms developed after the 2018 incident. In the absence of a “pre-existing history of psychotic symptoms and in the presence of a developing and worsening history of physical symptoms which ultimately led to surgery in 2020, the development of the [respondent’s] psychological condition must … result from her concerns about her physical injuries after August 2018”.[41]
[41] Reasons, [62].
The Member then appears to consider the respondent’s capacity for work, with reference to deficiencies in the dispute notices issued under ss 78 and 287A of the 1998 Act, and an attack on the respondent’s credit.
The Certificate of Determination issued on 30 May 2022 records:
“1.     The [respondent] in the course of her employment with the [appellant] suffered injury namely aggravation, acceleration, exacerbation or deterioration (aggravation (etc)) of her degenerative lower back condition (disease), specifically by reason of her employment as follows:
(a) in April or May of 2014 when she fell off a chair;
(b) between approximately July 2014 and August 2017 by reason of the nature and conditions of her employment, and
(c) on 15 August 2018 when she slipped on a piece of chicken skin and fell to the ground.
2.     In respect of each event of injury, the [respondent’s] employment was the main contributing factor to the aggravation (etc) of her disease.
3.     After 15 August 2018 the [respondent] developed a consequential secondary psychological condition by reason of her suffering injury to her lower back on 15 August 2018.
4.     Since 10 July 2019 the [respondent] has had no capacity for work which results from her injuries.
5. Award in favour of the [respondent] in respect of weekly payments of compensation pursuant to section 37 of the Workers Compensation Act 1987 (1987 Act) from 2 March 2020 to date and continuing in the sum of $961.87 per week (being $1,202.34 x 80%).
6.     The [appellant] is directed to serve upon the [respondent] within 14 days a List of Payments made and the [respondent] is granted liberty to apply in respect of the above weekly payments award in the event that the first entitlement period of 13 weeks has not expired as at 2 March 2020.
7.     The [respondent] is entitled to a general order in respect of section 60 expenses.”

GROUNDS OF APPEAL

The appellant advances four grounds of appeal. They are as follows:
Ground A - Error of law and discretion by reason of denial of procedural fairness.
Ground B - Error of law in a failure to give out adequate reasons.
Ground C - Error of law in determining the matter on a basis not put by or to the parties.
Ground D - Error of law [and] fact [in] failing to properly weigh and consider the evidence.

PRINCIPLES ON APPEAL

Given the way the appellant has pursued this appeal, it is necessary to set out some principles which govern how appeals are considered. For the appellant to succeed, error must be identified in a meaningful way and established. Section 352 (5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The approach to dealing with appeals under this provision has been the subject of a number of decisions at Presidential level. Deputy President Roche in Raulston v Toll Pty Ltd[42] (since 1 March 2021[43] applying to a ‘member’ rather than an ‘arbitrator’) said as follows:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”
[42] [2011] NSWWCCPD 25 (Raulston), [19].
[43] The date of relevant commencement of the 2020 Act.

LEGISLATION

Section 4 of the Workers Compensation Act 1987 provides:
“4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”

DISCUSSION

As to Ground A – Error of law and discretion by reason of denial of procedural fairness

