Philip Leong Stores Pty Ltd v Gafa - [2024] NSWPICPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Philip Leong Stores Pty Ltd v Gafa [2024] NSWPICPD 53
APPELLANT:	Philip Leong Stores Pty Ltd
RESPONDENT:	Agamaitu Gafa
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4447/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	29 August 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 18 September 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5A) of the Workplace Injury Management and Workers Compensation Act 1998 – an appeal does not stay an award for payment of weekly compensation – whether the Member erred by failing to address the submissions made – Whisprun Pty Ltd v Dixon [2003] HCA 48 applied – whether the Member erred by failing to provide reasons – Musija v Kresa [2010] VSCA 163 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
BBW Lawyers
Respondent:
Mr C Tanner, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Gafa v Philip Leong Stores Pty Ltd (W4447/22, 18 September 2023)
MEMBER:	Mr R Perrignon
DATE OF MEMBER’S DECISION:	18 September 2023

INTRODUCTION AND BACKGROUND

Mr Agamaitu Gafa (the respondent) was employed by Philip Leong Stores Pty Limited (the appellant) as a storeman in a Woolworths Distribution Centre, commencing in 2014.
On 4 December 2019, he injured his third and fourth fingers of his left hand when closing a truck roller door. He underwent surgery on the day of the injury. Liability was accepted by the appellant. The respondent was off work until 18 February 2020, then returned to work working reduced hours and with restrictions in place.
Following his return to work, the respondent was called to a number of meetings conducted by the appellant’s management about the occurrence of his injury, warnings were issued to him by the appellant, followed by performance and safety warnings. Ultimately, on 25 February 2020, the appellant issued a First and Final Warning letter directed to the respondent.
The respondent attended his general practitioner on that day, complaining of stress and anxiety. His general practitioner certified that he was unfit for work because of work pressures and referred him for treatment by a psychologist and a psychiatrist. The respondent claimed workers compensation in respect of the psychological condition.
Liability for the claim was denied by the appellant on the basis that the respondent had not suffered a compensable psychological condition, the respondent’s employment was not the main contributing factor to any psychological condition, or, if the respondent did suffer from a psychological condition, it was not compensable because it was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant with respect to performance appraisal and/or discipline, pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming weekly payments of compensation, treatment expenses and 24% whole person impairment in respect of the psychological injury. The dispute came before a Member of the Commission (Member Perrignon), who directed the parties to lodge written submissions. He then issued a Certificate of Determination dated 5 December 2022 supported by recorded oral reasons for the decision, concluding that he was not satisfied that the actions of the appellant were reasonable. He ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act and referred the respondent’s claim for lump sum compensation in respect of his whole person impairment to the President for referral to a Medical Assessor for assessment. The Member reserved the claim for weekly payments.
The respondent attended for examination by the Medical Assessor (Dr Clayton Smith, psychiatrist) on 7 February 2023, who issued a Medical Assessment Certificate on 22 February 2023, determining that the respondent suffered from 5% whole person impairment as a result of the injury. The respondent appealed the Medical Assessment Certificate. On 16 June 2023, a Medical Appeal Panel confirmed the Medical Assessment Certificate.
The dispute in relation to the weekly payments claim was listed for arbitration on 30 August 2023, when the parties made oral submissions as to the respondent’s capacity for work for the claimed period, which was from 31 August 2020 to 27 February 2023. The Member delivered oral reasons for his determination on 15 September 2023 and issued a Certificate of Determination on 18 September 2023. He determined that the respondent had no work capacity from 31 August 2020 to 6 February 2023 and had capacity to work 20 hours per week in the period 7 February 2023 to 27 February 2023.
The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties indicate that the appeal can proceed on the basis of the documents lodged and their submissions made. 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 requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

This appeal is limited to an appeal from the Member’s decision dated 18 September 2023 in respect of the respondent’s capacity for work. The following summary of the evidence is therefore limited to the evidence relevant to that issue and to the submissions made by the parties.

The appellant’s factual investigation

The appellant relied upon a factual desktop investigation report conducted by A.B Investigations dated 23 September 2022.[1] The investigator conducted various searches and found a Facebook account in the respondent’s name. The investigator indicated that the most recent posts from 8 September 2022 showed a picture taken in San Fransisco of the respondent giving a “thumbs up” with the Golden Gate Bridge behind him, which had been taken earlier in that year. The investigator also found videos from May and June 2022 of the respondent in the United States, which the investigator thought may have been a trip taken by the respondent for the purpose of attending a family wedding. The videos were said to include the respondent’s attendance at social events and the respondent travelling by car as a passenger. The investigator observed that the respondent appeared to be in good spirits and showed no signs of any physical or psychological restrictions.
[1] Appellant’s Application to Admit Late Documents (AALD) dated 12 October 2022, pp 115–128.
The investigator referred to activities filmed of the respondent:
(a)    at a casual gathering in the backyard of a residential dwelling on 20 June 2022 where he appeared to be enjoying himself, including singing, playing guitar and drinking beer;
(b)    on his way to the airport with family members and checking in for a flight on 23 June 2022, depicting the respondent walking casually and interacting with his family in a happy manner;
(c)    travelling to the Golden Gate Bridge on 28 June 2022, where he was seen smoking, making “silly hand gestures”, posing for the camera, doing push-ups and dancing on a retaining wall;
(d)    performing manual labouring duties filmed on 4 June 2022, wearing a high visibility safety vest and using a shovel to dig up a tree stump;
(e)    appearing to have completed chopping down branches of a tree on 30 May 2022, and
(f)    attending a wedding and reception, where the respondent appeared in good spirits.

