Magliano v Workers Compensation Nominal Insurer - [2023] NSWPICPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Magliano v Workers Compensation Nominal Insurer [2023] NSWPICPD 51
APPELLANT:	Antonio Magliano
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph’s Smash Repairs
INSURER:	Uninsured
THIRD RESPONDENT	Employers Mutual Limited
FILE NUMBER:	A1-W4690/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	28 August 2023
ORDERS MADE ON APPEAL:	1. The monetary threshold to appeal required by s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is satisfied. 2. The Member’s Certificate of Determination dated 30 June 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Whether the monetary threshold pursuant to s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied – Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7; Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCP 3 applied; Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47 distinguished – s 145 of the Workers Compensation Act 1987 – whether the Commission has the power pursuant to s 145 to determine whether the injured worker suffered a different injury not previously claimed in matters involving reimbursement to the Workers Compensation Nominal Insurer – ss 65, 105 and 260 of the 1998 Act and the Workers Compensation Guidelines 2021 – applicable principles in disturbing a primary decision-maker’s exercise of discretion – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied – adequacy of reasons – s 294(2) of the 1998 Act; rule 78 of the Personal Injury Commission Rules 2021 – Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied – corroboration of evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr T Hickey, counsel
Ayoub Lawyers
First Respondent:
Ms S Warren, counsel
Hall & Wilcox
Second Respondent
Mr G Guest, solicitor
Sparke Helmore Lawyers
Third Respondent
Mr J Beran, counsel
Hall & Willcox
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	30 June 2022

INTRODUCTION AND BACKGROUND

Mr Antonio Magliano (the appellant) was employed by Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph’s Smash Repairs (the employer) as a spray painter. The appellant alleged that he was spray painting a car in the course of his employment and suffered an injury to his back on 12 February 2019 when he fell from a plank that was suspended on two plastic creates. The employer did not hold a workers compensation policy at the time of the alleged injury. The appellant did not cease work until February 2020, by which time the employer had obtained workers compensation insurance cover.
Although the appellant asserted that he advised the employer of his injury at the time it occurred, the employer, through its sole owner, Mr Konstantinos (Con) Terkalas, denied that assertion. Mr Terkalas stated that he was unaware of the allegation of injury until February or March 2020. In any event, because the employer was not insured as at 12 February 2019, the appellant lodged a claim for weekly compensation and treatment expenses with the Workers Compensation Nominal Insurer (the Nominal Insurer). The employer disputed the veracity of the claim.
The Nominal Insurer accepted the claim and paid weekly compensation and the appellant’s treatment expenses.
On 8 September 2021, the Nominal Insurer (through icare Workers Insurance) issued a Notice to Reimburse pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) and a Certificate pursuant to s 145(5) of the 1987 Act, requiring the employer to reimburse the Nominal Insurer the sum of $173,257.71 in respect of the compensation paid to or for the appellant in relation to the appellant’s alleged injury on 12 February 2019.
The employer commenced proceedings in the Personal Injury Commission (the Commission) by way of a miscellaneous application (application), seeking a determination of its liability in respect of the amount sought to be recovered, in accordance with s 145(3) of the 1987 Act. It became apparent from the evidence placed before the Commission that the appellant’s back condition could be defined as a “disease” which possibly could have been aggravated by the nature of the work performed by the worker over the course of his employment in accordance with s 4(b) of the 1987 Act. If that was the case, then s 16 of the 1987 Act provided that the appellant’s deemed date of injury was the date of his incapacity, that is February 2020, and the workers compensation insurer at that time, Employers Mutual Limited (EML), could be either partly or wholly liable for compensation to the worker.
Consequently, the Member ordered that EML be joined to the proceedings as an “interested party.” As noted in the Member’s Certificate of Determination, the issue was raised for the first time by the employer at the first arbitration date (1 February 2022), the appellant had not yet made that claim and EML had not had the opportunity to investigate and determine that claim. As a consequence, EML did not file a Reply to the miscellaneous application (reply). The matter proceeded to a second arbitration date on 5 April 2022 and the employer made oral submissions. Due to time constraints, the parties were directed to file written submissions, following which the Member issued a Certificate of Determination on 30 June 2022. She determined that the appellant did not suffer a personal injury pursuant to s 4(a) of the 1987 Act on 12 February 2019, and that the employer was not liable to reimburse the Nominal Insurer.
The appellant appeals the Member’s decision. In the appeal, the appellant sought a stay of proceedings pending the outcome of a claim made by the appellant in respect of an allegation of injury as a result of the ‘nature and conditions’ of his employment with the employer. A stay of proceedings was not granted.

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.”
In a rather confused submission, the appellant says that:
“It is the Appellant’s submission that this appeal cannot be decided on the basis of the written application and any notice of opposition. The Appellant submits that an oral hearing is not required and the matter can be dealt with on the papers with the substantive matter being be [sic] remitted for determination by another Member in the event the appeal is successful.”[1]
[1] Appellant’s appeal submissions, [3(a)].
The employer, the Nominal Insurer and EML indicate that they are content for the appeal to be determined on the basis of the documents and the written submissions of the parties and an oral hearing is not required.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties as to whether 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

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides for an appeal against a decision of the Commission constituted by a non-presidential member.
There is no dispute between the parties that the threshold requirement as to the time for filing the appeal pursuant to s 352(4) of the 1998 Act has been met. The employer submits, however, that the appeal cannot proceed because there is no “amount of compensation at issue” as required by s 352(3) of the 1998 Act.
Section 352(3) provides that:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”

The Nominal Insurer’s threshold submissions

The Nominal Insurer submits that the appellant is required to show that the appeal satisfies that both the amount of compensation in issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. The Nominal Insurer submits that the appellant has not demonstrated that the threshold is satisfied.

EML’s threshold submissions

EML adopts the submissions made by the employer.