The appellant advances two complaints alleging that the Member denied the appellant procedural fairness. The first complaint relates to the respondent’s application to amend the Application to include a consequential psychological condition. A review of the transcript of 31 March 2022 clearly reveals the respondent making the application to amend the claim which was opposed by the appellant. The appellant’s opposition to the amendment commences at transcript page 5, line 23 and concludes at transcript page 6, line 29. Thereafter there is an exchange between the Member and the solicitor for the appellant regarding the medical notes from the St Andrews Medical Centre. In no way can it be said that the appellant was denied the opportunity to be heard on the amendment application. This submission is without basis.
The appellant also complains that after the Member permitted the amendment, an adjournment application, presumably made by the appellant, was refused.[44] The appellant points to page 14 of the transcript in making this submission. I have carefully reviewed the transcript of the argument before the Member on 31 March 2022 and in particular page 14. Nowhere in that transcript is there any suggestion, let alone any record, of the appellant seeking an adjournment of the proceedings as a result of the amendment application being granted. In any event I would note that the matter did not conclude before the Member on that day and the parties were directed to file written submissions. The suggestion or inference arising from the appellant’s argument under this ground, namely that an amendment to the application was made (over its objection) and then an adjournment application was denied, is simply incorrect. No adjournment application was made.
[44] Appellant’s submissions 22 July 2022, [4].
In terms of the respondent’s psychological condition, I would merely remark that the appellant had been on notice of this claim for some time. By s 78 notice dated 19 May 2020,[45] the appellant denied all liability with respect to the respondent’s claimed secondary psychological injury relying upon reports from Dr Casikar dated 27 February 2020 and Dr Roberts dated 5 May 2020. Whilst it is unfortunate that the application to amend the respondent’s claim had not been made sooner, it was not as if the appellant had no knowledge of the claimed condition.
[45] ARD, p 40.
Whilst this argument is not particularly clear, there is a suggestion in the appellant’s submissions dated 22 July 2022 that an aspect of the denial of procedural fairness was the fact that the appellant could not obtain a further report from Dr Roberts to comment upon material from the St Andrews Medical Centre. The way this complaint is framed suggests that the records were admitted without the appellant’s knowledge and that this was procedurally unfair for that reason and because the appellant had no opportunity for its medical expert to review and comment on the said records. I note that the appellant accepted it had access to these records for at least two weeks prior to the arbitration hearing.[46] I would also remark that the St Andrews Medical Centre records were only produced to the Commission at the request of the appellant. When the matter was before the Member for an initial telephone conference in February 2022, the solicitor for the appellant sought a direction for the production of the St Andrews Medical Centre records. That application was granted, and the documents were subsequently produced with general access from 18 March 2022.[47] A close examination of the transcript of 31 March 2022 reveals that the appellant, the moving party to obtain the production of these documents, never accessed this material before the hearing. I therefore do not accept the premise of this argument, namely that the appellant had no opportunity to review the records which had been produced. The failure here was the appellant’s failure to review the records that it had caused to be produced to the Commission. I would also remark that the Commission’s statutory mandate is for the just, quick and cost-effective resolution of the real issues in dispute.[48] The Commission operates a digital portal, and the documents were available to be viewed by that means by the appellant from 18 March 2022. The documents had been produced at the behest of the appellant who obviously had an opinion of the forensic necessity for their production. They should have been reviewed and, if necessary, referred to the appellant’s expert, Dr Roberts, for comment.
[46] Transcript of proceedings of 31 March 2022 (T), T8–10.
[47] T10.6–20.
[48] Section 3(c) of the 2020 Act.
The second complaint relates to the Member admitting the material from the St Andrews Medical Centre “without even providing the appellant with the opportunity of being heard in respect of that application”.[49] In the appellant’s submissions dated 22 July 2022 at paragraph [7], the appellant states that there is no reference in the transcript with respect to any intention on behalf the respondent to file late documents and that it was granted by the Member without recourse to the appellant which the appellant says “is clearly and unequivocally a denial of procedural fairness”.
[49] Appellant’s submissions 24 June 2022, [9].
This submission is without basis. As I stated above, as the arbitration hearing could not finish on 31 March 2022, the Member directed the parties to file written submissions. The respondent’s written submissions were dated 6 April 2022. At paragraph [22] of this submission, there is a clear application being made by the respondent to rely on the St Andrews Medical Centre documents. The appellant was provided with a copy of the submissions and responded on 22 April 2022. No issue was taken in the appellant’s response submissions with respect to this application. It is simply incorrect for the appellant to allege now that it had been given no opportunity to be heard on this matter. It was clearly raised in the respondent’s submissions before the Member and the appellant said nothing in response, notwithstanding having the opportunity to do so. The Member was entitled to receive and consider the documents given that the appellant took no issue with the respondent’s request. This is consistent with the remarks of McColl JA in Brambles Industries Ltd v Bell[50] where Her Honour said as follows:
“A tribunal such as the Workers Compensation Commission, sitting as the Deputy President was, which depends heavily on the parties’ written material for expeditious disposition of proceedings, must be entitled to rely upon the matters placed before it identified in the written submissions as the issues to be determined on a review pursuant to the [1998 Act].”
[50] [2010] NSWCA 162 (Bell), [30].
These comments apply with equal force to written submissions supplied to a member of the Workers Compensation Division of the Personal Injury Commission, the statutory successor to the former Workers Compensation Commission. The Member was entitled to rely upon the written submissions of the parties and if an application to rely on additional documents is made, as was made in this case and which was not opposed by the appellant, axiomatically it was not an error to admit that material.
Ground A is without merit and is dismissed.

