Martin v Queensland Property Investments Pty Ltd - [2025] NSWPICPD 1

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Martin v Queensland Property Investments Pty Ltd [2025] NSWPICPD 1
APPELLANT:	Nicole Martin
RESPONDENT:	Queensland Property Investments Pty Ltd
INSURER:	Employers Mutual Limited – as agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W5955/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	14 January 2025
ORDERS MADE ON APPEAL:	1. The time for bringing the appeal is extended pursuant to section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021 to 29 January 2024. 2. The Certificate of Determination dated 3 November 2023 is revoked. 3. The matter is remitted to a different member to determine the appellant’s outstanding entitlements, consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – Extension of time to appeal pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and r 133A of the Personal Injury Commission Rules 2021; s 39(1) of the Workers Compensation Act 1987 – whether payments were “in respect of an injury after an aggregate period of 260 weeks”; the former s 40(1) of the 1987 Act and the statutory discretion pursuant to Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 and associated authorities; res judicata – application of Blair v Curran [1939] HCA 23; 62 CLR 464; Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190; Tomlinson v Ramsey Food Processing [2015] HCA 28; 256 CLR 507
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Daley, counsel
The Firm Law Group
Respondent:
Mr J Beran, counsel
BBW Lawyers

DECISION UNDER APPEAL:	Martin v Queensland Property Investments [2023] NSWPIC 586
MEMBER:	Mr J Turner
DATE OF MEMBER’S DECISION:	3 November 2023

INTRODUCTION AND BACKGROUND

Nicole Martin (the appellant/the worker) worked at Woolworths Minchinbury, a distribution centre, as a store person.[1] She worked permanent part time, 20 hours per week.[2] Her statement describes duties that were physical, repetitive and involved twisting of the neck.[3] It is common ground that the identity of her relevant employer was Queensland Property Investments Pty Ltd (the respondent). The employer was previously described as “Woolworths Group Limited” but this was amended to “Queensland Property Investments Pty Ltd” at the hearing.[4] It is not suggested this change of name is of any significance to the issues in the case. The appellant is right-handed.[5] She developed symptoms in her hands in about April 2013. She experienced left-sided neck symptoms in late 2013/early 2014. She said the neck symptoms settled to “an acceptable level” but never disappeared.[6] Following nerve conduction studies, she claimed compensation in respect of carpal tunnel syndrome in April 2014.[7] She had surgery for the carpal tunnel syndrome, the left side on 12 April 2016, followed by the right on 6 December 2016 and 25 July 2017.[8] Her employer accepted liability for the cost of the carpal tunnel surgery and associated time off work.[9] The appellant required “sporadic periods of time off work between 2014 and 2018”.[10] The appellant stated that she was certified as unfit for any work from 9 August 2018 and has been off work since.[11]
[1] Appellant’s statement 26/2/20 (appellant’s statement), [2], [30], Application to Resolve a Dispute (ARD), pp 29–39.
[2] Dr Dias’ report 30/3/20, ARD, p 67.
[3] Appellant’s statement, [37]–[41], [48], [58]–[69], [81]–[82], [100].
[4] Transcript of hearing 21/9/23 (T), T 1.21–25.
[5] Appellant’s statement, [83].
[6] Appellant’s statement, [58], [73].
[7] Appellant’s statement, [37]–[39], [46]–[47].
[8] Dr Dixon’s report 3/6/20, ARD, p 82.
[9] Appellant’s statement, [77], [80].
[10] Dr Dias’ report, 30/3/20, ARD, p 69.
[11] Appellant’s statement, [102]–[103].
The respondent disputed liability in a notice dated 17 August 2018.[12] The “Injury description” in the notice was “Bilateral carpal tunnel” with a date of injury of “4/04/2014”. The notice referred to medical evidence obtained by the respondent from Dr Breit, orthopaedic surgeon, that carpal tunnel syndrome is “purely constitutional”. The notice also referred to “some degree of cervical spondylosis” which in Dr Breit’s opinion was “constitutional and unrelated to your employment”.
[12] ARD, pp 47–51.
There were proceedings in the former Workers Compensation Commission, matter no. 1102/19, in which the appellant was the applicant and the respondent was described as “Woolworths Group Limited”. A Certificate of Determination – Consent Orders dated 4 April 2019[13] provided that the respondent pay the worker’s “costs and expenses pursuant to s 60 of the Workers Compensation Act 1987”. It was noted the balance of the proceedings were discontinued. There was a notation:
“On a voluntary basis the respondent is to pay the applicant $200 per week from 8 October 2018 to date and continuing.”
[13] ARD, p 96.
The appellant’s employment with the respondent was terminated as at 14 August 2020.[14] The respondent issued a further dispute notice dated 10 December 2020.[15] The covering letter referred to a conversation with the appellant on 10 December 2020 and stated: “We are now issuing the notice to advise that liability for your neck, elbow, cervical spine C6/7 herniation, secondary psychological injury and double crush phenomenon is declined and no further payments will be made”. The notice referred to the “Injury description” as “Carpal Tunnel Syndrome” and gave a date of injury of “4/04/ 2014”. The notice stated, of the claim for Carpal Tunnel Syndrome, that “Liability for this injury only was accepted on the 5/09/14”. It said: “Liability was never accepted for your neck issue” and “no claim was lodged for your neck”. It said:
“Subsequently and in summary, liability has not been accepted for the cervical spine C6/7 herniation, adjustment disorder, elbow strain overcompensation and double crush phenomenon and no payments will be made in compensation of these injuries.”
[14] Member Young’s Reasons in matter no. W3910/21, [2], an attachment to the appellant’s Appeal Against Decision of Member (appeal), pp 29–41.
[15] ARD, pp 52–58.
Dr Singh, the appellant’s treating surgeon, requested approval from the respondent to perform surgery involving decompression and fusion from C5 to C7.[16] That approval was not forthcoming. There were further proceedings, matter no. W3910/21 in the Personal Injury Commission (the Commission). On this occasion the respondent employer was described as Queensland Property Investments Pty Limited. These proceedings were determined by Member Young on 31 January 2022.[17] Member Young noted the appellant had obtained employment with Pet Barn from January 2021. He noted the respondent ceased making payments to the appellant in October 2021, when it said the appellant had received 260 weeks of weekly payments and did not have whole person impairment greater than 20 per cent. Member Young said the appellant’s weekly benefits claimed were for a closed period from 14 August 2020 (when her employment with the respondent ceased) until 6 January 2021. The appellant also sought a declaration pursuant to s 60(5) of Workers Compensation Act 1987 (the 1987 Act) to compel the respondent to pay the reasonable costs of the cervical spine surgery proposed by Dr Singh.[18]
[16] ARD, p 241.
[17] See the attachment to the appellant’s Appeal Against Decision of Member, pp 29–41.
[18] Member Young’s reasons, [4]–[7].
Member Young issued a Certificate of Determination dated 31 January 2022. He made awards for closed periods of compensation from 8 October 2018 to 6 January 2021, with credit for payments made. He made an order for the payment of medical expenses pursuant to s 60. He made a declaration pursuant to s 60(5) of the 1987 Act that the respondent pay for the reasonable costs of and incidental to the proposed cervical spine surgery.
The respondent’s solicitors wrote to the worker (care of her solicitors) on 14 February 2022 denying liability for a lump sum claim brought by the worker.[19] The claim at issue was described as involving a date of injury of 4 April 2014 and the “Injury description” was “Cervical spine and bilateral carpal tunnel syndrome”. The respondent relied on the opinion of Dr Shatwell in denying that the appellant’s whole person impairment satisfied the 11 per cent threshold in s 66(1) of the 1987 Act.
[19] ARD, pp 97–100.
Dr Singh performed the cervical surgery on 19 April 2023 at Norwest Private Hospital.[20]
[20] ARD, pp 256–7.
The current proceedings were commenced by the filing of the ARD on 10 August 2023. The ARD originally nominated two injuries. The first was described as occurring from 27 March 2008 to 14 August 2020 (date of claim 27 March 2008). The second was described as occurring from 1 October 2013 to 14 August 2020 (date of claim 4 April 2014). The injury descriptions were largely identical, although the first (unlike the second) included “C5–C7 Anterior Cervical Decompression and Fusion + ICBG 19 April 2023”.
The ARD claims a weekly payment in respect of three separately pleaded periods. The first is from 19 April 2023 to an unspecified date, at a rate of $1,054. The second period is from 1 January 2023 to 18 April 2023. It nominates pre-injury average weekly earnings (PIAWE) of $1,054 and describes the “entitlement period” as “After week 130, s 38”. The third claims from 19 April 2023, ongoing, “After week 130, s 38”. It nominates PIAWE of $1,054.
The matter was listed for hearing before Member Turner on 21 September 2023. Mr Daley appeared for the worker and Mr Beran appeared for the respondent. The worker, at the hearing, amended the pleading of injury to make it consistent with the pleading that was relied on in the earlier proceedings decided by Member Young (see [80] to [81] below). Both counsel addressed and the Member reserved his decision. The Member’s decision was issued on 3 November 2023.[21] The Member determined that the worker had “received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine” and had no further weekly entitlement pursuant to s 39 of the 1987 Act. The Member determined there was no entitlement to weekly compensation pursuant to s 41 of the 1987 Act as a result of incapacity resulting from the cervical surgery performed on 19 April 2023. There was an award for the respondent on the claim for weekly compensation.
[21] Martin v Queensland Property Investments [2023] NSWPIC 586 (the reasons).

