Razmovski v NIB Health Funds Ltd - [2025] NSWPICPD 9

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Razmovski v NIB Health Funds Ltd [2025] NSWPICPD 9
APPELLANT:	Mary Razmovski
RESPONDENT:	NIB Health Funds Ltd
INSURER:	GIO General Limited
FILE NUMBER:	A1-W23173/24
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 February 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 1 October 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 15 of the Workers Compensation Act 1987– ‘disease of gradual process’; determination of date of injury; application of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 and Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Carroll & O’Dea Lawyers
Respondent:
Mr P Barnes, counsel
Moray & Agnew Lawyers
DECISION UNDER APPEAL:	Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540
MEMBER:	Mr J Isaksen
DATE OF MEMBER’S DECISION:	1 October 2024

INTRODUCTION AND BACKGROUND

Mary Razmovski (the appellant) worked for NIB Health Funds Ltd (the respondent) for approximately 31 years. She was a retail centre consultant at the respondent’s Charlestown office. She was initially full-time, but for the last 25 years of the employment she worked five hours per day, five days per week. The respondent provided health insurance, together with travel and CTP insurance. The appellant served customers and dealt with general clerical duties. This included data entry, handling cash, telephone enquiries, file handling, printing and general administrative work.[1] There was much computer work. She developed bilateral wrist and hand pain from about 2017.[2] Dr Burgess, a hand surgeon, performed bilateral carpal tunnel release surgery on 17 September 2019.[3]
[1] Appellant’s statement, 7/9/22, [10]–[15], Reply to Application to Resolve a Dispute (Reply), pp 2–3.
[2] Dr Burgess’ report, 2/2/19, Application to Resolve a Dispute (ARD), p 41.
[3] ARD, p 43.
The appellant stated that her workers compensation claim was accepted and “has been allocated a deemed date of injury of 11 September 2017”.[4] She was off work for about eight weeks following the surgery.[5] She had ongoing problems in her hands and arms. From early 2021 she noticed increased symptoms and her hours were reduced to 15 per week, working 5 hours per day over three non-consecutive days, with restrictions. In early 2021 the respondent moved to shutting down retail premises and reducing staff. The appellant was made redundant on 30 June 2021.[6]
[4] Appellant’s statement 31/5/22, [6], ARD, p 1.
[5] Appellant’s statement 7/9/22, [30], Reply, p 5.
[6] Appellant’s statement 31/5/22, [10], ARD, p 2.
The respondent accepted workers compensation liability for the bilateral carpal tunnel condition. Dr Harrington, an orthopaedic surgeon, assessed the appellant on the insurer’s behalf and reported on 20 December 2022.[7] Dr Harrington considered the appellant’s work duties caused or contributed to the carpal tunnel condition. Dr Harrington identified arthritis at the base of the appellant’s thumbs, which he thought was a constitutional condition. The appellant also complained of left knee pain which she said developed during a four week pain management program. Dr Harrington did not consider this to be work related.[8] GIO (the respondent’s insurer) issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 13 March 2023.[9] Liability was accepted in respect of bilateral carpal tunnel syndrome and a consequential psychological condition; liability was disputed in respect of a consequential left calf condition and an exacerbation of a consequential psychological condition.
[7] Reply, pp 13–19.
[8] Dr Harrington’s report 20/12/22, Reply, pp 16–19.
[9] ARD, pp 26–30.
The appellant was assessed at her solicitors’ request by Professor Ghabrial, an orthopaedic surgeon, who reported on 3 July 2023.[10] Professor Ghabrial assessed whole person impairment of 12 per cent in respect of each of the hands, and 4 per cent in relation to the condition of the left knee, 26 per cent on the Combined Values Chart.
[10] ARD, pp 38–40.
The appellant made a permanent impairment claim dated 16 October 2023,[11] which was forwarded by her solicitors to the insurer under cover of a letter dated 18 October 2023.[12]
[11] ARD, pp 9–14.
[12] ARD, pp 7–8.
The insurer issued a notice under s 78 of the 1998 Act, dated 8 April 2024.[13] It denied the existence of posttraumatic osteoarthritis injury affecting the base of the thumbs. It asserted the effects of bilateral carpal tunnel syndrome had resolved and did not result in any permanent impairment. It denied that the condition of the appellant’s left knee was work caused.
[13] ARD, pp 32–37.
The current proceedings plead injury to both hands resulting from the nature of the appellant’s work with the respondent, with a deemed date of injury of 18 October 2023. A consequential injury to the left lower extremity, sustained on 24 June 2022 while undertaking an exercise program, is also pleaded. The claim is for lump sum compensation relating to both upper extremities and the left lower extremity. The allegation relating to the left lower extremity was the subject of a consent award in the respondent’s favour.
The matter was listed for hearing before Member Isaksen on 18 September 2024. Mr Stockley appeared for the appellant and Mr Barnes for the respondent. Both counsel addressed and the Member reserved his decision. The Commission issued a Certificate of Determination with accompanying reasons on 1 October 2024.[14]
[14] Razmovski v NIB Health Funds Ltd [2024] NSWPIC 540 (reasons).