As to Ground B – Error of law in a failure to give out adequate reasons

In considering this appeal ground, it is necessary to consider how appeals are dealt with in the Commission. As I have set out above, the power to intervene on appeal requires the identification and correction of error. It is not the function of a Presidential member to go looking for error.[51] In this ground the appellant has made a broad assertion that the Member’s reasons are inadequate, pointing to three paragraphs of the reasons, namely [28], [44] and [68] which are said to contain “elements of the deficiencies in the reasoning”. What these deficiencies are is not stated.
[51] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale), 444.
The practice and procedure for appeals is governed by Procedural Direction WC3. Paragraph [24] of this Procedural Direction requires the grounds of appeal to identify the respects in which error of law, fact or discretion is alleged to have occurred. Paragraph [25] provides as follows:
“It is not acceptable to merely allege that the member erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
In Kowalski v Repatriation Commission,[52] the Full Federal Court said this about appeals:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be”.[53]
[52] [2011] FCAFC 43 (Kowalski).
[53] Kowalski, [21].
This appeal ground offends these principles. It is insufficient for an appellant to make a broad allegation of error and then simply point to several paragraphs in the decision. The principles identified above, especially those identified in Kowalski, are directly relevant to this appeal ground. This ground fails, even in the most rudimentary way, to identify how the error in terms of inadequacy reasons is said to have occurred let alone how it affected the ultimate result.
Ground B fails to engage with the principles required to establish error on appeal. Ground B is dismissed.

As to Ground C - Error of law in determining the matter on a basis not put by or to the parties

The appellant alleges that the Member determined the matter on a basis which was not put by or to the parties. Paragraph [11] of the appellant’s submissions on appeal submits as follows.
“The Appellant submits, with respect, that the reasoning of the Commission Member includes a number of significant instances where the reasons rely on matters which were not put on behalf of the Respondent worker and nor were those matters raised with the parties (and in particular the Appellant) by the Commission Member. In this respect, the Appellant presently relies on a recollection of the Commission proceedings and says, for example, that the reasoning in paragraphs 48, 49, 56 and 57 (and elsewhere) were not matters which were put by or to the parties.”
Once the appellant had the benefit of access to the transcript of the proceedings, a supplementary submission was made with respect to this appeal ground. The appellant submits that the review of the transcript supports the initial submissions made with respect to Ground C and widens the paragraphs of the Member’s reasons impugned in this ground to include paragraphs [21], [36], [41], [44] and [57].
In reply, the respondent says this:
“Apart from providing a catalogue of paragraph numbers, the appellant does not develop or advance this ground. It should be dismissed.”[54]
[54] Respondent’s submissions, [16].