The respondent’s statements

The respondent provided a statement dated 19 November 2021.[2] He confirmed that he continued to consult a psychologist (Mr Carl Nielsen) and psychiatrist (Dr David Kumagaya) for treatment of his psychological condition and continued to take medication daily. He described himself as experiencing depressed mood, being constantly stressed, short tempered and highly irritable, with fleeting thoughts of suicide, lack of concentration, difficulty sleeping for more than four hours, recurring nightmares, loss of appetite and increased anxiety. He described himself as acting in an aggressive manner, such as slapping his children when he was angry, which was out of character for him. He added that he was becoming very forgetful.
[2] Application to Resolve a Dispute (ARD), pp 1–3.
The respondent stated that he had previously enjoyed family outings to steak houses, attending church, visiting friends, and performing jobs around the house, but said he no longer did those activities, and said he no longer left the house. He added that, because he lacked focus and concentration, he avoided driving and he also had only limited contact with his family and friends.
The respondent made a further statement on 17 October 2022 in response to the investigation report arranged by the appellant.[3] He confirmed that the report only concerned events that occurred when he was overseas, when he was attending his niece’s wedding. He commented that the recorded events were “moments” in his life when he appeared well but did not record days when he was struggling. He described the overseas trip as a means to escape reality and a “desperate attempt” to take control of his life and regain happiness. He said that he was reluctant to go but his family had encouraged and convinced him to do so.
[3] Respondent’s AALD dated 19 October 2022, pp 2–5.
The respondent referred to the day that he, his brother and his brother’s family had visited the Golden Gate Bridge and said that it was his brother’s attempt to try to cheer the respondent up. He said that he tried his hardest to be happy, even for that one day. He referred also to the family gathering, which he said was at his sister’s house in the USA. He said such a gathering was an opportunity for the family to take his mind off his struggles and give him love and support, which was part of the family’s culture. He added that the report did not include the times when he needed to take a break from the family because he was feeling overwhelmed.
The respondent further referred to the details in the report of him performing manual work. He explained that he was assisting his brother at work and that he did so at his brother’s suggestion that he should get out of the house and not sit at home alone.
The respondent asserted that it was difficult to understand how the information in the report could lead to a conclusion that he was not struggling, when that conclusion would be contrary to the opinions of his treating doctors who he continued to attend regularly. The respondent said that, over time, he made attempts to get out of the house, but he continued to take medication daily in order to deal with his psychological symptoms. He said that he tried to be cheerful around the family, but struggles at night to switch his mind off troubling thoughts about his work experiences.
The respondent added that he only posted videos or pictures of himself on social media where he appeared happy because otherwise, his family would worry about him. He maintained that social media can be very misleading and does not provide a complete picture.

The medical evidence

The Certificates of Capacity

A number of Certificates of Capacity were in evidence. The first certificate in evidence was issued by Dr Eric Lim, general practitioner, on 31 August 2020. He diagnosed the respondent as suffering from an adjustment disorder with mixed anxiety and depressed mood and certified the respondent as having no capacity for work up to 14 September 2020.[4]
[4] ARD, pp 141–143.
Dr Ben Dickson, general practitioner, issued Certificates of Capacity covering the period from 16 September 2020 to 4 November 2020. He also made a diagnosis of an adjustment disorder with mixed anxiety and depressed mood and certified that the respondent had no capacity for work.[5] From 14 October 2020 to 25 January 2022, Dr Dickson continued to certify the respondent as having no capacity for work but provided a new diagnosis of major depressive disorder with anxious distress.[6] The Certificate of Capacity dated 25 January 2022 certified the respondent as having no capacity for work until 19 April 2022.[7]
[5] ARD, pp 132–140.
[6] ARD, pp 99–132 and Respondent’s AALD dated 19 October 2022, pp 27–35.
[7] Respondent’s AALD dated 19 October 2022, pp 27–29.

The clinical notes of the Workers Doctors medical practice

The clinical notes of the Workers Doctors medical practice for the period from 9 December 2019 to 27 May 2022 were in evidence.[8] The notes confirm that the respondent attended various treatment providers during that period. The respondent attended the clinic from 9 December 2019 for treatment of his physical injury to the fingers of his left hand. The notes record that he first complained of psychological symptoms as a result of the appellant’s actions on 25 February 2020. The notes further record that the respondent continued to attend that practice for treatment of his physical injury and for his psychological injury throughout the period up to 27 May 2022.
[8] Reply to Application to Resolve a Dispute, pp 7–78.

Reports of Dr Eric Lim, general practitioner

Dr Lim provided a report dated 31 August 2020 at the request of the appellant.[9] He advised that the respondent consulted him on 31 August 2020 complaining of psychological symptoms consistent with a diagnosis of an adjustment disorder with mixed anxiety and depressed mood as a result of workplace issues. Dr Lim considered that the respondent had no capacity for work and confirmed that the respondent continued to suffer from depressive and anxious cognition requiring ongoing psychiatric review.
[9] ARD, pp 97–98.
Dr Lim again reported to the respondent’s legal representatives on 26 July 2022. He repeated the history of workplace stressors, confirmed the diagnosis of a major depressive disorder with anxious distress and certified the respondent as having no capacity for the period from 25 January 2022 to 19 April 2022.[10]
[10] Appellant’s AALD dated 12 October 2022, pp 79–80.

Reports of Mr Carl Nielsen, psychologist

Mr Nielsen reported to Dr Dickson on 14 September 2021.[11] Mr Nielsen took a history of the onset of the respondent’s psychological condition in February 2020. He noted the respondent’s complaints of anxiety, depression, sleep disturbance, rumination, and hypervigilance, as well as worrying about losing his job and being called a liar by the appellant. He noted that the respondent claimed that he enjoyed his job and wanted to keep on working for the appellant.
[11] ARD, pp 29–30.
Mr Nielsen commented that the respondent had lost trust with his employer and his ability to perform the work and noted that the respondent was experiencing sleep disturbance from pain secondary to the injury to his hand. Mr Nielsen confirmed that the respondent had suffered a psychological injury as a result of his employment and expressed the view that the respondent’s employment was a substantial contributing factor to the injury.