THE MEMBER’S REASONS

The Member noted the parties’ agreement that:
(a) the appellant sustained disease injury to both upper limbs as provided for by s 4(b) of the Workers Compensation Act 1987 (the 1987 Act);
(b) the appellant suffered 14 per cent permanent impairment as a result of injury to both upper limbs, and
(c) there was to be an award for the respondent on the claim for permanent impairment of the left lower extremity (knee).
The Member noted the parties were in dispute regarding the deemed date of injury in respect of the permanent impairment claim. The appellant contended the date should be 18 October 2023, the date of the appellant’s claim for the lump sum benefit. The respondent contended it should be 21 September 2017, the first date that the appellant was incapacitated as a result of her work injury.[15]
[15] Reasons, [5]–[10].
The Member summarised the submissions. Mr Stockley, for the appellant, referred to Alto Ford v Antaw[16] and Stone v Stannard Brothers Launch Services Pty Ltd.[17] Mr Stockley submitted these decisions confirmed that different injury dates can be fixed for incapacity claims and permanent impairment claims. Mr Stockley referred to Haddad v The GEO Group Australia Pty Ltd[18] in which it was said that s 15(1)(a)(i) of the 1987 Act deems the injury date in a s 66 claim to be when a worker suffers incapacity. Mr Stockley referred to the reasons in that decision at [81], which provided exceptions to this. One was where a disease causes a need for treatment without any reduction in earning capacity. Another was where a disease first causes incapacity, then later causes permanent impairment but no incapacity. He submitted, by reference to Dr Burgess’ reports, that the facts fell within the exceptions identified in Haddad. The appellant suffered incapacity and her permanent impairment then developed over time. Mr Stockley also referred to Scalabrini Village Ltd v Sanders,[19] a Presidential decision that postdated Haddad, in which a date of injury fixed by reference to Stone was not disturbed on appeal.
[16] [1999] NSWCA 234; 18 NSWCCR 246 (Alto Ford).
[17] [2004] NSWCA 277; 1 DDCR 701 (Stone).
[18] [2024] NSWCA 135 (Haddad).
[19] [2024] NSWPICPD 36 (Sanders).
The Member referred to Mr Barnes’ submissions, which relied on Haddad. The Member referred to a decision of Ellis v Dontarna Pty Ltd,[20] relied on by Mr Barnes, in which Principal Member Harris applied Haddad. Mr Barnes submitted that, although the decision in Sanders postdated Haddad, the Presidential decision did not refer to Haddad.
[20] [2024] NSWPIC 513 (Ellis).
The Member referred to paragraphs [69], [80] and [105] of Haddad, including the following from [105]:
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
The Member summarised the medical evidence. He said it was apparently uncontroversial that the first certificate of incapacity was dated 21 September 2017. The clinical notes from the relevant general practice for that date referred to bilateral wrist pain. The clinical records from Dr Giles’ practice during 2020 and 2021 recorded “references to bilateral wrist pain”. Subsequent records from the practice recorded “hands, wrist remains same” (6 October 2022), “both hands pain” (20 July 2023) and “pain hands persisting” (12 October 2023).[21] The Member referred to Dr Burgess’ report dated 2 September 2019, which referred to an “episode of bilateral arm pain two years ago”, and “intermittent flare ups” since, but nothing “very severe”. Dr Burgess, reporting on 20 October 2021, said the appellant’s “thumbs have deteriorated to the point where she has returned to see me”. Professor Ghabrial’s report dated 3 July 2023 recorded the appellant’s “hands will prevent her from activities involving excessive gripping or moderate gripping with both hands and excessive use of both wrists and thumbs”. The appellant’s statement dated 31 May 2022 described “symptoms in both of my hands for many years”. On 29 May 2024 the appellant stated she had “constant pain, soreness and swelling in her hands and wrists”.[22]
[21] Reasons, [28]–[32].
[22] Reasons, [33]–[36].
The Member said it was apparent the appellant became incapacitated due to injury to her hands and wrists in September 2017 and continued to be incapacitated due to that work injury. He said this disease injury “also gives rise to other entitlements including a claim for permanent impairment compensation”. The impairment was both “relevant to” and “related to” the incapacity which dated from September 2017.
The Member referred to Haddad at [81], where Griffiths AJA stated that the exception in s 15(1)(a)(ii) of the 1987 Act was only engaged where “neither aspect of s 15(1)(a)(i) is engaged”. The Member said that in the current case s 15(1)(a)(i) was engaged because incapacity resulted from the disease injury in September 2017. The Member concluded that 21 September 2017 became the date of injury for the claims for both incapacity and permanent impairment. The Member said that additionally the appellant continued to be incapacitated due to her work injury, contrary to the exception of “no further incapacity” referred to in Haddad at [81].[23]
[23] Reasons, [37]–[40].
The Member said that both Haddad (at [69]) and Sanders (at [109]) described the determination of a deemed date of injury as a question of fact to be made on the relevant evidence. The Member referred to the appellant’s submissions that there were decisions of the Court of Appeal which allowed for different dates of injury. The Member accepted he was obliged to apply the approach in Haddad at [80], that being the most recent relevant decision of the Court of Appeal. He found the deemed date of injury for the appellant’s permanent impairment claim was the same as that of the deemed date of injury, 21 September 2017. Consistent with this there was an award for 14 per cent whole person impairment (an amount of $32,460).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