This appeal ground proceeds on the basis of a number of misapprehensions. The appellant concentrates upon what transpired at the hearing before the Member on 31 March 2022 as is evident from paragraph [11] of the appellant’s principal submissions (see [55] above). The appellant’s solicitor states that he relied upon his “recollection of the Commission proceedings” and then in the supplementary submissions, the transcript of those proceedings. So, the basis of this appeal ground, as expressed, is that which transpired before the Member on 31 March 2022.
I have reviewed the transcript in detail. It is apparent that submissions on the matters in dispute were not made before the Member on that date. Rather, the Member ordered that both parties were to file written submissions in accordance with the timetable, which appears at pages 17 and 18 of the transcript, which they subsequently both did. Consequently, to the extent that this appeal ground relies upon what occurred at the hearing on 31 March 2022, it is entirely misconceived.
I would remark that nowhere in the appellant’s submissions with respect to Ground C has any reference been made to the written submissions which were provided to the Member and exchanged between the parties. Nor is any reference made in the appellant’s submissions to the two notices issued by the appellant pursuant to s 78 denying the respondent’s primary claim and secondary psychological claim.[55] The purpose of the s 78 notice is twofold. Firstly, it advises the injured worker of the matters that the insurer disputes. Secondly, the s 78 notice provides the Commission with the power to deal with the dispute as notified. A consideration of the s 78 notices reveals that the appellant put virtually all aspects of the worker’s claim in issue and the notices were part of the bundle of documents that was before the Member. The claim is also framed in the Application and Reply filed by the parties. To rely simply on the transcript of the proceedings only in terms of the framing of the issues in dispute is misconceived.
[55] ARD, pp 34, 40.
I now turn to the specific paragraphs of the Member’s reasons complained of by the appellant in this ground. I will not limit myself to a consideration of the transcript only for the reasons which I have outlined above.

Reasons [21]

Paragraph [21] of the reasons is as follows:
“The [appellant] does not disagree with the [respondent’s] account of what happened in 2014 because the [appellant’s] submissions are devoid of extensive detail concerning the 2014 incident notwithstanding that records relevant to that incident would presumably have been available to the [appellant]. In those circumstances, it must be accepted that the [respondent] did recover from the 2014 incident and was able to return to normal duties with no ongoing medication, albeit with radiological evidence of minimal degenerative changes in her lower back.”
As is evident, reasons [21] deals with the respondent’s 2014 back injury at work. Before the Member, the respondent dealt with this injury at paragraph [4] of her submissions dated 6 April 2022. The appellant only referred to the 2014 injury in passing to note that it was not part of the application.[56] The 2014 injury was certainly part of the history of the matter and it was appropriate for the Member to deal with it as he did, not only at reasons [21] but also at reasons [22]. I would also remark that the respondent worker gave evidence about the 2014 injury in her statements.[57] It was a relevant part of the history to be considered. No error has been identified by the appellant in terms of this paragraph.
[56] Appellant’s submissions 22 April 2022, [16].
[57] ARD, p 1, Respondent’s first statement, [5] and [7]; ARD, p 7, Respondent’s second statement, [9]–[10].

Reasons [36]

This paragraph provides:
“The [appellant] points to these treatment notes to contradict the assertion made by the [respondent] that she fell to the ground. Without being critical in any way of the author, the notes are somewhat inelegantly expressed and combined with what I accept is the [respondent’s] level of proficiency in the English language lead me to the view that other accounts of the history should be considered.”
The Member’s discussion at reasons [36] cannot be read in isolation. Commencing at reasons [29], the Member is evaluating the evidence regarding the injury on 15 August 2018, the occurrence of which was seriously challenged by the appellant. Indeed the appellant’s written submissions at first instance,[58] are a specific attack upon the respondent’s credit. Commencing at reasons [33], the Member is reviewing the material relating to this incident. It is simply incorrect for the appellant to allege, as it now does, that the matters traversed by the Member at reasons [36] were not live issues in the case. Indeed, the appellant made the circumstances surrounding injury on 15 August 2018 an issue in the case. The alleged error, namely that no submissions were put in respect of this matter, is incorrect.
[58] Appellant’s submissions 22 April 2022, [5].