Dr David Kumagaya, psychiatrist

The respondent was referred to Dr Kumagaya by Dr Lim. Dr Kumagaya reported to Dr Lim regularly throughout 2020, 2021 and 2022 in respect of the ongoing treatment provided to the respondent. Copies of those reports directed to Dr Lim were annexed to the ARD and were provided to the respondent’s legal representatives. The reports recorded the history of injury, the respondent’s ongoing symptoms and the treatment provided between 26 March 2020 and 9 October 2021.[12] The reports were consistent with the content of the following two reports provided to the respondent’s legal representatives by Dr Kumagaya.
[12] ARD, pp 60–96.
Dr Kumagaya provided a report directed to the respondent’s legal representatives dated 10 March 2021.[13] He confirmed that the respondent attended for treatment on 10 occasions between 26 March 2020 and 4 March 2021. He recorded a consistent history of the respondent’s physical injury involving the fingers of his left hand and the subsequent difficulties involving the appellant’s conduct when the respondent returned to work on restricted duties. Dr Kumagaya said that, as a result of those difficulties, the respondent developed mixed anxiety and depression. He described the respondent’s symptoms of low mood, anxiety, decreased energy, decreased enjoyment in pleasurable activities, insomnia, irritability and disturbed appetite. He confirmed that the respondent had no prior history of psychological issues.
[13] ARD, pp 80–84.
Dr Kumagaya diagnosed the respondent as suffering from an adjustment disorder with anxiety and depression. He advised that the respondent’s symptoms continued and on 23 July 2020, the respondent reported mild improvement as a result of the psychological therapy provided and from being prescribed melatonin to assist with his sleep patterns. Dr Kumagaya indicated that, at the consultation on 26 August 2020, the respondent complained of:
“ongoing depressive and anxious cognitions, of particular concern were low mood, decreased interest in activities, decreased energy levels, concentration difficulties, sleep disturbance, anxiety, restlessness, and a feeling of being keyed up.”[14]
[14] Report dated 10 March 2021, p 3, ARD, p 82.
Dr Kumagaya reported that, while the respondent was tolerating the melatonin he did not find that the medication was effective in ameliorating his anxiety and depression, so Dr Kumagaya introduced additional medication in the form of an antidepressant. He also provided a revised diagnosis of major depressive disorder with anxious distress, the symptoms of which continued over the following few months. In a consultation on 2 December 2020, the medication was increased, and on 1 January 2021 some improvement was noted. On 4 March 2021, Dr Kumagaya reported that the respondent’s mood had lowered, and the respondent complained of “decreased interest and engagement in activities, sleep disturbance, concentration problems, anxiety, and restlessness.” Dr Kumagaya opined that the respondent had no capacity for work, his incapacity for work was a result of the injuries he sustained, and the respondent’s employment was a substantial contributing factor to his injuries. He concluded that the respondent’s prognosis for his major depressive disorder with anxious distress was guarded in that the respondent continued to experience significant symptoms which impacted his social functioning and ability to work.
Dr Kumagaya provided a further medical report dated 9 October 2021 at the request of the respondent’s legal representatives.[15] He advised that the respondent had continued to consult him on a regular basis, with the most recent consultation being on 16 September 2021. He confirmed the history recorded in his earlier report, the continuation of the respondent’s symptoms and the diagnosis of a major depressive disorder with anxious distress, which he said resulted from the appellant’s actions. He further confirmed that the respondent had no capacity for work due to his continuing psychological symptoms and considered that the respondent’s prognosis was guarded because of the severity and chronicity of the condition.
[15] ARD, pp 89–96.

On 27 May 2022, Dr Kumagaya reported to Dr Lim following a review of the respondent. He noted that the respondent’s mood was improving but confirmed the diagnosis of major depressive disorder with anxious distress.