THE MEMBER’S REASONS

The Member said the worker claimed she suffered injury due to the nature and conditions of her employment from 1 January 2008 to 14 August 2020. This was alleged to have resulted in personal injury (on 1 January 2008, 4 April 2014, 14 April 2014) or alternatively aggravation, etcetera of a disease (27 March 2008, 4 April 2014, 14 April 2014). The weekly claim was from 19 April 2023 to date and continuing. There was alleged injury to the upper limbs, cervical spine disc herniation, and aggravation of cervical spine spondylosis. The respondent accepted liability for the carpal tunnel syndrome. Member Young had found injury to the cervical spine which resulted in the surgery performed by Dr Singh on 19 April 2023. Compensation was paid from 16 April 2014 to 10 October 2021. The respondent has paid 260 weeks of weekly compensation. The appellant also alleged a consequential condition of the neck resulting from the surgery on 19 April 2023.[22]
[22] Reasons, [2]–[8], [11].
The Member undertook a detailed review of the evidence.[23] He referred to the orders, award and declaration made by Member Young on 31 January 2022.[24] The Member referred to the appellant’s need, after the cervical surgery, to return to work for financial reasons, and her attempts to be certified fit for suitable duties. She returned to work at Pet Barn on 16 August 2023 performing limited duties.[25] The Member made a detailed summary of the medico-legal evidence.[26]
[23] Reasons, [17]–[54].
[24] Reasons, [54]–[61].
[25] Reasons, [67]–[76].
[26] Reasons, [78]–[98].
The Member noted the appellant was paid weekly benefits from 16 April 2014 to 10 October 2021, “an aggregate period of 260 weeks”. The respondent asserted there was no further entitlement to weekly compensation.
The Member set out s 39 of the 1987 Act. The Member said that subcl (2) was not relevant as the appellant had not been assessed for permanent impairment. The Member briefly summarised the appellant’s argument. Weekly payments commenced on 16 April 2014. Weekly compensation in respect of the neck injury were not made until Member Young’s award for the period between 8 October 2018 and 6 January 2021. The respondent’s s 78 notice dated 10 December 2020 made it clear that, up to that time, no payments, weekly or otherwise, were made for the neck injury. Liability was accepted only in respect of the bilateral carpal tunnel syndrome. The Member accepted the appellant’s submission that liability for the neck was not conceded by the respondent until Member Young’s determination.[27]
[27] Reasons, [101]–[105].
The Member described the appellant’s argument. For the purposes of s 39 of the 1987 Act ‘injury’ is pathology and the incapacity arising from that pathology, not the injurious incident or event. Incapacity arising from the neck pathology is to be treated separately from the bilateral carpal tunnel syndrome.[28]
[28] Reasons, [106].
The Member referred to the respondent’s submission, that ‘injury’ for the purposes of s 39 refers to the injurious process, not the pathology. The respondent submits the nature and conditions of employment caused the pathology in both wrists and the cervical spine. The payments in respect of the wrists and the neck should be aggregated for the purposes of s 39, they were caused by the same injurious process. The Member did not accept the appellant’s submissions on this point. The Member quoted from Jaffarie v Quality Castings Pty Ltd[29] where Roche DP said “… ‘injury’ in s 4 includes an injurious event and the pathology caused by that event”. The quoted passage included references to other authorities going to the meaning of ‘injury’. The Member referred to the appellant’s submission that in the current matter there were “two pathologies giving rise to two different incapacities”.[30]
[29] [2014] NSWWCCPD 79 (Jaffarie).
[30] Reasons, [109].
The Member referred to the medical evidence. On 31 March 2015 Dr Homsi issued a certificate with a diagnosis of bilateral carpal tunnel syndrome. On 17 April 2015 Dr Lim issued a certificate with a diagnosis of “bilateral carpal tunnel syndrome as well as potential neck issue”. On 3 November 2015 Dr Hartin, a spinal surgeon, diagnosed “bilateral carpal tunnel syndrome as well as C6/C7 foraminal stenosis”. Dr Hartin referred to nerve conduction studies that were consistent with carpal tunnel syndrome, and an MRI dated 22 September 2015 which showed degenerative changes particularly at C6/7. The doctor recommended proceeding with carpal tunnel release, while saying the appellant “may require the cervical spondylosis to be addressed”. The Member referred to Dr Lim, who on 30 October 2018, reported that there was an aggravation of a degenerative neck condition and diagnosed C6/7 herniation while also recording a diagnosis of bilateral carpal tunnel syndrome.[31]
[31] Reasons, [111]–[114].
The Member referred to reports from Dr Singh. There were references to neck pain with pins and needles in the left hand in a C7 distribution (6 May 2019) and radiculopathy in the left hand in a C7 and C8 distribution (14 January 2020). Reporting on 16 June 2020, Dr Singh said the pins and needles in the hand had failed to improve following the bilateral carpal tunnel releases. The doctor considered there was a strong contribution from neurological impairment in the cervical spine, to the pins and needles in the hands. The doctor said this radiculitis had worsened over the last few years, hand-in-hand with the worsening changes in the cervical spine demonstrated on MRI. Dr Singh considered the symptoms did not improve with carpal tunnel surgery and were likely wholly or partly due to the cervical spine injury.[32]
[32] Reasons, [115]–[118].
The Member noted Dr Dias found pins and needles, numbness and sensory dysaesthesia consistent with the left C7 dermatome, in addition to median nerve symptoms. Dr Dixon considered there may be a contribution to the carpal tunnel symptoms from C7 radiculopathy. The Member accepted the opinion of Dr Singh, a treating surgeon.[33]
[33] Reasons, [119]–[121].
The Member made a factual finding:
“The medical evidence supports that the [appellant’s] hand symptoms and subsequently her neck symptoms have at all relevant times been the cause of incapacity and the pathology in the [appellant’s] neck has at all relevant times contributed to the hand symptoms. I accept that the [appellant’s] neck condition has at all relevant times contributed to the [appellant’s] incapacity.”[34]
[34] Reasons, [123].
The Member referred to an argument from the appellant, that during the period prior to Member Young’s determination, it could not be known, for the purposes of s 39, which absences related to the neck. The factual finding set out immediately above dealt with that submission.
The Member referred to a submission by the appellant that certain estoppels flowed from Member Young’s decision. Member Young awarded compensation for two separate periods. The first of these was pursuant to s 36, consistent with this representing the first 13 weeks of incapacity. The respondent submitted the second period of the award was consistent with falling within the second entitlement period. The Member referred to Member Young’s reasons at [75]. He found personal injury and/or disease injury to the cervical spine and wrists due to the nature and conditions of employment. Member Young’s reasons did not include a finding regarding when incapacity due to neck injury commenced. There was no explanation of why awards were made pursuant to ss 36 and 37 of the 1987 Act, given that weekly compensation had previously been paid.[35]
[35] Reasons, [125].
The Member rejected the appellant’s submission that the cervical spine surgery on 19 April 2023 was in respect of a ‘consequential condition’. The Member said it was determined that the appellant suffered neck injury due to the nature and conditions of her employment. If it was a consequential condition, this made no difference. It would be regarded as a consequence of the original injury. The Member concluded the appellant had received an aggregate period of 260 weeks of weekly compensation in respect of her accepted neck injury.[36]
[36] Reasons, [126]–[127].
The Member then dealt with the potential application of s 41 of the 1987 Act. The appellant submitted that there was nothing in s 41 that would restrict its operation to the entitlement period of 260 weeks. The Member said there were circumstances where a worker would be eligible to receive compensation pursuant to s 41, while being ineligible under s 38, for example where compensation would not be recoverable because the requirements of s 38 were not satisfied. A worker may have failed to satisfy the requirements of s 38(3) when he was assessed by the insurer as having current work capacity. The Member said that s 39 unambiguously stated that it had application “[d]espite any other provision of this Division”. Sections 39 and 41 are both in the same Division. The Member concluded the appellant was not entitled to receive weekly compensation pursuant to s 41.[37]
[37] Reasons, [128]–[134].
The Member said it was unnecessary for him to deal with the estoppel issue raised by the appellant, given his conclusions regarding ss 39 and 41. The Member made the following findings and award:
“(a)    the [appellant] has received an aggregate period of 260 weeks of weekly compensation in respect of the injury to her cervical spine and therefore has no entitlement to further weekly compensation pursuant to s 39 of the 1987 Act;
(b)     the [appellant] has no entitlement to weekly payments of compensation pursuant to s 41 of the 1987 Act as a result of any incapacity resulting from the C5-C7 anterior cervical decompression and fusion + ICBG surgery performed by Dr Bhisham Singh on 19 April 2023, and
(c)     there is an award for the respondent in respect to the claim for weekly compensation.”