Reasons [41] and [44]

These paragraphs are as follows:
“Dr Tran saw the [respondent] on 17 August 2018. The history given is somewhat confusing in that he records that the [respondent] ‘tried to stop her fall with her hands’ yet in the same paragraph states ‘she did not fell [sic, fall] on her bottom’. I have difficulty understanding how the [respondent’s] hands could be mentioned if they did not suffer some physical impact, falling backwards, without the [respondent’s] bottom or back being impacted.”[59]
And:
“The evidence of the [respondent] falling to the ground in my view must be accepted as having occurred in fact although the actual records were in some respects deplete for the reasons I have mentioned.”
[59] Citing ARD, p 121.
Reasons [41] and [44] are a continuation of the Member’s consideration as to the mechanism of the injury on 15 August 2018. The appellant put the occurrence of this event seriously in issue, relying upon the first-aid treatment notes dated 16 August 2018.[60] The appellant in its written submissions before the Member challenged the respondent’s version of events.[61] The Member at reasons [41] and [44] is attempting to resolve the issue as to whether or not the incident of 15 August 2018 happened as alleged by the respondent. This was clearly an issue in the case. It is incorrect of the appellant to allege otherwise and no error in approach has been identified.
[60] Reply, p 13.
[61] See [5]–[6] of appellant’s submissions dated 22 April 2022.

Reasons [48]

Paragraph [48] of the reasons reads as follows:
“The [respondent’s] spinal operation is the subject of some reports from spinal surgeon, Dr Nair. The operation report confirms that the ‘lateral border of the nerve roots both exiting and traversing was visualised and protected.’ Sequestrectomy was performed in relation to her ‘nucleous polposus’ so that it is clear that pathology was observed by Dr Nair as present during the operative procedure.”[62]
[62] Citing ARD, p 152.
Reasons [48] sits in the passages of the Member’s decision where the respondent’s orthopaedic medical evidence is being reviewed. I would remark that this was a necessary undertaking for the Member given that the appellant had put the respondent’s orthopaedic case in issue. At paragraph [12] of the appellant’s written submissions before the Member the following was said:
“The [appellant] notes firstly that the [respondent] has consulted at least three different specialists in respect of her alleged back condition being Dr Nair, Dr Abrasko and Dr Manohar. There are no medical reports from any of these three treating specialists which address the issues in dispute in these proceedings including as to injury, causation, substantial contributing factor, main contributing factor and continuity of causation. The Commission should infer that the evidence from the treating specialists would not assist the [respondent].”
As can be seen, reasons [48] is the commencement of the Member’s consideration of the respondent worker’s medical evidence and this continues into reasons [49] where the Member is specifically referring to paragraph [12] of the appellant’s written submissions with regard to Dr Nair’s opinion. The appellant alleges in this ground that the matters traversed by the Member at reasons [48] were neither put by the parties nor to the parties. The decision of the Member must be read as a whole.[63] Reading the decision as a whole, reasons [48] were the introductory remarks or commencement of how the Member construed Dr Nair’s opinion, which opinion had been placed in issue by the appellant at paragraph [12] of its submissions. This aspect of Ground C is therefore incorrect.
[63] Beale.

Reasons [49]

This paragraph states:
“Contrary to the [appellant’s] submission, Dr Nair did comment on causation in the sense that he referred to the [respondent] having slipped at work in 2018 in the context of her developing ‘significant lower back and lower extremity discomfort’. Further, Dr Abraszko in a report to Dr Tran of 3 April 2019 also takes a history of the [respondent] developing back pain radiating down to her left leg when she slipped on a chicken skin on 15 August 2018. Additionally, Dr Manohar in his report to Dr Abraszko on 8 July 2019 refers to the [respondent] slipping on 15 August 2018 and developing in the following week lower back pain, hip pain and leg pain. Dr Manohar comments that ‘it is conceivable that the annular tears are leaking leukotrienes and irritating the posterior longitudinal ligaments and the nerve roots’ which happens to coincide (I believe) with Dr Nair’s findings on operative intervention.” (footnotes omitted).
In considering the appellant’s criticism of what appears at reasons [49], reference must be had to the appellant’s written submissions before the Member at paragraph [12]. I have set paragraph [12] out in full at [69] above. It is tolerably clear that the Member here is dealing specifically with the issues raised by the appellant with respect to the medical evidence in paragraph [12] of its written submissions. The assertion made with respect to reasons [49] is incorrect.

