Myrvang v Australian Turf Club Limited - [2024] NSWPICPD 46

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Myrvang v Australian Turf Club Limited [2024] NSWPICPD 46
APPELLANT:	Anette Myrvang
RESPONDENT:	Australian Turf Club Limited
INSURER:	Racing NSW
FILE NUMBER:	A1-W3279/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	13 August 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 22 August 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5) of the Workplace Injury Management and Workers Compensation Act 1998, application of Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138 and related authorities; weight to be given to medical certificates in the absence of a report to explain them: DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Wells, solicitor
Lough & Wells Lawyers
Respondent:
Mr D Saul, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL:	Myrvang v Australian Turf Club Limited [2023] NSWPIC 426
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	22 August 2023

INTRODUCTION AND BACKGROUND

Anette Myrvang (the appellant) was employed by Worthington Racing Pty Ltd when she suffered injury while riding a racehorse on trackwork on 28 August 2018. She was employed by Jason Coyle as a track rider and stable hand when she suffered injury on 5 January 2021 when exercising a horse. Claims in respect of these incidents proceeded on the basis that Racing NSW was the responsible insurer. The current matter proceeded at first instance on the basis it was uncontroversial that the Australian Turf Club Ltd (the respondent) was to be taken as the relevant employer in respect of both injuries.[1]
[1] Transcript of hearing of proceedings, 9/8/23, (T), T 1.22–27. See cl 9 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 28 August 2018, the appellant injured her lower back and neck whilst undertaking this employment. The respondent accepted liability for this injury. The appellant was incapacitated until November 2019, when she resumed track riding work with the respondent. She continued to have some back pain and used a back brace when riding. She was assessed by Dr Davies, an Approved Medical Specialist of the former Workers Compensation Commission, whose Medical Assessment Certificate dated 7 December 2020 certified her to have 12 per cent whole person impairment, being 7 per cent lumbar spine and 5 per cent cervical spine.[2]
[2] Myrvang v Australian Turf Club Ltd [2023] NSWPIC 426 (the reasons), [1]–[5].
The appellant suffered a further injury to her lower back on 5 January 2021 when a horse that she was exercising jolted forwards. The respondent accepted liability for this injury and made weekly payments of compensation. The respondent issued a dispute notice dated 8 July 2021 in which it asserted that the effects of the injury on 5 January 2021 had ceased. It relied on medical evidence from Dr Anthony Smith, who it had qualified, that there was “no relationship between the ongoing degenerative disease and in [sic] the incident on 5 January 2021”.[3]
[3] Application to Resolve a Dispute (ARD), pp 19–20.
The appellant claims weekly compensation from 29 July 2021 to the end of the second entitlement period. The appellant left Australia on 2 November 2022 to return to live in Norway.[4]
[4] Reasons, [6]–[9].
The appellant’s Application was listed for hearing on 9 August 2023 on an audio/visual platform. Ms Compton, counsel, appeared for the appellant and Mr Saul, counsel, appeared for the respondent. The Member dealt with some objections to medical reports.[5] The Member refused an application by the appellant to amend, to commence the weekly claim from 14 July 2021 rather than the pleaded date of 29 July 2021.[6] Both counsel addressed. The Member made orders that the appellant file and serve evidence by 14 August 2023, regarding when she left Australia. The respondent was to file and serve evidence and/or submissions in reply by 21 August 2023.[7] The Member reserved his decision. The appellant put on a short statement indicating she left Australia on 2 November 2022 to return to Norway. The respondent, in its submissions in reply, accepted the accuracy of this date but submitted that the appellant had not proved that her incapacity was “likely to be of a permanent nature”, and had not established the continuance of an incapacity pursuant to s 53(3) of the Workers Compensation Act 1987 (the 1987 Act).[8]
[5] T 2.34–6.2.
[6] T 9.27–11.6.
[7] T 57.13–59.15.
[8] Additional submissions by respondent, 15/8/23.
The Commission issued a Certificate of Determination dated 22 August 2023, accompanied by the reasons. There was a weekly award in the appellant’s favour as follows:
(a)    $823 per week from 29 July 2021 to 19 September 2021 pursuant to s 37(1) of the 1987 Act;
(b)    $11.40 per week from 1 October 2021 to 31 March 2022 pursuant to s 37(3) of the 1987 Act, and
(c)    $26.60 per week from 1 April 2022 to 30 June 2022 pursuant to s 37(3) of the 1987 Act.