GROUND OF APPEAL

The appellant raises the following ground of appeal:
“The Member’s reasons disclose errors of fact and law in the application of sections 4, 15 and 16 of the [1987 Act] in relation to the determination of a deemed date of injury for the purposes of a permanent impairment claim pursuant to [s 66 of the 1987 Act].

LEGISLATION

Subsections (1) and (4) of s 15 of the 1987 Act provide:
“15    Diseases of gradual process—employer liable, date of injury etc
(1)     If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a)the injury shall, for the purposes of this Act, be deemed to have happened—
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
…
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.”

THE NATURE OF THE APPEAL

The appeal is brought pursuant to s 352 of the 1998 Act, subsection (5) of which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[24] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[25] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[26]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)    [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c)     It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[27]
[24] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[25] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[26] [1996] HCA 140; 140 ALR 227.
[27] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[28]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[29]
[28] [2020] NSWCA 54 (Hill).
[29] Hill, [20].
In Northern NSW Local Health Network v Heggie[30] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.

APPELLANT’S SUBMISSIONS

[30] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [72].

The discussion of Ellis

The appellant says that, in Ellis, there was agreement that the first economic incapacity was on 30 October 2019 when the worker saw her general practitioner and weekly payments commenced. The worker asserted that the correct deemed date was 6 April 2023, the date of the claim for permanent impairment. The employer argued it should have been 30 October 2019, the date of the relevant incapacity. The appellant submits the Principal Member’s discussion included no detail regarding the nature of the injury or incapacity. The appellant submits the Principal Member relied heavily on the analysis, by Griffith AJA, of SAS Trustee Corporation v O’Keefe[31] at [118] to [119].[32] The appellant quotes from Haddad, in a passage which includes:
“Whether or not an earlier claim for weekly compensation is relevant or irrelevant depends on the facts, as the differing outcomes in Alto Ford and Berkeley reveal. The subsequent reasoning in Thoroughgood (in which McColl JA also sat) expresses the position more accurately.
In my view, the obiter observations in O’Keefe which are relied upon by the appellant here should be confined to the facts of that particular case. The circumstances here are quite different, especially having regard to the evidence which identified that the injury the subject of the s 60 claim had produced incapacity.”[33] (underlining inserted in original)
[31] [2011] NSWCA 326 (O’Keefe).
[32] Appellant’s submissions, [1.18]–[1.23].
[33] Haddad, [118]–[119].
The appellant quotes from Ellis where the Principal Member said:
“The correct approach, as discussed in Haddad and Thoroughgood is that where the disease injury causes incapacity and gives rise to an entitlement to compensation (either medical expenses or permanent impairment), the first limb of s 15(1)(a) operates to deem the date of injury to be when the worker suffered incapacity.”[34]
[34] Ellis, [22].