Dr Michael Hong, psychiatrist

Dr Hong was asked by the respondent’s legal representatives to examine the respondent and provide an opinion and an assessment of the respondent’s whole person impairment. He reported to the respondent’s legal representatives on 12 June 2020.[16]
[16] ARD, pp 31–43.
Dr Hong took a history of the onset of the respondent’s psychological symptoms and recorded the respondent’s symptoms. Dr Hong noted that the respondent had never taken antidepressant medication and had not had a psychiatric admission. He further noted that the respondent had been consulting Dr Nielsen for almost four months.
Dr Hong assessed the respondent’s current symptoms which were:
(a)    cognitive difficulties;
(b)    fleeting suicidal thoughts;
(c)    depressed and variable mood;
(d)    inability to sleep more than four hours;
(e)    nightmares;
(f)    irritability, and
(g)    loss of appetite.
Dr Hong reported that the respondent did not shower or eat regularly, was not motivated to play or watch football, which he used to enjoy, was not inclined to go out, but would occasionally attend church and attended to some household duties. Dr Hong noted that the respondent liked to go with his family to steak houses. He added that the respondent was anxious and worried about returning to work because of the difficulties with the appellant’s management.
Dr Hong undertook a file review of extensive material provided to him by the respondent’s legal representatives and diagnosed the respondent as suffering from an adjustment disorder, contributed to by the crush injury to his left hand and the appellant’s management of the respondent’s return to work. He considered that because of the limited treatment provided, the respondent had not yet achieved maximum medical improvement and had no capacity for work because of his psychological condition. He advised that the respondent should undergo treatment from a psychologist and a psychiatrist for the next six months and have a three-month trial of psychotropic medication, which, if successful, should continue for 12 to 18 months.
Dr Hong declined to make an assessment of the respondent’s whole person impairment because he was of the view that the respondent had not achieved maximum medical improvement.
Dr Hong re-examined the respondent and provided a further report dated 23 April 2021.[17] He confirmed the history provided by him in his earlier report. He noted that the respondent had been consulting Dr Kumagaya since early 2020 and that the respondent was taking antidepressants and psychotropic medication. He recorded that the respondent was affected by a pervasively depressed mood, experienced cognitive difficulties, ongoing suicidal thoughts, nightmares, irritability, loss of appetite and said his wife had to remind him to shower. Dr Hong said that the respondent did not see friends anymore and did not visit with anybody other than his cousin, who came to visit and cook for him. He reported that the respondent did not feel motivated to attend to tasks around the house such as changing the oil in the car, and he had become forgetful.
[17] ARD, pp 45–55.
Dr Hong advised that the respondent was more impaired than he had been at the previous assessment. He reviewed the report of Dr Lim dated 31 August 2020 and the numerous reports provided by Dr Kumagaya. He noted that he had previously diagnosed the respondent as suffering from an adjustment disorder. He expressed the view that the respondent experienced the same symptoms as previously recorded, but the symptoms had become more severe and his impairment was greater, despite the fact that the respondent was taking antidepressant medication. He said that he agreed that the adjustment disorder had evolved into a major depressive disorder. He considered that the respondent had received sufficient treatment, and although continuing treatment was required, the respondent’s condition had stabilised.
Dr Hong confirmed that the respondent continued to have no capacity for work because of his poor functioning and self-care. He assessed the respondent’s whole person impairment as 24%.
Dr Hong reported to the respondent’s solicitors on 16 October 2021 following a request from the respondent’s legal representatives.[18] The report added nothing further in terms of the issue in dispute on this appeal.
[18] ARD, pp 56–59.

Report of Dr Clayton Smith, psychiatrist and Medical Assessor

The respondent was assessed by the Medical Assessor for the purpose of assessing his claim for whole person impairment. The Medical Assessor issued a Medical Assessment Certificate dated 22 February 2022, in which he assessed the respondent’s whole person impairment resulting from the psychological injury to be 5%. The assessment was confirmed by a Medical Appeal Panel. In the course of the assessment, the Medical Assessor considered the respondent’s capacity for work and concluded that the respondent was fit for work for not more than 20 hours per week as at the date of assessment, as a result of an adjustment disorder with mixed anxiety and depressed mood.