THE MEMBER’S REASONS

The Member summarised the history, which was largely uncontroversial. He described the injuries while riding trackwork on 28 August 2018 (to the lower back and neck) and on 5 January 2021 (to the lower back). Liability was disputed from 8 July 2021 on the basis the effects of the second injury had ceased. Weekly payments were claimed until the end of the ‘second entitlement period’, pursuant to s 37 of the 1987 Act.[9] The Member described the agreed issues as:
(a)    whether the appellant continues to suffer the effects of the work injury sustained in the course of her employment with the respondent (s 4 of the 1987 Act);
(b)    the extent of any incapacity suffered by the appellant as a result of the injury to her lower back and
(c)    whether the appellant is entitled to receive weekly payments of compensation having ceased to reside in Australia (s 53 of the 1987 Act).[10]
[9] Reasons, [1]–[9].
[10] Reasons, [10].
The Member referred to the appellant’s evidence in her statements. In the statement dated 12 September 2022 she referred to continuing pain in her lower back, she had increased pain on sitting or standing for more than 30 minutes, she took medications including Endone and Tramal. In her statement dated 29 June 2023, the appellant said she could not sit, bend, stand or walk for “too long”, she was careful with lifting and could not lift more than 5 kilograms.[11]
[11] Reasons, [18]–[19].
The Member summarised the medical evidence. That of Dr Uddin, the appellant’s general practitioner, consisted of multiple medical certificates. These included a diagnosis of “lower back pain with radicular pain both legs”. Dr Darwish, the treating neurosurgeon, in his final report dated 15 July 2021, said the appellant’s symptoms were “consistent with L5/S1 discogenic pain caused by work injury”. The doctor thought the appellant may require L5/S1 laminectomy, discectomy and fusion, although discouraged this due to the appellant’s age. Dr Smith, an orthopaedic surgeon qualified by the respondent, diagnosed the aggravation of underlying degenerative pathology in each of the two incidents relied on, both such aggravations having, in Dr Smith’s view, resolved. Dr Bodel, an orthopaedic surgeon qualified on the appellant’s behalf, examined the appellant by telehealth. Dr Bodel diagnosed a probable disc rupture at L4/5 and L5/S1 in the incident on 28 August 2018, aggravated in the further incident on 5 January 2021, which probably caused additional structural damage.[12]
[12] Reasons, [20]–[35].
The Member preferred the opinion of Dr Darwish, as a treating specialist, over that of Dr Smith. The Member said it did not appear that Dr Smith had seen Dr Darwish’s reports, although Dr Darwish had forwarded copies to the insurer. The Member said his finding was “reinforced” by the views of Dr Bodel, whose opinion was “broadly consistent” with the conclusions of Dr Darwish. The Member rejected the respondent’s criticism of Dr Bodel’s reports. The Member referred to the report of Dr Davies, the “specialist in neurosurgery and pain management and an Approved Medical Specialist”, who assessed the appellant “a few weeks before” the injury on 5 January 2021. Dr Davies diagnosed a lumbar strain which resulted in 7 per cent whole person impairment. The Member referred to the report of Dr Bentivoglio, a neurosurgeon qualified by the respondent, who said the appellant had sustained a “mild but permanent disc injury at the L5/S1 level”.[13]
[13] Reasons, [36]–[47].
The Member concluded that, after reviewing the evidence, he was satisfied the appellant continued to suffer the effects of lower back injury from the incidents on 28 August 2018 and 5 January 2021.[14]
[14] Reasons, [48].
The Member reviewed the appellant’s evidence of her university studies in Australia, from March 2021. She studied a Bachelor of Arts at Sydney University, and then transferred to a Bachelor of Science – Veterinarian Bioscience. There were Disability Services Academic Plans from the University of Sydney dated 2022 to 2023. The Member referred to the appellant’s statement dated 29 June 2023 regarding jobs she had applied for online. These were for the delivery of bathroom products and equipment, work as a barista, and work helping immigrants and refugees, including teaching them Norwegian. The appellant stated the above jobs were part-time and she would have required the implementation of restrictions, but she did not obtain interviews.[15]
[15] Reasons, [49]–[54].
The Member referred to the working restrictions placed on the appellant by the doctors.[16] Dr Uddin considered there was no work capacity following the injury of 5 January 2021 up to 20 August 2022; thereafter she was fit for 3 hours per day, 5 days per week, with restrictions. Dr Darwish considered the appellant should seek a job that was physically less demanding than that of a horse trainer. Dr Smith considered the appellant was fit to work as a track rider although it was likely to aggravate her lower back. The Member referred to Dr Bodel’s opinion, which placed the following restrictions on the appellant:
“The main restrictions on this lady’s activities on the open labour market are that she must avoid strenuous and repetitive tasks, bending, twisting or lifting or use of the arms overhead and any jarring activities. This excludes track riding as a form of work in this circumstance. She is fit for light duty work that avoids prolonged head down posture or bending, twisting or lifting in order to minimise her symptoms.”[17]
[16] Reasons, [55]–[60].
[17] Reasons, [59].
The Member referred to Dr Uddin’s certificates. The Member said the certificates issued from mid-2022 to October 2023 were for “no current work capacity” and were inconsistent with the appellant’s activities at that time, studying for a tertiary degree. This would indicate “at least” a capacity for “some work of a clerical or administrative nature”. The Member referred to the reasons of Keating P in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde where his Honour said:
“The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.”[18]
[18] [2011] NSWWCCPD 22 (Hyde), [93].
The Member described the opinion of Dr Bodel as “[t]he best evidence of the [appellant’s] incapacity for work”. The restrictions listed by Dr Bodel allowed for a “wide variety of work of a non-manual nature and particularly work of a clerical or administrative nature”. The Member noted Dr Bodel did not restrict the hours the appellant could work each week. He noted there was no medical evidence to support a connection between work injury and migraine headaches from which the appellant suffered.[19]
[19] Reasons, [63]–[68].
The Member described the appellant as “well educated”, “at least bilingual”, computer literate and considering proceeding to a second degree or a Masters degree. The Member concluded the appellant could “work full-time in work of a clerical or administrative nature”. This was ‘suitable employment’ within the meaning of s 32A of the 1987 Act from when she was examined by Dr Bodel on 20 September 2021. The Member said the appellant may have been fit for such work from before 20 September 2021, but “consistent with the available evidence" he found ‘no current work capacity’ from 29 July 2021 to 19 September 2021. The Member acknowledged the appellant’s evidence that she had been unable to travel to university due to pain and studied from home. He said this was not addressed in Dr Bodel’s opinion on incapacity and caution had to be given to a worker’s subjective view of his or her fitness for work.[20] He referred to Boral Recycling Pty td v Figueira where Roche DP said:
“… a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence.”[21]
[20] Reasons, [69]–[72].
[21] [2014] NSWWCCPD 41 (Figueira), [38].
The Member noted the appellant’s PIAWE was agreed at $1,000, which was subject to indexation. The appropriate figure from 29 July 2021 to 19 September 2021 was $1,028.80, 80 per cent of which was $823. There was an award of $823 per week over this period, pursuant to s 37(1) of the 1987 Act.[22] The Member said that if the appellant had not been paid weekly benefits for a period prior to 29 July 2021 she should approach the respondent for payments to be made of arrears, consistent with his findings.[23]
[22] Reasons, [73].
[23] Reasons, [76].
The Member found that, since 20 September 2021, the appellant “at the very least … could undertake the duties of a Level 1 employee referred to in the Clerks – Private Sector Award 2020”. The Member said that earnings on that basis ($821.40) were “so close to the indexed PIAWE that it does not warrant an award for weekly payments of compensation after 21 September 2021”. The Member referred to indexation adjustments on 1 October 2021 and 1 April 2022, which increased the PIAWE to $832.80 (from 1 October 2021 to 31 March 2022) and $848 (from 1 April 2022). This yielded a weekly award pursuant to s 37(3) of the 1987 Act, on the basis of the earlier fact finding, of $11.40 per week and $26.60 per week, during the periods from 1 October 2021 to 31 March 2022 and from 1 April 2022 to 30 June 2022 respectively.
The Member found that an increase in the relevant award classification under the ‘Clerks –Private Sector Award Level 1 – Year 1 employee’, effective 1 July 2022, had the effect that there was no ongoing weekly entitlement from that date. He found that the relevant earnings in suitable employment under this award would have increased to $902.10 per week from 1 October 2022.[24]
[24] Reasons, [77]–[81].
The Member said that the weekly award only covered a period when the appellant was residing in Australia. It followed that s 53 of the 1987 Act had no effect on the weekly payments of compensation that were awarded.[25]
[25] Reasons, [87]–[88].