The appellant submits Griffiths AJA observed that consideration was needed of the particular factual circumstances of any particular claim, which needed to be analysed to identify the nature of the claim and “in particular the nature of the injury, the incapacity and the compensation claimed”. The appellant submits the description of the facts in Ellis was “scant”. It was necessary, dealing with the application of s 15, to identify “the nature of the injury, the incapacity and the claim”.[35]
[35] Appellant’s submissions, [1.24]–[1.26].
The appellant refers to the current matter: “the claimant continued in the causative employment until 30 June 2021 when she was made redundant … she did not cease work due to incapacity”. The appellant refers to the facts in Haddad, in which the worker left the causative employment at Villawood Detention Centre in 2001 and worked for various other employers until 2016 when he ceased work due to his psychological condition. The appellant refers to Ellis, in which the Principal Member described Haddad as authority for the following propositions:
“(a) The correct position is that where a disease injury causes an incapacity and at the same time gives rise to an entitlement for either medical expenses and/or permanent impairment, the claim is deemed to have occurred at the time when the worker suffered incapacity; and
(b) Even if not pleaded the fact that there is an incapacity cannot be ignored but where there is no evidence of incapacity, the second limb of the deeming provision will apply.”

The appellant submits that in the current matter the Member had not explored whether there was an incapacity, in circumstances where the worker had been made redundant and had continued to work in causative employment until that time.[36]
[36] Appellant’s submissions, [1.27]–[1.31].

The discussion of Sanders

The appellant refers to Sanders, in which a worker sustained psychological injury, considered a ‘disease’, due to employment injuries (pursuant to s 4(b)(i)) in 2019 and 2020. She ceased work on 18 May 2020 following a panic attack for which she was admitted to hospital. A weekly compensation claim form was completed on 16 June 2020. While proceedings for weekly compensation were on foot a claim for permanent impairment compensation was served. The proceedings for weekly compensation were settled with notations reflecting agreement that the worker had recovered and an agreement for her to resign. Proceedings for the recovery of permanent impairment compensation were commenced after conclusion of the weekly proceedings, on the basis of updated medical reports.[37]
[37] Appellant’s submissions, [1.32]–[1.36].
On appeal before Phillips P, an estoppel argument was decided in the worker’s favour. The appeal also dealt with argument regarding the date of injury. His Honour said identifying the deemed date was “a matter of statutory construction which cannot be divorced from the facts as found” (underlining inserted in original). The appellant quotes the following passages:
“The continuation of various benefits under the legislation is determined by a worker’s level of permanent impairment. The consequence of this is that a permanent impairment claim is a matter of some moment to each worker. Whilst considerations of incapacity are relevant to any consideration of permanent impairment, there is no evidence that at the time the worker initially became incapacitated for work, that any measurable level of permanent impairment existed, there was certainly no medical assessment at that time suggestive of this fact.”[38]
And:
“Often times there is not a temporal correlation, on the facts, between incapacity and permanent impairment. That is the case in this matter and that is why the various statutory provisions dealing with date of injury attempt to address these differing factual circumstances.”[39]
[38] Sanders, [108].
[39] Sanders, [109].