The employer’s threshold submissions

The employer submits that the proceedings did not arise from a claim for compensation but instead were recovery proceedings involving a claim for reimbursement from the employer to the Nominal Insurer. The employer points out that the appellant was only joined to the proceedings because he was an interested party in the recovery proceedings, which did not directly relate to a claim for compensation.
The employer observes that s 352(3)(a) requires that there must be compensation of at least $5,000 in issue. The employer submits that, in this case, the compensation has already been paid to the appellant, so that in the appellant’s circumstances, there is no compensation in issue at all in the proceedings. The employer asserts that the proceedings are limited to a claim for reimbursement sought by the Nominal Insurer from the employer and will have no effect on the compensation already received by the appellant, so that the actual compensation paid is not in issue.
The employer refers to Fletchers International Exports Pty Ltd v Regan,[2] in which Fleming DP observed that “the decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim … in issue in the appeal.”[3] The employer submits that the appeal does not put the amount of compensation, which has already been paid to the appellant, in issue in the appeal, and the impact on any future rights the appellant has to compensation are irrelevant to the determination.
[2] [2004] NSWWCCPD 7 (Regan).
[3] Regan, [27].

The appellant’s threshold submissions

In his appeal application, the appellant “acknowledged” the threshold provisions and observed that the Certificate of Determination issued by the Member “considers a miscellaneous application by the [Nominal Insurer] seeking the reimbursement of $173,237.71 from the [employer] under s 145 of the Workers Compensation Act 1987 paid to the Appellant.”[4]
[4] Appellant’s appeal submissions, [2(b)].
Following the lodgment of the Notice of Opposition by the employer, which included submissions that the monetary threshold to appeal had not been satisfied, the appellant had the opportunity to reply to those submissions and the submissions made by the Nominal Insurer and the employer. The appellant did not take the opportunity to do so.
I formed the view that the appellant should be given a further opportunity to address the threshold issue and I issued a direction accordingly. The appellant was unable to meet the deadline for making those submissions and applied for an extension of the time, which was granted. The appellant lodged submissions dated 14 August 2023.
The appellant submits that the employer concedes that the appellant was joined to these proceedings as an “interested party” because the appellant may have been affected by the outcome of the proceedings. The appellant says that the Nominal Insurer had paid the appellant compensation in the amount of $173,000 and the employer sought to avoid having to reimburse the Nominal Insurer that amount.
The appellant refers to the employer’s assertion that the appeal will not affect the compensation that has already been paid and submits that the submission “ignores the terms of s 352 and the impact of the determination.”[5] The appellant refers to s 352(1) of the 1998 Act and says that, consistent with that subsection, he was a party to a dispute in connection with a claim for compensation, a fact which, the appellant says, the employer conceded.
[5] Appellant’s threshold submissions, [4].
The appellant submits that there is nothing in s 352(2)(a) (presumably intended to be a reference to s 352(3)(a)) that requires that compensation already paid is affected and nothing in the subsection that provides that s 145 of the 1987 Act does not put “compensation at issue.” The appellant contends that the operative words of s 352(3) are “the amount of compensation at issue,” citing authority for that proposition.
The appellant asserts that the employer is not assisted by drawing the distinction that it makes.[6] The appellant refers to the decision of Fleming DP in Sheridan v Coles Supermarkets Australia Pty Ltd[7] and her observation that “[t]he amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the [Member] at first instance.”
[6] Appellant’s threshold submissions, [8].
[7] [2003] NSWWCCPD 3 (Sheridan), [16].
The appellant submits that it is conceded by the employer that the amount of compensation at issue in the proceedings at first instance was the amount of $173,000 which was paid to the appellant in weekly compensation. The appellant points out that he was a party to the proceedings before the Member and the amount of compensation at issue exceeded the $5,000 threshold to appeal. The appellant described the distinction drawn by the employer as “artificial”, and asserts that such an interpretation is not available and incorrect. The appellant contends that the authorities referred to by the employer do not assist its proposition.
The appellant points to the employer’s submission that the proceedings do not affect the appellant’s position in respect of the compensation paid to him. The appellant submits that that assertion does not recognise the fact that the Member’s determination that the compensation was not paid in respect of the injury claimed does have an effect on the appellant’s compensation.
The appellant submits that the employer’s challenge to the monetary threshold having been met should be rejected.

Additional submissions made by the employer

On 15 August 2023, the employer forwarded an email to the Commission and the parties, drawing attention to a decision of Snell DP in Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd[8] and making further submissions that the decision applied to this matter.
[8] [2022] NSWPICPD 47 (Transport Contract Services).
The timetable for filing submissions in this matter set by a delegate of the President expired on 26 September 2022. I note that the decision in Transport Contract Services was issued to the parties on 6 December 2022, after the timetable had expired. The appeal was allocated to me on 31 July 2023. I directed the appellant to reply to the employer’s threshold submissions. I did not direct the other parties to make further submissions as the Nominal Insurer and EML had already addressed the issue and the appellant’s submissions were to be in reply to the employer’s submissions. The employer made no application for leave to file further submissions. While the decision referred to post-dated the timetable, there was no explanation from the employer as to why its further submissions could not have been made during the period from 6 December 2022 to 31 July 2023, when the appeal was allocated to me for determination. I further note that the solicitor on the record in this matter was also the solicitor on record for the respondent in Transport Contract Services and would have been well aware of the decision when it was issued.
The filing of further submissions beyond the allowed time frame is not acceptable and, in the absence of leave being granted following an appropriate application being made, are not properly before the Commission and are not required be taken into account.[9]
[9] Bale v Mills [2011] NSWCA 226, [57]–[61].
However, I am of the view that it is appropriate to consider the potential application of that decision to the circumstances of this case. The decision was published and readily available to all parties and decision-makers from seven days after its issue. For the reasons set out below, I do not consider that the other parties to these proceedings will be disadvantaged by me considering the application of that decision.