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Member erred in finding at paragraphs 122 and 123 that the respondent did in fact pay weekly compensation as a result of neck pathology and the incapacity arising therefrom from the beginning of the payment of weekly payments in 2014 (prior to the determination of Member Young ordering payments for the neck from 8 October 2018) thus counting such payments towards the 260 weeks provided by s 39. (Ground No. 1)
(b)    Failing to consider the appellant’s argument that prior to the Award of Member Young that the respondent not only in fact did not pay any weekly compensation in respect of the appellant’s neck condition, but was entitled to as a matter of law [to] take that neck condition which it believed to be unrelated to the appellant’s employment into account to determine the appropriate compensation payable for the carpal tunnel injuries. (Ground No. 2)
(c)    Failing to apply the issue estoppels that flowed from the determination of Member Young such that there are now [two] inconsistent decisions of the Commission. (Ground No. 3)

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.”
Having regard to Procedural Directions PIC2 and WC3; 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The Member’s decision was issued on 3 November 2023. The appellant’s appeal was registered in the Commission on 29 January 2024. It is out of time.

The extension application

Section 352(4) of the 1998 Act provides:
“(4) The appeal must be made within—
(a)28 days after the decision appealed against is made, or
(b)a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Subclauses (3) and (5) of r 133A of the Personal Injury Commission Rules 2021 (the Rules) provide:
“(3) An extension application—
(a) must be made at the same time as the relevant application to which it relates, and
(b) must be in the approved form, and
(c) must include full details of the arguments relied on in favour of granting the order, and
(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
…
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.”

Submissions on the extension application

The appellant submits that her solicitor (and hence she) did not receive notification that the decision of 3 November 2023 had been made. She submits that when her solicitor discovered the decision he took prompt steps to obtain an advice on prospects of success and to obtain funding for the appeal. She submits the appeal was originally lodged on 15 January 2024 but was rejected as it was not compliant with the Rules. She submits it was ultimately lodged within 28 days of when her solicitor received notice of the decision. She submits the appeal has reasonable prospects of success.[38]
[38] Appellant’s submissions, Time [3]–[5].
The appellant submits the “extension application submissions and evidence in support are contained within the other materials filed with the Appeal”.[39]
[39] Appellant’s submissions, Time [3].
The respondent neither consents to, nor opposes, the application to extend time.[40]
[40] Respondent’s submissions, [1].

Consideration of the extension application

The material attached to the appeal includes copies of a string of emails:
(a)    14 November 2023 at 7.34 am from the appellant’s solicitor to her counsel. The text of the email, including its subject, is redacted;
(b)    21 December 2023 at 5.41 pm from the appellant’s solicitor to her counsel. The text of the email, including its subject, is redacted, save that it includes “best wishes … over the Christmas season”;
(c)    22 December 2023 at 1:05 pm from the appellant’s counsel to her solicitor, I infer relating to a different matter. The email includes “I also note we lost that workers comp matter. I spotted it in the list of decisions.” (The email goes on to comment on the merits of the decision.);
(d)    22 December 2023 at 1:10 pm from the appellant’s solicitor to her counsel. The “Subject” is a matter of no apparent relevance to the current matter. The text states “I haven’t seen the decision on Martin when was it handed down?”
(e)    22 December 2023 at 2:14 pm [sic] from the appellant’s solicitor to a “Senior Paralegal” of that practice, which states “Apparently the decision in Martin has been handed down, I did not receive notice and can’t see Martin on the PIC portal. Could you please locate and obtain copy of the decision.”;
(f)    22 December 2023 at 1:53 pm from the senior paralegal to the appellant’s solicitor, which states:
“The matter is reactivated on the portal.
[A named employee] from PIC said the email was sent to you on 3 November 2023 at 2:55 pm to advise decision was available.
See attached decision I will save to PIC tab.”
(g)    22 December 2023 at 1:53 pm from the appellant’s solicitor to the senior paralegal:
“Thanks ask them to forward the email sent as I certainly did not receive”.
(h)    22 December 2023 at 1:55 pm from the [named employee from PIC] to the appellant’s solicitor:
“Re-sending the email:
Dear Legal Representatives,
You are advised that the Commission has issued a determination in the matter, in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998. Please advise your client.
The sealed outcome of the Commission is now available on the Commission’s portal for you to download.
The Commission publishes the details of its decisions pursuant to section 58 of the Personal Injury Commission Act 2020. In exceptional circumstances, decisions may be de-identified or redacted before publication, pursuant to rule 132 of the Personal Injury Commission Rules. Under this rule, an application to de-identify or redact a decision where Commission proceedings are completed may be made in writing within 7 days from the date the decision is issued. More details concerning the Publication Policy can be found on the Commission’s website: matter has now been finalised and the Commission will close its file.”
(i)    22 December 2023 at 1:59 pm from the appellant’s solicitor to the named employee from PIC:
“That is concerning because I have searched our database and the email is not there”.
(j)    22 December 2023 at 2:09 pm from the appellant’s solicitor to the appellant:
“We just became aware of the attached decision handed down 3 November 2023 said by PIC staff to have been notified to us on 3 November 2023. The problem is that having searched our database we no record of receipt of any email [sic]. We make no criticism of PIC staff who are hard working and great to deal with. PIC staff and the insurers solicitors are copied for the record in case your instructions after advice are to appeal the decision.”
The appellant lodged an Appeal Against Decision of Member on 16 January 2024. The respondent to the appeal was identified as Woolworths Group Limited. It was rejected in correspondence from the President’s delegate to the appellant’s solicitors dated 17 January 2024 which read:
“We refer to your Application – Appeal Against Decision of Member (Appeal Application) lodged in the Commission on 16 January 2024. Your Appeal Application has been rejected.
Pursuant to s 352(2A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) an ‘appeal is not to proceed unless the President is satisfied that the procedural requirements of this section and any applicable Commission rules and regulations as to the making of an appeal have been complied with.’
Your Appeal Application does not comply with the procedural requirements of s 352 of the 1998 Act, the Personal Injury Commission Rules 2021 (the 2021 Rules), and Procedural Direction WC3 – Presidential appeals and questions of law (Procedural Direction WC3). The Appeal Application has been rejected for the following reasons.
1.      The Appeal Application does not contain separate submissions in support of each ground of appeal and appears to be incomplete. Procedural Direction WC3 requires that submissions appear with appropriate subheadings, associated with each ground of appeal relied on. It is not acceptable for the appellant to lodge an incomplete Appeal Application with a note that ‘Counsel when briefed will expand further on the Grounds of Appeal and Submissions in Support’.
2.      It is also not clear who the parties are to the proceedings. The Form 9 – Appeal Application identifies the respondent to be ‘Woolworths Group Limited’ and contact information and details are provided for that entity. However, on the attached written submissions, and in the attached Certificates of Determination, the respondent is identified as ‘Queensland Property Investments Pty Limited’.
3.      The Appeal Application does not specify whether the appeal is or is not against an interlocutory decision.
4.     The attached chronology does not comply with the procedural requirements of Procedural Direction WC3 in that it does not include references to the page number where the evidence is to be found in the Application to Resolve a Dispute, Reply or Application to Admit Late Documents.
The appellant may lodge a fresh, complete, appeal application that complies with Procedural Direction WC3. If such a fresh application is filed out of time pursuant to s 352(4) of the 1998 Act, the Commission requires that any fresh appeal application contain an application for an extension of time that complies with the requirements of r 133A of the 2021 Rules.
For the reasons detailed above, this Appeal Application is rejected.”
The appellant lodged a further Appeal Against Decision of Member on 22 January 2024. It was rejected in correspondence from the President’s delegate dated 29 January 2024 which read:
“We refer to your Application – Appeal Against Decision of Member (Appeal Application) lodged in the Commission on 22 January 2024. Your Appeal Application has been rejected.
Pursuant to s 352(2A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) an ‘appeal is not to proceed unless the President is satisfied that the procedural requirements of this section and any applicable Commission rules and regulations as to the making of an appeal have been complied with.’
Your Appeal Application does not comply with the procedural requirements of s 352 of the 1998 Act, the Personal Injury Commission Rules 2021 (the 2021 Rules), and Procedural Direction WC3 – Presidential appeals and questions of law (Procedural Direction WC3). The Appeal Application has been rejected for the following reasons.
1.      The Appeal Application has attached to it multiple documents including, amongst others, an email sent on 1 April 2019 and a list of payments that appears to be fresh or additional evidence. The Appeal Application does not include submissions addressing why leave to adduce the fresh or additional evidence should be admitted in accordance with Procedural Direction WC3.
2.      The Appeal Application does not specify whether the appeal is or is not against an interlocutory decision.
3.      The attached chronology does not comply with the procedural requirements of Procedural Direction WC3 in that it does not include references to the page number where the evidence is to be found in the Application to Resolve a Dispute, Reply or Application to Admit Late Documents.
The appellant may lodge a fresh, complete, appeal application that complies with Procedural Direction WC3. If such a fresh application is filed out of time pursuant to s 352(4) of the 1998 Act, the Commission requires that any fresh appeal application contain an application for an extension of time that complies with the requirements of r 133A of the 2021 Rules.”
An Application to Appeal was successfully lodged on 29 January 2024.
In Allen v Roads and Maritime Services[41] Roche DP, applying the decision in Gallo v Dawson,[42] summarised the following as matters to be considered in an application to extend time:
“(a)    the history of the proceedings;
(b)     the conduct of the parties;
(c)     the nature of the litigation;
(d)     the consequences for the parties of the grant or refusal of the application for the extension of time;
(e)     the prospects of the applicant succeeding in the appeal, and
(f)      upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[43]
[41] [2015] NSWWCCPD 39 (Allen).
[42] [1990] HCA 30; 93 ALR 479; 64 ALJR 458.
[43] Allen, [31].
The Court of Appeal, in Bryce v Department of Corrective Services,[44] dealt with the requirement of ‘exceptional circumstances’ in the equivalent provision in subr (11) of r 16.2 of the former Workers Compensation Commission Rules 2006. Allsop P (as his Honour then was) said that the phrase was “a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction”.
[44] [2009] NSWCA 188.
In Yacoub v Pilkington (Australia) Limited[45] Campbell JA considered the phrase ‘exceptional circumstances’ in the context of the Uniform Civil Procedure Rules 2005. This passage has been frequently applied in Presidential decisions dealing with applications to extend time pursuant to r 133A and its equivalent in the former Workers Compensation Rules. His Honour said:
“(a)    Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered.
(b)     Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors.
(c)     Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.
(d)     In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision.
(e)     Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.” (excluding references)
[45] [2007] NSWCA 290, [66].
The appellant effectively makes two points. The first is that the delay in filing the appeal is satisfactorily explained by fact that the appellant, through no fault of her own, was unaware until 22 December 2023 that the decision had been issued. The second is that the appeal is submitted to have good prospects of success.
Although the submissions fail to specifically address the issue of ‘exceptional circumstances’, I am satisfied that the lengthy delay in the appellant and her lawyers becoming aware of the decision under appeal, through no apparent fault on their part, constituted ‘special circumstances’. Such circumstances were out of the ordinary course, or unusual, or special, or uncommon. For reasons which appear below the appeal is entitled to succeed. In the exercise of my discretion, time for bringing the appeal is extended pursuant to s 352(4) of the 1998 Act and r 133A of the Personal Injury Commission Rules 2021 to 29 January 2024.