The application of Haddad

The appellant refers to medical evidence from Dr Giles (the general practitioner) and Dr Burgess (the operating surgeon). There was hand and wrist pain referred to in medical records, in 2019, 2020, 2021, 2022 and 2023. Reporting on 2 September 2019, Dr Burgess described pain over the previous two years as “nothing which has been very severe”. Dr Burgess operated on 17 September 2019.[40] Dr Burgess, in her report dated 20 October 2021, recorded that “[f]inally [the appellant] feels that her thumbs have deteriorated to the point where she has returned to see me again”.[41] The appellant’s statement described symptoms in her hands for many years, and the presence of constant pain, soreness and swelling in the appellant’s hands and wrists. The appellant submits she returned to her work following surgery. The Member’s reasons at [4] note the appellant’s hours were reduced in early 2021 to five hours per day, three days per week, “because the respondent’s retail premises were to be shut down. The [appellant] was made redundant on 30 June 2021.”
[40] ARD, p 43.
[41] ARD, p 47.
The appellant submits that, on one view of the evidence there was an incapacity that was a direct result of the surgery, that “thereafter resolved where the [appellant] was able to resume duties”. The appellant submits there was no suggestion that, at relevant points:
(a) assessable impairment existed in 2017, or
(b) other than because of the surgical treatment, the appellant had any compensable incapacity.[42]
[42] Appellant’s submissions, [1.45]–[1.47].
The appellant submits the injury, which resulted in permanent impairment, developed over a period of time, both pre and post-surgery. She submits her circumstances fit those described in Haddad at [81]. She submits she suffered incapacity as a result of the injury but a permanent impairment then developed over a period of time. She submits the Certificate of Determination in this matter should be revoked, and the matter should be referred to a different member for redetermination.[43]
[43] Appellant’s submissions, [1.48]–[1.50].