THE MEMBER’S REASONS

The Member delivered his reasons orally on 15 September 2023. The reasons were recorded and transcribed. He provided a background to the proceedings and noted that the parties had agreed that the respondent’s pre-injury average weekly earnings figure was $1,550 and that when the respondent was examined by the Medical Assessor, he was capable of working no more than 20 hours per week, in accordance with the Medical Assessor’s assessment.
The Member noted that the only issue remaining for him to determine was whether the respondent had capacity to work during the period from 31 August 2020 to 27 February 2023. The Member referred to the respondent’s reliance on:
(a) the Certificates of Capacity issued by Dr Lim and Dr Dickson that certified that the respondent had no capacity for work as a result of his psychological injury from 31 August 2020 to 19 April 2022, and
(b) the opinion expressed by Dr Hong that, at assessment on 12 June 2020 and 23 April 2021, the respondent was not fit for any work as a result of his psychological injury.
The Member observed that the appellant did not rely on any medical opinions obtained by it. The Member referred to the appellant’s submission that the Member should not accept the respondent’s evidence because he was not a witness of truth and the history provided by him to the doctors was not accurate. The Member noted that the appellant relied upon the summary from A.B Investigations as to the activities undertaken by the respondent in the USA during May and June 2022. The Member observed that the appellant submitted that that evidence showed that the respondent had some capacity and that any residual impairment of his capacity to work related to interpersonal issues with the respondent’s son, and not the employment injury. The Member further observed that the appellant relied upon a passage from the report of Dr Smith, where the respondent described his time in the USA as happy and relaxed, but when he returned Australia, he felt pressured and angry when his children did not listen to him, particularly his 20-year-old son, who was his main stressor.
The Member concluded that, on the basis of the parties’ agreement, he accepted the opinion of the Medical Assessor that the respondent was capable of working no more than 20 hours per week from 7 February 2023. The Member said that he would accept that evidence in any event, because the opinion fell within the Medical Assessor’s field of specialty, there was no evidence to the contrary at that date or thereafter, and it was the most up-to-date medical evidence available.
The Member further concluded that, subject to the issue raised by the appellant as to the respondent’s credit, he would accept the uncontradicted evidence from the Certificates of Capacity issued between 31 August 2020 and 19 April 2020 that the respondent had no capacity for work as a result of his psychological injury. He observed that the certificates were also consistent with Dr Hong’s opinion. The Member accepted (subject to the issue of credit) the opinion of Dr Hong that as at 12 June 2020 and 23 April 2021, the respondent had no capacity for work as a result of his psychological injury. The Member reasoned that Dr Hong’s evidence was not contradicted by any other evidence, was within Dr Hong’s area of expertise and was consistent with the Certificates of Capacity.
The Member concluded, again subject to the issue of the respondent’s credit, that he was satisfied that the respondent had no capacity for work from 31 August 2020 to 19 April 2022. The Member then proceeded to consider the period from 20 April 2022 to 27 February 2023. The Member pointed to Dr Dickson’s Certificate of Capacity dated 25 January 2022, which certified the respondent as having no capacity for work at that time because he was suffering from a major depressive disorder with anxious distress. He further pointed to the assessment of capacity made by the Medical Assessor that from 7 February 2023, the respondent had a capacity for work of no more than 20 hours per week because of his adjustment disorder with mixed anxiety and depressed mood. That is, the respondent was capable of working 20 hours per week at most.
The Member observed that there was no medical evidence in respect of the respondent’s work capacity covering the period between 19 April 2022 and 7 February 2023. He remarked that the change in the diagnosis to an adjustment disorder suggested that the respondent’s condition had improved by the time he was assessed by the Medical Assessor, which would be consistent with the Medical Assessor’s opinion that the respondent had some capacity for work by the time of the assessment. The Member reasoned, however, that on the other hand, there was no evidence that the respondent’s capacity for work had increased prior to the assessment. The Member observed that a finding that the capacity for work had increased would be mere speculation. The Member concluded that, in the absence of evidence of increased capacity, he could not be satisfied that the respondent had any capacity for work prior to 7 February 2023, which was the date the Medical Assessor made the assessment. The Member found that, subject to the issue of the respondent’s credit, he was satisfied that the respondent had no capacity for work from 31 August 2020 to 7 February 2023, and since that time the respondent was capable of working 20 hours per week.
The Member turned to the issue raised by the appellant that the posts on Facebook of the respondent’s activities in the USA indicated that the respondent’s credit was in issue. The Member observed that the actual photographs and videos were not in evidence, however, a summary of that evidence provided in the investigation report was before the Commission. The Member also noted that the appellant had summarised that evidence in its written submissions. The Member indicated that, in the absence of any evidence to the contrary, he accepted that the appellant’s summary was accurate.
The Member noted that it was not disputed that the respondent travelled to the USA at the time the photographs and videos were taken. He further noted that the respondent had attempted to adduce evidence from Dr Kumagaya to address that evidence, but the respondent’s application was refused, and the report was not admitted.
The Member observed that the appellant submitted that the opinion of Dr Hong should not be accepted because there was no evidence that the respondent had disclosed his trip to the USA to Dr Hong, and the respondent’s failure to advise Dr Hong affected the respondent’s credit, so that the history recorded by Dr Hong as to the psychological impact on the respondent’s behaviour was not reliable. The Member reasoned that Dr Hong had last assessed the respondent in April 2021 and the respondent’s trip to the USA was not until May 2022, so that he was not persuaded that the respondent failed to disclose his activities or any other relevant facts to Dr Hong that may have affected the assessment of his capacity. He said that Dr Hong’s assessment was made a number of months before the overseas trip so that the fact of the overseas trip taken many months later could not possibly have affected Dr Hong’s assessment. The Member pointed out that, although Dr Hong provided a further report dated 16 October 2021, Dr Hong did not indicate that he had re-examined the respondent, but in any event, Dr Hong’s evidence was not affected for the same reason given in respect of the earlier report.
The Member referred to the appellant’s submission that the respondent’s failure to disclose the overseas trip to Dr Kumagaya indicated that the respondent was not a truthful witness, so that no weight should be afforded to the opinions of Dr Kumagaya. The Member considered that there was no need to take into account Dr Kumagaya’s opinions because there was other evidence about the respondent’s capacity that covered the relevant period, as the Member had already considered.
The Member pointed out that, even if he did give regard to the opinion of Dr Kumagaya that the respondent had no capacity, it would not result in a different outcome. He said that there were a number of reports from Dr Kumagaya in evidence, the most recent report being the report dated 27 May 2022, when the respondent was overseas. The Member noted that Dr Kumagaya indicated that he had examined the respondent that day yet there was no reference to the respondent being overseas at the time, nor was there any indication that the consultation was conducted by audiovisual technology. The Member said that he accepted that the respondent was overseas at the time of the consultation and could not have been present in person, and it was probable that the consultation was conducted by audiovisual means. The Member referred to the practice adopted by psychiatrists during the COVID-19 pandemic and afterwards of conducting audiovisual consultations. He considered that the mere fact that the consultation may have been conducted in that manner was not sufficient to doubt the accuracy of Dr Kumagaya’s findings, in particular when there was no submission made to the contrary.
The Member observed that he was not aware whether the respondent did or did not tell Dr Kumagaya that he was overseas and that there was no evidence to that effect. He considered that a finding that the respondent did not disclose to Dr Kumagaya that he was in the USA or what he was doing there could not be made because such a finding would be speculation. The Member added that the mere fact that Dr Kumagaya did not mention it did not go so far as to satisfy him that it was not disclosed. He concluded that the available evidence did not adversely affect the respondent’s credit.
The Member referred to the appellant’s submission that, because the respondent did not disclose the overseas trip to Dr Lim, he ought to afford no weight to the evidence of Dr Lim expressed in his report dated 31 August 2020 or the Certificate of Capacity issued by Dr Lim on that date. The Member said that the respondent’s capacity for employment was dealt with by other medical experts, so that it was unnecessary to give regard to the evidence of Dr Lim, except for the Certificate of Capacity issued on 31 August 2020. He pointed out that the certificate certified the respondent as having no capacity until 14 September 2020, which was a long time before the respondent took his overseas trip, and Dr Lim assessed the respondent as he presented on the date of the certificate. The Member said that there was no evidence to say that the respondent intended to take the overseas trip some two years later so that the fact that the respondent did go on the trip two years later could not possibly have affected the assessment of the respondent’s capacity on 31 August 2020.
The Member further referred to the appellant’s submission that the respondent’s credit was adversely affected because of the absence of any history recorded by Dr Lim in his report dated 26 July 2022 that the respondent had been overseas. The Member reasoned that it was not necessary to take that report into account because the period was covered by other evidence. The Member said that, in any event, the mere fact that it was not referred to in the report did not satisfy him that the respondent did not disclose the trip, which came to an end in June 2022, to the doctor. The Member observed that Dr Lim recorded the respondent’s complaints that were current as at the date of the examination, after the respondent had returned from the USA. The Member said that, if the trip was reported to him, then Dr Lim did not consider it relevant to the assessment on that day. The Member reasoned that he did not know whether the trip had been disclosed or not, and he could not make any adverse findings about the respondent’s credit.
The Member reasoned that, in any event, videos that indicated that somebody was capable of enjoying themselves, or attending a social event such as a wedding, or using gardening tools, or assisting in tree maintenance or dancing or playing a musical instrument did not necessarily show that there was an absence of a psychological condition, and it does not necessarily establish a capacity for paid employment.
The Member added that there was no evidence that the respondent’s interpersonal difficulties with his son had an impact on his capacity to work. The Member observed that the Medical Assessor did not apportion any of the whole person impairment to the difficulties between the respondent and his son. The Member reasoned that, even if a part of the respondent’s impairment was related to the difficulties with his son, that did not exclude a causal relationship between the psychological injury and the impairment or incapacity for work.
The Member concluded that, for all of the above reasons, he was satisfied that the respondent had no capacity for work in the period from 31 August 2020 to 6 February 2023, then had a capacity to work for 20 hours per week from 7 February 2023, and thus the respondent was entitled to weekly payments of compensation.
The Certificate of Determination issued on 18 September 2023 records:
“The determination of the Commission is as follows:
1.     Grant leave to amend the period of claim to 31 August 2020 to 27 February 2023.
2.     As a result of psychological injury on 25 February 2020 (deemed date), the [respondent]:
a.had no work capacity from 31 August 2020 to 6 February 2023, and
b.had capacity to work 20 hours per week in the period 7 February 2023 to 27 February 2023.
3.     Award of weekly compensation as follows, subject to indexation:
a.At the rate of $1,472.50 per week, in respect of the period 31 August 2020 to 30 November 2020, pursuant to section 36 of the Workers Compensation Act 1987.
b.At the rate of $1,240 per week in respect of the period 1 December 2020 to 6 February 2023 pursuant to section 37.
c.At the rate of $620 per week in respect of the period 7 February 2023 to 27 February 2023 pursuant to section 37.”