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“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.”
In Raulston v Toll Pty Ltd,[46] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[47] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[48]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    A [Member], 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 [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’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 [Member] was wrong.
(c)     It may be shown that [a Member] 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[49]
[46] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[47] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[48] [1996] HCA 140; 140 ALR 227.
[49] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[50]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[51]
[50] [2020] NSWCA 54 (Hill).
[51] Hill, [20].
In Northern NSW Local Health Network v Heggie[52] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[52] [2013] NSWCA 255; 12 DDCR 95, [72].

GROUNDS NOS. 1 AND 2

There is overlap between these grounds. The appellant’s submissions on Ground No. 2 state “[t]his ground is dealt with in ground 1.” I will deal with these grounds together.

Appellant’s submissions

The appellant sets out a “General Summary”. This to an extent duplicates material also appearing elsewhere, and I do not seek to set it out at length. The appellant states that there was “[n]o claim in respect of the neck” in the proceedings that settled on 4 April 2019 (see [3] above). She submits that compensation claimed in those proceedings could only be for the accepted carpal tunnel condition.[53] She states the last payment of weekly compensation was made on 10 October 2021. The appellant states the respondent then issued a further s 78 notice denying liability for the neck.[54]
[53] Appellant’s submissions, [12]–[13].
[54] Appellant’s submissions, [20]–[21].
The appellant refers to the reasons at [122] to [123] which read:
“122. Whilst the respondent did not accept liability for injury to the [appellant’s] neck until the determination of Member Young in Commission proceedings W3910/21 it did in fact pay weekly compensation as result of the neck pathology and the incapacity arising therefrom with the neck symptoms being initially diagnosed as part of the symptoms arising from the accepted bilateral carpal tunnel syndrome injuries.
123. The [appellant] also submitted that if all the payments of weekly compensation were to be taken into account for the purposes of s 39 then it is not known which days the [appellant] had off work due to the neck condition prior to 8 October 2018, the day that payments of weekly compensation commenced under the determination of Member Young, and after 6 January 2021, the date that payments of weekly compensation ordered by Member Young ceased. I do not accept the [appellant’s] submission. The medical evidence supports that the [appellant’s] hand symptoms and subsequently her neck symptoms have at all relevant times been the cause of incapacity and the pathology in the [appellant’s] neck has at all relevant times contributed to the hand symptoms. I accept that the [appellant’s] neck condition has at all relevant times contributed to the [appellant’s] incapacity.”
The appellant submits that at all material times the respondent did not accept liability to pay compensation for the neck (consistent with the reasons at [105]). The appellant submits the respondent carried the onus of proof of “the 260 week defence”. The appellant submits the respondent issued notices denying liability for the neck until Member Young’s decision on 31 January 2022. It submits no compensation was paid for the neck until this award, which ordered payment for the neck from 8 October 2018. On this basis it is submitted the 260 week period could not expire until at least 7 October 2023. The appellant also submits the respondent, at all material times prior to Member Young’s award, was at liberty to reduce the compensation paid voluntarily to take account of a non-compensable condition that was contributing to the appellant’s incapacity. The appellant also submits there is a “suggestion” the respondent took such matters into account, in that it only agreed to pay $200 per week on a voluntary basis in resolving the 2019 proceedings. The appellant submits it is a reasonable inference that the respondent factored in a non-work related [in the respondent’s view] incapacitating condition when agreeing the voluntary payment.[55]
[55] Appellant’s submissions, [21], [27], [32](a)–(e).
The appellant submits it is unclear whether incapacity from the neck would have “warranted any weekly payment” prior to 8 October 2018. The appellant submits the evidence suggests the carpal tunnel syndrome and the related need for surgery on several occasions “was the reason the [a]ppellant was unable to work”. The appellant submits the evidence suggested, and the Member accepted, that the neck condition deteriorated and was more prominent by 2018. Dr Singh considered the symptoms worsened “commensurate with the increasing pathology on the MRI scan” between 2015 and 2020.[56]
[56] Appellant’s submissions, [32](f).
The appellant submits there was factual error in the Member’s finding that the respondent paid any compensation in respect of incapacity associated with the neck injury prior to 8 October 2018. The appellant submits the 260 week period for the purposes of s 39, relating to the neck, can only start as at 8 October 2018, when the respondent was compelled to pay such compensation pursuant to the award of Member Young. The appellant engages in some arithmetical calculations and concludes the appellant is entitled to weekly payments on the basis of total incapacity from 19 April 2023 (on an agreed PIAWE of $590 as adjusted by regulation) to 15 August 2023. The entitlement is then submitted to be for a partial award varying with the appellant’s week to week wages, to be agreed or determined by the Commission.[57]
[57] Appellant’s submissions, [33]–[39].
The appellant submits her submission at first instance, that the respondent was entitled to reduce her weekly payments from 2014 to 7 October 2018 on account of the unrelated neck condition, was not dealt with. There were no reasons for rejecting it.[58]
[58] Appellant’s submissions, [41].
The appellant refers to the reasons at [255] to [256] (these are misnumbered and are found after [109] of the reasons). The appellant makes arguments that seek to rebut those at [255] to [256]. The appellant submits the description in the reasons at [256], of the appellant’s submission in this regard, is “incomplete”, suggesting the argument was not seriously considered.[59]
[59] Appellant’s submissions, [42]–[45].
The appellant refers to an argument put by the respondent that, if an employer paid compensation believing the cause of a condition was X, but it turned out the employer was mistaken and the cause was condition Z, the weekly payments would still count towards the 260 weeks. The appellant says it submitted that this analogy was inappropriate. In the appellant’s case there were two pathologies, not one as in the analogy. In the appellant’s case the second pathology was always known. There were two conditions (which remain) with no doubt as to their causes. The appellant submits the Member failed to consider this argument at [256] of the reasons. It submits this constituted appealable error.[60]
[60] Appellant’s submissions, [44]–[46].