Consideration

The application lodged by the employer was commenced in accordance with s 145(3) of the 1987 Act. Section 145 is reproduced at [127] below. Relevantly, subs (1) provides that the Nominal Insurer may serve on an employer a notice to reimburse “an amount … specified in the notice” in respect of payment made to an injured worker in respect of a claim under the Division (Div 6 of Pt 4 of the 1987 Act). Subsection (3) provides that the employer can apply to the Commission in order to have determined its liability in respect of payments made to an injured worker and subs (4) permits the Commission to “make such awards or orders as to the payment of compensation under this Act or in respect of the injured worker …”.
Subsection (5) provides that a certificate issued by the Nominal Insurer certifying that the payments specified in the certificate were paid to or in respect of an injured worker and that, in the opinion of the Nominal Insurer, the employer was liable to pay an injured worker compensation under the Act, is admissible in the proceedings.
Section 4 of the 1998 Act defines compensation as:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
The appellant relies upon Sheridan to say that, where there has been no amount awarded, the amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Member at first instance. The employer relies on Regan as authority to say that the decision must have a real capacity to put the amount of compensation, determined by reference (in this case) to the claim in issue in the appeal. Both authorities have been accepted as correct and applied consistently in the Commission.
I do not accept that Transport Contract Services is authority to say that the reimbursement sought by the Nominal Insurer in this case was not “compensation” in issue. Transport Contract Services involved an application brought by an employer seeking a determination that the injured worker’s pre-injury average weekly earnings figure was less than that calculated by the insurer. Deputy President Snell determined that there was no amount of compensation in issue in the circumstances where:
(a)    the weekly payments were made by the insurer;
(b)    the employer was not seeking reimbursement of what it alleged to be overpayments;
(c)    the power to seek any repayment rested with the insurer, and
(d)    the benefit sought by the employer was the effect the payments had on his workers compensation insurance premium.
The present matter is factually at odds with the facts in Transport Contract Services and turns on the question of whether the reimbursement of $173,257.71 can be classed as “an amount of compensation”. It is not contested that the amount certified by the Nominal Insurer was the total of the amount the Nominal Insurer paid to the appellant in the form of compensation.

I do not accept that the amount of compensation paid to the appellant loses its character as compensation once the compensation has been paid and the Nominal Insurer seeks “reimbursement” of that amount. Section 145(1) provides that the amount specified in the notice is the payment made to an injured worker in respect of a claim for compensation. In accordance with s 145(3), the employer applied to the Commission for a determination of its liability in respect of compensation payments made to the appellant. The employer was found not liable for the alleged injury for which the appellant’s compensation was paid and the appellant appeals that decision. If he is successful, the employer would be liable to reimburse the Nominal Insurer for the compensation paid to the appellant.
I am of the view that the amount of $173,257.71 retains the character of “compensation”, which was in issue in the proceedings before the Member and is in issue in this appeal.
I am satisfied that the amount of compensation in issue exceeds $5,000 and the threshold required by s 352(3)(a) is satisfied and the appeal can proceed.