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 both 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 and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The appeal is not of an interlocutory nature.

GROUNDS OF APPEAL

The appeal raises two grounds:
(a) “Failing to determine the factual dispute in accordance with the evidence – The Factual Dispute – being whether the worker had a degree of work capacity and from what period.” (Ground No. 1)
(b) “Failing to determine the matter in accordance with the law for – being a dispute in regard to suitable employment and the degree of work capacity with respect to weekly payment in the second entitlement period pursuant to s 37 of the [1987 Act] in accordance with the calculation of capacity for employment.” (Ground No. 2)
The appellant states that the two grounds are “interrelated as they deal with findings of Fact as to their application to work Capacity and s 37 of the Act and therefore submissions will deal with both grounds together”.[26]
[26] Appellant’s submissions, [3.4]. References to the appellant’s submissions are to the amended submissions dated 26/9/23.
The appellant provides submissions that are grouped under the following sub-headings:
(a)    “The Dr Bodel error”;
(b)    “The suitable employment – Administrative clerk error”;
(c)    “The ‘certificate of capacity’ error”;
(d)    “The ‘statement’ error”, and
(e)    “The ‘University Special consideration’ error”.
The appellant notes she ceased to live in Australia from 2 November 2022. She states the weekly claim runs from 8 July 2021 (when her weekly compensation payments ceased) to 2 November 2022.[27]
[27] Appellant’s submissions, [5.2]–[5.3].
The appellant’s appeal, as originally lodged on 20 September 2023, was the subject of a Direction of the President’s delegate of the same date. That Direction (among other things) ordered that amended submissions be put on that set out “submissions that clearly and succinctly address each ground of appeal separately under separate sub-headings”. The appellant’s amended submissions do not “clearly and succinctly address each ground of appeal separately”. Practitioners are reminded of the need to comply with Procedural Direction WC3, when drafting grounds and submissions in appeals pursuant to s 352 of the 1998 Act.
The appeal in its amended form does not comply with Procedural Direction WC3. The respondent does not, in its submissions in opposition, object to the procedural deficiencies in the appeal. The respondent’s submissions deal with the substance of the matters raised. The two pleaded grounds do not, in any specific way, marry up with the sub-headings on which the appellant relies. The appropriate course is that I deal with the substance of the submissions made in the appellant’s amended submissions dated 26 September 2023. I will do so by reference to the sub-headings under which the appellant has grouped her submissions. References to the appellant’s submissions are to the amended document dated 26 September 2023.

APPELLANT’S SUBMISSIONS

The Dr Bodel error

The appellant notes that Dr Bodel opined she was not fit for trackwork but would be fit for some type of sedentary work. The appellant submits that Dr Bodel did not define ‘sedentary work’. The appellant refers to Dr Bodel’s description of her symptoms. There was “continuing pain in the lower part of the back, right buttock and right thigh”. There was “[s]harp stabbing pain that can radiate all the way to the foot”. There was “neck and upper back pain and some intermittent referred sharp pain down the hands to the middle finger of each hand”. The appellant submits Dr Bodel recorded a history that she “struggled with household maintenance and cleaning activities, had a reduced driving tolerance with pain, wore a back brace from time to time”. The appellant submits her complaints were inconsistent with a capacity for full-time sedentary work.[28]
[28] Appellant’s submissions, [5.7.1]–[5.9].

The appellant refers to Dr Bodel’s opinion that the appellant “has no current capacity for her preinjury work, but she may be able to be retrained into lighter duty work that avoids repetitive bending twisting or heavy lifting or jarring of the spine in the neck or back”. The appellant’s submissions seek to emphasis the word “may” in the above passage; it is submitted Dr Bodel was not expressing a view that the worker was “currently able to undertake that work”. The appellant submits there had not been an opportunity to “ascertain whether the clerk work was suitable work”, in which the appellant could “avoid repetitive bending, twisting or heavy lifting or jarring of the spine” involving the neck or back. The appellant submits this involved error in considering the evidence going to “suitable work and work capacity”. The appellant’s evidence is submitted to deal with her difficulties.[29]
[29] Appellant’s submissions, [5.10]–[5.13].

The suitable employment – Administrative clerk error

The appellant submits the Member’s finding, that the appellant had the capacity to undertake sedentary work, was made in the absence of medical opinion and in the absence of a submission by the appellant to that effect. The Member determined the ability to undertake tertiary study was indicative of an ability to perform some work of a clerical and administrative nature. The appellant said she had problems on a day-to-day basis including pain. A finding that a person can read and write is not indicative of an ability to sit and stand in an administrative role. This is submitted to be factual error.
The appellant’s submissions refer to the symptoms recorded in Dr Darwish’s reports. The appellant submits the Member’s finding that there were continuing effects from the work injuries were “against the finding that she could work in suitable employment as an administrative clerk”. The appellant submits that neither side made submissions on what the appellant could do by way of work; it submits the respondent did not make submissions “that the [a]ppellant could obtain suitable employment at the level articulated”. It submits the appellant was denied the opportunity to make submissions contrary to the finding, this being a failure to afford procedural fairness to the appellant.[30]
[30] Appellant’s submissions, [5.14]–[5.19].

The ‘certificate of capacity’ error

The appellant refers to the certificates from Dr Uddin. It submits these certified no current capacity from 31 July 2022 to 6 October 2022, and thereafter partial capacity (to work 15 hours per week) to 15 February 2023. The appellant submits the Member erred “in placing no weight in [sic] the certificates of capacity”. The appellant submits there was no evidence to support the finding of “full capacity to work full hours from 19/9/2022”. The appellant submits there “was certainly no evidence that supported the findings that the participation at university equated to capacity for suitable employment in full hours”. It is submitted the Member failed to consider that the appellant was rehabilitating herself.[31]
[31] Appellant’s submissions, [5.20]–[5.24].