Respondent’s submissions

The respondent makes “general submissions” which are described as “applicable to all grounds”.
The respondent quotes the findings of Member Young, which were not appealed:
“75. By reason of the nature and conditions of the [appellant’s] employment and specific incidents of injury between 1 January 2008 to 4 September 2018 the [appellant] suffered personal injury and/or a disease injury to her cervical spine and wrists (bilateral carpal tunnel syndrome) together with other injuries.
76. The [appellant] was at all material times from 8 October 2017 to 6 January 2021 (the period) totally incapacitated for work within the meaning of the Section 33 of the 1987 Act.”
The respondent states that the “description of injury” in the current matter was amended by the appellant, to be consistent with that pleaded before Member Young and to which Member Young’s findings related (see [80] to [81] below). The respondent quotes Member Turner’s findings (which it submits are not challenged) with respect to “the nature of the appellant’s injury as pleaded”:
“121. The medical evidence supports that whilst the [appellant] was initially diagnosed with carpal tunnel syndrome a suspicion soon arose that there may have been a contribution to the symptoms being experienced by the [appellant] as a result of a condition affecting the cervical spine. In particular Dr Hartin whilst recommending carpal tunnel release surgery observed that there may be a contribution from the neck and that if the [appellant’s] symptoms did not improve following the carpal tunnel decompression the cervical spine would need to be looked at. Dr Bhisham Singh, the [appellant’s] treating surgeon in respect to the neck, noting the failure of the carpal tunnel release surgeries to improve the [appellant’s] symptoms concludes that the [appellant’s] initial symptoms were partly or wholly due to the cervical injury. Dr Singh having reviewed the [appellant] on multiple occasions over an extended period of time is best placed to provide an opinion and I accept the opinion of Dr Singh.”[61]
[61] Respondent’s submissions, [6]–[14].
The respondent quotes the following passage from the reasons of Burke J in Watts Peterson Automotive Pty Ltd v Peterson:
“Section 33 vests a right to compensation where a worker suffers incapacity as a result of injury. Section 4 defines the various categories of injury which might relevantly afflict a worker. Depending on which category of injury in section 4(b) is involved, sections 15 and 16 prescribe some of the formalities relevant to the liability arising under section 33. The latter sections do not provide the worker with a right to compensation but facilitate the implementation of the right arising from section 33.”[62]
[62] [1994] NSWCC 30; 10 NSWCCR 653 (Peterson), 661B.
The respondent submits that, regardless of any declinature notice or opinion of the respondent’s insurer, the appellant’s right to compensation arises at the time of injury. It refers to Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission at [52] where Brereton JA said:
“Injury and impairment are not necessarily concurrent, and it is well-established that entitlements to compensation such as those created by s 9(1) of the 1987 Act vest upon the occurrence of the injury, even though those entitlements may not be immediately ascertainable”[63].[64]
[63] [2020] NSWCA 113 (Hochbaum), [52].
[64] Respondent’s submissions, [17].
The respondent addresses Ground No. 1 specifically. It submits the appellant’s submissions are based on an incorrect premise. The findings of both Members Young and Turner were of injury caused by the nature and conditions of employment to the wrists and the neck/cervical spine. This was the injury, defined by s 4 of the 1987 Act, from which the entitlement to compensation pursuant to s 33 derives. The respondent submits:
“… it is of no consequence as to whether payments were made in respect [of] incapacity arising from either or both the neck or wrists. What is relevant is whether payments were made in respect of the injury as defined by s 4 and determined by Members Young and Turner.”[65]
[65] Respondent’s submissions, [15].
The respondent refers to the list of payments dated 24 April 2023[66] as evidence of payments totalling 260 weeks. The respondent refers to its s 78 notice dated 30 August 2023.[67] It submits there is a single claim number, which relates to the appellant’s injury to her “Bilateral Carpal Tunnel Syndrome, Cervical Spine & Left elbow”. It submits this is “the same injury that has been pleaded in these and prior proceedings”. It submits 260 weeks of compensation were paid in respect of the injury determined by Members Young and Turner.[68]
[66] Reply, pp 12–45.
[67] Reply, p 3.
[68] Respondent’s submissions, [16].
The respondent refers to the appellant’s submissions at [32(d)–(f)]. It submits these considerations are irrelevant to determination of the dispute. Consistent with Peterson, what is relevant is the s 4 injury referred to within s 33. That injury was found by Member Young: “personal injury and/or a disease injury to her cervical spine and wrists (bilateral carpal tunnel syndrome) together with other injuries” caused by the nature and conditions of employment. The respondent refers to the appellant’s assertion that different incapacities arising from different pathologies arising from the nature and conditions of employment should be separated when assessing the number of weeks for which payments have been made. The respondent puts its position:
“… the Respondent asserts that the correct view is that the weekly limit imposed by s 39 is in respect of the periods of incapacity arising from one or multiple pathologies that flow from the injury defined by s 4. Only one injury has been determined pursuant to s 4 …”.[69]
[69] Respondent’s submissions, [18].
The respondent refers to the appellant’s submissions at [32(f)] and [32(g)]. The appellant’s submissions before me do not include any subclause (g). The respondent submits the appellant adopted her pleadings from those that were before Member Young. The respondent submits that Member Turner reviewed the evidence and adopted the opinion of Dr Singh. The respondent submits this was consistent with the conclusion that the same nature and conditions caused the wrist symptoms and later caused the cervical spine symptoms. The respondent submits the appellant never suggested there was a difference between the nature and conditions that caused the wrist injury and the cervical spine injury. The respondent submits there is no basis to conclude that the factual findings at [122] to [123] of the reasons were incorrect.
The respondent refers to the appellant’s argument that there was error in the Member’s failure to deal with hypothetical scenarios raised by counsel in their submissions. The respondent submits this is “not a valid ground of appeal”. The respondent then submits the Member in any event dealt with the scenarios in the reasons at [123], in his finding that at all material times the neck pathology contributed to the incapacity. The respondent says the appellant again pursues an argument that there were two causes (pathologies) of the incapacity. This ignores that they were the same injury pursuant to s 4.

Appellant’s submissions in reply

The appellant refers to the respondent’s submissions at [7] and describes the intent of the paragraph as “unclear”. It refers to the scope of any estoppel. The appellant submits there is nothing in the respondent’s submissions at [7] that gainsays the appellant’s case that there were no payments for the neck injury before the award of Member Young.[70]
[70] Appellant’s submissions in reply, [1]–[2].
The appellant refers to the respondent’s submissions at [10] to [11]. It submits the finding of Member Turner at [121] is challenged. It submits there is a distinction between suffering an injury and having an entitlement to compensation for that injury. The appellant submits the respondent did not, prior to Member Young’s award, pay any compensation for the neck injury.[71]
[71] Appellant’s submissions in reply, [4]–[5].
The appellant refers to the respondent’s submissions at [14]. The appellant submits the “frank injuries for example only involved the neck”. She said there was a submission the neck became more incapacitating over time. The appellant quotes at some length from decisions of Roche DP, in Willoughby City Council v Kevric[72] and Toplis v Coles Group Ltd.[73] Each of the quoted passages is critical of the practice of using the term “nature and conditions” in pleadings of ‘injury’. The appellant submits different activities may have affected the carpal tunnel as opposed to the neck. It is submitted “Member Young did not delve into that level of detail”. The appellant seeks to test the ‘injury’ finding by querying whether, in a damages claim, such a finding would be sufficient.[74]
[72] [2009] NSWWCCPD 140 (Kevric).
[73] [2009] NSWWCCPD 70 (Toplis).
[74] Appellant’s submissions in reply, [6]–[11].
The appellant submits the Member, at [109] of the reasons, said that ‘injury’ “means pathology not the injurious process”. The appellant submits this is contrary to the respondent’s argument and no notice of contention has been filed. The appellant submits “the [r]espondent’s proposition of ‘one’ injury is not made out”.[75]
[75] Appellant’s submissions in reply, [12]–[13].
The appellant refers to Ground No. 1, specifically the respondent’s submission at [15]. The appellant submits the submission is contrary to Member Turner’s finding, that injury for the purposes of s 4 refers to pathology, not the events that caused the pathology. It submits the submission should be the subject of a Notice of Contention. The appellant submits s 322 of the 1998 Act would be unnecessary if the respondent’s submission were correct. It specifically refers to subs (3) of s 322. The appellant submits that, whilst s 4 is the gateway to an entitlement to compensation, it is additionally necessary that there be total or partial incapacity with resultant economic loss.[76]
[76] Appellant’s submissions in reply, [14]–[16].
The appellant refers to the respondent’s submissions at [16] to [17]. She submits the issue is not whether 260 weeks of compensation were paid, but whether that number of weeks were paid for the neck injury. It submits there is a distinction between suffering an injury pursuant to s 4 of the 1987 Act and being entitled to weekly payments within the meaning of s 33 of the Act. A weekly entitlement requires incapacity and the fulfillment of other statutory requirements. Not all injuries produce an entitlement to weekly compensation or medical expenses.[77]
[77] Appellant’s submissions in reply, [17]–[18].
The appellant refers to the respondent’s submissions at [18]–[19]. It submits there is no equivalent of s 322 of the 1998 Act relating to weekly payments. The appellant refers to s 39 as “a draconian provision”. She submits there is no reason why s 39 should be interpreted to restrict a worker’s claim where “separate incapacities give rise to separate and distinct periods of incapacity”. Her submissions state:
“… it would be accepted that the [Insurer] would be entitled to take into account a ‘spent’ ongoing incapacity to determine whether in respect of the ‘unspent’ incapacity how much compensation would be applicable.”
The appellant rejects any suggestion that it is now pursuing a different case as “misconceived”. She says both parties are bound by Member Young’s determinations.[78]
[78] Appellant’s submissions in reply, [19]–[20].
The appellant refers to the respondent’s submissions at [20] to [21], which relate to Ground No. 2. It repeats its submission that the respondent was entitled to take account of the neck condition to reduce compensation otherwise payable to the appellant. It submits the failure to deal with this submission amounted to error within the meaning of Dranichnikov v Minister for Immigration and Multicultural Affairs.[79] The appellant submits there may be jurisdictional error in failure to actively take an intellectual process towards the argument. Reference is made to Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[80] The appellant submits this task was relevant to the determination of “what precisely the payments made before 8 October 2017 were paid for”.
[79] [2003] HCA 26 (Dranichnikov).
[80] [2021] FCA 755 (Singh), [17].

