Redpath v State of New South Wales (Healthshare NSW)
[2025] NSWPICPD 29
•2 April 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Redpath v State of New South Wales (Healthshare NSW) [2025] NSWPICPD 29 |
APPELLANT: | Sharyn Redpath |
RESPONDENT: | State of New South Wales (Healthshare NSW) |
INSURER: | QBE Workers Compensation (NSW) Limited |
FILE NUMBER: | A1-W872/24 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 2 April 2025 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 14 May 2024 is revoked. 2. The matter is remitted to a different non-Presidential member for redetermination. |
CATCHWORDS: | WORKERS COMPENSATION – Failing to afford a party procedural fairness having regard to the principles in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 and associated authorities; proof of injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 – application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; competing medical cases and the duty to provide reasons: Eckersley v Binnie (1988) 18 Con LR 1; Archibald v Byron Shire Council [2003] NSWCA 292; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms E Grotte, counsel | |
| Turner Freeman Lawyers | |
| Respondent: | |
| Mr T Grimes, counsel | |
| Hicksons Lawyers | |
DECISION UNDER APPEAL: | Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249 |
MEMBER: | The Honourable L Drake |
DATE OF MEMBER’S DECISION: | 14 May 2024 |
INTRODUCTION AND BACKGROUND
Sharyn Redpath (the appellant/worker) has a Bachelor of Business in Property; her background includes working as a valuer, and consulting in project management roles. From October 2015 she worked on a contract basis with the Ministry of Health (the Department) as a senior property officer. From 29 August 2016 she became a permanent employee of the Department, in the same capacity. She worked a 35-hour week. Her duties mainly involved desk work using a computer and attending meetings.[1]
[1] Appellant’s statement 29/1/24, [5], [9]–[14], Application to Resolve a Dispute (ARD), pp 1–15.
As a child the appellant suffered from Perthes disease which affected her hips. She had fluctuating hip pain from childhood. She developed low back pain from early adulthood. After a period living and working in the United Kingdom, she returned to Sydney and came under the care of Dr Walker from 2008. She saw physiotherapists and specialists for chronic hip, back and neck pain. On 3 June 2011 she woke with neck pain which became severe when she raised her arms to wash her hair while showering. On 27 June 2011 the appellant underwent surgery, involving C5/6 anterior decompression and fusion, at the hands of Dr Hsu. She had ongoing pain in the neck, lower back and hips. She stated that by 2015 to 2018 she did not require ongoing treatment and was able to work without restriction.[2]
[2] Appellant’s statement, [17]–[29].
From July 2015 the appellant worked in a building at Miller Street, North Sydney, which she described as unergonomic. In December 2016 the appellant underwent bilateral total hip replacement surgery. In September 2018 the appellant experienced an increase in her neck and back pain. She had various investigations. Her office moved to Mount Street, North Sydney in about April/May 2019. By this time the appellant suffered from pain in the hands, elbows, shoulders, neck, upper back, lower back and hips, together with cervical and lumbar radiculopathy. An ergonomic assessment of her workstation made various recommendations, most of which the Department met. She had an electronic ‘sit to stand’ desk, split keyboard and a Therapod chair.[3]
[3] Appellant’s statement, [39]–[47].
During the COVID pandemic the appellant worked from home. She said that to permit this arrangement she signed a declaration that she had an ergonomic workstation at home, although she did not. The Department permitted her to take her Therapod chair home, together with a display monitor. The chair became stuck on its lowest setting. The appellant said her multiple symptoms worsened while she worked from home throughout the COVID pandemic.[4] The appellant stated that in November 2021 she was struggling with back pain, together with pain in the arms and legs. On 28 March 2022 and 4 April 2022 Dr Hsu performed fusion and decompression at L3–5. On 30 May 2022 Dr Hsu certified the appellant fit to return to work on light duties at home, which she did. The appellant engaged an ergonomist to assess her workstation at home. This occurred on 28 June 2022. On his recommendation she purchased a new chair at a cost of $2,060. On 11 July 2022 she resumed her pre-injury duties and hours, on condition she work from home in an ergonomic workstation. On 1 August 2022 she purchased a new ‘sit to stand’ desk. From September 2022 to May 2023 the appellant acted in the position of Manager, Asset Services, with the respondent. In November 2022 the appellant experienced severe neck and shoulder pain, worse at the end of the working day. [5] On 3 and 8 May 2023 the appellant had severe pain at the end of the working day. She said she had worked “extremely long hours for many months”.
[4] Appellant’s statement, [49]–[60].
[5] Appellant’s statement, [61]–[86].
On 23 May 2023 Dr Hsu recommended decompression and fusion from C3 to T1. QBE (the insurer) disputed liability for this surgery,[6] which Dr Hsu performed on 17 and 24 July 2023.[7] The insurer’s dispute notice dated 13 September 2023 provided that liability for medical and associated expenses ceased as at 13 September 2023 and liability for weekly payments ceased as at 6 October 2023. The notice disputed that incapacity, and the need for medical or related treatment, resulted from employment injury. The ARD claimed weekly benefits from 22 March 2022 on an ongoing basis and medical and related expenses in the sum of $37,347.00.
[6] ARD, pp 93–107, 109–113.
[7] Appellant’s statement, [94]–[106].