THE RELEVANT EVIDENCE

The appellant’s evidence

The appellant provided a statement dated 5 November 2021. He gave a detailed account of his past history and employment as a vehicle spray painter. He advised that he commenced employment with the employer in about February 2018. He described the circumstances in which he was offered employment as a spray painter with the employer.
The appellant said that on 12 February 2021 (sic, 2019), he was working with Mr Andrew Tiliakos, preparing a white van for spray painting. He indicated that they were applying solvent to the van’s roof, which was quite high, in order to strip the existing paint. He described how they were using a timber plank to stand on, which was suspended on two plastic milk crates at each end. The appellant stated that as he stood on the plank, it began to wobble and the milk crates slipped, causing him to fall, landing heavily on his back. He said that he felt immediate pain in his lower back and required assistance from Mr Tiliakos in order to stand up.
The appellant advised that Mr Terkalas was not at the workshop at the time, so he could not report the injury. He said that he sat down for a short period then continued to work on the van but at a slower pace. He said that when Mr Terkalas returned to the garage that day, he advised Mr Terkalas about the injury and complained that there was no scaffolding, and Mr Terkalas responded: “You’ll be fine, we’ll get it, we’ll get it.”[10]
[10] The appellant’s statement dated 5 November 2021, appellant’s reply, p 5, [24].
The appellant said that he returned to work the next day but was in pain. He said he continued to work but his back pain worsened so he ceased performing any strenuous activities, heavy lifting or anything requiring squatting, lifting or bending and standing or sitting for any length of time. He asserted that he was effectively supervising the other workers and handing them the tools they required, and Mr Tiliakos was doing most of the painting.
The appellant complained that he experienced constant back pain during the day with no relief at night, so spoke to Mr Terkalas the following day and was given time off work to attend his general practitioner, Dr Nguyen Van Vinh. The appellant stated that he told Dr Vinh that he had been injured at work. He described the treatment provided by Dr Vinh, which included referral for an x-ray investigation and physiotherapy.
The appellant stated that he returned to work and discussed lodging a claim for workers compensation with Mr Terkalas so that the cost of his treatment could be paid. The appellant asserted that, in the conversation with Mr Terkalas, Mr Terkalas advised that he was not insured. The appellant reproduced his recollection of the dialogue that took place.
The appellant advised that over the next few months, he met the cost of his treatment himself because he was unaware of any mechanism for claiming compensation when the employer was uninsured. He said the pain in his back got worse and he was struggling at work.
The appellant said that he returned to consult Dr Vinh in about December 2019, by which time he was having difficulty walking because of the pain in his back. He said that Dr Vinh arranged for a CT scan of his back and referred him as an urgent patient to Dr Ali Ghahreman, neurosurgeon, who he saw on 21 December 2019.
The appellant advised that he discussed his difficulties with a friend of his in February 2020, who referred him to a firm of solicitors. He said that the solicitors advised him that he could lodge a claim with icare, who would pay his medical expenses if the claim was accepted. The appellant said that his claim was accepted. He added that, had he known that he could make a claim, he would have done so in the days after his injury, rather than meet the costs himself.
The appellant said that after his claim was made, he consulted Dr Vinh who provided him with a Certificate of Capacity certifying him fit for suitable duties, with restrictions, for eight hours per day, five days per week. He said that he gave the Certificate of Capacity to Mr Terkalas, who said that there was no work for him, he should leave, and Mr Terkalas would deny that the injury ever happened.
The appellant advised that the pain in his lower back worsened, Dr Vinh reduced the hours he was certified fit to work and increased his restrictions. He said that Dr Ghahreman told him that he required surgery. The appellant said that he was certified as being unfit for any work from 27 November 2020.
The appellant referred to the wages he earned with the employer. He said that he had a verbal agreement with Mr Terkalas as to the amount he would be paid. The appellant asserted that he had previously earned approximately $1,400 after taxation when he worked for a former employer and that he communicated to Mr Terkalas that he would not be prepared to work for less than that amount. The appellant noted that Mr Terkalas asserted to the Nominal Insurer that he was paid $820 per week and had produced some documents to support that assertion. The appellant contended that he would not have left his former employment to work for the employer for that amount, which reflected the wage that an apprentice spray painter would earn. The appellant advised that he had a signed letter from Mr Terkalas confirming that in December 2018, he was earning $1,902 per week. The appellant added that the employer had never provided him with a payslip, and the payslips provided to the Nominal Insurer by the employer were fake. The appellant said that at one stage he had asked Mr Terkalas to provide him with payslips because he was applying for a financial loan and eventually Mr Terkalas’ secretary wrote several payslips by hand on paper verifying his correct earnings, which he gave to his bank. He said that he had requested copies of those documents from the bank so that he could produce them to the Commission.
The appellant referred to his financial commitments and said that, had he only been earning the amount suggested by Mr Terkalas, he would have been unable to pay his financial obligations. He asserted that every week he was paid $1,902 gross, which amounted to approximately $1,400 net per week. He asserted, however, that the employer would record $820 per week in the wage book, a fact which he discovered when the wage book was left open on the desk, some months after he commenced work with the employer. The appellant said that he had a conversation with Mr Terkalas about this, but Mr Terkalas refused to amend the books.
The appellant advised that each time he was paid, he deposited the full amount of cash received into his bank account, less approximately $200 which he kept for cash expenses. He said his rent, loan repayments and money to his wife (who was overseas) were all paid by electronic funds transfer.
The appellant accepted that he had not disclosed his full income from working with the employer to the Australian Taxation Office. He said that he simply declared what appeared on the PAYG summary because he did not want the employer to get into trouble.
The appellant referred to the statement of Mr Terkalas dated 30 March 2020. He disputed the description of his duties provided by Mr Terkalas and expanded on that list. He said he worked from 7.30 am to 4 pm. He disputed that he was paid $820 per week. The appellant asserted that he did not experience sciatica prior to his employment with the employer, and said he never discussed his health with Mr Terkalas prior to 12 February 2019.
The appellant stated that he initially worked for the employer on a part time basis for several months, which was not constant work. The appellant asserted that he reported the injury on the day that it occurred and his co-worker, Mr Tiliakos, had witnessed him lying on the ground after the incident.
The appellant said that it was common practice to have aluminium scaffolds for the spray painters to stand on, and in some workshops the scaffolding had a hydraulic lift system.
The appellant confirmed that his wife, who lived in Thailand, was in Sydney from 1 February 2019 until 18 February 2019 for the purpose of attending the wedding of Mr Terkalas’ daughter and on 5 February 2019, he, his wife and Mr and Mrs Terkalas had dinner at Brighton-Le-Sands. The appellant said the dinner did not occur on 12 February 2019, as Mr Terkalas had alleged.
The appellant disputed the contents of Mr Tiliakos’ statements made after the statement of 2 March 2020 (discussed at [71]–[73] below) and expressed the belief that the employer had pressured Mr Tiliakos into making those false allegations.
The appellant completed a claim form dated 28 February 2020.[11] The appellant nominated a date of injury of 12 February 2019. He described the work he was performing that day, which involved working on a large van while standing on wooden planks suspended on milk crates stacked two crates high so that he could reach the roof of the van. He said the planks began to wobble and he fell onto the concrete floor, landing on his back. The appellant said that he injured his back and both legs, the incident occurred at approximately 2.30 pm on that day and it was witnessed by Mr Andrew Tiliakos, a co-worker. The appellant said that he reported the incident to Mr Terkalas, and first noticed his symptoms on 18 February 2019. The appellant advised that his gross pre-injury earnings were $1,902 and attached a letter which he said was from the employer. He disputed the veracity of pay records provided by the employer to the Nominal Insurer. The appellant said that he was paid weekly and would retain approximately $200 and deposit the balance of his pay into his bank account.
[11] Nominal Insurer’s reply, pp 1–8.
In a further unsigned questionnaire, the appellant advised that he had reported the injury to “Con” (Mr Terkalas) on the day of injury.[12]
[12] Nominal Insurer’s reply, pp 17–18.
The appellant provided bank statements covering the period 1 March 2018 to 31 December 2019.[13] Those documents disclosed that there were cash deposits made into the appellant’s bank account at various intervals and for various amounts. Some of the deposited amounts were colour highlighted.
[13] Nominal Insurer’s reply, pp 137–244.
The appellant produced a copy of a letter dated 10 December 2018, bearing the name of the business “Ralph Smash Repairs”, the street address of the business, its phone number, Australian Business Number and email address.[14] The letter was addressed to “To Whom it may concern.” It read:
“Antonio Magliano is employed on a full time basis By Ralph Smash Repairs. Antonio holds the position of Head Spray Painter.
I find Antonio to be honest, trustworthy and of good character. He shows good work ethics and is a very valuable employee.
Antonio[’s] gross weekly wage is $1902.00 with a net weekly income of $1400.00.
Please do not hesitate to contact me should you require more information.”
[14] Appellant’s reply, p 30.
The letter bore a signature and was said to be from:
“Con Terkalas
Company Director
Ralph Smash Repairs”.