RESPONDENT’S SUBMISSIONS

The respondent submits the Member referred to the decision in Ellis only to accept that he was obliged to apply the decision of Haddad. It submits the reasons at [1] to [11] set out the background and the issue for determination. It submits the Member’s reasons at [24] to [44] engaged with the medical evidence, the appellant’s evidence, statutory construction and the caselaw.[44]
[44] Respondent’s submissions, [9]–[11].
The respondent refers to the appellant’s submission that the Member failed to have regard to the fact that the appellant worked on to 30 June 2021, when she was made redundant. The respondent refers to the appellant’s statement that when she accepted the redundancy she had a work restriction, a certifiable incapacity for work. The respondent accepts the Member did not refer to the appellant ceasing work due to incapacity. It refers to the reasons at [28] (which deal with the initial certification by Dr Roy in September 2017).[45]
[45] Respondent’s submissions, [12]–[16].
The respondent refers to the appellant’s submission that the Member did not explore whether there was an incapacity at the time of the redundancy. The respondent submits the reasons at paragraphs [29] to [36] clearly identify “the relevant clinical notes, surgery results/reports and statements of evidence by the [a]ppellant regarding her ongoing incapacity as a result of the s 15 disease process”.[46] The respondent quotes the reasons at [37], which state:
“It is apparent from the [appellant’s] evidence and the medical evidence that the [appellant] became incapacitated due to an injury to both hands and wrists in September 2017 and she has continued to be incapacitated due to that work injury. This disease injury which has caused incapacity also gives rise to other entitlements under the 1987 Act, including a claim for permanent impairment compensation.”
[46] Respondent’s submissions, [18].
The respondent refers to the appellant’s statement dated 7 September 2022 at [35] and [36].[47] This identifies that at the time of the redundancy the appellant, due to problems with her hands and wrists, was on reduced hours, with additional rest breaks.
[47] Reply, p 5.
The respondent refers to Sanders at [108]. The President in that case made a finding, which he described as “uncontroversial”, that the worker ceased work on 18 May 2020 which was the date that her incapacity commenced. The respondent briefly summarises Court of Appeal decisions in Stone, P & O Berkeley Challenge Pty Ltd v Alfonzo,[48] and Inghams Enterprises Pty Ltd v Thoroughgood.[49] It quotes the following excerpt from the reasons of Basten JA in Thoroughgood:
“… the authorities do not stand for the proposition that ‘the incapacity’ referred to in s 16(1)(a) is one which gives rise to an entitlement to weekly compensation payments: rather, the authorities stand for the proposition that the existence of an incapacity must depend upon an entitlement to compensation, being an entitlement of the kind the subject of a claim, that is, one encompassing economic loss.”[50]
[48] [2000] NSWCA 214 (Alfonzo).
[49] [2014] NSWCA 166 (Thoroughgood).
[50] Thoroughgood, [46]. Respondent’s submissions, [24]–[31].
The respondent submits the appellant has not identified with specificity any alleged deficiencies in how the Member addressed issues of statutory construction.[51] The respondent challenges the appellant’s submission that the reason the appellant’s hours were reduced prior to her redundancy was because the respondent’s retail premises were to be shut. The respondent refers to s 15(4) of the 1987 Act. The respondent submits questions of permanent impairment and incapacity can be mutually exclusive; the “key identifier” is the entitlement to compensation for the incapacity.[52]
[51] Respondent’s submissions, [19]–[33].
[52] Respondent’s submissions, [36]–[40].
The respondent addresses the effect of Haddad on the Member’s decision. It refers to and quotes from the reasons [25] to [27], which deal with Haddad. It notes the Member in his reasons quoted the following from Haddad:
“Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.”[53]
[53] Haddad, [69].
The respondent quotes from Haddad at [80] to [81] (set out at [58] below).
The respondent submits the Member found correctly that the appellant was not able to “fit the exemption” described in Haddad at [81]. It submits the appeal must fail.