The ‘statement’ error

The appellant submits the Member accepted that the appellant’s evidence of studying meant she had a workplace capacity for full-time employment in suitable duties as a clerk. The appellant submits there was no evidence of this. The appellant submits there was no evidence of the tasks in the role identified by the Member. The appellant submits the Member erred in ‘failing to place any weight on the appellant’s own evidence of her restrictions”.[32]
[32] Appellant’s submissions, [5.25]–[5.26].

The ‘University Special consideration’ error

The appellant submits she had a “disability services Academic plan”, which provided “further time to complete work and relevant adjustments when required”. She studied with assistance. She submits she was not fit for full-time work. She submits she was denied the opportunity to make submissions regarding work as a Level 1 employee under the Clerks –Private Sector Award 2020.[33]
[33] Appellant’s submissions, [5.27]–[5.28].

Orders sought

The appellant submits the Commission should “make an award for the Respondent [sic] in injury being a spinal cord lesion injury and brain injury” or alternatively remit the matter to a different member for determination.[34]
[34] Appellant’s submissions, [7.1].

RESPONDENT’S SUBMISSIONS

The respondent notes the appeal is “confined to the issue of capacity”. The Member accepted there were “ongoing issues with [the appellant’s] lower back, consequent on her two accepted frank injuries (28.08.18 & 05.01.21)”. The Member found the appellant was not fit to perform her pre-injury track-riding duties. The Member assessed the appellant’s capacity for suitable employment pursuant to s 32A of the 1987 Act. The respondent submits the determination of capacity is a finding of fact, unless it can be established (which it cannot) that the Member “misinterpreted or misapplied s 32A”. It submits the assertion of errors of law is misconceived.[35]
[35] Respondent’s submissions, [1]–[4].
The respondent refers to s 352(5) of the 1998 Act, “an appeal is not a review or a new hearing” and this is expressly disallowed by s 352(5) of the 1998 Act. The respondent submits that “[s]imply contending for a different outcome … is not a proper basis for alleging errors of fact”.[36]
[36] Respondent’s submissions, [5]–[6].
The respondent notes the Member did not accept its medical case (Dr Anthony Smith) and the Member determined ‘injury’ and ‘incapacity’ relying solely on the appellant’s medical evidence. It submits the Member also had regard to the appellant’s lay evidence, although “correctly cautioned against reliance on the appellant’s subjective views about capacity when these views are unsupported by the medical evidence”. It is submitted the appellant made a forensic decision to conduct her case on Dr Bodel’s report dated 21 October 2021 (which was nearly two years old), together with “numerous barebones, ipse dixit, Certificates of Capacity from her GP Dr Uddin”. The respondent submits the Member was correct in exercising caution with these certificates where there was no report from Dr Uddin explaining the doctor’s reasoning or certifications. The respondent refers to the Presidential decision of Keating P in Hyde, on which the Member relied, as being “the relevant authority”. The respondent submits the decision in Hyde was raised by the Member with both counsel during submissions.[37] The respondent states the Member relied on the opinion of Dr Bodel, an orthopaedic surgeon, in determining the appellant’s capacity for ‘suitable employment’. The respondent submits there was no other medical report in the appellant’s case that dealt with capacity since 29 July 2021.[38]
[37] T 32.22, 39.15.
[38] Respondent’s submissions, [7]–[11].
The respondent submits that Dr Bodel was “plainly of the view that the appellant was ‘partially incapacitated for work’” and the doctor outlined the restrictions he placed on the appellant’s work. The respondent submits the Member used these to assess the capacity for suitable employment pursuant to s 32A. The respondent submits the Member had regard to the appellant’s capacity, education, skills and work experience in doing this. The Member noted the jobs for which the appellant had applied and her tertiary studies. He found there was no work capacity until the date of Dr Bodel’s assessment.
The respondent submits the Member conducted his enquiry as an expert tribunal. He outlined the duties of a Level 1 clerk and why those duties fell within the appellant’s capacity. The Member rejected the duties of a higher level clerk as being appropriate, not because of physical restrictions but because of the appellant’s lack of experience in the field of work. The respondent submits the Member’s findings on work capacity were consistent with Dr Bodel’s restrictions and “reflective of the appellant’s job applications and of her duties as a tertiary student”.[39]
[39] Respondent’s submissions, [12]–[16].
The respondent refers to the appellant’s submission that the finding that the effects of injury continued was “against the finding that she could work in suitable employment as an administrative clerk”. This is submitted to be baseless, both Dr Bodel and Dr Uddin assessed the appellant as having a capacity to work in suitable employment.[40]
[40] Respondent’s submissions, [17].
The respondent refers to the appellant’s submissions which raise an assertion that the appellant was denied an opportunity to make submissions on ‘suitable work’. The respondent notes there is no ground of appeal that raises an alleged denial of procedural fairness. The respondent refers to the multiple passages in the transcript, between T 32.5 and T 35.15, where there were exchanges between the Member and counsel, that dealt with a capacity for menial clerical work, and whether studying “may indicate some type of administrative administration role [sic]”. The respondent submits its counsel addressed on ‘suitable employment’ in accordance with s 32A of the 1987 Act and the appellant was afforded a right of reply.[41] The respondent submits the earnings of a Level 1 clerk were within the knowledge of the tribunal. It submits the Member did not err in fact or law and the appeal should be dismissed.[42]
[41] Reference is made to T 40.25, 42.20–44, 50.30 and 51.
[42] Respondent’s submissions, [19]–[23].
The respondent refers to the final paragraph of the appellant’s submissions (under “Orders sought”) in which there is reference to “a spinal cord lesion” and “brain injury”. It submits it does not understand, and opposes, the orders sought. These matters were not agitated before the Member, were not findings made by the Member, and are not part of the grounds of appeal. The respondent notes the weekly award made expires before the date when the appellant left Australia, so s 53 of the 1987 Act has no applicability. It states that it reserves its right to make further submissions, should orders be made on appeal which would potentially attract the operation of s 53. It notes reference by the appellant to an “interlocutory determination” in her submissions at [1.6]; it submits there was no such determination. It refers to the appellant’s submissions at [5.6], which refer to “error with respect to ‘findings on injury in accordance with the law’”. The respondent submits there was no finding on injury, ‘injury’ was not in dispute.[43]
[43] Respondent’s submissions, [24]–[27].

