Negi v Nass Consulting Pty Ltd - [2021] NSWPICPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Negi v Nass Consulting Pty Ltd [2021] NSWPICPD 8
APPELLANT:	Seema Negi
RESPONDENT:	Nass Consulting Pty Limited
INSURER:	AAI Limited trading as GIO – Agent for the NSW WorkCover Scheme
FILE NUMBER:	A2-4439/17
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	2 February 2018
DATE OF APPEAL DECISION:	27 April 2021
CATCHWORDS:	WORKERS COMPENSATION – Application for an extension of time – s 352(4) of the Workplace Injury Management and Workers Compensation Act1998, r 16.2(5) of the Workers Compensation Commission Rules 2011 – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Ms K Balendra, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to adduce further evidence on the appeal is refused. 2. The application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

Ms Seema Negi (the appellant) appeals from a decision of Arbitrator Sweeney (as he then was) dated 2 February 2018. After the appellant’s case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, so that the decision-maker involved in the original proceedings and the reconsideration application became a member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings the decision maker bore the title of Arbitrator, in this decision he will be referred to by his former title of “Arbitrator.”
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

BACKGROUND

The appellant was employed as a Senior IT Business Analyst by Nass Consulting Pty Ltd (the respondent). The appellant’s employment arrangements were that the respondent, of which she was the sole director, would contract with other organisations for her to perform work for those organisations as a consultant in the IT field. The respondent commenced such an arrangement with the Commonwealth Bank of Australia (CBA) in 2014, where the appellant was required to perform her duties on a full-time basis.
On 30 January 2015 (a Friday), the appellant was attending a conference at CBA’s premises at Darling Harbour. During the day, the appellant took a bathroom break and, as she was entering the toilet, slipped on wet tiles and fell, suffering injury. The appellant reported the injury but did not make a claim for compensation until 2016.
The appellant asserted that over the weekend following the injury, she experienced significant pain, sought medical treatment, and then arranged to work full-time from home. The arrangement to work from home remained in place for some months. The appellant returned to work despite complaining of ongoing symptoms, until the contract between the respondent and CBA finished in October 2015. The appellant did not return to any employment thereafter.
The appellant complained of continuing symptoms, and eventually lodged a claim for workers compensation in April 2016. The claim was initially accepted but then denied by the respondent in a notice issued pursuant to s 74 of the 1998 Act on 23 August 2016.[3] The reasons for the denial were said to be that the appellant’s injuries had resolved within three months of the incident. The respondent disputed, therefore, that the appellant had any entitlement to weekly payments, treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), or to a lump sum in respect of any whole person impairment pursuant to s 66 of the 1987 Act.
[3] Reply to Application to Resolve a Dispute (reply), pp 154–156.
The respondent issued two subsequent notices pursuant to s 74 of the 1998 Act dated 19 September 2016[4] and 8 June 2017.[5] The relevant issues raised in those notices were that the respondent disputed that the appellant:
(a)    injured her cervical spine, right shoulder, left shoulder, and lumbar spine in the incident;
(b)    suffered any ongoing effects from any injury suffered in the incident, and
(c)    was incapacitated as a result of any injury, including any psychological condition arising as a result of any physical injury.
[4] Reply, pp 157–159.
[5] Reply, pp 218–224.
The respondent also disputed that the appellant suffered any whole person impairment as a result of the injury and that her employment was a substantial contributing factor to any injuries in accordance with s 9A of the 1987 Act.
The appellant commenced proceedings in the former Workers Compensation Commission on 6 September 2017, claiming weekly payments, treatment expenses and 16% whole person impairment pursuant to s 66 of the 1987 Act. She alleged injury to both shoulders, her right elbow, right arm, neck, back and right leg, as well as psychological injury, which was said to have developed as a consequence of the physical injuries. The respondent denied the allegations on the basis of the issues raised in the s 74 notices and on the basis of a subsequent issue raised by the respondent as to whether the appellant developed a psychological injury as a consequence of the alleged physical injuries.
The matter proceeded to arbitration before Arbitrator Sweeney on 5 December 2017. The Arbitrator issued a Certificate of Determination dated 2 February 2018,[6] in which he found that the appellant injured her neck and right shoulder, and that, as a consequence of those injuries, the appellant’s pre-injury psychological condition was aggravated. He did not accept that the appellant injured her back in the incident. On the basis of the opinion of Dr Raymond Wallace, orthopaedic surgeon, and surveillance material adduced into evidence by the respondent, the Arbitrator was not satisfied that the effects of the injuries continued beyond 24 May 2017. He made an award of weekly payments in favour of the appellant from 2 October 2015 to 27 May 2017, as well as treatment expenses to that date. The Arbitrator also remitted the appellant’s claim for whole person impairment of the right upper extremity and neck for referral to a medical assessor for assessment.
[6] Negi v Nass Consulting Pty Ltd [2018] NSWWCC 30 (reasons).
The date of “27 May 2017” was subsequently amended in an amended Certificate of Determination dated 15 February 2018 to read “24 May 2017.”
After the Arbitrator’s decision was issued, the appellant’s whole person impairment was assessed by a medical assessor at 13%, which was inconsistent with the Arbitrator’s finding that the appellant had recovered from the effects of the injury. The appellant lodged a reconsideration application, asking the Arbitrator to reconsider his decision. The Arbitrator issued a decision in respect of that application on 8 September 2020. The appellant lodged an appeal to a Presidential member against that decision on 5 October 2020 (matter no A1-4439/17).
On 10 December 2020, the appellant lodged an Application to Appeal a Decision of Arbitrator, seeking leave to appeal the Arbitrator’s earlier decision dated 2 February 2018, which decision is the subject of this appeal. The appeal in matter no A1-4439/17 is the subject of a separate determination, Negi v Nass Consulting Pty Ltd (No 2).[7]
[7] [2021] NSWPICPD 9 (Negi No 2).
Both this decision and Negi No 2 should be read together.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that an oral hearing is not required.
I have had 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 requirement as to quantum pursuant to s 352(3) of the 1998 Act has been met.
Section 352(3A) of the 1998 Act provides that there is no appeal against an interlocutory decision without the leave of the Commission. Neither party asserts that the decision is interlocutory in nature.
The Arbitrator’s determination involved findings as to injury and incapacity. The matter was then referred to a medical assessor for assessment of the appellant’s whole person impairment and, following that assessment, a Certificate of Determination dated 11 May 2018 was issued by a delegate of the then Registrar awarding the appellant lump sum compensation pursuant to s 66 of the 1987 Act. In one sense, the matter was not finalised until that Certificate of Determination was issued.
The former Workers Compensation Commission frequently gave consideration to whether determinations (such as those made by the Arbitrator in this matter) before the referral to the medical assessor are final and binding rather than interlocutory in nature. In similar facts to this case, Acting Deputy President Snell (as he then was) observed in Maricic v Medina Serviced Apartments Pty Limited:
“The Appellant Worker submits the nature of the Arbitrator’s determination is that ‘the injuries determined to have been suffered as a result of the appellant’s workplace accident have been finally and bindingly determined.’ Reference is made to both the decision in Hawkins, and the decision of the High Court in Licul v Corney. I accept this submission. It is consistent with the reasoning in Hawkins. It is the nature of the Arbitrator’s decision that the Appellant Worker could no longer succeed in recovering compensation of any description, on the basis of symptoms in his neck and left shoulder, on the basis they resulted from the pleaded incident. This decision on ‘injury’ is final and binding, and should not be characterized as ‘interlocutory’.”[8]
[8] [2007] NSWWCCPD 196, [20].
Consistent with Snell ADP’s observations and in the absence of any argument to the contrary, I find that the decision dated 2 February 2018 was final and binding between the parties, was not an interlocutory decision and leave to appeal the decision on that basis is not required.

Additional documents sought to be tendered in the appeal

The appellant annexed additional documents to her appeal that were not before the Arbitrator at the time of the decision on 2 February 2018. Those documents are:
(a)    an undated report of Dr Ivy Wong, general practitioner and acupuncturist, confirming that she had treated the appellant from 6 June 2017 in relation to pain in the neck, right shoulder, back, left foot and ankle and the front of the ribs, all of which resulted from the injury on 30 January 2015.[9]
(b)    a report of Dr Andrew Singer, psychiatrist, dated 21 December 2017, in which Dr Singer reported that the appellant:
(i)complained of “right-sided body pain, neck pain, chest pain, abdominal pain, right leg pain, right arm pain with comorbid mood disturbance,” and
(ii)described a number of unhelpful beliefs about the injury, including that she had crushed her right side, felt that she would not get better, and there was something wrong which has not been diagnosed;
(c)    Mr Broomfield dated 5 June 2018, in which Mr Broomfield reported that the appellant complained of more wide-spread symptoms and restrictions in the appellant’s neck, right shoulder and arm, right ribs and thoracic area, lumbar spine and right hip and was displaying many pain avoiding behaviours, and
(d)    a bundle of further certificates of capacity that post-dated the Arbitrator’s decision and certified that the appellant had no capacity for work.
[9] Annexures to the appeal.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The reports of Dr Wong and Dr Singer pre-dated the Arbitrator’s decision and were therefore documents that were either available to the appellant prior the arbitration hearing or, with reasonable diligence could have been obtained by the appellant or her legal representatives before the proceedings. The report of Mr Broomfield dated 5 June 2018 and the bundle of certificates of capacity were clearly not available and could not have been obtained, prior to the arbitration hearing.
For all of those documents to be admitted, the appellant must therefore establish that a failure to grant leave to have the documents admitted would result in a substantial injustice to her.
In CHEP Australia Ltd v Strickland,[10] Barrett JA discussed the test to be applied in consideration of whether a failure to admit documents would cause a substantial injustice. At [30]–[31], his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[10] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Put simply, the second limb of s 352(6) requires an assessment of whether the Arbitrator would have come to a different conclusion had that evidence been before him. In order to make that assessment, it is necessary to consider the new evidence and determine whether, had it been available to the Arbitrator, it would have produced a different result.
I have summarised the Arbitrator’s reasons for determination at [128]–[138] below. The Arbitrator reviewed the contemporaneous entries in the clinical notes recorded by various doctors as well as the contents of a report of Dr Benedict dated 3 May 2016. He had before him numerous reports that post-dated May 2016, in which the appellant complained of more florid and widespread symptoms that were not referred to in the earlier evidence. The Arbitrator found that the history provided by the appellant to the medical providers and qualified doctors after 2015 was not consistent with the earlier entries and rejected the opinions accordingly.
The histories recorded by Dr Wong and Dr Singer, upon which their opinions are based, are also inconsistent with the earlier entries. Had that evidence been available to the Arbitrator, it would be most unlikely that it would lead the Arbitrator to reach a different conclusion.
The report of Mr Broomfield dated 5 June 2018 is of no assistance to the appellant. Mr Broomfield recorded that he provided treatment to the appellant’s right rib, neck and right shoulder. When read with his earlier reports summarised below, his evidence in fact tends to support the Arbitrator’s conclusion that the appellant did not injure her back or left shoulder in the incident on 30 January 2015. The report would not change the outcome of the case.
The Arbitrator had before him a number of certificates of capacity certifying the appellant as having no capacity for work after 24 May 2017. He did not accept that the appellant had an incapacity for work because of her presentation in the surveillance material, the opinion of Dr Wallace, and because the only body parts referrable to the assessment of the appellant’s capacity were the right shoulder and neck. Both the bundle of certificates of capacity beyond 24 May 2017 that were before the Arbitrator and those now sought to be tendered included non-compensable components of the appellant’s function. On the basis that the Arbitrator rejected the evidence of the certificates before him, the further certificates of capacity would not change the outcome of this case.
For the above reasons, the additional documents sought to be tendered in the appeal, if admitted, would not change the outcome of this case and a failure to admit them would not result in a substantial injustice to the appellant. They are therefore not admitted.