Consideration

Section 39 of the 1987 Act provides:
“39    Cessation of weekly payments after 5 years
(1)     Despite any other provision of this Division, a worker has no entitlement to weekly payments of compensation under this Division in respect of an injury after an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.
(2)     This section does not apply to an injured worker whose injury results in permanent impairment if the degree of permanent impairment resulting from the injury is more than 20%.
Note—
For workers with more than 20% permanent impairment, entitlement to compensation may continue after 260 weeks but entitlement after 260 weeks is still subject to section 38.
(3)     For the purposes of this section, the degree of permanent impairment that results from an injury is to be assessed as provided by section 65 (for an assessment for the purposes of Division 4)”.
Section 65 of the 1987 Act provides:
“65    Determination of degree of permanent impairment
(1)     For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2)     If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note—
The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.”

In Hochbaum Brereton JA said:
“For the purposes of the Act, by s 4, the term ‘injury’ means ‘personal injury arising out of or in the course of employment’.”[81]
And:
“It is the injury, rather than the impairment, that attracts s 39(2), albeit only if the injury has a particular result in terms of impairment. The ‘injury’ referred to in s 39(2) is the injury defined in s 4, in respect of which a worker is entitled, pursuant to s 9, to compensation in accordance with the Act.”[82] (emphasis in original)
[81] Hochbaum, [24].
[82] Hochbaum, [51].
At the hearing of the current matter the Member noted:
“In respect to the dates of the injury and the injury, the Application to Resolve a Dispute is amended to plead those injuries as [they] appear in the previous ARD [the proceedings which were determined by Member Young] which is at pages 8 and 9 of the ARD documents.”[83]
[83] T 1.32–5.
The “Injury Details” thus adopted, which applied in both the proceedings before Member Young and the current proceedings before Member Turner, read:
“Nature and conditions of employment from 1 January 2008 (dates be clarified upon production of medical record and files of Woolworths Group Limited and employer) to termination of employment 14 August 2020 as a result of overuse and repetition, repetitive picking, causing bilateral carpal tunnel syndrome, left elbow injury, injury to cervical spine including C6/7 herniation or aggravation of same, injury to or aggravation of degenerative changes at C3/4, C4/5, C5/6, left sided arthralgia, shoulder brachialgia with trapezial muscle pain double crush phenomenon, Secondary psychological issues from delay in treatment and adjusting to chronic pain; right elbow injury from overcompensation.”
The appellant’s submissions are frequently framed by reference to what compensation was claimed by the appellant, or what entitlement was conceded by the respondent, from time to time. This argument is specifically raised in Ground No. 1. The appellant submits that, as there was no claim brought for the neck in the proceedings that settled on 4 April 2019, the claim in those proceedings must have related to the carpal tunnel condition rather than the neck.[84] She submits that, as the respondent did not accept liability for the neck prior to the award of Member Young on 31 January 2022, nothing was paid for the neck until Member Young’s award ordered payments for the neck from 8 October 2018.[85]
[84] Appellant’s submissions, [12]–[13].
[85] Appellant’s submissions, [34].
Such submissions reflect how the parties characterised their payments or framed their claims (as the case may be) from time to time. This is not necessarily determinative of the application of s 39. Section 39(1) is triggered after “an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury” (emphasis added).
The way in which the particulars of injury were pleaded was the same in both the proceedings before Member Young and in the current matter. There were allegations of injury to multiple body parts, including bilateral carpal tunnel syndrome and injury to the cervical spine. Member Young, whose decision was not the subject of appeal, relevantly found injury at [73] and [75] of his reasons:
“73. Having regard to the overwhelming majority of medical opinion confirming the [appellant’s] various injuries and in particular her cervical spine and wrist injuries consequent upon the nature and conditions of her work, I am satisfied that the [appellant] is entitled to an award for weekly compensation, section 60 expenses and including a declaration that the surgery proposed by Dr Singh is reasonably necessary medical treatment to the [appellant’s] cervical spine which results from injury in the course of her employment.
…
75. By reason of the nature and conditions of the [appellant’s] employment and specific incidents of injury between 1 January 2008 to 4 September 2018 the [appellant] suffered personal injury and/or a disease injury to her cervical spine and wrists (bilateral carpal tunnel syndrome) together with other injuries.”
It is appropriate that reasons be read as a whole.[86] The above paragraphs from Member Young’s reasons involved a finding of injury to the wrists (bilateral carpal tunnel syndrome) and the cervical spine as a result of the ‘nature and conditions’ of the appellant’s employment. This was consistent with the fashion in which the “Injury details” (see above) were pleaded. The “Injury details” relied upon did not seek to attribute different pathologies to different mechanisms of injury. The allegations of ‘injury’ were not made in a fashion consistent with seeking separate findings of injury, referable to each of the cervical spine and the upper limbs. The appellant’s submissions in reply accept that both parties are bound by the determinations of Member Young.[87]
[86] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR, 444.
[87] Appellant’s submissions in reply, [20].
The appellant’s submissions in reply on this appeal refer to the practice of alleging “a nature and conditions injury”. The appellant quotes from decisions of Roche DP in Kevric and Toplis which are critical of alleging particulars of injury in this way. The appellant submits Member Young did not “delve into that level of detail”.[88] It was a matter for the appellant regarding how her allegations of ‘injury’ were drafted. The Member’s reasons cannot be validly criticised by the appellant because the Member dealt with the allegations of injury in the way that the appellant framed them.
[88] Appellant’s submissions in reply, [7]–[10].
Member Turner dealt with ‘injury’ in the context of the dichotomy presented by the parties’ submissions. The Member said:
“The [appellant] submits that for the purposes of s 39 of the 1987 Act ‘injury’ is pathology and the incapacity arising from that pathology and not the injurious incident or event. That the incapacity arising from the injury to the neck and that arising due to other pathologies, in particular the bilateral carpal tunnel syndromes, are required to be treated separately.”[89]
And:
“The respondent submits that ‘injury’ in s 39 of the 1987 Act refers to the injurious process and not pathology. In the respondent’s submission the nature and conditions of the [appellant’s] employment has caused pathology in both her wrists as well as her cervical spine. The nature and conditions of employment that caused the pathology in the wrists and the cervical spine was the same. The respondent submits that the payments of weekly benefits compensation made in respect to both wrists and the neck are required to be aggregated for the purposes of s 39 as the pathological conditions in question were caused by the same nature and conditions of employment, the same injurious process.”[90]
[89] Reasons, [106].
[90] Reasons, [107].
The appellant submits that Member Turner made a finding, contrary to the respondent’s case, that “injury for the purpose of s 4 of the [1987 Act], means pathology not the injurious process”.[91] This refers to the Member’s reasons at [109] in which the Member quoted at some length from the decision of Roche DP in Jaffarie v Quality Castings Pty Ltd.[92] That Presidential decision in Jaffarie was overturned on appeal and remitted to the former Workers Compensation Commission of NSW for redetermination.[93] The decision in Jaffarie on appeal involved a different issue; the Deputy President’s discussion of the meaning of ‘injury’ was not dealt with (or criticised) on the appeal. Member Turner, in this passage of his reasons, said:
“109. I do not accept the respondent’s submission that ‘injury’ in s 39 refers to the injurious process as opposed to the pathology. ‘Injury’ as defined in s 4 includes an injurious event and the pathology caused by the event. (emphasis added) However, the injurious process or injurious event is simply the mechanism of ‘injury’ and not the ‘injury’ itself. As Roche DP in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 stated:
‘251.… ‘injury’ in s 4 includes an injurious event and the pathology caused by that event.
252. The authority for the statement in the last sentence of the preceding paragraph is Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422. The correctness of that statement has never been challenged and the Commission has consistently applied it in several decisions (see, for example, Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 at [31]). Consistent with this approach, Giles JA (Hodgson JA and Brownie AJA agreeing) said in Wyong Shire Council v Paterson [2005] NSWCA 74 where his Honour explained (at [38]) that ‘[i]n general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury’. [This paragraph was misdescribed as [253] where quoted in the reasons.]
253. In other words, an ‘incident’ (an injurious event) is only a mechanism for suffering an injury and is not itself a s 4 injury. The relevant ‘injury’ in s 4 is the pathology that has arisen out of or in the course of the employment. As explained by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’. The cause of the injury (the injurious event) is ‘not the important matter’ (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) in determining the compensation payable. (Obviously, the cause of the injury, and the circumstances in which it is received, will be important in determining if the injury was received in circumstances giving rise to an entitlement to compensation under the legislation. His Honour was saying that the important matter is the consequence of the injury, both in terms of pathology and in terms of the economic consequences.)”
[91] Appellant’s submissions in reply, [12].
[92] [2014] NSWWCCPD 79 (Jaffarie).
[93] Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 (Jaffarie on appeal).
The Member, at the outset of this section of his reasons, accepted that “‘injury’ as defined in s 4 includes an injurious event and the pathology caused by the event”. This was consistent with Lyonsv Master Builders Association of NSW Pty Ltd[94] and with the discussion in Jaffarie on which the Member relied. The quoted passage from Wyong Shire Council v Paterson[95] was relevant to the mechanism of injury determined by Member Young in the current matter: ‘nature and conditions’, “the accumulated effect of a worker’s activities”.
[94] (2003) 25 NSWCCR 422.
[95] [2005] NSWCA 74.
The Member then dealt in detail with the pathology, the physiological change or disturbance of the normal physiological state which had resulted from the accumulated effect of the worker’s activities. The Member reviewed the medical evidence in detail, paying particular attention to medical opinion dealing with the aetiology of the appellant’s hand and arm pain. He said the worker first noticed hand symptoms in approximately April 2013 and left sided neck symptoms in late 2013/early 2014. Dr Hartin, a spinal surgeon, on 3 November 2015 observed bilateral hand dysesthesia and diagnosed bilateral carpal tunnel syndrome as well as C6/C7 neuroforaminal stenosis. Dr Hartin commented on an MRI performed on 22 September 2015. The doctor said “there may have been some element of C7 radiculopathy which was also contributory”. Dr Singh, on 6 May 2019, observed “neck pain with pins and needles in her left hand in a C7 distribution”. On 14 January 2020 Dr Singh observed “radiculopathy in a C7 and C8 distribution of the left hand”. In June 2020 Dr Singh expressed the view that “it is more likely than not that the [appellant’s] initial symptoms were partly or wholly due to the cervical spine injury”. Dr Dixon referred to radiating pain in the left arm and paraesthesia in the left hand, which overlapped with the carpal tunnel symptoms. The Member referred to Dr Singh’s view that the initial symptoms were “partly or wholly due to the cervical injury”.
The Member said that Dr Singh, the operating surgeon who reviewed the appellant over an extended period, was “best placed to provide an opinion”. The Member accepted Dr Singh’s opinion on causation.[96] This was a factual finding, and on appeal it is subject to the restrictions on factual challenges in appeals pursuant to s 352(5) of the 1998 Act (see [45] to [48] above). I do not understand the appellant, on this appeal, to argue that this factual finding involved error within the meaning of s 352(5) of the 1998 Act. Reflecting the language of Basten JA in Hill, quoted at [47] above, it was a finding that was open to the Member.
[96] Reasons, [110]–[121].
The Member concluded that, on the medical evidence, the hand and neck symptoms were the cause of incapacity, and the appellant’s neck pathology at all relevant times contributed to the hand symptoms. The Member noted that the respondent did not accept liability for the appellant’s neck injury until the determination of Member Young. Member Turner accepted that the neck condition “at all relevant times contributed to the appellant’s incapacity”.[97] The Member said that the respondent had paid weekly compensation as a result of the neck pathology and associated incapacity. I note the language of s 39(1) of the 1987 Act, which applies where “a weekly payment has been paid or is payable”.
[97] Reasons, [122]–[123].
The appellant does not dispute that 260 weeks of compensation were paid to her. The reasoning of Member Turner described immediately above is consistent with the proposition that all of the weekly payments made to the appellant were paid or payable for the neck injury, which was found to have contributed to the incapacity (see [73] above). Contrary to the appellant’s submissions referred to at [74] above, this is not a situation where “separate incapacities give rise to separate and distinct periods of incapacity”. On Member Turner’s factual findings, the neck condition at all relevant times contributed to the appellant’s incapacity. The appellant submits the respondent did not, prior to Member Young’s award, pay any compensation for the neck injury. This does not take account of the terms of s 39 of the 1987 Act. It applies in circumstances where “an aggregate period of 260 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker in respect of the injury.” The Member’s careful consideration of the medical evidence dealing with causation went to the issue of whether there was a sufficient causal link between the work caused neck pathology and the incapacity for which weekly payments were paid or payable.[98] The fact that payments at various times were made by the respondent on a stated basis of a carpal tunnel condition was relevant, but not determinative.
[98] See the discussion of authorities on causation in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 at [57]–[58].
Additionally, the appellant submits the Member failed to consider the argument at [256] that there were two pathologies giving rise to two different incapacities. The Member’s reasons, having regard to the matters discussed above, were inconsistent with a submission that there were two different incapacities. Such a submission is also inconsistent with the appellant’s “Injury particulars” which framed the ‘injury’ issue before both Member Young and Member Turner.
Ground No. 1 fails.