APPEALS PURSUANT TO SECTION 352(5) OF THE 1998 ACT

Section 352(5) of the 1998 Act 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 Iqbal v Hotel Operation Solutions Pty Ltd the Court of Appeal described the nature of an appeal to a Presidential member, pursuant to s 352(5) of the 1998 Act, in the following terms:
“… s 352(5) imposes a limitation on the nature of the appeal to a determination whether the decision ‘was or was not affected by any error of fact, law or discretion’. The appeal ‘is not a review or new hearing’. As the Deputy President correctly noted, and as this Court has held, if error of fact be the basis of the appeal, as it was in this case, an appellant must establish, not merely a preference for a different view of the evidence, but an error in the fact-finding exercise undertaken by the arbitrator. Absent established error, the Deputy President had no authority to intervene.”[44]
[44] [2022] NSWCA 138 (Iqbal), (per Basten AJA, Brereton and Mitchelmore JJA agreeing), [11].
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.[45]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 & Zwanenberg Ltd v Kerr.[46] 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).”[47]
[45] [2020] NSWCA 54 (Hill).
[46] (1966) 39 ALJR 505 (Whiteley Muir). See Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
[47] Hill, [20].
In Northern NSW Local Health Network v Heggie[48] 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”.
[48] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

LEGISLATION

Section 37 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.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Clause 8 of Sch 3 to the 1987 Act provides:
“8      Meaning of ‘current weekly earnings’
Current weekly earnings, of an injured worker in relation to a week, means whichever of the following is the greater amount—
(a)     the worker’s actual gross earnings in respect of that week,
(b)     the weekly amount that the worker is able to earn in suitable employment.”
The definition of ‘suitable employment’ in s 32A of the 1987 Act provides:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”

CONSIDERATION

There was no controversy regarding the appellant’s PIAWE, which was agreed at $1,000 per week, subject to indexation.[49] The Member dealt with indexation of the agreed PIAWE figure at [73], [79] and [81] of his reasons. There is no challenge to how that was done. The respondent did not dispute liability for the occurrence of either of the injuries relied on.[50] There was an issue regarding whether the effects of work injury continued, and if so, the quantum of the appellant’s entitlement to weekly payments. There was potentially an issue regarding the application of s 53 of the 1987 Act.[51]
[49] Reasons, [14].
[50] Reasons, [2], [7], T 12.23–28.
[51] Reasons, [10].
The Member reviewed the medical evidence.[52] Dr Darwish, the treating neurosurgeon, reported on 1 February 2021, 1 June 2021 and 15 July 2021. The doctor considered there was an injury to the appellant’s lower back on 28 August 2018, aggravated in the incident in January 2021. Dr Darwish considered the appellant’s symptoms were consistent with L5/S1 discogenic pain caused by work injury. He thought it was in the appellant’s best interests to look for a physically less demanding job than that of a horse trainer.[53]
[52] Reasons, [20]–[35].
[53] Reasons, [22]–[24].
The Member summarised the views of Dr Smith, the orthopaedic surgeon the respondent relied on. Dr Smith considered that each of the two injuries relied on had aggravated degenerative pathology in the appellant’s lumbar spine and that both such aggravations had resolved. Dr Smith’s diagnosis was symptomatic lumbar degenerative disease. Dr Smith considered the last of these aggravations would have resolved after “three months at the most”.[54]
[54] Reasons, [26]–[29].
The Member summarised Dr Bodel’s report dated 20 October 2021, Dr Bodel being the orthopaedic surgeon qualified in the appellant’s case. Dr Bodel diagnosed a “probable disc rupture at the lumbosacral junction involving L4/5 and L5/S1” in the incident on 28 August 2018. Dr Bodel considered the incident on 5 January 2021 “probably caused some additional damage to the annular tear”.[55]
[55] Reasons, [30]–[35].
There was a medical issue regarding whether the appellant’s lumbar symptomatology during the period of the disputed claim resulted from the work injuries or from constitutional causes. The Member preferred the opinion of Dr Darwish over that of Dr Smith, for which he gave reasons.[56] The Member described his view on this issue as “reinforced by the opinion provided by Dr Bodel … broadly consistent with the conclusions made by Dr Darwish”.[57] The issue of medical causation was resolved in the appellant’s favour. The potential issue going to s 53 did not arise, as the weekly award (and the claim pursued on this appeal) did not extend beyond 2 November 2022, when the appellant ceased to reside in Australia.[58] It was necessary that the Member determine whether, during the period from 29 July 2021 to 2 November 2022, the appellant had ‘current work capacity’, and if so, her ‘ability to earn in suitable employment’. As the respondent submits, “[t]he appellant’s appeal is confined to the issue of capacity.”[59]
[56] Reasons, [36]–[41].
[57] Reasons, [42].
[58] Appellant’s submissions, [2.3], [5.3].
[59] Respondent’s submissions, [1].

The Dr Bodel error

The appellant submits the Member erred in finding that the appellant “had a work capacity”. In support of this argument the appellant submits that Dr Bodel did not define what sedentary work the appellant was fit for.[60] The Member quoted Dr Bodel’s opinion on the nature of the injury, at [34] of his reasons. The Member referred to Dr Bodel’s report, in which the doctor responded to a question from the appellant’s solicitors that asked, “What restrictions would you place on our client’s capacity for work on the open labour market?” The Member quoted the whole of the doctor’s response to that question, in his reasons at [59]. That passage is quoted above at [13]. It was not a question of whether the doctor defined the meaning of “sedentary work”. The view the doctor expressed, and which the Member accepted, was that the appellant was “partially incapacitated”.[61] The passage quoted at [13] above clearly went to identification of ‘suitable employment’. This was necessary to identify the appellant’s ‘current weekly earnings’ within the meaning of cl 8 of Sch 3 to the 1987 Act, so as to determine the weekly entitlement pursuant to s 37(3) of the 1987 Act.
[60] Appellant’s submissions, [5.5]–[5.7].
[61] Dr Bodel’s report, ARD, p 97.