Leave to Appeal – Time within which to lodge the Appeal

Section 352(4) of the 1998 Act requires an appeal to be made within 28 days of the making of the decision to be appealed against. The Arbitrator issued his Certificate of Determination (COD) on 2 February 2018. Time commenced to run from the following day.[11] Time expired for making the appeal on 2 March 2018. The appeal has been filed well out of the 28 day period prescribed by s 352(4) of the 1998 Act.
[11] Bielecki v Rianthelle Pty Ltd t/as Belfora [2008] NSWWCCPD 53, [45].
At the time of lodgment of the appeal, rule 16.2(5) of the former Workers Compensation Commission Rules 2011 (the 2011 Rules) provided a Presidential member with the discretionary power to extend the time for making an appeal where, in exceptional circumstances, to lose the right to appeal would cause substantial injustice. The rule applies in this case because the appeal was filed prior to the abolition of the 2011 Rules.
The appellant, who is unrepresented in the appeal, did not lodge an application for an extension of the time within which to file her appeal. A delegate of the then Registrar issued a Direction on 14 December 2020, requiring the appellant to lodge an application for extension of time by 21 January 2021 and providing the respondent with the opportunity to respond. The appellant failed to comply with the Direction. The time for lodgment of the extension of time application was extended to 28 January 2021 and further extended to 5 February 2021.

The appellant provided submissions supporting an application for extension of time by email dated 1 February 2021.
The appellant submits that she instructed her former legal representative to appeal the decision because the Arbitrator did not accept her injuries to the thoracic spine, back, rib, ankle, leg and “other secondary injuries,” and was advised that she should wait the outcome of the assessment by the medical assessor. The appellant asserts that she was subsequently advised that the 28 day period had expired and that, if she did appeal, she would risk losing the entitlements already awarded to her. The appellant said that she contacted the Workers Compensation Independent Review Office (WIRO) in May or June 2018 and was led to believe that she would receive ongoing weekly payments of compensation and treatment expenses. She submitted that she was confused.
The appellant advises that she contacted a lawyer whose name was on the WIRO website. She says he advised her to undergo the MRI of her cervical spine and thoracic spine arranged by her treating doctors and to obtain the reports, as well as make a further claim for compensation. The appellant submits that the claim was rejected on 5 December 2018 and, between December 2018 and February 2019, she attempted to contact her lawyer who was unavailable as he was overseas.
The appellant submits that she finally found a lawyer to represent her in February 2019. The appellant says that it took many months to have her “appeal” (presumably the reconsideration application) prepared and presented, and the Arbitrator’s decision was issued on 8 September 2020. The appellant advised that she immediately appealed that decision, although she was unable to find a lawyer to represent her in an appeal from either the decision of 2 February 2018 or 8 September 2020.
The appellant attached to the email a number of documents in support of her application for extension of time. The appellant provided a copy of her email dated 22 February 2018 to the lawyer who represented her in the arbitral proceedings resulting in the decision dated 2 February 2018.[12] In that email, the appellant sought to have a number of queries answered. Relevantly, she asked:
“(1)    My independent assessment is on 12th March 2018. My last date of appeal is 15th March 2018. There seems to be not enough time for me to know the outcome of my assessment before I apply for appeal. I want to apply for appeal after I know the outcome of my assessment. Can we get extension for appeal.
(2)     Would I get funding for my appeal. I believe I have solid genuine case for being successful.
(3)     If I appeal would they overturn the decision completely or just look for new evidence.”
[12] Documents annexed to the Appeal.
Included in the documents is a letter directed to the appellant from the appellant’s former legal representative dated 26 February 2018 in response to the appellant’s enquiries. In that letter, the appellant was advised that:
(a)    any appeal from the Arbitrator’s decision would be in respect of his adverse finding that the appellant’s treatment expenses should finish at the same time as her entitlement to weekly compensation;
(b)    the appellant’s legal representatives could not provide strong support that the prospects of an appeal from the decision would be reasonable and they did not recommend an appeal;
(c)    there was no basis for an extension of time to appeal, and
(d)    there was the chance that, on appeal, the appellant would lose the compensation entitlements awarded to her.
The appellant’s legal representatives invited the appellant to provide instructions to seek funding from WIRO for an appeal within seven days.
Further documents annexed to the email seeking the extension included emails dated 9 May 2018 and 16 May 2018 passing from WIRO to the appellant explaining the weekly payments made and asking the appellant to forward her medical accounts to the respondent.
The appellant also wrote to WIRO on 20 August 2020, advising that her lawyer had advised against an appeal and had taken nearly two years to prepare the reconsideration application. She said that the respondent had accepted her ongoing compensation so that she did not appeal within the required 28 days, but then refused the claim. The appellant complained that she was disgruntled about the Arbitrator’s finding about her injuries and requested advice about her options.
In its Opposition to Appeal Against Decision of Arbitrator, the respondent submits that the time to appeal should not be extended. The respondent relies on the Presidential decision of Power v NSW Logistics Pty Ltd t/as Hi-Trans Express,[13] which sets out the considerations relevant to the exercise of the discretion to extend time.
[13] [2015] NSWWCCPD 20 (Power).
The respondent submits that the letter dated 26 February 2018 from the appellant’s then legal representative indicates that the appellant was invited to provide instructions to seek funding for an appeal. The respondent asserts that it was evident that no such instructions were provided. The respondent relies on the Court of Appeal decision in Itex Graphix Pty Ltd v Elliott,[14] to say that it would be contrary to justice to grant leave where a party had been careless of their rights and of the need to comply with limitation periods.
[14] [2002] NSWCA 104.
The respondent contends that the appellant was aware of her rights and the time limit to appeal, had legal advice about an appeal at that time and, without providing any reason, deliberately allowed two years to elapse before lodging the appeal. The respondent submits that these are powerful factors weighing against the granting of leave. The respondent adds that the appellant was legally represented in relation to the 2018 decision and the reconsideration application in 2020.
The respondent refers to the assertions made by the appellant that she received advice that the findings on injury would not be corrected unless she appealed the decision of 2 February 2018. The appellant says that the appellant does not identify who gave her that advice or when. The respondent asserts that the appellant has failed to show that there are exceptional circumstances as to why she did not lodge the appeal within the time required. The respondent also refers to its submissions made on the appeal and submits that the appeal has limited prospects of success, which also supports the contention that leave ought not to be granted.

Consideration

Subclause (5) of rule 16.2 of the former 2011 Rules provided a Presidential member with the discretionary power to extend the time for making an appeal where, in exceptional circumstances, to lose the right to appeal would cause substantial injustice.
Whether there are exceptional circumstances, and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave was not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[15] Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon.[16] 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.[17]
[15] Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8]–[10].
[16] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub) per Campbell JA, [66].
[17] Ho v Professional Services Review Committee No. 295 [2007] FCA 388, [26].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[18] Basten JA summarised the factors to take into account in a consideration as to whether to extend time. Those factors are:
(a)    the extent and reasons for the delay;
(b)    the prejudice to the appellant if leave was not granted;
(c)    the prejudice to the respondent by the delay, and
(d)    the prospects of success of the appeal.
[18] [2014] NSWCA 34, [9].
Deputy President Roche applied those factors in Power.
The delay in this case was almost three years, which is substantial. The appellant was clearly discussing the prospects of appeal with, and receiving advice from, her legal representatives within weeks of the decision being issued. The appellant indicated in her email dated 22 February 2018 that she would prefer to defer lodging an appeal until after the medical assessment was issued. The Medical Assessment Certificate was issued on 6 April 2018. The appellant’s explanation thereafter becomes somewhat confused. According to a chronology provided by the appellant, which was incorporated in her submissions for an extension of time, in May and June 2018 the appellant was in contact with WIRO for assistance in managing her claim. It is unclear what instructions the appellant provided to the lawyer who wrote to her on 26 February 2018, and there is a gap in explanation as to what occurred between that date and June 2018, when the appellant first consulted a different legal firm. There is a further significant gap between July 2018 and December 2018 as to what steps the appellant took, either on her own or through her legal representatives, to progress an appeal from the decision dated 2 February 2018.
On 10 February 2019, the appellant engaged a third legal firm, who obtained funding from WIRO and lodged the reconsideration application. The appellant submits that it took months for the application for reconsideration, which was heard on 17 August 2020, to be finalised. The appellant provides no explanation as to why that process took 18 months to be finalised other than to say she could not get funding to appeal the decision of 2 February 2018.
The appellant, without legal assistance, lodged an appeal from the decision dated 8 September 2020 within the 28 day time frame. The matters raised and the submissions made in that appeal substantially mirror those made in this appeal, which was not lodged until December 2020. Again, there is no adequate explanation in relation to that further delay in lodging this appeal.
The appellant cites prejudice to her if leave is not granted because she will lose the compensation entitlements she ought to have been awarded. Whether she will be prejudiced is very much dependent upon whether she can show a demonstrable or substantial injustice would occur if leave was not granted, as required by r 16.2(5) of the 2011 Rules. It is therefore necessary to assess the merits of the appeal.