CONSIDERATION

On 18 October 2023 the appellant’s solicitors forwarded a permanent impairment claim form, with a copy of Professor Ghabrial’s report dated 3 July 2023, to the GIO, the respondent’s relevant insurer.[54] The claim form was dated 16 October 2023. It gave a date of injury as 11 September 2017. It referred to injury to the “Left and Right Hand and Left Knee”. The claim was in respect of 26 per cent whole person impairment. The GIO issued a dispute notice dated 8 April 2024.[55] It described an injury of “Bilateral carpal tunnel syndrome” as accepted, and injuries of “Bilateral CMC joint osteoarthritis” and “Consequential left knee/calf condition” as disputed. The date of injury was given as 11 September 2017. Earlier dispute notices dated 4 November 2022[56] and 13 March 2023[57] also described the date of injury as 11 September 2017.
[54] ARD, p 7.
[55] ARD, pp 32–37.
[56] ARD, pp 21–24.
[57] ARD, pp 26–30.
The only matter in dispute is identification of the deemed date of injury. The appellant submits the correct date is 18 October 2023 (the date of the lump sum claim). The respondent submits the deemed date of injury should be 21 September 2017. The appellant’s statement says that her claim was accepted and she was “allocated a deemed date of injury of 11 September 2017”.[58] The notes from the practice of the Charlestown Medical and Dental Centre (the Charlestown practice) for 11 September 2017 record a history: “Recurrence of both hands and wrists pain”. The note for 21 September 2017 records:
“pain b/l wrist - left - 3 weeks rt wrist - on and off - since 2013 took antinflamtory [sic] - helped recently pain more no definite pins and needle keeps awake night bec pain working at NIB – 27 years have ergonomic key board and mouse/station settings … Actions: NSW WorkCover - Progress – Claim ID NF1247025154”.[59]
[58] Appellant’s statement, 31/5/22, [6], ARD, p 1.
[59] ARD, pp 180–181.
It is apparent from the above that there was a complaint of pain in both hands and wrists on 11 September 2017, and on 21 September 2017 there was a complaint of bilateral wrist pain, with a history of working with the respondent, and notification to WorkCover with allocation of a claim number. Against the background of the allocation of a claim number, and the deemed date allocated by the insurer, it can be appropriately inferred that 21 September 2017 represented the date of initial incapacity. This was how the Member reasoned.[60] The finding that 21 September 2017 was the date of initial incapacity is not challenged on this appeal.
[60] Reasons, [28],
The appellant’s submissions describe the appellant returning to work following the surgery in 2019. Her submissions describe her hours being reduced in early 2021 to five hours per day, three days a week, because the respondent’s retail premises were to be shut down.[61] A finding to this effect would potentially be consistent with incapacity ceasing in about 2019 after the surgery. It would be consistent with the reduction of working hours in 2021 being associated with the respondent’s changed operating circumstances. However, such a finding would be inconsistent with other evidence, from the appellant and the general practice which she attended, regarding her working capacity subsequent to the surgery and prior to her employment coming to an end.
[61] Appellant’s submissions, [1.9].
The respondent’s submissions[62] refer to the appellant’s statement dated 31 May 2022, at [10].[63] She there described a staff reduction in early 2021 which involved work volume increasing and hours being reduced. She said she noticed an increase in symptoms and was certified to work “three non-consecutive 5 hour days with restrictions”.
[62] Appellant’s submissions, [4].
[63] ARD, p 2.
The appellant’s statement dated 7 September 2022 is consistent with incapacity at the time of her redundancy. She states:
“35. I note that at the time I was made redundant I was on reduced hours due to the ongoing problems with my hands and wrists, I had completed another return to work in early 2020, returning to full hours in July 2020 but this was during Covid, there was an increased requirement for data entry so that had an effect on my injuries.
36. At the time I was made redundant I was on 15 hours per week, Monday, Wednesday and Friday to give me a rest, also I was given [a] 30 minute rest break during each shift, but even with these reductions that still wasn’t overcoming the pain, also there were problems with the return from Covid, as there was not enough relief for me in the workplace because of the reduced staff.”[64]
[64] Reply, p 6.
The appellant consulted Dr Roy at the Charlestown practice on 3 March 2021. The entry recorded “work cover b/l wrist pain – last 1 month pins and needle tip of fingers started back at office by end of last year using ergonomic settings taking panadol osteo tds nurofen sometime O/E: b/l wrist movements painful discussion usg suit diuties [sic] hand therapy long consult”. On 31 March 2021 the consultation note recorded “work cover claim accepted by insurance reopening the claim was better – last 4 days when she was not at work by end of working day in agony”. On 28 April 2021 she was to “continue suit duties r/w 1 month”. On 26 May 2021 Dr Roy recorded the appellant was “doing physiotherapy” and was “struggling with current hours” “finishing up current job – redundancy – after 1 month”. Dr Roy’s note on 23 June 2021 recorded “last day of work is this friday using splints”. On 21 July 2021 Dr Roy recorded “finished work – end of June trying to cut back analgesics seeing hand therapist cert up dated”. On 28 September 2021 the appellant was given a referral to return to Dr Burgess, who had performed bilateral carpal tunnel surgery previously.[65]