GROUNDS OF APPEAL

The appellant brings two grounds of appeal, as follows:
(a) Ground A: The Member committed an error of law in failing to provide adequate reasons for his findings, and
(b) Ground B: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on its behalf.

LEGISLATION

Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides:
“78    Statement of reasons for decision
(1)     This rule applies only in relation to the following applicable proceedings—
(a)Commission proceedings,
(b)merit review proceedings.
(2)     A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3)     Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

SUBMISSIONS

The appellant did not provide submissions following receipt of the transcripts or in reply to the respondent’s submissions.

As to Ground A

The appellant’s submissions

The appellant reproduces r 78 of the 2021 Rules and submits that the Member failed to provide reasons for his conclusion and failed to provide sufficient reasoning in order for the parties to be aware of his view of the case put by each party. The appellant quotes from the decision of Deputy President Fleming in M & S Shipman Pty Ltd v Matters,[19] in which Fleming DP discussed what is required in order to succeed in a ground of appeal asserting that the decision-maker’s reasons were inadequate. The appellant submits that a failure to address inconsistencies in the evidence, or to properly analyse the evidence and adequately consider all of the relevant evidence before determining which evidence is preferred, can amount to an error of law, relying on Symbion Health Limited v Ford,[20] and Charles Sturt University v Manning[21] as authorities for those propositions.
[19] [2003] NSWWCCPD 19.
[20] [2008] NSWWCCPD 13.
[21] [2016] NSWWCCPD 10.
The appellant refers to its submissions made to the Member, which it describes as “extensive”, as follows:
(a)    the desktop investigation report severely impacted the respondent’s credit;
(b)    the Commission should not find that the respondent was a witness of truth;
(c)    the respondent’s failure to reveal his overseas trip to Dr Kumagaya further damaged the respondent’s credit, and
(d)    the respondent’s failure to reveal his overseas trip to Dr Lim further damaged the respondent’s credit which should lead the Commission to conclude that the respondent was not a witness of truth.
The appellant asserts that the respondent made no submissions to the Member as to the respondent’s credit.
The appellant asserts that the Member merely found that the report of Dr Hong did not record an inaccurate history because his report was provided before the respondent travelled overseas, and that he was not required to consider the report of Dr Kumagaya dated 27 May 2022 or the report and consultation note recorded by Dr Lim on 26 July 2022 because there was other evidence as to the respondent’s capacity for work.
The appellant asserts that the Member failed to include in his reasons why he accepted the respondent’s evidence, and why he did not consider that the respondent lacked credibility and thus was not a witness of truth. The appellant further asserts that the Member failed to exercise his statutory duty to determine the issue as to the respondent’s credit and failed to properly consider the conflict between the history provided by the respondent in his statement and to the medical providers and the results of the desktop investigation.