The evidence before the Arbitrator

The appellant’s statement evidence

The appellant provided a statement dated 15 April 2016.[19] She described her past work history and employment qualifications. She asserted that prior to the work injury, she enjoyed good health. The appellant said that she was a working director of the respondent, performing full-time work as a Senior IT Business Analyst consulting to external organisations.
[19] Application to Resolve a Dispute (ARD), pp 106–117.
The appellant said that she had been involved in providing those duties to CBA since 2014. The appellant stated that, as part of her role, on 30 January 2015, she was required to attend a scheduled meeting at CBA at Darling Harbour. She said that, at about 1 pm, she walked to the ladies’ toilet, and as she opened the door, she slipped on the shiny black floor which was wet with water. The appellant indicated that she tried to stop her fall by grabbing the toilet door, but her feet went from under her and she landed on her buttocks and the point of her right elbow, under the pressure of her body weight.
The appellant said that she went back to her desk and initially did not tell anyone about the fall, until she met with CBA’s Business Analyst at 2 pm. The appellant told the Business Analyst what had happened, and the meeting was cancelled because she was in so much pain. She said she worked at her desk until 5 pm, after which she had a painful journey home on the train. The appellant stated that she spent the whole of the following day in bed and on Sunday a doctor attended her home. On Monday, she attended the Barwell Medical Centre and underwent an x-ray, was given pain killers and advised to rest.
The appellant reported the injury to her manager at CBA. She thought she also may have reported it to her team leader. The appellant referred to the work with CBA as being constant and requiring deadlines to be met, so she arranged with CBA to work from home. While working from home she engaged a helper for several months, to attend to home duties, drive the appellant to doctor’s appointments and work commitments, and to perform some typing duties. During that time, she experienced some relief from physiotherapy provided by Mr Francis Broomfield from Fitness First at Castle Hill. The appellant said that after about three to four months, CBA required her to return to return to working on site, despite continuing pain. She indicated that after she did so, she was subjected to bullying and abuse by the project manager, was given extra work and stricter deadlines. She complained that during this time, her doctor had certified her fit to work only 2 to 3 days per week.
The appellant indicated that she then decided to resign but her Team Leader offered to put her under the supervision of a different manager and to give her different tasks, which she accepted. The appellant said that this required her to work five days per week and travel between the city and Olympic Park, which was against her doctor’s advice. She explained that, although she was still in pain, she needed the income.
The appellant described continuing work issues, which involved additional work duties and bullying behaviour by her previous manager as well as by a later manager and, by about September 2015, she was working reduced hours until the contract finished on 21 October 2015. The appellant reported that she was in continuing pain in the neck, shoulders, ribs and right side and could not get out of bed because of back pain. She said she was taking strong painkillers and was also getting counselling for depression. She stated that her doctor diagnosed osteoporosis on the basis of a bone density test undertaken in March or April 2015 and certified that she was unfit for work. She said that she had not worked since October 2015.
The appellant asserted that she did not make a claim for compensation at the time as she was concerned about losing the contract with CBA and thought that her pain would resolve over time. She said her rib pain had improved, but she continued to suffer from back pain, neck pain and pain in the shoulders and was continuing to receive psychological treatment. She added that she had recently returned to physiotherapy at Fitness First.
The appellant made a further statement dated 28 April 2017.[20] The appellant confirmed many of the matters included in her previous statement. She stated that she lodged a claim for workers compensation in April 2016, which was initially accepted but then declined on 23 August 2016. The appellant admitted that she had previously suffered from depression in 1999 following the death of her mother, was given counselling, but was not prescribed any medication. She confirmed that she had not returned to work.
[20] ARD, pp 135–137.
The appellant provided a subsequent statement dated 27 November 2017 in which she acknowledged surveillance footage of her activities obtained by private investigators.[21] She provided a summary of her treatment and said that she had not been able to open and view the surveillance footage. The appellant said that she wore a neck brace occasionally at the suggestion of her brother, who was a general practitioner in India, and with the approval of her treatment providers, who advised the appellant to not wear the collar all day. The appellant said that she mostly wears the collar when she is in a car or when she is seated for long periods and occasionally when she experiences severe pain and difficulty going to sleep. The appellant listed her continuing symptoms and disabilities.
[21] Application to Admit Late Documents (AALD) dated 27 November 2017, pp 20–26.

The surveillance material

The respondent produced surveillance reports and DVD footage of four episodes of surveillance of the appellant’s activities.
The first observations were conducted over a period of four days between 6 April 2016 and 17 April 2016.[22] On Wednesday 6 April 2016, the appellant was seen to drive out of her driveway with two children in the passenger seats, who were both wearing school uniforms. The appellant was seen to look quickly to her right several times to check for oncoming traffic. The appellant was observed to drive the children to school and then drive to a park, which was a distance of 17 kilometres and took 50 minutes, following which the appellant walked from her car for about 12 minutes and then entered the Family Court at Paramatta. The appellant was then seen walking towards her vehicle just over two and a half hours later, carrying a bag and wearing her handbag over her right shoulder. The appellant returned home at 12.49 pm and observations ceased. It was noted that the appellant used both hands to steer her car. On Monday 11 April 2016, Thursday 14 April 2016 and Sunday 17 April 2016, observations were again conducted, but the appellant was not sighted.
[22] Reply to Application to Resolve a Dispute (reply), pp 113–122.
Subsequent observations were undertaken on 3 August 2016.[23] On that occasion, the appellant was seen to take one of her children to school, park in a shopping centre, travel by taxi to a medical appointment in the city, return back from the medical appointment in the taxi to her car, shop at a supermarket and then return home, before fetching her child from school. The report of the observations recorded that the appellant was seen to:
(a)    bend forward to the waist to retrieve something from the rear seat of her vehicle;
(b)    raise her right arm above her head to fix her hair and wave to somebody;
(c)    reach items on higher shelves in the supermarket;
(d)    tilt, turn and bend her head, and
(e)    walk briskly.
[23] Reply, pp 144–147.
On six occasions between 28 March 2017 and 15 May 2017, further observations were undertaken.[24] The following observations were reported:
(a)    on 28 March 2017, the appellant was seen to drive her motor vehicle, walk for 19 minutes, point high with her right hand and tie her hair above her head with her right arm bent at the shoulder and elbow. She wore a neck brace for part of the time;
(b)    on Saturday 8 April 2017, she was observed at a shopping centre painting small pottery items with a child, conversing with various shop staff and then turning her head and neck while doing a three-point turn in her car;
(c)    on 11 May 2017, while travelling in a hire car to and from a medical appointment with Dr Wallace, the appellant wore a neck brace, after which she drove to, and attended, a leisure centre without the neck brace, turning her head to cross the street several times;
(d)    on 12 May 2017, the appellant was seen driving to, and entering, several places;
(e)    on 13 May 2017, the appellant was not observed, and
(f)    on 15 May 2017, the appellant again drove to and attended the leisure centre, during which time she was observed to turn her head and neck.
[24] Reply, pp 193–217.
The surveillance reports included copies of still frames of the DVD footage depicting the appellant performing the reported activities. The DVD footage was admitted into evidence under cover of an Application to Admit Late Documents (AALD) dated 28 November 2017.

The Barwell Medical Centre clinical notes

The notes from the Barwell Medical Centre were in evidence.[25] The appellant attended that practice from time to time from 2009. Relevantly, on 2 February 2015, Dr Selvaranjani Thillairajah recorded:
[25] ARD, pp 208–219.
“Fall in the toilet at work on Friday,
Since then pain right side Rib.
no difficulty breathing.
painful on palpation [and] sleeping on that side.
o/e tender 5th midaxillary line
Xray - no visible fracture.
analgesia, rib brace.
…
Referral: Xray right side Rib View [Fall, tender Rib right side. To do Fracture - North West Radiology”.[26]
[26] ARD, p 213.

The appellant returned to the practice on 6 February 2015, consulting Dr Koko Swe. Dr Swe noted a right chest wall injury in the fall at work, which was still painful when using a steering wheel.[27] On 17 February 2015, Dr Swe recorded that the appellant was still sore in the right lower ribs, and on 30 April 2015 noted that the right lower chest was still sore, particularly with driving.[28]
[27] ARD, p 212.
[28] ARD, p 212.
The next entry in the notes was made by Dr Parthibhan Shanmugasunderam on 7 November 2015 when the appellant attended complaining of acute lower back pain and provided a history that she was suffering osteoporosis. Dr Shanmugasunderam noted that the appellant denied any trauma and advised that the symptoms came on when she was bending. Dr Shanmugasunderam referred the appellant for a CT scan of the thoracolumbar spine.[29]
[29] ARD, p 212.
The appellant returned to see Dr Thillairajah on 12 April 2016.[30] Dr Thillairajah noted the chest wall injury in 2015 and took the history that since that time, the appellant developed low back pain and right arm pain, which she attributed to working on computers.
[30] ARD, pp 210–211.

Dr Indranie Benedict, general practitioner

Dr Benedict, who practised at the Railway St Medical Centre provided a report dated 12 December 2016, directed to “whom it may concern.”[31] Dr Benedict acknowledged that she was the appellant’s usual general practitioner and stated that she had a full history of the appellant’s injury. She advised that after a fall in January 2015, the appellant suffered injuries to her neck, right shoulder, lower back and right lower ribs, and suffered from a major depressive disorder “as a result of her circumstances.” Dr Benedict confirmed that the appellant was on medication for osteoporosis and continued to experience pain and restricted range of movement in the neck, right shoulder, lower back and lower ribs.
[31] ARD, p 75.
In a referral dated 9 August 2016 to the Sydney Pain Management Centre, Dr Benedict repeated the history of injuries suffered in the fall.[32]
[32] ARD, p 67.
Dr Benedict’s clinical notes were also in evidence, which confirmed that Dr Benedict had been the appellant’s long-term general practitioner.[33] The appellant attended Dr Benedict for the first time following the fall on 5 March 2015. Dr Benedict recorded the history that the appellant had fallen at work four weeks earlier and hurt her right lower chest, following which the pain improved but then worsened when the appellant re-commenced driving. Dr Benedict noted that no rib fractures were seen. Dr Benedict also noted that the appellant had undergone a bone density test of her heel, which disclosed osteoporosis. Dr Benedict organised for the appellant to undergo a bone density scan.[34]
[33] ARD, pp 174–193.
[34] ARD, p 186.
On 16 March 2015, the appellant complained of low back pain and Dr Benedict referred the appellant for an ultrascan x-ray of the thoracolumbar spine to investigate possible fractures, noting that an earlier scan disclosed osteoporosis of the spine.[35] On 26 March 2015, Dr Benedict noted that the investigation of the lumbar spine showed no fracture.[36] The appellant thereafter continued to receive advice on the management of osteoporosis.
[35] ARD, p 186.
[36] ARD, p 186.
The next relevant entry in the clinical notes was on 9 November 2015, when the appellant attended complaining of low back pain for one week which was made worse when she performed additional housework. Dr Benedict noted that the appellant had attended another clinic in relation to the symptoms, and that the CT scan showed no fractures or disc lesions.[37] The appellant further consulted Dr Benedict in relation to personal stressors that were affecting her psychologically, including her ability to work. On 3 March 2016, Dr Benedict recorded:
“Wishes to see a psychiatrist. Having counselling with Jane. Not working & happy at home, decorating house, enjoying cooking spending time with kids. Did some voluntary work at the school & felt unhappy & tired. Will stop this as well. Wishes to stay at home & be a housewife as she is happy staying home.” [38]
[37] ARD, p 187.
[38] ARD, pp 188–189.
On 3 May 2016, Dr Benedict noted:
“Pain in R costal margin & surrounding area cts. Also some neck pain radiating down the R upper limb since the fall. Also lower back pain with no radiation. Not mentioned this to me but says it was recorded at Barwell Medical Centre. Both back & neck pain has been around since the fall.
…
Depression also worsened after the injury though it was present as part of the ongoing family issues.” [39]
[39] ARD, p 201.

Mr Francis Broomfield, physiotherapist

Mr Broomfield reported to the appellant’s treating general practitioner, Dr Benedict, on 19 August 2016.[40] Mr Broomfield advised that the appellant had attended his clinic on 5 February 2015, complaining of a workplace injury in which she slipped on water on the floor of a toilet, landing on her right shoulder, with her right elbow hitting her right ribs. Mr Broomfield reported that he provided treatment for the injuries, which initially involved treatment to the right ribs and then also to her right shoulder and neck. He said that the appellant was unable to continue with the treatment program because of financial constraints, but returned on 8 April 2016 for a further six sessions, when he again treated her for worsening symptoms in the right ribs, right shoulder and neck.
[40] ARD, pp 68–72.
Mr Broomfield referred to the radiological imaging. He noted that there was an x-ray of the appellant’s thoracic and lumbar spine which showed only minor degenerative changes to the lower thoracic spine. Mr Broomfield also noted the radiological investigations of the appellant’s chest and right ribs which showed no relevant abnormality. He did not comment on whether any symptoms referrable to the back arose or developed as a result of the work injury.