Reasons [56] and [57]

Paragraphs [56] and [57] of the reasons provide:
“To some extent Dr Roberts’ opinion is influenced by matters assumed because of a ‘cover letter of 28 April 2020’ the subject of the referral. Dr Roberts was informed in that cover letter of a number of relevant matters upon which he must have, as a matter of common sense, relied. These include first the ‘considerable amount of effort’ made by the [appellant] to return the [respondent] to suitable employment; second that since June 2019 the [respondent] has ceased making herself available for any work by reason of a personal illness; third that Dr Casikar believes that the [respondent] had recovered from her work injury subject to pain-focused issues. Dr Roberts notes the [respondent’s] description of pain distribution and believes it not possible that a spinal injury could produce that neurology. It is unclear whether Dr Roberts had access to the reports of Ms Walker at the time of his initial assessment.
The Commission does not have the benefit of the referral letter sent to Dr Roberts. But regardless, it is to be seen that some of the factual matters put to him are not correct. The assumptions he was asked to accept about the [appellant’s] efforts to rehabilitate the [respondent] and the [respondent’s] absence from employment due to unrelated personal illness are just two such matters. Dr Roberts’ opinion must be considered in that context, namely that it is necessarily predicated on matters in respect of which there is insufficient (or no) evidence before this Commission.”[64]
[64] Citing reply, pp 33–34.
It is convenient to deal with reasons [56] and [57] together as they are part of the Member’s consideration of the respondent’s alleged secondary psychological condition. This passage of the decision commenced at reasons [52] and concludes at reasons [62]. There is a significant contest between the appellant’s and the respondent’s evidence with respect to the secondary psychological condition. The appellant addressed the Member with respect to its medical evidence in its written submissions of 22 April 2022 at paragraphs [24] to [30]. The appellant submits that the opinion of Dr Roberts was to be preferred.[65] As a consequence, it was necessary for the Member to consider and construe Dr Roberts’ opinion closely in order to ascertain whether or not it supported the appellant’s submissions. This is precisely the task the Member was undertaking at reasons [56] and [57] at the invitation of the appellant. To assert, as the appellant now does, that the Member undertook this consideration absent hearing from the parties is simply incorrect. It is a very standard function for a first instance decision-maker to evaluate medical evidence for the purposes of establishing whether there is support (or not) within that medical opinion with respect to the arguments advanced by the parties. No error has been identified.
[65] Appellant’s submissions 22 April 2022, [29]–[30].

Conclusion as to Ground C

Ground C is based upon an allegation that the Member proceeded to make findings on a number of matters which were not put by the respondent worker, nor were they matters that were raised with the parties. In submissions filed by the appellant following review of the transcript, the appellant points to reasons [36], [41], [44] and [57], which I have addressed in Ground B. This assertion is based upon what transpired before the Member in the hearing on 31 March 2022. For the reasons I have outlined above, this submission cannot be accepted. The fact that the matters were not raised in the transcript of 31 March 2022 was not surprising given that written submissions were directed to be filed by the Member. When those written submissions are considered in addition to the material which both parties had relied upon, it is apparent that the assertions made in Ground C have no basis in fact. Ground C is dismissed.

As to Ground D – Error of law [and] fact [in] failing to properly weigh and consider the evidence