The potential for a reduction of the voluntary payments

This argument is raised specifically in Ground No. 2. The weekly payments, for periods prior to those the subject of Member Young’s award, were made voluntarily. The appellant argues that such payments could have been reduced by the respondent on the basis that incapacity from the neck injury could be characterised as a non-compensable condition that contributed to incapacity (see [52] above). The appellant does not refer to authority in support of this proposition. The appellant is critical of Member Turner for not dealing with this argument.
Prior to commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments) there was a line of authority that dealt with the reduction of weekly payments, in cases of partial incapacity, pursuant to the discretion found in s 11(1) of the Workers Compensation Act 1926, and then s 40 of the 1987 Act.
In Australian Wire Industries Pty Ltd v Nicholson[99] McHugh JA described the assessment of a weekly payment in cases of partial incapacity as involving “at least three steps in the process”. The first was “to determine what an applicant would probably have earned on the hypothesis that but for his injury he still had the same or some comparable employment”. The second step was “to look at what the worker had earned or is capable of earning”. The difference between these figures is “the upper limit of the compensation which can be paid for partial incapacity under s 11(1)”. His Honour said:
“The third step in the process requires the Compensation Court to look at the circumstances of the case. The weekly payment awarded must bear such relationship to the differential amount – which is the result of the exercise under the first and second steps – as under the circumstances of the case is proper. This third step therefore calls for the exercise of a judicial discretion of a kind with which courts have long been familiar.
It is at this stage that the Compensation Court can and must examine all the facts. The matters which can be examined include such matters as retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
[99] (1985) 1 NSWCCR 50.
This approach to awards for partial incapacity continued under s 40 of the 1987 Act. In Mitchell v Central West Health Service[100] the Court of Appeal said that, at this third “discretionary phase”, it was necessary that the judge step back and consider whether the “differential amount” bore “such relationship to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1)).”
[100] (1997) 14 NSWCCR 526.
The discretion applicable to weekly awards in cases of partial incapacity, found in the legislation prior to the 2012 amendments, has not continued since that time. The appellant has not referred to any basis, in the workers compensation legislation or case law, in support of its submission on this point, which I do not accept. There was not appealable error in any failure to deal with this argument, which could not have affected the result.
I note the appellant also submitted there was a reasonable inference that the respondent factored in a non-work-related incapacitating condition when agreeing the voluntary payment of $200 per week (see [52] above). For similar reasons, this inference could not appropriately be drawn. Any failure by the Member to deal with this submission could not have vitiated the decision and does not give rise to appealable error. [101]
[101] See generally Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590.
Ground No. 2 fails.

GROUND NO. 3

Appellant’s submissions

The appellant refers to Blair v Curran, from which she quotes the following:
“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.”[102]
[102] [1939] HCA 23; 62 CLR 464, 531–2.

The appellant submits this principle has been applied in the Commission (the quoted examples are from the former Workers Compensation Commission of NSW).[103] The appellant quotes from Cross on Evidence:
“As it is permissible to have regard to the pleadings, evidence and arguments in each action for the purpose of identifying the common issues, there is much to be said for the broad approach, which prevents the existence of conflicting judgments on what are substantially identical issues of fact. If the pleadings, evidence or points taken in argument in the second action are different from those in the first, the court hearing the second action would not, it seems, be bound to hold that there is an estoppel.”[104]
[103] Appellant’s submissions, [49]–[50].
[104] JD Heydon, Cross on Evidence (14^th Australian ed.), 2024, [5100].
The appellant refers to the weekly award at [79] of Member Young’s decision. The award was pursuant to s 36 of the 1987 Act from 8 October 2018 to 9 (sic, 7) January 2019 and pursuant to s 37 of the 1987 Act from 8 January 2019 to 6 January 2021. The award pursuant to s 36 was dependent on the relevant incapacity being during the first 13 weeks in respect of which a weekly payment was paid or payable. The award pursuant to s 37 was dependent on the weekly entitlement falling within the aggregate period of 117 weeks (whether or not consecutive) after expiry of the first entitlement period. The appellant submits it was legally indispensable that the weekly award fell within periods of 13 weeks and 14 to 117 weeks respectively.[105]
[105] Appellant’s submissions, [52]–[56].
The appellant submits Member Young’s award is inconsistent with the award entered by Member Turner. The appellant has only received 169 weeks of weekly payments in respect of her neck pursuant to Member Young’s award and is entitled to a further 90 weeks (subject to incapacity). Applying Member Turner’s award the appellant has already received 260 weeks and is entitled to no further weekly payments.
The appellant submits that Member Turner dealt with the estoppel arguments briefly. The Member said the reasons of Member Young contained no findings on when incapacity due to the neck injury commenced and no explanation of why awards were made pursuant to ss 36 and 37 given the previous payments. Secondly, it was accepted that compensation had been paid prior to the award of Member Young.
The appellant submits the first of these reasons involved an impermissible attempt to go behind Member Young’s award. Of necessity, the award held that weekly payments in respect of the neck commenced on 8 October 2018.
The appellant submits the second of these reasons “elides the issues”. The appellant’s case was that payments prior to 8 October 2018 were for a separate and distinct injury and incapacity, the carpal tunnel syndrome. The appellant’s weekly payments, from the date of Member Young’s award, for the first time included payments in respect of a separate injury and incapacity, the cervical spine condition.[106]
[106] Appellant’s submissions, [57]–[61].