The WorkCover and other Medical Certificates

On 2 February 2015, Dr Thillairajah issued a WorkCover Certificate in which she noted the injury as a “bruise of right rib,” with a date of injury of 30 January 2015.[41] A certificate dated 6 February 2015 (likely issued by Dr Swe) referred to a “right chest wall injury.”[42]
[41] ARD, pp 30–31.
[42] ARD, pp 32–33.
Dr Benedict issued a WorkCover Certificate on 12 April 2016, indicating that the appellant suffered from a chest wall injury and lower back pain. The dates of injury were said to be 31 January 2015 and 7 November 2015.[43] Subsequently, on 16 May 2016, Dr Benedict issued a further certificate in which she noted that the injuries were:
(a)    right lower rib contusion;
(b)    strained neck and right shoulder;
(c)    strained lower back, and
(d)    depression aggravated by injury and work stress.[44]
[43] ARD, pp 34–36.
[44] ARD, pp 38–40.
The same description of injury was repeated in numerous subsequent certificates issued by Dr Benedict.[45] Both the certificate dated 6 February 2015, covering the period 6 February 2015 to 13 February 2015, and a medical certificate issued by Dr Swe on 30 April 2015[46] covering the period from that date to 30 June 2015, certified the appellant as having some capacity for work. All of the remaining certificates annexed to the ARD certified the appellant as having no capacity for work.
[45] ARD, pp 41–52.
[46] ARD, p 34.

Dr Jaspreet Singh, psychiatrist

Dr Jaspreet Singh, the appellant’s treating psychiatrist, provided reports directed to Dr Benedict dated 1 July 2016,[47] 12 July 2016,[48] and 22 November 2016.[49] In the report dated 1 July 2016, Dr Singh provided details of the appellant’s personal traumas, and also referred to the appellant undergoing problems at work, commenting that the traumas were currently unresolved. Dr Singh confirmed that the appellant remained concerned about her career and future prospects. Dr Singh considered that the appellant’s physical state and her psychological state were closely connected.
[47] ARD, pp 63–64.
[48] ARD, pp 65–66.
[49] ARD, pp 73–74.
In the further report dated 12 July 2016, Dr Singh recorded that the appellant felt a little better. He recorded that the appellant reported that she felt that she was being forced back to work. Dr Singh wrote that it appeared the appellant did not intend to participate in the rehabilitation meetings until she was ready to go back to work.
Dr Singh noted in his final report dated 22 November 2016 that the appellant was struggling with issues of confidence and self-esteem and was sceptical about a return to work, particularly in her former field. Dr Singh suggested the appellant attend the Sydney Pain Clinic and obtain neurosurgical opinion in relation to her cervical pathology.
Dr Singh also provided a detailed report directed to UHG Insurance dated 16 February 2017.[50] Dr Singh described the appellant’s symptoms of anxiety and depression in the context of a long history of relationship problems since the appellant arrived in Australia. Dr Singh referred to the appellant having progressive difficulty concentrating and staying at work because of these issues. Dr Singh mentioned the injury on 30 January 2015, following which the appellant felt unsupported at work and became affected by the “politics” at work. Dr Singh observed that there were:
“multiple and repetitive traumas that tend to accumulate over a period of time and can manifest later as interpersonal sensitivity, lack of drive and motivation, depressive symptoms, slowed cognitive abilities and hyperarousal symptoms.”[51]
[50] AALD dated 27 November 2017, pp 8–13.
[51] AALD dated 27 November 2017, p 9.
Dr Singh confirmed that the appellant had severe issues with confidence and self-esteem and was sceptical about a return to work, particularly in her previous field. He opined that the appellant suffered from at least a moderately severe depression, could carry out her usual activities of daily living and general functioning, but could not undertake more complex or demanding tasks. Dr Singh advised that the appellant’s psychological condition resulted from multiple issues stemming from events at work imposed upon a vulnerability from problems with relationships over several years. Dr Singh considered that the precipitating factor was the appellant’s loss of income and employment. He expressed the opinion that, on the basis of a combination of the appellant’s depressive symptoms, her physical injuries and the nature of the appellant’s job as an IT analyst, he would not recommend a return to that work and suggested that the appellant should look for alternate work. Dr Singh added that the appellant may be in a position to look for suitable employment in 6–9 months, but that would be dependent upon the appellant having access to and complying with her physical and psychological treatment plans, and the absence of any aggravating factors or stressors during that time.

Dr Bhisham Singh, orthopaedic surgeon

Dr Benedict referred the appellant to Dr Bhisham Singh. Dr Singh reported to Dr Benedict on 20 December 2016.[52] Relevantly, on 20 December 2016, Dr Bisham Singh recorded that the appellant suffered significant pain in the abdomen following the fall at work, but noted:
“The acute pain has improved, however she continues to have diffuse symptoms which are present all over the right side of her body, including her face. On close questioning I elicited the fact that she has deep periscapular pain. There may be other issues here at stake, including stress regarding work and her personal life.”[53]
[52] ARD, pp 78–79.
[53] ARD, p 79.
On examination, Dr Singh noted no spinal tenderness, normal gait and that the appellant was able to heel walk, toe walk and heel to toe walk. He noted that an MRI scan of the cervical and lumbar spine disclosed no real issues in the lumbar spine.

The radiological evidence

On 2 February 2015, an x-ray of the appellant’s chest and right sided ribs was performed. The findings were normal, particularly noting that there was no evidence of right rib fracture or pneumothorax or pleural effusion.[54]
[54] ARD, p 29.
The appellant underwent a CT scan of the thoracic and lumbar spine on 9 November 2015. The history provided in the scan report was of acute lower back pain with a query of a diagnosis of osteoporosis. The findings recorded:
“There was no disc bulge or focal disc protrusion at any level and the spinal canal and foramina are preserved. The posterior facet joints are within normal limits. No focal bone lesion or defect is seen apart from the impression of a small haemangioma in the vertebral body of L2. Specifically no compression fractures are evident. A small bone island is noted at the right margin of L1.
Conclusion: No abnormality has been demonstrated. No compression fracture seen.”[55]
[55] ARD, p 55.

Dr John M Harrison, orthopaedic surgeon

Dr Harrison was asked by the appellant’s former legal representatives to examine the appellant and give an opinion. Dr Harrison provided a report dated 14 February 2017.[56]
[56] ARD, pp 16–28.
Dr Harrison took a detailed history of the injury on 30 January 2015, noting that the appellant slipped, falling forward onto her right elbow, with her extension of the right leg in front of her knee. Dr Harrison recorded that the appellant stood up, feeling pain and abdominal discomfort in the area of the right subcostal margin across the mid abdomen.
Dr Harrison noted that the appellant tried to continue her work and, when leaving work that day, felt pain in the centre of the lower abdomen on the right side and lower back pain. Dr Harrison reported the history that on the following day (which was a Saturday), the appellant’s symptoms were worse, accompanied by increasing back pain and stiffness radiating from the ribs across the lower abdominal region. Dr Harrison noted the appellant’s attendance on medical practitioners the following day and on the Monday, and that the appellant thereafter worked mainly from home. Dr Harrison recorded the appellant’s difficulties in returning to work because of ongoing symptoms and difficulties with driving. Dr Harrison noted the appellant complained that after work the appellant would “collapse” from the pain caused by aggravation of her back and right abdominal pain.
Dr Harrison said that the appellant suffered from frustration and depression in relation to her inability to return to work. He noted the appellant suffered an “aggravating episode” on or about 6 November 2015.
Dr Harrison referred to an MRI scan of the appellant’s cervical spine and said that there had been an early bone density investigation performed which showed that the appellant suffered from osteopaenia. Dr Harrison also referred to the appellant undergoing psychiatric treatment. Dr Harrison recorded the appellant’s current symptoms as:
(a)    right sided headaches;
(b)    mostly right sided neck and shoulder pain;
(c)    electric type symptoms in the right arm from the right shoulder, into the forearm and hand, which caused her diminished grip and she tended to drop objects;
(d)    pain in the right scapula into the interscapular regions and down the right side of her thoracic spine into the lumbar region;
(e)    continued pain in the lower rib cage and subcostal margin, and
(f)    symmetrical lumbo-sacral pain, right buttock and groin pain that extended to the knee and below in an L5 and to a lesser extent L4 dermatomal pattern to her foot.
Dr Harrison noted the appellant’s ongoing restrictions and inability to undertake her previous activities, including an inability to tolerate driving for very long. Dr Harrison also noted the appellant’s other medical conditions and reviewed her educational achievements and work history. Dr Harrison examined the appellant’s neck, both shoulders and arms and lumbar spine and summarised her physical restrictions. In particular, he recorded that he could not confirm a consistent L4/5 and L5/S1 “sensory area of deprivation” in the right side compared to the left and described the outcome of sensory testing as producing mixed results on repeated efforts.[57]
[57] ARD, p 21.
Dr Harrison concluded that the appellant suffered an injury to her right elbow, right upper extremity, back and neck and continued to complain of symptoms in those areas, including symptoms in the right leg. He commented that the mechanics of the injury were uncertain, but probably involved a jarring force through her shoulder and neck, and pain around the subcostal margin. Dr Harrison said that there had been a moderation of those symptoms together with the mechanical back pain, but the symptoms had not resolved.
Dr Harrison considered that, if the appellant returned to work, she would require the opportunity to move from a seated to a standing position and not be expected to frequently walk during the course of her work. He opined that the appellant’s employment was a substantial contributing factor to the injuries and the injuries had a negative impact on her capacity to work. Dr Harrison considered that, on the basis of his non-specialised observation and aspects of the physical examination of the appellant, there was a significant element of a poor psychological response to the injury. He recommended that her ongoing treatment should be directed at conservative measures such as an exercised based physiotherapy program, and pool exercises or hydrotherapy.
Dr Harrison assessed the appellant’s whole person impairment as 16%, which comprised of 7% whole person impairment of the cervical spine (including an allowance for difficulty with activities of daily living), 5% whole person impairment of the lumbar spine, 4% whole person impairment of the right upper extremity and 1% whole person impairment of the left upper extremity.

Dr Raymond Wallace, orthopaedic surgeon

Dr Raymond Wallace was asked by the respondent to assess the appellant and provide his opinion. He provided a report dated 23 May 2016.[58] Dr Wallace noted the details of the incident on 30 January 2015, recording that the appellant slipped on the wet floor, landing on her flexed right elbow and her buttocks. Dr Wallace took a brief but consistent history of the appellant’s treatment thereafter and the appellant’s working arrangements up until 21 October 2015.
[58] Reply, pp 1–9.
Dr Wallace recorded the appellant’s complaints of:
(a)    persisting stiffness and pain in the cervical spine radiating into the right scapular and right shoulder;
(b)    weakness and intermittent paraesthesia in the right arm;
(c)    intermittent aching of the right chest wall;
(d)    ongoing weakness, stiffness and pain in the lumbar spine radiating into the buttocks, right leg and right foot;
(e)    an increase in cervical pain when driving, using a computer mouse or any use of the right hand, as well as poor grip in the right hand, and
(f)    worsening pain in the lumbar spine when bending, twisting, driving for more than short distances, or any repetitive movements.
Dr Wallace noted the appellant’s ongoing restrictions. On examination, Dr Wallace observed that the appellant had an “exaggerated response to the examination and made a poor effort on range of movement testing.”[59] He recorded the results of the examination, noting the degrees of flexion, extension, rotation and range of movement of the cervical and lumbar spines. Dr Wallace commented that there was tenderness over the right chest wall, and that the appellant walked with an intermittent right-sided limp.
[59] Reply, p 4.
Dr Wallace reviewed the radiological evidence in relation to the chest and the thoracic and lumbar spine. He noted the only abnormalities showing on the bone density study were the presence of osteoporosis and minor degenerative change in the mid to lower thoracic spine with small end-plate osteophytes. He also reviewed the surveillance material dated 2 May 2016.
Dr Wallace diagnosed a soft tissue injury to the right chest wall, which he considered had resolved, and a musculo-ligamentous strain of the lumbar spine which had also resolved. He considered that the injuries had resolved within three months of the incident and that there was no evidence to show any structural damage to the chest wall or thoraco-lumbar spine, or any rib fracture. Dr Wallace considered that the incident on 30 January 2015 could not explain the appellant’s widespread complaints of symptoms.