Mr Andrew Tiliakos

Mr Tiliakos made a statement dated 2 March 2020.[15] He advised that he had worked for the employer for approximately two years. He recalled that, on 12 February 2019, he and the appellant were working on each side of a white van applying solvent. He described how they were given a timber plank, which they had to suspend on two milk crates, in order to be able to work on the areas of the van that they could not otherwise reach.
[15] Appellant’s reply, pp 17–18.
Mr Tiliakos stated that as they were working, he saw the appellant fall off the timber plank, landing on his back. Mr Tiliakos said that the appellant appeared to be in a lot of pain. He advised that the appellant slowly continued his duties, and when Mr Terkalas returned to the workshop, Mr Tiliakos went with the appellant to see Mr Terkalas, and the appellant advised Mr Terkalas of his injury.
Mr Tiliakos said that since the date of the injury, the appellant had continued to complain about the pain in his lower back and had been restricted in his ability to do the work, “particularly tasks that require lifting, squatting, bending, and standing and sitting for long periods. As a result, I, and the other employees, have tried as best as possible to relieve him of some of these duties.”[16]
[16] Mr Tiliakos’ statement dated 2 March 2020, [12], appellant’s reply, p 18.
Mr Tiliakos made a further statement dated 8 April 2020,[17] stating that he first met the appellant when the appellant commenced work with the employer. He said that he and the appellant did not get along well. Mr Tiliakos advised that the investigator who interviewed him for the purpose of this statement had told him about the appellant’s allegation of injury. Mr Tiliakos said that he never saw or heard the appellant fall off a plank suspended by milk crates and never saw the appellant have an accident of any type in the workplace.
[17] Application, pp 10–12.
Mr Tiliakos said he could not recall the appellant telling him anything about such an injury. Further, he was not aware of the appellant experiencing back symptoms prior to 12 February 2019 and the appellant appeared to be able to perform his duties without problem.
Mr Tiliakos made a subsequent statement dated 28 April 2020.[18] He referred to his earlier statement dated 8 April 2020. He stated that he could not recall setting up the milk crates on 12 February 2019 as that date was a long time ago. He said that the appellant did, from time to time, set up crates and a plank to work on.
[18] Nominal Insurer’s reply, pp 33–34.
Mr Tiliakos subsequently made a further statement dated 16 November 2021.[19] He denied witnessing the incident described by the appellant. He said that on 2 March 2020, he was approached by the appellant who pressured him to make a statement saying that he had witnessed the appellant falling and injuring himself. He said the appellant took him to the appellant’s solicitor’s office, where the solicitor drew up a statement comprising of mainly matters that the appellant had told the solicitor in that meeting. Mr Tiliakos said that he signed the statement just to get it over and done with. He reiterated that he had not seen the appellant suffer a fall or sustain an injury in any circumstance.
[19] Application to Admit Late Documents (AALD) dated 30 November 2021, pp 56–58.

Statement of Mr Konstantinos (Con) Terkalas

Mr Terkalas provided a statement dated 30 March 2020.[20] He advised that he was the sole owner of the employer. He confirmed that the appellant commenced work with the employer on 12 February 2018 as a full-time spray painter mainly performing the work of rubbing down cars, applying masking and spray painting. He said that there was no formal agreement and the appellant reported directly to him. Mr Terkalas mentioned that, prior to commencing full time work with the employer, the appellant did do some casual evening spray painting work for the employer for about eight months.
[20] Nominal Insurer’s reply, pp 20–25.
Mr Terkalas asserted that the appellant worked from 7.45 am to 4 pm from Monday to Friday and was paid $820 per week, in accordance with payslips he had already provided to the Nominal Insurer. He said that the appellant had complained to him of sciatic pain in his legs from the commencement of his employment and had been receiving physiotherapy in the past. Mr Terkalas stated that the appellant would attend physiotherapy from time to time during the period that he worked for the employer. Mr Terkalas asserted that he would sometimes assist the appellant to stretch his legs and back while on the floor, but the appellant never mentioned the cause of the symptoms.
Mr Terkalas stated that the appellant first reported his back injury to him on 2 March 2020 and he subsequently found out from the Nominal Insurer that the appellant was asserting that the injury occurred on 12 February 2019. Mr Terkalas denied that the appellant had ever reported the injury to him or to his office employee. He said that on the day the appellant told him about the injury, the appellant advised him that the injury had occurred at some time during the previous year. Mr Terkalas described a somewhat unpleasant verbal interaction between him and the appellant that followed and said that the appellant picked up his box of tools and left, quitting his employment.
Mr Terkalas denied any knowledge of the circumstances of the injury other than as recounted to him by the Nominal Insurer’s investigator, but he conceded that the spray painters used a plank suspended on milk crates to do the work. He said it was common practice in the industry but said he did also have ladders available.
Mr Terkalas advised that the appellant’s wife came to Australia for a visit in early 2019 and spent some time socialising with Mr Terkalas’ partner. He said that the appellant’s wife did not mention any injury suffered by the appellant and, even though they had dinner together on 12 February 2019 (the day of the alleged injury), there was no mention of an injury during that evening. Mr Terkalas also mentioned that the appellant had recounted to him that, during his holiday in Thailand from 22 December 2019 to about 10 January 2020, he had renovated and painted his wife’s house. Mr Terkalas also spoke of a claim the appellant had previously made in respect of what Mr Terkalas considered was a “bogus” claim for industrial deafness, and of the appellant’s alleged affinity to gambling.
Mr Terkalas said that two days after the appellant had quit his employment, he returned with an employment separation certificate for Mr Terkalas to sign, which Mr Terkalas did not sign because they could not agree as to the reason for and circumstances surrounding the appellant ceasing work.
Mr Terkalas provided a further statement dated 16 November 2021.[21] He explained the history of how he came to meet and employ the appellant, initially to work casually after work hours but then to work on a full-time basis from 2018.
[21] AALD dated 30 November 2021, pp 44–54.
Mr Terkalas stated that the appellant would sometimes complain of back pain, so Mr Terkalas paid for four sessions with a physiotherapist, Mr Arthur Kazas. Mr Terkalas thought that this occurred prior to February 2019. Mr Terkalas suggested that the appellant had financial problems, liked to gamble, and had made a claim for industrial deafness, which was later withdrawn. Mr Terkalas corrected his earlier statement in respect of the appellant having taken leave from 22 December 2019 to 10 January 2020 and said he had checked his records and the leave was taken in December 2017 until January 2018. He reiterated that he and his wife had dinner with the appellant and his wife on 12 February 2019 and not on 5 February 2019. Mr Terkalas added that the four of them also spent the day at Bondi Beach on 17 February 2019 and on both occasions, the appellant did not mention anything about having fallen at work and did not appear to be in any discomfort.