The appellant’s submissions refer to various complaints recorded by Dr Bodel on examination. These went to complaints of pain, difficulties with some aspects of household maintenance and cleaning, and wearing a back brace “from time to time”.[62] The appellant submits these were not supportive of a current work capacity for full-time sedentary work. It is necessary to read Dr Bodel’s report as a whole. Dr Bodel commented that the appellant “at the moment has no capacity for work”. The Member specifically referred to this, and noted this expression of opinion was in response to a question from the appellant’s solicitors asking whether the appellant was “fit to perform all the duties required of her in her pre-injury occupation”.[63] In the same report Dr Bodel said the appellant was “partially incapacitated” and placed the restrictions on her that the Member quoted at [59] of his reasons.
[62] Appellant’s submissions, [5.8]–[5.10].
[63] Reasons, [59].
The appellant’s submissions refer to a remark from Dr Bodel, who when commenting on Dr Smith’s report dated 1 July 2021, said that the appellant may be able to be retrained into lighter duty work (see [31] above). The appellant submits she “was not afforded an opportunity to ascertain whether the clerk work was suitable work which enabled work [within her restrictions]”.[64] To the extent to which this submission seeks to raise any suggestion of a denial of procedural fairness, I note the respondent’s point that the grounds of appeal do not raise such an error.
[64] Appellant’s submissions, [5.12]–[5.13].
The Member was required to deal with whether the work he identified, that of a Level 1 clerk but consistent with the restrictions set out at [59] of his reasons, was ‘suitable employment’ within the meaning of s 32A of the 1987 Act. This was regardless of whether the work or the employment is available, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market, and regardless of the worker’s pre-injury employment. The submission, that the appellant was not given an opportunity to ascertain whether the identified work was suitable, is difficult to understand. Work may be ‘suitable’ if it is found to be so on the evidence overall, both lay and expert. The worker will not necessarily be familiar with the work which is identified.
The respondent’s submissions refer to occasions, in the running of the hearing, where the appellant’s capacity to perform clerical work was raised during submissions. At one point the Member raised the proposition that a capacity for some work of a menial clerical nature would commence “at least by the time Dr Bodel sees [the appellant]”.[65] The Member said to the appellant’s counsel:
“… the fact that by the middle part of 2021 [the appellant] is undertaking tertiary work. Admittedly, she says she does that at home. That may have some fact, maybe a factor, but I would have thought it would tend to indicate a capacity for some menial clerical work before the – I think it’s, I think it’s September 2022 …”.[66]
[65] T 32.3–11.
[66] T 32.29–34.
The appellant’s counsel, addressing on when there was a capacity for some lighter work, said:
“So, there certainly is some capacity that she was clearly doing some study based work at the time that she injured herself, what is it, March 2021, in her own statement. But that capacity for work in addition to that wouldn’t have occurred, in my submission, until at least in accordance with the opinion of Bodel if you were not persuaded to accept the general practitioners view, which is twelve months later.”[67]
[67] T 35.14–21.
The transcript from T 31.31 to 35.21, whilst difficult to follow in places, is essentially given over to discussion of whether, and from when, the appellant became fit for suitable employment. The appellant submits the Member erred in failing to consider evidence going to suitable work and work capacity. The Member reviewed the competing medical evidence on the topic. The appellant clearly had an opportunity to address on this topic. The Member took the view that Dr Bodel’s report provided the “best evidence” of the appellant’s incapacity for work. He gave reasons for this; he considered the restrictions imposed by Dr Bodel were appropriate for the appellant’s symptoms.[68] The submission that the Member failed to consider evidence is without merit.
[68] Reasons, [66]–[67].
It should also be noted that Dr Bodel’s report was part of the appellant’s medical case. If there were aspects of Dr Bodel’s report that were considered inadequate or which required clarification, it was open to the appellant to seek further material or to otherwise rectify deficiencies in its own medical case.
The arguments raised under this sub-heading do not succeed.

The ‘certificate of capacity’ error

The appellant refers to the certificates from the general practitioner, Dr Uddin. These certified that there was no current capacity from 31 July 2022 to 6 October 2022, and thereafter partial capacity, to work 15 hours per week, until 15 February 2023. The appellant submits it was an error to place no weight on these certificates. The appellant submits there was no evidence to support a finding that “participation at university equated to capacity for suitable employment in full hours”. The appellant submits she was “rehabilitating herself”.[69]
[69] Appellant’s submissions, [5.20]–[5.24].
The Member did not say that he placed no weight on the certificates. He dealt with their probative force at [62] to [65] of his reasons. He identified specific reasons for treating them with caution. Firstly, he noted that, during the period from mid-2022 to October 2023, Dr Uddin certified the appellant as having no current work capacity, when she was studying for a tertiary degree. The Member said this would involve the ability to read, take notes, use a computer and prepare assessments. He reasoned this “indicates a capacity to do at least some work of a clerical or administrative nature”.[70] Secondly, he said that caution was necessary where certificates show little or no change over an extended period. He referred to Hyde in which Keating P dealt with the probative force of medical certificates from a doctor from whom no reports were in evidence.[71] His Honour said: “The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based.”[72] Thirdly, the Member referred to a gap from 18 August 2021 to 7 October 2022, during which period the certificates did not include details of treatment in the appellant’s management plan. The Member said the certificates were silent as regards the progress of the appellant’s back condition over this period. The appellant’s submissions do not identify error in how the Member dealt with the certificates. Against this background, the Member concluded that Dr Bodel provided the best evidence of the appellant’s incapacity for work. The appellant has not demonstrated that this approach was erroneous.
[70] Reasons, [62]–[63].
[71] Hyde, [86]–[100].
[72] Hyde, [93], citing Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461.
The appellant’s submission, that there was no evidence to support the proposition that participation at university equated to full-time suitable duties, is misconceived. The Member’s reasoning was not based only on the participation at university. It was based on the medical evidence overall, including that of Dr Bodel in the appellant’s medical case. It was based on reference to the skills that the appellant possessed. It was necessary to have regard to these matters having regard to the definition of ‘suitable employment’ in s 32A of the 1987 Act. The appellant’s submissions under this sub-heading fail.