Dr Wallace was of the view that the appellant had no ongoing work-related incapacity, was fit to resume her previous role with the respondent, and required no further treatment for her injuries.
Dr Wallace re-examined the appellant on 11 May 2017 and provided a further report dated 24 May 2017.[60] He recorded the appellant’s complaints of persisting pain in the cervical region from the levels of C2 to C7, which radiated to the head, right shoulder, and the right arm to the hand, as well as stiffness in the cervical spine and paraesthesia and weakness in the right arm. Dr Wallace noted that the appellant complained that the symptoms were worse with walking, sitting and housework, lifting, any physical activity or driving. He reported that the appellant’s symptoms were relieved by using a soft collar and having physiotherapy, hydrotherapy and remedial massage.
[60] Reply, pp 28–36.
Dr Wallace also noted that the appellant complained of stiffness and persisting lumbar spine pain between the L1 and L5 levels of the lumbar spine, radiating into the right groin and right leg with right leg weakness. He recorded that the appellant reported difficulties around the house, including an inability to help with housework, home maintenance activities (such as lawn mowing and gardening), as well as an inability to participate in her former sporting activities of soccer and badminton.
On examination, Dr Wallace reported that the appellant felt tenderness at the C7 level of the cervical spine and globally around the right shoulder, and showed poor effort on testing of the range of movement of the lumbar spine with no active effort in relation to attempted testing of the power of the upper limbs. Dr Wallace described the appellant’s right sided limp as “contrived,” noting that the appellant walked normally when exiting the consultation.
Dr Wallace reviewed radiological investigations undertaken since the previous consultation. He observed that:
(a)    an MRI scan dated 3 November 2016 showed a moderate right disc osteophytes, likely causing impingement of the C6/7 nerve root, and minor disc bulges at C6/7 level with foraminal narrowing;
(b)    an MRI scan of the chest wall undertaken on 15 November 2016 showed no abnormality of the chest wall, and
(c)    an MRI scan of the lumbar spine on 9 December 2016 showed minimal bulges of the discs between the L1/2 level and the L4/5 level and a minimal disc bulge at the L5/S1 level with no evidence of foraminal narrowing and no evidence of nerve root involvement.
Dr Wallace also reviewed the surveillance evidence dated 15 May 2017 and commented that the appellant was under surveillance on 11 May 2017, the day of the last consultation. He remarked that when the appellant attended the consultation with him on that day, she was wearing a neck brace and that one hour after the appellant returned home, she departed her residence and was not wearing the brace. Dr Wallace also observed that the surveillance disclosed that the appellant was able to rotate her head fully to both sides, which was inconsistent with the restrictions exhibited in the medical examination performed by him on that day. Further, Dr Wallace observed that, on 28 March 2017, the appellant was seen to adjust her hair with her arms above her head with much greater flexion and abduction than was displayed when examined by him on 11 May 2017.
Dr Wallace concluded that the appellant’s presentation at that examination was completely contrived, based on the inconsistencies between the examination results and the observations on the video surveillance, particularly in relation to the cervical spine and both shoulders. Dr Wallace was of the view that the appellant was exaggerating her limitations for the purpose of secondary gain, that the appellant’s work related injury had resolved, and that the appellant did not require any further treatment as a result of the injury. He reiterated his view that the appellant was fit to resume her pre-injury duties. Dr Wallace opined that, on the basis of the resolution of the appellant’s injury, there was no whole person impairment resulting from the incident on 30 January 2015. For the same reason, he did not agree with the assessment provided by Dr Harrison.

Dr Thomas Oldtree Clark, consultant forensic specialist

Dr Thomas Oldtree Clark was also asked to assess the appellant and provide an opinion. He provided a report dated 13 February 2017.[61] Dr Oldtree Clark took a brief history of the injury and noted that the appellant “developed” right rib, neck, shoulder and back pain, depression and sleep disorder. He further noted that the appellant had received psychological treatment prior to the injury because of personal issues, but was subjected to bullying and was abused in meetings after the injury. At the request of Dr Oldtree Clark, the appellant completed a questionnaire.
[61] ARD, pp 1–15.
Dr Oldtree Clark reviewed the reports of Dr Singh, the appellant’s treating psychiatrist. Dr Oldtree Clark concluded that the appellant suffered from chronic major depression with dysthymic disorder which was acutely exacerbated after the work injury. He considered that on the basis of her loss of motivation, tiredness and irritation, she was unable to work, form relationships, or care for her children and thus was not fit for work. He observed that she should be carefully supervised and given assistance to return to a suitable occupation. Dr Oldtree Clark further observed that her pre-existing emotional state did not affect her capacity for work.

Dr Robert Wotton, consultant psychiatrist

Dr Robert Wotton was asked by the respondent to psychiatrically assess the appellant. He provided a report dated 8 August 2016.[62] He was provided with a copy of the surveillance report dated 21 July 2016 and the accompanying DVD footage.
[62] Reply, pp 10–22.
Dr Wotton recorded a detailed history of the injury, the difficulties the appellant suffered and the subsequent treatment, which included psychological counselling. Dr Wotton said that he found it difficult to gain a factual history from the appellant because of her repetitive focus and “idealised view of herself, and her children.”[63] Dr Wotton further observed that:
“She felt she had been treated badly in the workplace where she claimed she was the object of bullying and intimidation to the point where she was in fear of her life. Much of her story contained dramatic exaggeration of her perception of what was happening: e.g. her belief that she had been shot in the toilet; her belief that the woman who offered her a lift home was likely to inflict harm on her and her children.
There seemed at times to be a hysterical exaggeration of her suffering to the point of self pity.
Ms Negi did not ever question the fact that her pain symptoms were so disproportionate to the absence of definite clinical findings. She compared herself to a colleague who had an actual fractured rib when she had no evidence of one. Ms Negi’s mood was depressed and flat, and her affect appropriate to her mood.”[64]
[63] Reply, p 16.
[64] Reply, p 17.
Dr Wotton diagnosed the appellant as suffering from an adjustment disorder with depressed mood, which developed in response to the work injury as well as her perception that she had been bullied at work. He considered that the appellant had significant impairment of her occupational functioning. He recorded that the appellant did not disclose a previous psychological history, but he noted Dr Benedict’s notes described a prior history of depression which was well managed and stable at the time of the injury. Dr Wotton considered that if the appellant had a previous history of depression, then it may have been that her work injury, the subsequent pain, and her inability to work reactivated her previously depressed state. He commented that there was nothing in the surveillance material that countered against his diagnosis of the appellant’s condition. Dr Wotton did note, however, that the appellant was observed to be conversing with staff in the shopping centre. He observed that this was inconsistent with the history the appellant provided to the rehabilitation consultant that she was unable to work because contact with people was stressful for her. Dr Wotton said, however, that in the context of what the appellant reported to him, her fear of returning to work was the fear of a particular person at work.
Dr Wotton noted that the appellant reported an improvement in her symptoms following treatment but that the appellant had persistent pain for which there was no identified physical cause, and which was impacting her psychological condition. Dr Wotton said that he was therefore uncertain that the condition had resolved as she had asserted. He observed that “her persistent pain may be a manifestation of some psychic pain”,[65] which would best be addressed by the appellant’s treating psychiatrist.
[65] Reply, p 20.
Dr Wotton concluded that the appellant was not fit for her pre-injury duties because of persistent pain, and the pain appeared to be disproportionate to the injury, He said that it did not respond to psychological treatment, the reason for which he could not explain. Dr Wotton considered that the persistence of pain despite psychological improvement might suggest that the physical and psychological conditions were independent of each other.
Dr Wotton opined that he did not believe the appellant had any capacity for work and the longest period in which the appellant performed any activity in the surveillance material was one hour. He confirmed that the appellant continued to require psychological treatment, as advised by her treatment providers.
Dr Wotton provided a supplementary report dated 30 August 2016 after further surveillance material was provided to him.[66] The further surveillance material, the date of which was not identified by Dr Wotton, was undertaken after the earlier material was provided to Dr Wotton for the purpose of his previous report.
[66] Reply, pp 25–27.
Dr Wotton observed that the appellant was undertaking activities that were not consistent with the pain she reported and did not appear depressed. He considered that an explanation might be that the appellant was relieved from the anxiety associated with working in an environment where she believed she had been bullied and threatened, and so was less depressed and better able to manage her pain. Dr Wotton pointed out that he did not have the expertise to comment on the physical aspects of the appellant’s activity, and said he was not able to guess about the appellant’s inner emotional experience while she was performing those activities in what appeared to be a “normal” manner. Dr Wotton thought that the surveillance material taken over a limited time suggested that the appellant was not in as severe pain as she had claimed in the examination, but that this issue would be best addressed by the appellant’s treating psychiatrist.

Evidence as to the appellant’s pre-injury average weekly earnings

The appellant provided copies of her payslips from November 2014 to October 2015, as well as her PAYG statements and her individual taxation returns for the financial years ending 30 June 2014 and 30 June 2015.[67] The payslips indicated that the appellant earned $5,590 per month. The taxation returns recorded the appellant’s gross earnings as $40,473.00 in 2014 and $64,349 in the 2015 financial year. The PAYG statements were consistent with the taxation returns.
[67] ARD, pp 81–105.