[65] ARD, pp 132–141.
Clearly the appellant suffered incapacity at the time of her bilateral surgery in 2019. The passages from the appellant’s statements, quoted above, are consistent with incapacity (in the sense of a reduction in earning capacity) while she was working on restricted duties and hours, when her employment with the respondent ceased.
The Member’s reasons (at [26] to [27]) quoted from Haddad at [69] and [105] where Griffiths AJA said:
“69. Both Acts also recognise that some, but not all, work-related injuries may result in a worker being incapacitated for work. This applies to both frank injuries and disease injuries. In the case of injuries of the latter kind, s 15(1) provides two alternative limbs which operate to deem a point in time when this kind of injury is taken to have happened. Putting to one side the circumstance where the disease results in death, the determination of which limb in s 15(1) applies turns on whether or not the worker has an incapacity. That is a question of fact, to be determined by the relevant evidence.”
“105. … It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford, that the deemed date of injury is the date of the claim.”
The Member’s reasons dealt with whether the appellant had an entitlement to compensation for incapacity. In his reasons at [28] to [36] the Member summarised material from the Charlestown practice, Dr Burgess and Professor Ghabrial, together with the appellant’s statements dated 31 May 2022 and 29 May 2024. He concluded:
“It is apparent from the [appellant’s] evidence and the medical evidence that the [appellant] became incapacitated due to an injury to both hands and wrists in September 2017 and she has continued to be incapacitated due to that work injury. This disease injury which has caused incapacity also gives rise to other entitlements under the 1987 Act, including a claim for permanent impairment compensation.”[66]
[66] Reasons, [37].
This factual finding was open on the evidence. This factual finding, and the associated discussion, are sufficient to deal with the appellant’s argument, on this appeal, that the Member failed to explore whether there was an incapacity in the circumstances.
The decision of Sanders was issued a short time before the decision of Haddad. Haddad does not appear to have been the subject of submissions by either party in Sanders. Haddad is only mentioned in a footnote that refers generally to statutory provisions attempting to address differing factual circumstances. Sanders does not add to the matters raised in the current appeal.
The parties’ submissions refer to the reasons in Haddad at [80] to [81] where Griffiths AJA said:
“80. As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(i) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood, as to which see especially at [124] below. It means that since, in this case, on 20 January 2017, the appellant suffered a disease injury that caused both an incapacity giving rise to an entitlement to claim weekly compensation and also, at the same time, an entitlement to claim treatment expenses, that was the deemed date of injury relevant to both claims. That is not altered by the fact that he ultimately abandoned the claim for weekly compensation.
81. It is only where neither aspect of s 15(1)(a)(i) operates that s 15(1)(a)(ii) is engaged. That would be so, for instance, where a disease causes a need for treatment without any reduction in earning capacity. And it would also be so where a disease first causes an incapacity and then, some time later, causes a permanent impairment but no further incapacity. That explains the outcomes in a number of the cases discussed below.” (emphasis added)
The injury in the current matter is pleaded (appropriately) as one pursuant to the ‘disease’ provisions.[67] The consent finding of ‘injury’ recorded in the Certificate of Determination was “injury to both upper limbs”. The appellant clearly was incapacitated at and around the time of surgery in 2019. The history recorded by Dr Burgess in her report dated 20 October 2021 stated:
“Unfortunately after the carpal tunnel surgery she had a flare up of her osteoarthritis and despite ongoing hand therapy and splinting, it has never really settled down since she had her carpal tunnels released in 2019.”[68]
[67] See generally Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253.
[68] ARD, p 47.
The Member’s finding, set out at [55] above, is consistent with ongoing incapacity resulting from the found injury to the upper limbs. It was necessary that the Member apply the principles set out in Haddad, in finding a deemed date of injury. His reasoning, and the result he reached, were consistent with him doing so. I do not accept that the Member erred in this regard. The appellant’s ground of appeal fails.

DECISION

The appeal is dismissed.
The Certificate of Determination dated 1 October 2024 is confirmed.

Michael Snell
DEPUTY PRESIDENT

7 February 2025