The appellant frames this ground in the following manner:
“The Appellant submits, again with respect, that the Commission Member has failed to properly consider and assess the evidence in the proceedings. In this regard the Appellant notes, for example, that in the Statement of Reasons from paragraph 23 to 28 the Commission Member considers in some detail the [respondent’s] Statement so far as it relates to consultations with her general practitioner in August of 2017 but fails to do so in the context of the [respondent’s] earlier Statement which was clearly inconsistent with the later Statement (see ARD, page 7). Further, the suggestion by the Commission Member in paragraph 28 that the worker Statement could be accepted in the absence of evidence to the contrary misstates the position noting that there was clearly evidence to the contrary firstly in the clinical notes from the general practitioner (which made no mention at all of any workplace injury or work related back pain) and further in the absence of any claim for compensation at that time or any report of injury at that time despite the Respondent worker clearly being aware of the opportunity (if not the obligation) to report workplace injury. The Appellant submits, with respect, that properly considered this contradictory evidence ought to have resulted in a determination that the [respondent’s] later Statement could not be accepted.
Likewise, the Appellant submits that the determination of the Commission Member found in paragraph 44 is specifically inconsistent with all of the evidence save for the self-interested assertion made by the Respondent worker. The Commission Member has correctly pointed out (paragraph 35) that the contemporaneous complaint involved a specific denial by the worker that she fell to the ground and further that a witness who saw the incident stated that the Respondent worker did not fall to the floor. The Appellant submits that rather [than] compelling the acceptance of the [respondent’s] assertion as suggested in paragraph 44 the evidence in fact overwhelmingly compels a finding contrary to the workers assertion.”[66]
[66] Appellant’s submissions 24 June 2022, [15]–[16].
Before dealing with this ground in detail it is worth restating the duty of a Presidential Member on appeal. This is necessary because of the manner in which this Ground has been framed by the appellant, seemingly inviting a different view of the facts be substituted for those found by the Member without identifying error. In Northern New South Wales Local Health Network v Heggie,[67] Basten JA stated at [31] that the fact that the Deputy President took a different view of some facts to that of the arbitrator (now member), did not demonstrate error for the purposes of s 352(5) of the 1998 Act. As I have described above referring to Raulston, it must be shown that the Member was wrong.
[67] [2013] NSWCA 255 (Heggie).
The appellant asserts that because the general practitioner’s notes are silent on the injury being work related, that this is “evidence to the contrary” of the respondent’s statement or version of events. I note that the respondent in her statement of 11 June 2021[68] says she recalls telling the doctor the pain was due to “workplace activities”. I do not accept the appellant’s submission that the fact that the general practitioner’s notes are silent on the injury being work-related means that this constitutes contradictory evidence. It is well-established that inconsistencies or indeed omissions in medical records should be approached with caution. Basten JA in Mason v Demasi[69] said as follows:
[68] ARD, p 1, [8].
[69] [2009] NSWCA 227 (Demasi), [2].
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a)     the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b)     the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c)     the record did not identify any questions which may have elucidated replies;
(d)     the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e)     a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”
Clearly the respondent was attending the general practitioner for the purposes of medical treatment. The notes record the two August 2017 attendances upon the general practitioner as referred to by the respondent in her statement which was produced almost four years later. The fact that the clinical notes and the respondent’s recollection are not in complete harmony is unsurprising. But they are not in opposition as the appellant submits. The view reached by the member at reasons [28] was an available finding by the first instance decision-maker. No error has been identified and there is no power on appeal to substitute the appellant’s preferred view of the facts. [70] I would also add that for the reasons outlined by Basten JA in Demasi, clinical notes do need to be viewed with caution and they certainly do not serve to undermine the respondent’s credit as asserted by the appellant.
[70] Heggie.

The next complaint in this ground relates to the assertion that at the time of the injury, the respondent failed to report the injury despite “clearly being aware of the opportunity (if not the obligation) to report workplace injury”.[71] This failure to report, the appellant alleges, is “contradictory evidence” and means that the respondent’s statement could not be accepted.
[71] Appellant’s submissions 24 June 2022, [15].
I would note that this argument now put by the appellant, namely the failure to report injury, was not put to the Member. I have carefully reviewed the appellant’s written submissions. Certainly issue was taken with respect to alleged inconsistencies between the clinical notes and the respondent’s statements.[72] But nowhere was this failure to report the injury argument pursued in the appellant’s written submissions. By definition, the Member cannot be in error by failing to consider an argument that was not put.[73]
[72] Appellant’s submissions 22 April 2022, [7], [11].
[73] See Bell, [30]; Watson v Qantas Airways Ltd [2009] NSWCA 322, [13].
Ground D is dismissed.

DECISION

The Certificate of Determination dated 30 May 2022 is confirmed.

Judge Phillips
President

8 June 2023