THE ARBITRATOR’S REASONS

The Arbitrator noted that there were inconsistencies in the issues notified in the various notices issued pursuant to s 74 of the 1998 Act but that there was a consensus that the issues for him to determine were:
(a)    whether the appellant sustained injury to the neck, back, both shoulders, elbow and right leg in the incident on 30 January 2015;
(b)    whether the appellant suffered a psychological condition consequent upon the physical injuries;
(c)    whether the appellant’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the 1987 Act, and
(d)    whether the appellant suffered an incapacity as a result of the injuries.
The Arbitrator summarised the evidence, including the appellant’s statement evidence and the medical evidence, as well as the parties’ submissions. The Arbitrator noted that the respondent relied upon the clinical records of the doctors who treated the appellant, which were said to be inconsistent with the allegations of injury to the neck, shoulders and back in the incident, and suggested that the only injury suffered by the appellant in the fall was to her ribs and chest.
The Arbitrator referred to Davis v Council of the City of Wagga Wagga,[68] and remarked that the notes of busy medical practitioners are not intended to be used for forensic purposes and should be viewed with some caution. The Arbitrator added, however, that those medical notes may be more reliable in terms of the injury suffered than statement evidence given some months or years after the injury. The Arbitrator considered that a witness’s memory is not infallible, and the evidence of an honest witness can be influenced if the witness is required to reconstruct events at a later time.
[68] [2004] NSWCA 34; 4 DDCR 358.
The Arbitrator observed that, in this case, in the months following the injury, a number of treating doctors recorded only that the appellant had injured her right ribs and chest. Dr Thillairajah and Dr Swe issued certificates in which they respectively diagnosed a bruised rib and right chest injury. The Arbitrator pointed out that the first reference to back pain was in Dr Benedict’s note dated 16 March 2015, but the Arbitrator considered that the notation was ambiguous. He said that the clinical notes suggested that it was unlikely that the appellant reported to Dr Benedict at that stage that she had back pain emanating from the fall. The Arbitrator referred to the entry in Dr Benedict’s notes of 3 May 2016, which recorded that the appellant had not mentioned back or neck pain from the fall but that the appellant had advised that back pain was recorded in the clinical notes kept by Barwell Park Medical Centre. The Arbitrator indicated that the notes of Dr Thillairajah and Dr Swe made no mention of back and neck pain, and nor did the medical certificates issued up to 30 April 2015 by those doctors.
The Arbitrator also referred to the entry recorded by Dr Shanmugasunderam dated 17 November 2015, in which the doctor took the history of the appellant suffering acute lower back pain when bending, and that the appellant specifically denied any trauma. The Arbitrator said that the appellant did not give a history to that doctor of back pain following the injury in January 2015.
The Arbitrator considered that it was therefore necessary to examine the evidence of Dr Benedict who, in the report dated 12 December 2015, and in other reports, plainly attributed the appellant’s back and neck symptoms to the injury. The Arbitrator concluded that the doctor had accepted the history provided to her by the appellant on 3 May 2016. The Arbitrator further concluded that it was difficult to accept the appellant’s allegations of injury to the neck and back, when four practitioners failed to record those complaints in the weeks following the incident and where the doctors who issued medical certificates about the appellant’s capacity for work only in the context of limitations arising from the ribs and the chest. The Arbitrator found it difficult to understand why the appellant would not have mentioned the other complaints to at least one of those doctors.
The Arbitrator turned to the evidence of Mr Broomfield and observed that, at the consultation just days after the injury, the appellant described having fallen on her right shoulder, causing her right elbow to hit her ribs. The Arbitrator noted that the treatment provided by Mr Broomfield was initially directed to the appellant’s right ribs and then to the right shoulder and neck, over four consultations. The Arbitrator observed that the appellant returned for further treatment of the same symptoms on 8 April 2016.
The Arbitrator considered that Mr Broomfield’s evidence was clear and unambiguous that the appellant attended Mr Broomfield complaining of pain in the neck, right shoulder, right ribs and upper back and that the symptoms in the low back were only reported at a later stage. The Arbitrator thought it difficult to understand why the appellant had not mentioned the neck and right shoulder symptoms to the general practitioners. The Arbitrator concluded that, in any event, Mr Broomfield’s evidence was of no assistance to the appellant in proving that the appellant suffered injury to the left shoulder or low back in the fall. However, the report of symptoms in the neck and right shoulder was consistent with the appellant’s allegations of injury to those two areas, which he accepted.
The Arbitrator proceeded to consider the allegation that the appellant suffered injury to her back. The Arbitrator conceded that the appellant reported back pain in March 2015 and underwent radiological investigations on 16 March 2015, but said that there was no clear indication that the back pain was attributable to the injury and the appellant had only reported her back pain to Dr Benedict on 3 May 2016. The Arbitrator observed that there was other medical evidence in the clinical records from both medical practices which was inconsistent with the appellant’s back pain being attributable to the injury, namely that the symptoms could likely be referrable to the appellant’s osteoporotic condition.
The Arbitrator concluded that there was no evidence at all to support the allegation of injury to the left shoulder in the incident. He said that, on the whole of the evidence, he was not satisfied that the appellant suffered injury to her back or left shoulder in the fall.
The Arbitrator turned to consider the question of whether the appellant’s employment was a substantial contributing factor to the injury. He said that, although there was an issue about whether the effects of the injury continued, in the context of there being no non-work related factors, he was satisfied that the appellant’s employment was a substantial contributing factor to the injury to the neck and right shoulder.
The Arbitrator then proceeded to consider whether the appellant’s psychological injury was a condition consequent upon the fall, noting that the respondent had submitted that events complained of by the appellant that occurred after the fall were relevant as noted in the clinical notes. The Arbitrator said, however, that the appellant also complained that her orthopaedic injuries caused her pain and an inability to work effectively and comfortably, interfered with her ability to work and contributed to her depression. The Arbitrator observed that the appellant had a prior history of psychological problems and the cause of those problems continued after the injury. He said, however, that it was a logical proposition that the difficulties with her physical injuries which impacted her ability to work aggravated the appellant’s depression. The Arbitrator discussed the evidence of Dr Benedict, Dr Wotton, Dr Oldtree Clark and Dr Jaspreet Singh.
The Arbitrator accepted that, on the basis of the evidence of the three psychiatrist’s opinions, and the absence of a contrary view, the appellant’s pain in her neck, rib, chest and right shoulder materially contributed to the aggravation of the appellant’s depression.
The Arbitrator then addressed the issue of the appellant’s capacity for work. He referred to Dr Wotton’s conclusion reached after he viewed the DVD evidence that:
(a)    the appellant may have been in less pain that she complained of in the examination;
(b)    he could not guess at her inner emotional state while attending her day to day activities, and
(c)    the appellant appeared to perform those activities in a normal manner.

The Arbitrator said that the DVD surveillance did indicate that the appellant would likely be able to interact with people and perform work.
The Arbitrator observed that the psychiatric evidence weighed heavily in favour of the appellant having no earning capacity. He noted that, given his findings on injury, the effect of the appellant’s low back condition was irrelevant to the question of the appellant’s capacity.
He indicated however that there was one aspect of the surveillance that was important to the question of the appellant’s capacity and that was that, after viewing the surveillance DVD’s, Dr Wallace expressed the view that from an orthopaedic perspective, the effects of the injury suffered by the appellant had ceased. The Arbitrator took into account the earlier report of Dr Wallace, which provided evidence of the appellant’s neck and right arm movements. The Arbitrator commented that Dr Wallace’s evidence was often short and usually provided “little insight into the issues in dispute.”[69] He said, however, that in this case it was difficult not to accept Dr Wallace’s findings in relation to the orthopaedic injuries. After viewing the surveillance, the Arbitrator considered that there was a factual basis supporting Dr Wallace’s opinion, and there was no competing view from a medical expert. Further, there was no evidence from the appellant to explain her circumstances.
[69] Reasons, [73].
The Arbitrator concluded that the surveillance evidence suggested that the appellant was exaggerating and in the absence of some explanation, her evidence could be considered unreliable. On that basis, the Arbitrator accepted the opinion of Dr Wallace, which he said was soundly based on all of the available evidence.
The Arbitrator determined that the effects of the injury to the right shoulder and neck had ceased and so it was difficult to comprehend how the injury remained causative of the appellant’s psychological condition. The Arbitrator considered that the appellant had suffered a soft tissue injury to her right rib and chest, and it was difficult to accept, without a plausible explanation, that those symptoms persisted more than two years after the event. Further, in the context of the many other stressors, other than the work injuries impacting the appellant’s psychological well-being, it was improbable that the resolved physical injuries could impact the appellant’s psychological condition. The Arbitrator said that the appellant’s activities on the surveillance evidence cast such doubt on the appellant’s evidence that he could not accept her evidence about her psychological condition.
The Arbitrator found that the appellant had failed to establish that her orthopaedic injuries and psychological condition resulting from the injury on 30 January 2015 continued beyond 24 May 2017. That is, the respondent had discharged its onus of proving that effects of the injury had ceased by that date, which was the date upon which Dr Wallace issued his report.
The Arbitrator also found that the evidence did not establish that the respondent had made a work capacity decision in relation to the appellant’s pre-injury average weekly earnings. The Arbitrator noted that the respondent had not adduced any evidence as to the proper calculation of the appellant’s pre-injury average weekly earnings. The Arbitrator said that the evidence tendered at the arbitration supported the appellant’s contention that her pre-injury average weekly earnings were $1,290. He found that the appellant had no capacity for work from 2 October 2015 and 24 May 2017, noting that during that period the respondent did make some weekly payments of compensation which were not quantified.
The Arbitrator made the following findings:
“1. I find that:
a)The applicant suffered injury to her chest neck and right shoulder arising out of and in the course of her employment on 30 January 2017.
b)Her employment was a substantial contributing factor to these injuries.
c)The applicant has not established on the evidence before the Commission that she suffered injury to her lower back or left shoulder on that date.
d)As a result of the injury of 30 January 2017 the applicant suffered a consequential medical condition, namely an aggravation of a pre-existing psychological condition.
e)As result of the injury on 30 January 2017 the applicant was totally incapacitated until 27 May 2017.”[70]
[70] Reasons, [84].
The Certificate of Determination issued on 2 February 2018 records:
“The Commission determines:
1.     Award for the applicant for weekly payments on the basis of no current capacity pursuant to section 37 as follows:
a.$1,225.50 per week from 2 October 2015 to 1 January 2016, and
b.$1,032 per week from 2 January 2016 to 27 May 2017.
2.     Credit to the respondent for payments made during the above.
3.     Liberty to apply in respect of the calculation of weekly payments.
4. Respondent to pay the applicant’s medical and hospital expenses pursuant to section 60 in respect of the period 2 October 2015 to 27 May 2017.
5.     Liberty to list the matter for telephone conference to consider whether the claim for permanent impairment compensation in respect of the applicant’s neck and right shoulder should be referred to an approved medical specialist and the form which such a referral should take.”
The date of 27 May 2017 was amended to read 24 May 2017 in the amended Certificate of Determination dated 15 February 2018. The matter was listed for a telephone conference, following which the appellant’s claim for whole person impairment of the right shoulder and cervical spine was referred to the medical assessor for assessment.

THE GROUNDS OF APPEAL

The appellant does not clearly and separately identify her grounds of appeal. From the narrative provided, which was incorporated in the appeal lodged, it is apparent that the appellant complains that the Arbitrator erred by:
(a)    rejecting her allegation that she injured her back and left shoulder in the fall;
(b)    finding that she was no longer incapacitated for work;
(c)    failing to correctly calculate her loss of income;
(d)    failing to take into account her psychological injury/condition when assessing her capacity to earn;
(e)    failing to provide the opportunity to her and to her legal team to make submissions about her capacity for work;
(f)    accepting the surveillance evidence;
(g)    accepting the opinion of Dr Wallace;
(h)    lacking fairness and independence in his decision-making process, and
(i)    incorrectly assessing her lump sum entitlements.
The above summary of alleged errors largely accords with the respondent’s endeavours to identify the allegations of errors provided in its opposition to the appeal in Negi No 2, which it also relies upon in this appeal. Both parties have made submissions in respect of those matters.
Doing the best that I can to identify the alleged errors and faithfully summarise the submissions of the parties, I have extracted from the allegations of error, and the submissions made, the matters that pertain solely to the separate appeal from the Arbitrator’s decision in the application for reconsideration. As a result, the allegation at [151(e)] above is dealt with in my decision in Negi No 2, and all of the submissions in respect of the appeal from the reconsideration decision are recorded in that decision. Where there is an overlap of the appellant’s complaints between both of the Arbitrator’s decisions, the respective complaints are dealt with accordingly.
Noting that the complaint at [151(e)] is not relevant to this appeal, in this appeal, the remaining eight complaints will be discussed respectively as grounds one to eight of the appeal.