Respondent’s submissions

The respondent reiterates its submission that the latter sections of the 1987 Act do not provide a right to compensation, but rather facilitate implementation of the right arising from s 33 of the 1987 Act. The respondent submits that, although Member Young’s findings pursuant to ss 36 and 37 arguably were in error, they did not give rise to an estoppel. The appellant’s entitlement to weekly benefits arose from s 33 and resulted from the injury as pleaded. The respondent submits the appellant has arguably received a windfall in being compensated pursuant to s 36 twice, but there is no estoppel. It submits there is no decision inconsistent with that of Member Young, and indeed no other determination pursuant to ss 36 or 37. The respondent submits the determination should not be disturbed.[107]
[107] Respondent’s submissions, [23]–[26].

Appellant’s submissions in reply

The appellant submits the respondent “elides a distinction between injury, resulting in incapacity and entitlement to weekly payments”. An award pursuant to ss 36 and 37 involves making “certain findings either expressly or by necessary implication”. It submits the respondent does not challenge the proposition that inconsistent findings arise as a consequence of Member Turner’s decision. The appellant submits quantification of her compensation entitlements involved compliance with the various requirements of the entitlement periods. The appellant submits these were “essential findings to the determination that awarded the appellant weekly compensation payments”.
The appellant submits there is no windfall, in the future the respondent will be entitled to reduce payments by reference to the spent 260-week carpal tunnel condition.[108]
[108] Appellant’s submissions in reply, [24]–[25], [27]–[28].

Consideration

Section 36(1) of the 1987 Act provides:
“36 Weekly payments during first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker’s pre-injury average weekly earnings.”
Section 37(1) of the 1987 Act provides:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.”
Section 38(1) of the 1987 Act provides:
“38 Weekly payments after second entitlement period (after week 130)
(1) A worker’s entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.”
Section 39 is set out at [77] above. Subsection (1) of s 39 essentially provides that the entitlement to weekly compensation ceases after 260 weeks, subject to subs (2) which exempts an injured worker, who has permanent impairment of more than 20 per cent, from the application of subs (1). The terms ‘first entitlement period’ and ‘second entitlement period’ are defined in s 32A of the 1987 Act:
“first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.”
“second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.”
The appellant submits that “quantification of the [appellant’s] compensation entitlements had to comply with the various requirements of the entitlement periods”. The appellant submits that for an award to have been made by Member Young pursuant to ss 36 and 37 of the 1987 Act, Member Young “had to make certain findings either expressly or by necessary implication”.[109] Member Young’s findings regarding ‘injury’ and incapacity are set out at [59] above.
[109] Appellant’s submissions in reply, [25], [27].
I do not understand the respondent’s submissions on Ground No. 3 to dispute that a decision of the Personal Injury Commission of New South Wales is capable of giving rise to an estoppel. The author of Cross on Evidence[110] writes:
“A ‘competent tribunal’ need not be a court of record or a superior court. It suffices if the tribunal has jurisdiction to resolve a particular dispute, whether that jurisdiction rests on statute or the consent of the parties, for example, when jurisdiction is conferred on an arbitrator, or a domestic tribunal.”
And:
“Traditionally, a distinction is drawn between the determinations of a judicial nature in respect of which estoppel may be raised, and mere administrative decisions in respect of which it may not.”
And:
“The court should not be distracted by too fine an examination of the status of the tribunal in question, of the extent to which it exercises judicial functions, or of whether its status is judicial or administrative.”[111]
[110] J.D. Heydon, Cross on Evidence, 14^th Australian edition, 2024.
[111] Cross on Evidence, [5030].
Cross on Evidence quotes the following passage from The Administration of the Territory of Papua and New Guinea v Daera Guba:[112]
“The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.”[113]
[112] (1973) 130 CLR 353 (Daera Guba).
[113] Daera Guba, 453.
The Court of Appeal, in Miller v Secretary, Department of Communities and Justice,[114] considered the operation of estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd,[115] in the statutory environment of the Commission. The President of the Court of Appeal quoted the following from Tomlinson v Ramsey Food Processing Pty Limited:
“Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by ... considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.”[116] (footnotes omitted)
[114] [2022] NSWCA 190 (Miller).
[115] [1981] HCA 45; 147 CLR 589.
[116] [2015] HCA 28; 256 CLR 507, [21].
The President in Miller continued:
“By s 350(1) of the 1998 Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties (albeit subject to the abovementioned exceptions). The adversarial nature of proceedings before the Commission, and the finality of decisions resolving such proceedings, is sufficient to engage the principle of Anshun estoppel. It is therefore unnecessary to characterise the nature of the power exercised by the Commission in so doing.”[117]
[117] Miller, [125].
Her Honour concluded: “In light of the foregoing, there is no reason in principle why Anshun estoppel ought not be applicable to the legislative schemes established by the 1987 and 1998 Acts.”[118] I can see no reason why similar reasoning would not apply to the application of the relevant estoppel in the current matter.
[118] Miller, [127].
Consistent with the matters discussed above, I am satisfied that the Commission is, for the purposes of the issue raised in Ground No. 3, a ‘competent tribunal’.
In Spencer Bower and Handley: Res Judicata it is said:
“A res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment.”[119]
[119] Spencer Bower and Handley: Res Judicata, 6^th edition, 2024, by Patrick Keane AC KC (Spencer Bower and Handley), [1.01].
And:
“A party setting up a res judicata as an estoppel against his opponent's claim or defence, or as the foundation of his own, must establish its constituent elements, namely that:
(i)      the decision, whether domestic or foreign, was judicial in the relevant sense;
(ii)     it was in fact pronounced;
(iii)    the tribunal had jurisdiction over the parties and the subject matter;
(iv)    the decision was:
(a) final;
(b) on the merits;
(v)     it determined a question raised in the later litigation; and
(vi)    the parties are the same or their privies, or the earlier decision was in rem.”[120]
[120] Spencer Bower and Handley, [1.02].
Spencer Bower and Handley goes on to state:
“The decision need not be correct in law or fact. ‘Res judicata … gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to re-litigate the same question, even though the decision may be wrong. A competent tribunal has jurisdiction to decide, and if it makes a mistake its decision is binding unless corrected on appeal.”[121]
[121] Spencer Bower and Handley, [1.14], p 6.
In Parisienne Basket Shoes Pty Ltd v Whyte Latham CJ said:
“When jurisdiction is given to decide a question, there is power to decide it, rightly or wrongly, and not only power to decide it rightly.”[122]
[122] [1938] HCA 7; 59 CLR 369, 374.
The appellant submits:
“It was not possible to enter an Award pursuant to section 36 unless the Member was satisfied that the weekly payments were being made during the first 13 weeks in respect of which a weekly payment has been paid or was payable to the worker …”
“… it was not legally possible for the Member to enter the Award [pursuant to s 37] unless the weekly payments fell within the aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period, in respect of which a weekly payment has been paid or is payable to the worker.”
“Accordingly, it was a legally indispensable finding to the Award made that the weekly payments which the Member was [a]warding the [a]ppellant fell within a period of 13 weeks and 14-117 weeks, respectively.”
“The Award stands for what it holds, and of necessity it is holding that the weekly payments for the neck commenced on 8 October 2018. As noted above … [it] is not necessary for the Award to be correct.”[123]
[123] Appellant’s submissions, [54]–[56], [60].
I accept the submissions set out in the paragraph immediately above. The effect of this is that Ground No. 3 succeeds. The appeal succeeds.

CONCLUSION

The appeal is upheld. It will be necessary that the outstanding weekly entitlements be determined. The matter should be remitted to a different member to deal with the outstanding entitlements, consistent with these reasons.

DECISION

The Certificate of Determination dated 3 November 2023 is revoked.
The matter is remitted to a different member to determine the appellant’s outstanding entitlements.

Michael Snell

DEPUTY PRESIDENT

14 January 2025