The respondent’s submissions

The respondent submits that the appellant’s complaint that the Member failed to provide adequate reasons discloses a failure to acknowledge and understand the Member’s thorough examination of the evidence and the Member’s clear and detailed reasoning process that led him to his conclusions. The respondent asserts that no reasonable reader would have any doubt as to the reasons for the Member’s conclusions. He submits that the appellant is merely unhappy that its submissions were not accepted, and that the appellant is merely seeking to re-argue its case. The respondent contends that the appeal asserting that the Member committed an error of law is an attempt to delay the payment of the respondent’s entitlements and amounts to an abuse of process, contrary to the beneficial nature of the workers compensation scheme.
The respondent refers to the three periods of weekly payment entitlements that the Member considered and submits that the Member’s reasons in respect of the respondent’s entitlements during those periods were logical, based on the evidence and obvious. The respondent points out that the Member correctly identified that there was no evidence adduced by the appellant as to the respondent’s capacity for work during any of those periods.
The respondent points to the Member’s reasons for accepting that the respondent had no capacity for employment between 31 August 2021 and 19 April 2022, including the Member’s consideration of:
(a)    the uncontradicted evidence of the Certificates of Capacity;
(b)    the support from the evidence of Dr Hong in respect of the same period, and
(c)    that fact that Dr Hong was appropriately qualified as an expert to assess the respondent’s capacity.
The respondent refers to the appellant’s submission that the Member was required to engage with and properly analyse the conflicting medical evidence and explain why that evidence was preferred. The respondent says that the appellant relies on the evidence of the respondent travelling overseas in May and June 2022 as evidence that calls into question the respondent’s capacity for the whole period of the claim. The respondent contends that evidence of the respondent’s conduct overseas at that time cannot be evidence of the nature of the respondent’s psychological condition or his capacity for work during the first period of the weekly payments claim.
The respondent further refers to the appellant’s allegation that the failure to report the overseas trip to the medical experts indicates that the respondent was dishonest and thus all of the medical evidence should be disregarded because the medical experts were misled. The respondent points out that the submission is untenable and flies in the face of the appellant’s admission that the respondent suffered a psychological injury and the appellant’s acceptance of the diagnosis of the respondent’s psychological condition. The respondent also points out that the appellant elected not to cross-examine the respondent despite the fact that the appellant’s only argument was that the respondent was dishonest. The respondent says that this left the Member in the position of being asked to make a finding that was merely speculative.
The respondent submits that the reasons for the Member’s conclusion that it was not necessary to consider the evidence of Dr Kumagaya were clearly open to the Member and disclosed no error. The respondent adds that the appellant has failed to point to any evidence that provides a basis for a finding that the respondent had capacity for work during that period. The respondent submits that the finding that the respondent had no capacity was supported by the evidence from the treating practitioners and the independent medico-legal expert, Dr Hong.
In respect of the second period from April 2022 to 6 February 2023, the respondent says that the Member explained his findings as follows:
(a)    there was no medical evidence as to the respondent’s capacity for that period;
(b)    the change of diagnosis by the Medical Assessor to an adjustment disorder suggested that there had been some improvement in the respondent’s condition;
(c)    there was no medical evidence to indicate that the respondent’s capacity had increased prior to the medical assessment by the Medical Assessor;
(d)    without any evidence to support a finding that the respondent’s capacity had increased, such a finding was speculative;
(e)    in the absence of such evidence, he was unable to conclude that the respondent had some capacity for work before 7 February 2023, and
(f)    photographs and videos showing that a person was capable of enjoying themselves on occasion does not necessarily establish that the person did not suffer a psychiatric disorder or provide evidence of an ability to perform paid work.
The respondent points out that the appellant has not challenged the Member’s actual reasoning path.
In respect of the third period, the respondent submits that the parties had agreed that from 7 February 2023 (when the respondent was assessed by the Medical Assessor), the respondent was capable of working 20 hours per week. The respondent asserts that the appellant made no submissions as to why the award of weekly payments for the period from 7 February 2023 to 27 February 2023 was not open to the Member or was not adequately explained. The respondent further points out that the Medical Assessor, who was appraised of the respondent’s overseas holiday, diagnosed the respondent as suffering from a psychological injury and continued to have some incapacity for work.
The respondent submits that the appellant’s assertion that the Member failed to give adequate reasons for his findings is without substance.

As to Ground B

The appellant’s submissions

The appellant cites passages from DNA 17 v Minister for Immigration and Border Protection,[22] CPE15 v Minister for Immigration and Border Protection[23] and Sarheed v C1 Formwork Pty Limited,[24] which are authorities relevant to the obligation of a tribunal to consider the submissions made, and the consequences of a failure to consider a clearly articulated argument which, if accepted, was capable of affecting the outcome.
[22] [2019] FCAFC 146.
[23] [2017] FCA 591.
[24] [2021] NSWPICPD 7.
The appellant asserts that the Member failed to respond to and engage with its submissions made as to the respondent’s credit, which were that:
(a)    the desktop investigation report severely impacted the respondent’s credit;
(b)    the Commission should not find that the respondent was a witness of truth;
(c)    the respondent’s failure to reveal his overseas trip to Dr Kumagaya further damaged the respondent’s credit, and
(d)    the respondent’s failure to reveal his overseas trip to Dr Lim also damaged the respondent’s credit which should lead the Commission to conclude that the respondent was not a witness of truth.
The appellant submits that the submissions as to the respondent’s credit were a substantial and clearly articulated argument that was material to the central issue in the case, and the Member failed to engage with those submissions.

The respondent’s submissions

The respondent submits that the appellant’s assertion is unfounded. The respondent points out that the Member dedicated 10 paragraphs of his statement of reasons (that is, from paragraphs [24] to [33]) where the Member dealt with the issue of the respondent’s credit. The respondent submits that the Member’s rejection of the appellant’s submissions was open to the Member and was in fact the only conclusion available on the objective evidence. The respondent submits that the error complained of by the appellant is not made out.

THE RELIEF SOUGHT

The appellant seeks to have the Member’s certificate of Determination revoked and an award entered in its favour in respect of the claim for weekly payments. In the alternative, the appellant seeks to have the matter remitted to another Member for re-determination.
The respondent submits that the appeal has no basis and the Member’s Certificate of Determination should be confirmed.

CONSIDERATION

The respondent complains that the lodgment of the appeal is simply an attempt to delay the payment of the respondent’s entitlements. Practitioners and their clients are reminded that s 352(5A) of the 1998 Act provides that an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite an appeal.
The appellant asserts that the Member erred by failing to address its challenge to the respondent’s credit (Ground B) and by failing to give reasons for rejecting the submissions relevant to that issue (Ground A). It is more logical to address the question of whether the Member failed to acknowledge and address the respondent’s submissions before moving to the question of whether the Member failed to give reasons for rejecting those submissions. It is thus convenient to firstly deal with Ground B of the appeal.