The suitable employment – Administrative clerk error

The appellant submits the finding on a capacity to undertake sedentary work was made in the absence of medical opinion. The appellant submits the ability to read and write is not indicative of an ability to sit and stand in an administrative role.
The appellant refers to Dr Darwish’s reports and submits the complaints recorded by Dr Darwish were inconsistent with the finding of a capacity to work as an administrative clerk. Dr Darwish, in his first report dated 1 February 2021,[73] recorded that the appellant “occasionally gets pain down the right leg”. Dr Darwish said the appellant’s gait was normal, straight leg raising was 80 degrees bilaterally with negative nerve stretch test, and there was normal power and sensation in both legs. An MRI dated 14 January 2021 showed dehydration and annular tear at L5/S1, but no obvious nerve root compression. Dr Darwish advised the appellant to start an exercise program with swimming, yoga and pilates. Reporting again on 18 March 2021, Dr Darwish said the appellant was “having gym based exercises with improvement in her back pain. She takes occasional Endone once every couple of weeks.” The doctor recommended that she continue with conservative treatment. He sought approval for a six month gym membership. He discouraged the appellant from having spinal fusion at her age.[74]
[73] ARD, p 83.
[74] ARD, p 85.
Reporting on 22 April 2021,[75] Dr Darwish noted complaints of lower back pain and stiffness. The appellant took anti-inflammatories for pain. Dr Darwish recommended conservative treatment to build up the appellant’s core muscles. He thought it was in the appellant’s best interests that she not return to horse training, “which has risks of falls and injuries”. He recorded that the appellant was “contemplating studying vet nursing which I encouraged her to do”. Dr Darwish’s report dated 1 June 2021[76] recorded continuing complaints of lower back pain and stiffness. The appellant had had a “bad week where she had severe pain and had to take Endone. Her pain had significantly improved since then.” The appellant had been accepted into university to do a science degree. Dr Darwish said it was in the appellant’s “best interest to look for a physically less demanding job” than horse training.
[75] ARD, p 86.
[76] ARD, p 87.
Dr Darwish reported on 15 July 2021[77] following an examination on that date. The doctor recorded that there were good and bad days. The previous week was “a very bad week when she had severe pain in keeping with discogenic pain”. The appellant had been having physiotherapy. The doctor thought the appellant should “continue with the exercise gym program with the aim of building up her core muscles”. Dr Darwish referred to the possibility that the appellant may require surgery at some future time; at “her age, I discouraged her from having the surgery.”
[77] ARD, pp 88–89.
Dr Darwish recommended that the appellant look for a physically less demanding job than horse training. He encouraged the appellant to study veterinary nursing. He throughout recommended that she continue with conservative treatment. Nowhere in his reports did Dr Darwish make recommendations, inconsistent with the Member’s finding, that the appellant was fit to “work full-time in work of a clerical or administrative nature” (see [16] above). Dr Darwish does not assist the appellant’s argument.
The Member accepted the views of Dr Bodel, an orthopaedic surgeon who formed part of the appellant’s medical case. The specific passage from Dr Bodel dealing with residual capacity, which the Member accepted, is set out at [13] above. That assessment does not preclude activities involving sitting and standing in an administrative role. The Member’s finding of capacity was consistent with the evidence of Dr Darwish and Dr Bodel, the treating neurosurgeon and the qualified orthopaedic surgeon on which the appellant relied in her own case. As is noted in the discussion above dealing with the “Dr Bodel error”, the parties had the opportunity to address on the topic of residual capacity and the ‘suitable employment’.

The ‘statement’ error

The appellant submits the Member erred in failing to place any weight on the appellant’s own evidence of her restrictions. The Member did not fail to place any weight on the appellant’s own evidence of her restrictions. The Member specifically relied on the appellant’s evidence of her symptoms, in rejecting Dr Smith’s opinion on causation. The Member referred to Dr Smith’s failure to record the appellant’s current symptoms in his discussion of whether the effects of the work injuries continued. The Member discussed (and accepted) the appellant’s symptoms, in accepting the opinions of Drs Darwish and Bodel, in preference to the opinion of Dr Smith (see the Member’s reasons at [41] to [48]).
The Member referred to the decision in Figueira where Acting President Roche, in considering a worker’s capacity to earn, said:
“As Ms Figueira did not directly deal with her fitness for work in her statements, the submission that her view was that she was fit for full-time work was an inference from the fact that she had made several job applications in the period concerned. That inference may or may not have been correct. Dr Roberts’ history supported the conclusion that Ms Figueira clearly did not think she was fit for full-time work without first checking with her doctor. Her doctor was of the view that she was not fit for such work, or, in the period up to 30 June 2013, fit for part-time work.
Even if it were accepted that Ms Figueira thought she was fit for full-time work, and the Arbitrator (correctly) did not believe that that was her view, that was not determinative of the issue in dispute. First, a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and the Arbitrator was not bound to accept the job applications as evidence of a capacity to work. He had to consider the whole of the evidence, including the medical evidence, and make an assessment based on that evidence. That is what he did.”[78]
[78] Figueira, [37]–[38].
The Member referred to Figueira, in the context of a worker’s evidence of difficulties and restrictions, saying “caution needs to be exercised in approaching this evidence without due regard to the medical evidence”.[79] This unobjectionable statement did not involve error. The appellant’s argument regarding the ‘statement error’ is without merit.
[79] Reasons, [61].