LEGISLATION

Section 326 of the 1998 Act prescribes the status of an assessment certified in a medical assessment certificate. Subsection (1) provides:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a)degree of permanent impairment of the worker as a result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether the degree of impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertainable.”

SUBMISSIONS

As observed above, the appellant’s submissions in relation to this appeal substantially mirror the submissions made in the appeal from the Arbitrator’s decision dated 8 September 2020, in Negi No 2. The respondent relies upon its submissions in respect of that appeal in its response to this appeal.

Ground One

The appellant maintains that she injured her back in the incident on 30 January 2015. She provides a description of what happened in the fall and the mechanism of injury, in which she alleges that she:
“slipped on wet floor twisted my foot, stabbed my right rib with my right elbow, thus hurting my right side of back which is connected to spinal cord, my neck was crushed on right side and all my body weight was on my lower back and thus I injured my lower back as well.”[71]
[71] Appeal Against Decision of Arbitrator, Part A, [2.4.6].
The appellant provides a diagram of the relationship between the right ribs, the main spinal cord and the thoracic spine, a diagram of the nervous system and a hand-written sketch of how the injury occurred. The appellant submits that she had never previously lodged a workers compensation claim and that she consulted medical professionals immediately following her injury.
The appellant refers to a report provided by Mr Mickey Hoong, acupuncturist and remedial massage therapist in 2015. She asserts that Mr Hoong treated her from 27 March 2015 in respect of injury on the right side of her body, right rib area, right neck, right shoulder and right lower back. The appellant adds that the report of Dr Dwight Dowda, occupational physician dated 14 August 2017, and the evidence from Dr Wotton, Dr Benedict, Dr Kaur, Mr Broomfield, Dr Nair and Dr Harrison all support the fact that she injured her back in the fall. The appellant asserts that the evidence discloses that she sought treatment after 30 January 2015 in respect of her rib, lower back, middle back and her right leg, neck, shoulder, left foot, and left knee. The appellant says that the respondent accepted liability and paid for treatment for physiotherapy and podiatry, as well as pain management. The appellant points out that she underwent a back x-ray in mid-2015.
The appellant adds that Dr Wallace specifically referred to the cervical spine, chest wall and lumbar spine symptoms and noted that the she had not experienced any prior problems or injuries. Further, the appellant submits that the medical assessor was only asked to assess her neck and shoulder, but noted a strain injury to the lower back.
The respondent refers to the appellant’s submissions as “extensive” in relation to her allegation that she injured her back in the incident on 30 January 2015 and the appellant’s submissions about her incapacity arising out of her back condition. The respondent submits that the appellant’s references to instances in which her back complaints were recorded and examinations of her back were undertaken are references to evidence which the Arbitrator had already noted and considered at [45]–[58] of his reasons. The respondent contends that the Arbitrator closely examined the evidence and, on the basis of the whole evidence, concluded that the appellant had not suffered injury to the back on 30 January 2015.

Ground Two

The appellant submits that her general practitioner and her specialist certified her as having no capacity for work and yet Dr Wallace certified her as being fully fit for work. The appellant asserts that the report was a forgery, designed so that the respondent could decline her claim. She contends that, following the injury, she was unable to perform her work at the same level and was bullied to work for many hours for a further nine months without leave. She advises that she developed a fear of working.
The appellant refers to the difficulties she was experiencing as recorded by Dr Wotton, and Dr Wotton’s view that she was not fit for pre-injury duties because of severe pain. The appellant maintains that, because of her multiple spinal injuries evident in the medical reports, which the Arbitrator completely ignored, she has lost the opportunity of future employment, and that has completely ruined her life. The appellant submits that the Arbitrator failed to take into account all of her injuries sustained in the incident which have impacted her ability to earn.
The respondent submits that the Arbitrator was correct by not including the appellant’s back condition when he assessed the appellant’s capacity to earn.

Ground Three

The appellant provides a schedule of her loss of wages, including an amount to account for the shortfall of what she was paid and what she asserts she ought to have been paid up to and beyond May 2017. The appellant asserts she is entitled to a total of $742,171.82 of arrears of weekly compensation to 6 October 2020.
The respondent refers to the appellant’s complaint about the calculation of her weekly entitlement to compensation and submits that it appears that the appellant is seeking a higher amount than the maximum available amount, contrary to the legislation. The respondent asserts that the appellant has not adduced any evidence which would establish that the calculation of her pre-injury average weekly earnings was incorrect. The respondent says that, in fact, the calculation was correct.

Ground Four

The appellant refers to the history recorded by Dr Wotton, in which Dr Wotton summarised and opined that the appellant’s psychological stressors continued and caused her emotional distress and depression accompanied by triggers reminding her of her injuries. The appellant refers to Dr Wotton’s note of the rapid onset of depression and his observation that the persistence of extreme physical symptoms without objective explanation needed further investigation.
The respondent does not specifically address the complaint that the Arbitrator failed to take into account the appellant’s psychological condition when assessing her capacity other than to say that the Arbitrator’s conclusions were based on the evidence and therefore open to him.

Ground Five

The appellant challenges the experience and qualifications of those who conducted the surveillance, complains about their conduct and also about the conduct of the taxi-driver who drove her to the appointment with Dr Wallace. The appellant contends that the Arbitrator’s observation that she drove her own vehicle on her return home[72] was wrong. The appellant says that she returned home in the taxi arranged by the respondent. She explains that, mostly, she is in great pain, but on good days she can go out and attend for treatment and therapies. The appellant further explains the reason for, and nature of, the excursion she undertook after she arrived home.
[72] Reasons, [74].
The respondent points out that the Arbitrator viewed the surveillance material and submits that the Arbitrator took into account the absence of any expert evidence in the appellant’s favour or any direct evidence from the appellant about the significance of the surveillance material.
The respondent refers to the Presidential decision in JB Metropolitan Distributors Pty Ltd v Kitanoski,[73] as authority to say that it is open to an arbitrator to form a view about the credibility or the reliability of a witness’s evidence in the absence of oral evidence, provided that the relevant issues had been fully documented in the evidence and the parties had been given a reasonable opportunity to make submissions about those issues. The respondent submits that there was extensive material before the Arbitrator in which the appellant’s credibility and consistency was called into question and the appellant’s legal representatives were given ample opportunity to make submissions about those issues. The respondent says that the Arbitrator was entitled to arrive at the conclusion he reached on the issue of the reliability of the appellant’s evidence.
[73] [2016] NSWWCCPD 17.

Ground Six

The appellant asserts that Dr Wallace’s reputation and credibility are questionable. She relies on the material from her internet research which she conducted in relation to the reputation of Dr Wallace, which I have not admitted in this appeal. The appellant contends that Dr Wallace was a “plant” to enable the respondent to dispute her claim and was more focussed on the video surveillance than on performing a medical examination.
The respondent points out that the Arbitrator treated the conclusions reached by Dr Wallace with some caution, but observed that Dr Wallace was the only expert who had viewed the surveillance material and so had a factual basis upon which to rest his conclusions. The respondent adds that the Arbitrator took into account that there was an absence of expert evidence from either a treating doctor or a medico-legal expert which contradicted Dr Wallace’s opinion. The respondent also adds that the appellant herself provided no explanation in relation to what was disclosed in the surveillance material. The respondent submits that it was on that basis that the Arbitrator accepted the opinion of Dr Wallace, which he was entitled to do.

Ground Seven

The appellant asserts that the Arbitrator openly favoured the respondent’s case, used derogative language towards her and frequently indicated that there was no basis for her case.
The appellant contends that the Arbitrator’s acceptance of her neck and shoulder injuries, but not her injury to her back, makes no sense in the context of her having reported the injury, and the severe symptoms in her back, to her general practitioner in March 2015.
The respondent does not directly reply to the appellant’s submissions as to the conduct of the Arbitrator. The respondent generally submits, however, that there was extensive evidence available to the Arbitrator to support his findings and his reasoning process clearly explained his conclusions. The respondent submits that the appellant’s assertions are not sufficient to show error on the part of the Arbitrator.

Ground Eight

The appellant submits that, because her multiple spinal injuries were not taken into account in the assessment of her whole person impairment, the assessment was incorrect. The appellant contends that her proper assessment should be between 30% and 35% and her lump sum entitlement should be re-calculated.
The respondent indicates that the appellant’s complaint relates to the assessment of her whole person impairment, which would be a matter for a Medical Appeal Panel and not an appeal from a decision of an Arbitrator.

THE RELIEF SOUGHT

The appellant seeks to have the Arbitrator’s findings determined in her favour. The respondent seeks to have the Arbitrator’s Certificate of Determination confirmed.

CONSIDERATION OF THE MERITS OF THE APPEAL

There are a number of matters raised by the appellant that do not fall within the ambit of allegation of error on the part of the Arbitrator, which is the only basis upon which an appeal can lie from an arbitrator’s decision to a Presidential member.
Firstly, the appellant complains that she has not received any superannuation contribution since she became disabled and says that she has become fearful for her future, with no provision to support her in her old age. The workers compensation legislation makes no provision for payment of superannuation contributions on behalf of an injured worker. The appellant has no entitlement to make such a claim and cannot point to error on the part of the Arbitrator in this regard.

The appellant refers to the fact that she has been unable to obtain legal representation for the appeal. The fact that the appellant is not represented has been noted.
The appellant also refers to having incurred expenses and financial loss in relation to travel and for treatment and assistance with her care. The appellant has not made a claim for assistance with her care. A Presidential member is not a primary decision maker. Thus, the cost of the appellant’s care is not a matter within the ambit of an appeal. The Arbitrator made an award in favour of the appellant in respect of her treatment expenses, which would ordinarily include the reasonable cost of travel to and from her treatment providers. Absent any evidence of a claim for those expenses being made and denied, the Commission does not have jurisdiction to determine such claims and the Arbitrator cannot have erred by failing to consider them.

Ground One: error in rejecting the appellant’s allegation that she injured her back and left shoulder in the fall

The appellant asserts that the evidence establishes that she injured her back and left shoulder in the fall on 30 January 2015. The appellant relies largely on the medical opinions that are reliant upon histories she provided to them. She further relies on her report of back pain in the clinical note in March 2015 and the radiological investigation of her lumbar spine in June 2015.
The Arbitrator thoroughly reviewed all of the medical evidence recorded by the treating doctors in 2015 and the evidence of Dr Benedict, as recorded in the report dated 3 May 2016. The Arbitrator’s observations are summarised at [128]–[138] above. As observed by the Arbitrator, there was no evidence that the appellant injured her left shoulder in the fall, despite Dr Harrison having assessed a 1% whole person impairment of the left upper limb. The Arbitrator identified the inconsistencies between the appellant’s evidence and the objective material before him. He assessed the reliability of the appellant’s evidence about the asserted injuries to the back and left shoulder and found that her evidence was inconsistent with the contemporaneous records and thus unreliable.
The Arbitrator’s finding in relation to the acceptance or otherwise of the evidence is a finding of fact. In Devries v Australian National Railways Commission,[74] Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based upon the creditability of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the creditability of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[75]
[74] [1993] HCA 78; 177 CLR 472 (Devries).
[75] Devries, 479.
The Arbitrator gave logical and cogent reasons, summarised by me at [128]–[138] above, as to why he preferred the evidence before him to that of the appellant. Even if, after a consideration of the evidence, I would have reached a different conclusion to that of the Arbitrator (which I would not), that is insufficient to overturn the decision. The Arbitrator’s conclusions were open to him and consistent with the evidence accepted by him and were not “glaringly improbable.” There is no basis upon which to overturn his finding.
It follows that this ground of appeal has no merit.