Ground B: The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with the submissions made on its behalf

The appellant’s assertion that the Member erred by failing to afford it procedural fairness because the Member failed to deal with its submissions lacks any consideration of the Member’s statement of reasons. The appellant extracts long passages from various authorities that explain what is required to establish such error, none of which relate to any part of the Member’s thorough evaluation of the issues raised by the appellant.
The submissions made by the appellant are that the Member failed to engage with its submissions that:
(a)    the desktop investigation report severely impacted the respondent’s credit;
(b)    because the respondent did not disclose the trip to the various medical experts, he was not a witness of truth, and
(c)    accordingly, because the history provided by the respondent to the medical experts was not truthful, the medical opinions should be afforded no weight.
The Member noted the issue raised by the appellant. He said that the appellant submitted that:
“I would not accept the [respondent] is a witness of truth or the accuracy of what he told his doctors. [The appellant] relies on the investigation report of AB Investigations, which includes a summary of certain Facebook videos and a photo taken from approximately 27 May 2022 to approximately 23 June 2022, when the [respondent] was on holiday in the United States. It says these show that any residual incapacity for employment after his return to Australia is more likely to be due to interpersonal difficulties with his son.”[25]
[25] Gafa v Philip Leong Stores Pty Ltd (W4447/22, 18 September 2023), transcript of reasons (reasons), [13].
The Member further noted that:
“In its written submissions on credit, the [appellant] relies on videos and a photo posted to Facebook which were taken while [the respondent] was in the US, between about 27 May 2022 and 23 June 2022. Though the videos and photo were not before the Commission, a summary of their contents was provided in an investigation report which is before the Commission and summarised at paragraph 14 of the [appellant’s] submissions on credit. In the absence of any submission to the contrary, I accept the [appellant’s] summary as accurate.”[26]
And:
“The [appellant] says that I should give no weight to Dr Hong’s opinions, because there is no evidence that [the respondent] disclosed his trip or activities to him, and because the failure to do so affects the [respondent’s] credit and therefore the reliability of the history he gave to Dr Hong about the effects of his psychiatric conditions of his behaviour.”[27]
[26] Reasons, [24].
[27] Reasons, [26].
The Member referred to the appellant’s submissions that the respondent’s failure to disclose the overseas trip to Dr Kumagaya and to Dr Lim indicated that the respondent was not a truthful witness. The Member concluded that he did not need to take into account Dr Kumagaya’s opinions, but if he did take Dr Kumagaya’s evidence into account, any failure by the respondent to report his overseas trip did not affect the respondent’s credit and would not have changed the outcome.[28] Similarly he concluded that he did not need to have regard to Dr Lim’s opinion other than the opinion expressed in the Certificate of Capacity dated 31 August 2020, which would not be affected because it was issued almost two years before the respondent’s overseas trip.[29]
[28] Reasons, [28]–[30].
[29] Reasons, [31]–[32].
The Member clearly acknowledged the appellant’s submissions relevant to the issue of the respondent’s credit.
The appellant asserts that the Member failed to deal with those submissions. As the respondent submits, the Member dealt with the appellant’s submissions at paragraphs [24] to [33] of his reasons. Those reasons are summarised by me at [54] to [63] above. In addition, I have quoted from the Member’s reasons, recorded by me at [94] to [95] above. The Member’s reasons disclose that he more than adequately dealt with those submissions.
The High Court observed in Whisprun Pty Ltd v Dixon that:[30]
“[t]o suggest that a trial judge has not properly considered a party’s case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty.”
[30] [2003] HCA 48 (per Gleeson CJ, McHugh and Gummow JJ), [63].
The Member did not fail to acknowledge, engage with or address the appellant’s submissions and the appellant was not denied procedural fairness. This ground of appeal is misconceived and fails.

Ground A: The Member committed an error of law in failing to provide adequate reasons for his findings

The appellant asserts that the respondent made no submissions to the Member as to the respondent’s credit. The assertion is patently incorrect. A review of the transcript of proceedings conducted on 30 August 2023 reveals that the respondent made submissions contrary to the appellant’s submissions in respect of the respondent’s credit on five occasions.[31]
[31] Transcript of proceedings dated 30 August 2023 (T), T21.27–22.10; T29.28–33; T35.1–13; T36.17–21; T47.1–6.
The appellant further asserts that the Member failed to explain why he accepted the respondent’s evidence and did not consider that the respondent lacked credibility. The Member provided exhaustive reasons as to why he accepted the respondent’s evidence and determined that the evidence did not establish that the respondent was an untruthful witness. Those reasons are summarised by me at [54]–[63] above and discussed by me at [93]–[97] above. There was no such failure on the part of the Member.
The appellant contends that the Member failed to reconcile the “conflict” in the history provided to the medical experts and the report of the desktop investigation. The reasons disclose that the Member adequately explained why there was no such “conflict.”
As the respondent submits, no reasonable reader would have any doubt as to the reasons for the Member’s conclusions. There can be no failure to give reasons where the steps in the decision-maker’s reasoning were readily apparent.[32] It cannot be said that the Member failed to give reasons for rejecting the issues raised by the appellant and this ground of appeal fails.
[32] Musija v Kresa [2010] VSCA 163, [54]–[58].

CONCLUSION

The appellant has failed to establish that the Member erred by denying it procedural fairness, by failing to deal with the submissions made on its behalf or by failing to provide reasons for his conclusions. The appellant raises no complaint that the Member’s reasons were erroneous. The appeal is without merit and the Member’s Certificate of Determination is confirmed.

DECISION

The Member’s Certificate of Determination dated 18 September 2023 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

29 August 2024