Mr Terkalas denied having instructed the appellant to work on 2.5 to 3 metre planks suspended by milk crates and said he had never observed the appellant working in that fashion. He conceded that at times the appellant worked on a one metre plank on milk crates, but a step ladder was also available.
Mr Terkalas denied that the appellant, Mr Tiliakos or his secretary ever informed him of the appellant suffering an injury and asserted that the appellant first reported the injury to him on 2 March 2020. He said that, up until that time, the appellant performed his full duties. He added that the appellant did not have frequent days off work.
Mr Terkalas confirmed his earlier evidence about the circumstances in which the appellant reported the injury and about the appellant’s wages, details of which were hand-written by his office secretary in the wages book. He denied that he had ever pressured Mr Tiliakos into making a statement that was beneficial to the employer.

The employer’s payroll activity statement

The employer’s payroll activity details for the periods from 12 February 2018 to 20 June 2018 and 1 July 2018 to 30 June 2019 were annexed to the employer’s Application to Admit Late Documents (AALD) dated 29 November 2021.[22] The documents disclosed that the appellant received $820 per week gross for 38 hours worked, leaving a net amount of $700 per week after taxation and contributions to the appellant’s superannuation fund.
[22] AALD dated 29 November 2021, pp 35–61.

Mr Ali Elmiski

In a highly unusual step in the proceedings, Mr Ali Elmiski, the appellant’s solicitor, provided a statement dated 4 April 2022. The statement was made available to the Member but was not annexed to any AALD. He stated that, at the conference with Mr Tiliakos, Mr Tiliakos was not pressured into making the statement and willingly provided details of the appellant’s injury, as well as made allegations about the employer’s unsatisfactory business and workplace conduct. Mr Elmiski denied that the appellant had provided the answers to the questions Mr Elmiski asked. He stated that the only reason he could think of as to why Mr Tiliakos changed his story was that the employer had pressured him to do so.

The medical evidence

Dr Nguyen Van Vinh, general practitioner

The clinical notes of Dr Vinh were in evidence.[23] The appellant attended that practice from 2012 to 9 June 2021. Relevantly, the appellant consulted Dr Vinh on 14 February 2019, complaining of lower back pain and sciatica and was referred for a lumbar spine x-ray. There were no references to back pain recorded in the notes prior to that date and no reference to the cause of the appellant’s symptoms on presentation that day. The appellant attended again on 16 February 2019 for review of the x-ray and Dr Vinh recommended physiotherapy. On 2 September 2019, the appellant consulted Dr Vinh, advising the doctor that he had undergone chiropractic treatment rather than physiotherapy, which he found beneficial.
[23] Application, pp 167–189.
On 12 December 2019, Dr Vinh recorded:
“Surgery Consultation
lower back pain, for many months, work: heavy lifting
also sometimes painting on a high level and has to jump down due to not convenience with the ladder
Examination:
tender over the L5/S1 area.
for CT SCAN OF THE LUMBAR SPINE.”[24]
[24] Application, p 177.
That entry was the first entry made by Dr Vinh as to the cause of the symptoms.
On 16 December 2019, Dr Vinh took the following history:
“Pt had a fall 7 months ago at work, and the pain continue since
CT SCAN: LUMBAR SPINE:
1- Spinal canal stenosis at L4/5, compression the proximal L5 nerve roots
2- Right sided L4 pars defect but no ss of spondylolisthesis
3- Minor disc bulge at L5/S1.”[25]
[25] Application, p 177.
At a further consultation on 29 January 2020, Dr Vinh noted that the appellant’s low back pain was “severe” and “chronic”[26] and on 28 February 2020, Dr Vinh recorded that the appellant continued to complain of back pain, he was seeking compensation and had been experiencing back pain since February 2019.[27] On 7 July 2020, Dr Vinh recorded that the appellant had attended Dr Ali Ghahreman, neurosurgeon. Dr Vinh noted:
“Had a fall in Mid 2019>LBP and radiate to the buttocks from the back. pain severe on both side. related to work.”[28]
[26] Application, p 177.
[27] Application, p 176.
[28] Application, p 175.
Dr Vinh completed a Chronic Disease Management Plan on 18 February 2019. He described the appellant’s lower back pain as “chronic.”[29]
[29] Application, p 223.
In the letter of referral to Dr Ghahreman, Dr Vinh provided the following history:
“Thank you for seeing Antonio who presented with 6 months history of lower back pain and radiate to the upper parts of the buttock bilaterally. He has been working as a panel beater & spray painter where he had to do heavy lifting. He reported that the pain first [occurred] after he jump of [sic] a ladder at work.”[30]
[30] Application, p 228.
Dr Ghahreman reported to Dr Vinh on 21 December 2019. He noted the history that the appellant had suffered a fall at work in mid-2019. He opined that:
“the pain has been generated as a result of work related activities and since fall at work. As such work is a significant contributor to pain. Please note that he had no pain prior to his work related fall.”[31]
[31] Application, p 229.
Dr Vinh provided a Certificate of Capacity dated 2 March 2020. He recorded a date of injury of 12 February 2019 and noted that the cause of the injury was “[h]eavy lifting” and “[h]ad a fall at work.”[32]
[32] Application, pp 230–232.

Dr Ali Ghahreman, neurosurgeon

The appellant attended Dr Ghahreman on 21 December 2019. In a report of the same date, Dr Ghahreman noted that the appellant “had a fall at work in mid-2019,” following which he developed lower back pain and radiating pain into the buttocks. He discussed the pathology evident on a CT scan and opined that the pain had been generated by work related activities as well as the fall, and the work was a significant contributing factor to the symptoms. Dr Ghahreman noted that the appellant had no symptoms prior to the fall.[33]
[33] Nominal Insurer’s reply, p 84.
Dr Ghahreman reported to Dr Vinh again on a number of occasions between 1 May 2020 and 14 September 2020.[34] In a report dated 3 August 2020, Dr Ghahreman mentioned the fall at work and noted that it had occurred on 12 February 2019.[35]
[34] Employer’s reply, pp 35–38; 41; 47–49.
[35] Employer’s reply, p 38.