Ground Two: error in finding that the appellant was no longer incapacitated for work

The appellant refers to having multiple injuries which impacted her work capacity. The appellant points to the various medical opinions that support her claim that the multiple injuries she suffered have caused her to have no capacity for work.
It must be noted that the Arbitrator found against the appellant in respect of the alleged injuries other than to the neck and right shoulder and a secondary psychological condition. It was, therefore, incumbent upon the Arbitrator to assess the appellant’s capacity resulting from the proven injuries. That is, the injuries to the neck and the right shoulder, and the secondary psychological condition. The Arbitrator did so on the basis that, after viewing the DVD surveillance material, he was not satisfied that the complaints made to the various medical practitioners and the appellant’s own evidence about her restrictions were reliable. It is on that basis that he rejected the medical evidence in support of the appellant’s claim for weekly payments beyond 24 May 2017. He took into account the appellant’s activities recorded in the surveillance material and concluded that the appellant was not incapacitated as alleged.
This finding was a finding of fact. Questions of the acceptance of evidence and the weight it is to be given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[76]
[76] Shellharbour City Council v Rigby [2006] NSWCA 308 (Rigby).
In Raulston v Toll Pty Ltd,[77] Roche DP discussed what is required to disturb a finding of fact made by an arbitrator. He said:
“Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”[78]
[77] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[78] Raulston, [19] (sub-paragraph lettering omitted).
The Arbitrator did not overlook material facts or give undue or too little weight to the evidence before him. His reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. The appellant’s allegation of error has no merit.

Ground Three: error by failing to correctly calculate her loss of income

The appellant asserts that her entitlements to weekly compensation have been miscalculated and her arrears of compensation total $742,171.82. Part of that submission is dependent upon her allegation of error in relation to the Arbitrator’s determination that he was not satisfied that the appellant had any incapacity for work beyond 24 May 2017, which was reconsidered and confirmed by the Arbitrator in his decision dated 8 September 2020. The result of the reconsideration is dealt with in Negi No 2. The allegation of error also relies upon the appellant’s assertion that her back symptoms are compensable. As discussed under Ground One of this appeal, the Arbitrator’s finding that the appellant’s back complaints were not referrable to the injury on 30 January 2015 cannot be disturbed. It remains to consider whether the Arbitrator erred in the decision appealed against in respect of the calculation of the arrears of compensation awarded by him for the period up to 24 May 2017.
The appellant’s entitlements to weekly compensation are to be assessed in accordance with the requirements of ss 36–39 of the 1987 Act and according to the formulae set out in those sections. The calculation is made in accordance with the definition of pre-injury average weekly earnings. The evidence of pay slips presented by the appellant in the proceedings indicates that the appellant was paid by the respondent (a company in which she was the sole director) $5,590 per calendar month ($1,290 per week) for the work she performed at CBA.[79] This was the figure submitted by the appellant and which the Arbitrator accepted, based on the appellant’s evidence. The assertion by the appellant that she earned $666 per day is not borne out in the evidence. The documents attached to the ARD indicate that the figure of $666 per day now relied upon by the appellant was the amount paid by CBA to the respondent company in accordance with the contract between CBA and the respondent.[80] That figure was not the weekly income paid to the appellant by the respondent.
[79] ARD, pp 81–105.
[80] Appellant’s submissions dated 1 September 2020, pp 13–16.
It follows that there is no merit to this ground of appeal.

Ground Four: error by failing to take into account her psychological injury/condition when assessing her capacity to earn

The appellant relies upon the evidence of Dr Wotton as to the effect of her psychological condition on her capacity to work. In his decision, the Arbitrator determined that the appellant had no capacity for work up until 24 May 2017. The Arbitrator’s conclusion that the appellant had no capacity for work up to 24 May 2017 entitled the appellant to the maximum amount available in accordance with the legislation. Implicit in that finding is that the Arbitrator included the appellant’s psychological condition in his assessment. The Arbitrator concluded that, thereafter, the appellant’s physical injuries had resolved and thus the appellant’s psychological condition could no longer be attributable to her physical injuries. The Arbitrator noted that there were other causes for her psychological condition, which were not consequential upon the physical injuries. There was no error in that approach.
Of course, the Arbitrator reconsidered his finding that the appellant had recovered from the effects of the injury in his decision dated 8 September 2020. How the Arbitrator dealt with the psychological component of the appellant’s claim from 24 May 2017 in the reconsideration application is dealt with in that appeal.
It follows that in respect of the decision appealed against in this appeal, there is no merit to this ground of appeal.

Ground Five: error in accepting the surveillance evidence

The appellant points to the Arbitrator’s observation that she “drove her own vehicle on return home”. The appellant asserts that this conclusion was wrong, and she was driven home in the taxi provided. The appellant has clearly misunderstood the Arbitrator’s wording. The observation made by the Arbitrator was not that the appellant drove herself home from the medical appointment, but that on returning home from that journey, she then proceeded to drive her own car. That observation was consistent with the video surveillance evidence.
The appellant also attempts to provide an explanation for her conduct. The explanation was not before the Arbitrator and thus not a matter for the Arbitrator to consider. The evidentiary value of an explanation provided almost four years after the event could be considered questionable but, in any event, having not had that evidence before him, the Arbitrator cannot have erred by failing to take it into account.
The appellant also alleges that she had not been provided with the evidence and had not had the opportunity to address it. The surveillance reports were annexed to the respondent’s reply, and the DVD’s were served under cover of an AALD dated 28 November 2017. They were admitted into evidence, without objection, at the arbitration. Both parties at the arbitration indicated that they did not seek to call oral evidence and no objection was taken to the material being admitted.
The appellant had ample opportunity to address the surveillance material. Her assertion that she had not been provided with that evidence is inconsistent with her supplementary statement dated 27 November 2017, in which she acknowledged the evidence, conceded that she had been provided with the DVDs (but could not open them) and provided a brief explanation which was limited to the reason why, from time to time, she wore the neck brace.
The Arbitrator not only relied upon his own observations of the DVD evidence but took into account Dr Wallace’s orthopaedic opinion that the appellant’s observed activities were completely at odds with her presentation during his examination of the appellant. He also took into account Dr Wotton’s observation that the appellant may not have been suffering the degree of pain she alleged during the consultation with him.
The appellant’s submissions in respect of this ground are largely based on assertions that are not founded in the evidence and she has not provided any cogent argument as to why the Arbitrator erred in accepting the surveillance evidence.

Ground Six: error by accepting the opinion of Dr Wallace

The appellant is critical of the reputation of Dr Wallace. A bundle of unidentified comments about the conduct of Dr Raymond Wallace in medical examinations of injured workers was annexed to the appeal from the Arbitrator’s decision dated 8 September 2020 but those comments were not included in the bundle of late documents sought to be tendered in this appeal.
I have discussed the lack of probative value of the additional evidence relevant to this allegation which was sought to be relied on in that appeal and provided reasons as to why the material was not admitted in that appeal. Even if the documents were sought to be tendered in this appeal, on the same basis, they would not be admitted.
There is no other evidence to support the appellant’s assertion about Dr Wallace’s conduct. The appellant’s criticisms are therefore assertions which are not supported by any probative evidence.
In any event, as the respondent submits, the Arbitrator treated the opinion of Dr Wallace with caution and gave appropriate consideration as to whether Dr Wallace’s opinion could be accepted. The Arbitrator gave properly based reasons for accepting his opinion, which included the inconsistencies in the appellant’s presentation at examination, some of which were also noted by A/Prof Molloy, Dr Bhisham Singh and Dr Harrison. Additionally, Dr Wallace was the only medical expert to offer a substantive opinion as to the inconsistencies between the appellant’s presentation at examination and the observations recorded in the surveillance material, which both Dr Wallace and the Arbitrator had, themselves, viewed.
The Arbitrator’s finding in relation to the probative value of Dr Wallace’s evidence was a finding of fact. As discussed above, it is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[81] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[82] The Arbitrator’s finding was rational, based on a proper evaluation of the evidence and open to him for the reasons enunciated by him. The appellant has pointed to no proper reason to disturb that finding and there is no merit to this ground of appeal.

Ground Seven: error by failing to provide procedural fairness and independence in the Arbitrator’s decision-making process

[81] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Rigby.

[82] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.

I have reviewed the transcripts of proceedings and both the Arbitrator’s decision dated 2 February 2018 and the decision dated 8 September 2020. The appellant’s criticism of the Arbitrator’s attitude is not borne out in any of that material. The appellant’s criticisms, made only in the appeal application and not raised at any earlier stage, are not supported by any evidence from the appellant’s experienced former legal representatives. Nor is it apparent from the tenor of the Arbitrator’s decisions. To the contrary, the Arbitrator approached the appellant’s case in a balanced and reasoned manner and gave the appellant every opportunity to present her case.
There is, therefore, no basis for the appellant’s complaints and this ground of appeal has no merit.

Ground Eight: error in incorrectly assessing the appellant’s lump sum entitlements

The appellant asserts error on the basis that her whole person impairment should have included an assessment of her “multiple spinal injuries” and in particular her lumbar spine. The Arbitrator found in favour of the appellant in respect of her cervical spine and right shoulder but found against her in respect of the allegation of injury to the back and left shoulder. It followed that any claim for injury to the right leg, which was alleged to be radicular type pain emanating from the back, also fell away.
The Arbitrator’s finding in relation to the alleged injury to the back and left shoulder is not disturbed on appeal, so that there was no error in the referral of the cervical spine and right shoulder to the medical assessor without requesting an assessment of the lumbar spine. In circumstances where the medical assessor was tasked with assessing only those two body parts, there was no error in failing to assess the lumbar spine. In any event, a challenge to the correctness of an assessment by a medical assessor is not a matter for appeal from a decision of an arbitrator to a Presidential member. The allegation of any error on the part of the Arbitrator is not made out and this ground of appeal lacks merit.

CONCLUSION

I have discussed the extensive delay on the part of the appellant in progressing this appeal application. The appellant’s explanation for the delay, which included extensive periods where the appellant was silent about what actions were being undertaken by her or her legal representatives, is not adequate. The appellant was well aware of her requirement to appeal within the 28 day period, appealed the Arbitrator’s later decision within the prescribed time, and did not appeal the decision dated 2 February 2018 until almost three years after the decision and more than two months after the she lodged her first appeal. It cannot be said that the appellant acted with diligence in pursuing her rights.
In Salido v Nominal Defendant Gleeson CJ (as his Honour then was) said:
“The diligence, or lack of diligence, shown by a plaintiff or a plaintiff’s representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.”[83]
[83] (1993) 32 NSWLR 524, 532G.
Rule 16.2(5) of the 2011 Rules allowed for the granting of leave to extend the time to appeal in exceptional circumstances and where the failure to grant leave would result in a substantial injustice to the appellant. The circumstances described by the appellant in her submissions are not, in my view, exceptional and, given the appeal has no merit, a refusal to extend the time to appeal would not result in a substantial injustice to the appellant.
I therefore refuse the appellant leave to bring this appeal.

DECISION

The application to extend time pursuant to r 16.2(5) of the former Workers Compensation Commission Rules 2011 is refused.

Elizabeth Wood
DEPUTY PRESIDENT

27 April 2021