The ‘University Special consideration’ error

The appellant submits the appellant studied with a “disabilities services Academic plan”, and accordingly it should have been accepted “that she studied with assistance”. The appellant submits this “assistance rendered her unable to be fit for full-time work as the Member found”.
The appellant submits the Member erred in failing to give the parties an opportunity to make submissions regarding the appellant’s capacity for work under Level 1 of the Clerks – Private Sector Award.
The appellant does not identify the basis on which the existence of the “disabilities services Academic Plan” would lead to a conclusion that she was unable to be fit for full-time work under the relevant award. It conceivably could be relevant to such a finding, there is no apparent basis on which the Member’s finding of fitness would necessarily be precluded by the existence of the plan. The appellant does not engage in any argument or analysis, on the overall facts of the case (including the medical evidence) of why this outcome would follow. This is sufficient that the argument raised under this sub-heading should fail.
The parties’ counsel, at first instance, addressed at length on the topic of the appellant’s residual capacity for employment, including her capacity to perform clerical work. Both parties could (and did) address on the topic. Mr Saul addressed at some length on an appropriate finding of ability to earn for the purposes of cl 8 of Sch 3 to the 1987 Act. He referred to reception work, non-physical work for a vet assisting in the care of animals or on reception, duties which involve computers, the appellant is bilingual in Norwegian and English and could work in translating or helping immigrants. Mr Saul referred to the matters that are to be disregarded pursuant to s 32A of the 1987 Act.[80]
[80] T 43.1–28.
The Member specifically raised Dr Bodel’s views on residual capacity with counsel for the appellant and whether, at least by the time Dr Bodel saw the appellant, she had capacity for some work of a menial clerical nature.[81]
[81] T 32.3–11.
Mr Saul, summing up his submissions on the point, said:
“… when you do the math on the [appellant’s] earnings with [the respondent], the PIAWE is a thousand dollars a week, agreed. That come[s] to thirty one dollars and fifty cents an hour, on my solicitor’s calculation. And on the eighty percent, which is the applicable rate, that is twenty five dollars an hour. Now consistent with my earlier submissions, in my, and, and in fact the opinion of Dr Bodel, it’s clear that the [appellant] could work full time and it’s clear that the [appellant’s] skills are, would remunerate her far in excess of twenty five dollars an hour, let alone what the conversion rate might be whilst she’s been in Norway. So, you need to take into account those factors, but when you look at the 32A factors and you look at her ability to earn, in my respectful submission, you’ll have no hesitation in finding that her capacity for full-time employment, which she can do, and you say menial office duties. I’m not quite certain what menial means in this case but, in my submission, she can do a wide variety of office or other skills, such as, as I said, the language skills that she has, and all of those. So, and then in this day and age, as we all know, because we’re doing this right at the moment, we’re not going to and from offices, we’re all doing it from our workstations over the computer and over Zoom and Teams, et cetera. So, that’s the age in which we’re operating and that would apply equally, in my submission, to the [appellant’s] transferable skills that she has. And they’re my submissions.”[82]
[82] T 50.25–51.19.
The appellant’s counsel, in reply, said:
“… in relation to the capacity side of things, you’ll note her own, there is evidence from her own statements a[t] 47, 48 at page 12, where she provides evidence that I’ve not worked other than the horse racing industry, but for a short time as a machine operator on a casual basis in a factory in Norway. That’s what, she’s set out her history. Yes, she’s doing, says she’s studying at the moment, but she makes it quite clear she’s having difficulty in doing her course and cannot travel to and from, and I don’t know how she’ll cope with the practical aspect of it. So, notwithstanding, Dr Bodel has put some restrictions on her, any employment that it’s, in my submission, wouldn’t be, that it’s not full-time, full duties or the like. It’s suitable employment. It’s open for you to make a determination in relation to what that may well be.”[83]
[83] T 51.25–52.6.
I note that in J & H Timbers Pty Ltd v Nelson Barwick CJ, dealing with the former Workers Compensation Commission of NSW (before it became the Compensation Court of NSW) said:
“… the value of described work in the labour market is a matter well within the general knowledge and experience of this Commission. Consequently in this case, the Commission would be able to assess what wages ought to be paid for the respondent’s labour both before and after the injury.”[84]
[84] [1972] HCA 12; 126 CLR 625, [10]. See also Cowra Shire Council v Quinn [1996] 13 NSWCCR 175 per Handley JA (Meagher & Cole JJA agreeing), 179D; Akawa Australia Pty Ltd v Cassells 25 NSWCCR 385 per Rolfe AJA (Kirby P & Priestley JA agreeing), [23]; Goktas v Goodyear Australia Pty Ltd [2007] NSWWCCPD 1.
I do not accept that the parties were denied an appropriate opportunity to address the Member on topics going to ‘suitable employment’, and ‘current weekly earnings’ within the meaning of cl 8 of Sch 3 and s 37(3) of the 1987 Act.

The arguments raised under this sub-heading fail.

CONCLUSION

The various arguments made by the appellant under the multiple sub-headings have all failed. The way in which the two pleaded grounds of appeal were framed was general in the extreme (see [24] above). The first of the grounds effectively asserts that the error involved failure to determine the factual dispute in accordance with the evidence. The second asserts there was a failure to determine the matter in accordance with the law. The respondent submits the Member’s determination of capacity was a finding of fact and did not involve a question of law, unless there was misinterpretation or misapplication of s 32A or another relevant statutory provision, which the appellant had failed to show.[85]
[85] Respondent’s submissions, [4].
The arguments raised by the appellant went to the Member’s fact finding relevant to determination of the appellant’s current weekly earnings during the second entitlement period, in circumstances where she had not returned to work. The arguments raised were factual arguments against findings of fact. In those circumstances the second of the asserted grounds fails on the basis that it is misconceived. The appellant does not identify an error of law.
The first of the asserted grounds of appeal challenges the Member’s fact finding going to the issue of the appellant’s residual capacity. Section 352(5) of the 1998 Act, and some authorities dealing with challenges under that subsection to alleged factual error, are set out at [46] to [49] above. The respondent, in my view correctly, submits that the allegations of factual error made by the appellant are expressly disallowed by s 352(5). The appellant’s submissions fail to identify appealable factual error. Rather they argue that I should be persuaded in favour of a different result. I note the passage from Heggie quoted at [49] above. I am not entitled to interfere with the Member’s decision “on the ground that [I] think that a different outcome is preferable”. The appellant’s appeal fails for this reason.
If I am wrong in the view I have formed regarding the application of s 352(5) of the 1998 Act to the circumstances of this appeal, then in any event I have concluded, on reviewing the asserted errors on their merits, that none of them succeeds.
In those circumstances, the appeal fails.

DECISION

The Certificate of Determination dated 22 August 2023 is confirmed.

Michael Snell
DEPUTY PRESIDENT

13 August 2024