Dr Rob Kuru, spinal surgeon

Dr Rob Kuru was qualified by the employer to provide an opinion in respect of the appellant’s claim. Relevantly, in his report dated 6 November 2021, Dr Kuru expressed the view that the appellant’s diagnosis was:
“non specific back pain (presumably due to underlying degenerative disease in the lumbar spine) and spinal claudication consequent to degenerative spinal stenosis”.[36]
[36] AALD dated 30 November 2021, pp 29–30.
Dr Kuru opined that, if there had been a specific injury causing aggravation of the pathology, he would have expected that the appellant would not have been able to continue to work following the injury.

Dr Peter Bentivoglio, neurosurgeon

Dr Bentivoglio was asked by the Nominal Insurer to provide an opinion on liability. He provided a report dated 30 June 2021.[37] Relevantly, Dr Bentivoglio took a history of the alleged fall at work on 12 February 2019 and its aftermath, which was consistent with the history provided by the appellant to the Nominal Insurer. Dr Bentivoglio diagnosed back pain caused by multilevel disc disease with canal stenosis and lateral recess narrowing. He considered that the reason for the ongoing symptoms was the progression of the degenerative disease. Dr Bentivoglio reviewed the need for proposed lumbar surgery and concluded that the surgery was “probably reasonable” and “associated with the work injury of 12 February 2019 and with exacerbation of the previous degenerative disease.”[38]
[37] Nominal Insurer’s reply, pp 35–38.
[38] Nominal Insurer’s reply, p 38, report page 4.

Dr Balsam Darwish, neurosurgeon

Dr Darwish provided a report dated 8 March 2022 at the request of the appellant’s solicitors. The report was not annexed to an AALD but was accepted into evidence by the Member. Dr Darwish took a history of the injury on 12 February 2019 which was also consistent with the history asserted by the appellant in his claim for compensation. Dr Darwish diagnosed lumbar canal stenosis. He opined that the changes evident on the radiological investigations were most likely degenerative in nature and caused or aggravated by the appellant’s employment, which required lifting and bending and working in awkward positions. He considered that “[t]he accident on 12 February 2019 was a major aggravating factor to a pre-existing condition and the main cause of [the appellant’s] symptoms.”[39]
[39] Dr Darwish’s report, p 3, [3].

THE MEMBER’S REASONS

The Member briefly recorded the nature of the claim before the Commission and the protracted procedural history. The Member identified the issues raised that required determination, namely:
(a) “the [employer’s] liability in respect of the notice to reimburse issued pursuant to s 145(1) of the 1987 Act on 8 September 2021, including:
(i)the Commission’s jurisdiction to make findings and determinations in respect of whether any incapacity and/or need for treatment suffered by the [appellant] resulted from an injury due to the nature and conditions of employment pursuant to s 4(b) of 1987 Act and what those findings / determinations should be;
(ii)whether the [appellant] sustained an injury pursuant to ss 4(a) and 9A of the 1987 Act on 12 February 2019;
(iii)the extent and quantification of any entitlement to weekly compensation pursuant to s 33 of the 1987 Act in respect of the alleged injury on 12 February 2019 (including the calculation of pre-injury average weekly earnings);
(iv)whether there was an entitlement to medical and related treatment expenses pursuant to s 60 of the 1987 Act in respect of the alleged injury on 12 February 2019, and whether the [appellant] was barred from recovering compensation pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of the alleged injury on 12 February 2019.”[40]
[40] Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph's Smash Repairs v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 348 (reasons), [13].
The Member provided a detailed summary of the evidence and noted the submissions of the parties. She said that the submissions, where relevant, were addressed in her findings and reasons that followed.
The Member reproduced s 145 of the 1987 Act and noted that the validity of the notice issue pursuant to s 145(1) was not challenged and the employer’s right to bring the proceedings in accordance with s 145(4) was also not challenged. The Member noted that the parties were not in agreement as to the whether the Commission’s powers in matters arising under s 145 extended to a consideration of whether the appellant’s incapacity and need for treatment were attributable to some other compensable injury. The Member considered that it was inappropriate and in fact unnecessary to determine other causes of the appellant’s complaints in order to determine whether the employer had a liability to repay to the Nominal Insurer the amount of compensation paid to the appellant. She noted that the payments made by the Nominal Insurer were those in respect of an asserted injury to the back and legs that resulted from an incident on or about 12 February 2019, as described in the claim form submitted to the Nominal Insurer by the appellant. The Member observed that the first issue for determination was whether the appellant in fact suffered the alleged injury for which he was paid the compensation.
The Member referred to the decision of Keating P in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer,[41] in which his Honour:
(a) confirmed that the legal onus of proof in matters involving s 145 of the 1987 Act rests with the Nominal Insurer;
(b) observed that the certificate issued pursuant to s 145(5) was prima facie evidence that the appellant was liable for the payments made, and
(c) said that it was open to the employer to prove that it was not liable to pay compensation to the appellant.
[41] [2018] NSWWCCPD 10 (Kula Systems).
The Member turned to the question of whether the appellant suffered the injury alleged. She referred to the definition of “injury”, as defined by s 4 of the 1987 Act and noted that the statement evidence disclosed a clear factual dispute in respect of what, if anything, occurred on 12 February 2019. The Member observed that the statements of Mr Tiliakos dated 8 April 2020, 28 April 2020 and 16 November 2021 were substantially supportive of the evidence of Mr Terkalas, but that those statements contradicted his earlier statement dated 2 March 2020. She noted that Mr Tiliakos asserted that he had been coerced into making the earlier inconsistent statement. She further noted that the appellant’s solicitor gave evidence that Mr Tiliakos freely and voluntarily provided the statement dated 2 March 2020.
The Member observed that there was tension between the evidence of the appellant and Mr Terkalas, with each attacking the other’s credibility, each accusing the other of document fraud (particularly in relation to the payment of wages) and each contradicting the other on “multiple issues.”[42] She noted that none of the witnesses were tested under cross-examination but that was not a bar to a finding of credibility. She indicated that she had taken a most cautious approach to the witness evidence and found the evidence on both sides to be largely unreliable. She said that the contemporaneous medical evidence was of greater assistance as to what may or may not have occurred.
[42] Reasons, [123].
The Member said that the appellant denied any back symptoms or sciatica prior to 12 February 2019, both in his statement evidence and to the treating and medico-legal experts. The Member observed that there was no complaint of back or sciatic symptoms recorded in the clinical notes of Dr Vinh prior to 12 February 2019. She referred to Mr Terkalas’ assertion that he paid for the appellant to undergo physiotherapy for his back before 12 February 2019, and said that there was no evidence placed before the Commission to support the assertion.
The Member noted that the first reference to back pain and sciatica was recorded in the clinical notes of Dr Vinh on 14 February 2019, but the entry did not provide any details of what precipitated the symptoms or the date of onset. The Member considered that it was very relevant that there was no complaint that the symptoms were referrable to a traumatic incident two days prior to the consultation that involved a fall from a height at work. The Member noted that, while the appellant was referred for x-ray investigations and prescribed medication, there was no record of such an incident when the appellant was reviewed by Dr Vinh on 16 February 2019 and again no reference to a work injury was made in the consultation on 2 September 2019.
The Member observed however, that in the Chronic Disease Management Plan completed by Dr Vinh on 18 February 2019, Dr Vinh described the appellant’s back pain as “chronic” and noted that certain activities including lifting precipitated the pain. The Member considered that that evidence was inconsistent with the appellant having reported to Dr Vinh that he had a sudden onset of back pain following a fall at work and was more consistent with the appellant having experienced back pain for some time which may have been precipitated by lifting and other activities. The Member noted that such a possibility was consistent with the employer’s assertion that the appellant had suffered from back pain prior to his commencement with the employer and obtained treatment for those symptoms while employed by the employer.
The Member referred to the appellant’s attendance on the physiotherapist on 13 April 2019, who diagnosed sciatica and prepared a detailed treatment plan, but did not record a complaint from the appellant that he had suffered a recent traumatic fall that precipitated an acute onset of symptoms. The Member commented that the treatment plan proposed by the physiotherapist was consistent with treatment for a chronic condition of the lumbar spine.
The Member observed that the first reference to a work related injury was in Dr Vinh’s clinical note recorded on 12 December 2019. She noted that Dr Vinh described heavy lifting at work and on occasion having to jump down from a height because there was no ladder but did not record a fall on 12 February 2019 in which the appellant landed on his back. The Member further noted that, at the consultation four days later, the appellant did provide a history of a fall at work but placed it as having occurred in or around May 2019.
The Member referred to the letter of referral to Dr Ghahreman dated 18 December 2019 that also recorded the onset of pain as occurring six months earlier and precipitated by jumping off a ladder at work and to the report of Dr Ghahreman that referred to a fall at work in mid-2019.
The Member concluded that the medical evidence disclosed that while the appellant reported lumbar symptoms in February 2019, the symptoms were not initially recorded as being attributable to a work injury. She referred to the requirement to treat the clinical notes of a general practitioner with caution but considered it most unusual that the medical records did not include a history of the traumatic event subsequently complained of by the appellant. The Member accepted that the records of Dr Vinh were “brief and unilluminating”[43] but thought that it was significant that the more contemporaneous records suggested that the appellant’s condition was “chronic” or longstanding, and potentially related to heavy and inappropriate lifting or poor posture. The Member reasoned that it was not until eight months after the alleged injury that the symptoms were recorded as being work related. She said that, even then, the history was not consistent with the appellant having fallen onto his back and recorded that the event occurred in mid-2019, rather than in February 2019. The Member considered that the extensive delay and the disparity in the evidence were significant matters.
[43] Reasons, [137].
The Member referred to legal authority dealing with the difficulty in assessing the credibility of a witness. She further referred to the decision of Keating P in Department of Education and Training v Ireland[44] that the task of the decision-maker was to weigh the evidence of the worker against the other objective evidence, or the absence of evidence in support of the allegation of injury. The Member said that she had given weight to the fact that the alleged injury was described consistently in the claim form completed by the appellant, his statement evidence and in the histories provided to the treating doctors and the medico-legal experts. The Member said that she also gave weight to the employer’s concession that it was not unusual for spray painters to work on a plank suspended on milk crates, even though the employer denied seeing the particular set-up portrayed in the photograph in his workshop.
[44] [2008] NSWWCCPD 134.
The Member said that the employer’s assertion that an injury did not occur on 12 February 2019 was to some extent supported by the radiological evidence disclosing degenerative disc disease and the medical opinions of Dr Bentivoglio, Dr Kuru and Dr Darwish, wherein:
(a)    Dr Bentivoglio diagnosed multilevel disc disease with moderate canal stenosis;
(b)    Dr Kuru was of the view that the findings were degenerative and indicated a progressive constitutional condition, and
(c)    Dr Darwish described the effects of the fall as an aggravation or exacerbation of degenerative disease in the lumbar spine.

The appellant further submits that it is open to a tribunal to accept the evidence of a witness in the absence of corroboration. That is undoubtedly true.[77] However, given the inconsistencies in the appellant’s evidence noted by the Member, it was open to the Member to find his evidence unreliable and look to other evidence to assist her in her determination of whether the appellant was injured as alleged.[78]
[77] Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66.
[78] Devries v Australian National Railways Commission [1993] HCA 78.
The summary and discussion of the Member’s reasons above discloses that she determined the matter on the basis of the whole of the evidence before her and provided sufficient reasons for accepting or rejecting that evidence.
The appellant makes no persuasive submissions to support this ground of appeal and the ground fails.

CONCLUSION

The appellant has failed to establish error of fact, law or discretion on the part of the Member as required by s 352(5) of the 1998 Act and the appeal fails. The Member’s Certificate of Determination dated 30 June 2022 is confirmed.

DECISION

The threshold to appeal the decision of the Member pursuant to s 352(3) of the 1998 Act is satisfied.
The Member’s Certificate of Determination dated 30 June 2022 is confirmed.

Elizabeth Wood
DEPUTY PRESIDENT

28 August 2023