The matter was listed for hearing on 15 April 2024. Ms Grotte appeared for the worker and Mr Grimes appeared for the Department. There were no applications to take oral evidence. Both counsel addressed and the Member reserved her decision.
The Commission issued a Certificate of Determination dated 14 May 2024, accompanied by the Member’s reasons.[8]
[8] Redpath v State of New South Wales (HealthShare NSW) [2024] NSWPIC 249 (the reasons).
THE MEMBER’S REASONS
The Member described the appellant’s medical history as “critical to the determination … extensive and complex”. She said the history was particularised in the appellant’s statement, from which the Member set out a “shorthand summary”. She quoted at length from the opinion on causation of Dr New, an orthopaedic surgeon qualified in the worker’s case. Dr New considered the appellant’s employment was a “substantial contributor in aggravating [the appellant’s] preexisting spondylosis” and the nature and conditions of employment “did contribute to her deterioration”. The Member noted the appellant’s allegation of “unergonomic workplace stations and equipment, as well as staff shortages and inefficiencies which led to long working hours”. The Member noted these were outlined in the appellant’s statement.[9]
[9] Reasons, [17]–[19].
The Member referred to Dr Moloney’s report dated 13 July 2023, on which the respondent relied. She quoted a lengthy passage of Dr Moloney’s “questions and answers” which she said “best set out” the doctor’s conclusions. The doctor said there was “no evidence of any injury. I do not believe that she has aggravated or accelerated her underlying condition of cervical or lumbar spondylosis.” He said, of the neck and back “issues”, that these were “constitutional in origin and do not have a genesis in the nature and conditions of her employment”. The doctor said, of the most recent surgery at C3 to T1, that the appellant’s employment was “not in any way responsible nor has it contributed to the need for the surgery”. The doctor considered the surgery was “a reasonable avenue for [the appellant] to follow”.[10]
[10] Reasons, [20]–[21].
The Member referred to the submissions of the appellant’s counsel, which she summarised as follows:
“The basis of the submission was that, despite the [appellant’s] long history of pain and neck and spinal difficulties, her condition has stabilised until the nature and conditions of her employment with the respondent aggravated her underlying vulnerability and caused the injury requiring surgery.”
The Member said the appellant’s counsel had taken the Commission through the clinical notes in support of this submission.[11]
[11] Reasons, [22].
The Member described the substance of the respondent’s dispute notices dated 13 June 2023 and 13 September 2023, which “set out its position on liability succinctly”.[12] The Member referred to the respondent’s oral submissions. The respondent submitted the submission by the appellant, that “her condition was stable [at the] commencement of employment was inaccurate”. The clinical notes indicated the appellant was being prescribed “very strong pain medication from 2012 onwards”. The respondent submitted “the notes and the prescription pain medication does not support the [appellant’s] statement that her back and neck pain were fine”. The Member said there was “significant treatment from the full spectrum of the [appellant’s] medical specialists referring to the continuation of pain and the need for significant drug use for pain relief”. The Member said there was “also a significant absence of complaint regarding the workplace conditions relied upon by the [appellant].”[13]
[12] Reasons, [23]–[25].
[13] Reasons, [26]–[27].
The Member said both sides could make submissions relying on the clinical notes. She said she was not persuaded by the submission that there had been an aggravation of the underlying condition by the workplace arrangements and workload. The appellant had “very serious underlying neck and spinal problems when she was employed by the respondent”. The Member said she was satisfied that the need for surgery “arose from her underlying condition without any aggravation, acceleration, exacerbation or deterioration from the conditions of her employment”. The Member accepted the opinion of Dr Moloney that “her condition interferes with her work but that her work is not responsible for her condition”. There was an award for the respondent.[14]
[14] Reasons, [28]–[34].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998) Act have been met.
THE 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,[15] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[16] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[17]) 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’.”[18]
[15] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[16] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[17] [1996] HCA 140; 140 ALR 227.
[18] 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.[19] 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).”[20]
[19] [2020] NSWCA 54 (Hill).
[20] Hill, [20].
In Northern NSW Local Health Network v Heggie[21] 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”.
[21] [2013] NSWCA 255; 12 DDCR 95, [72].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Member erred in law by misdirecting herself as to the correct test for determining whether the appellant has suffered a s 4(b)(ii) injury. (Ground No. 1)
(b) The Member erred in law by failing to deal with a substantial, clearly articulated argument being the appellant’s argument that an increase in symptoms amounted to a s 4(b)(ii) injury being an aggravation, exacerbation, acceleration or deterioration of a disease. (Ground No. 2)
(c) The Member erred in fact and law by failing to consider the evidence that supported a finding of a s 4(b)(ii) injury and thereby failed to engage with all of the evidence. (Ground No. 3)
(d) The Member erred in fact and law by preferring the opinion of Dr P Moloney without providing any, or any adequate, reasons for preferring that opinion to that of Dr C New, the medico-legal expert qualified on behalf of the appellant, and in circumstances where Dr Moloney had not engaged with all of the evidence. (Ground No. 4)
The presentation is a little confused. Grounds Nos. 1, 2 and 3 arise from similar alleged errors in respect of the application of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). Ground No. 1 asserts error in not identifying the correct test for the occurrence of injury pursuant to s 4(b)(ii). Notwithstanding this, the submissions on this ground largely relate to alleged failure by the Member to engage with relevant evidence. Ground No 2 asserts error, on the basis of authorities such as Dranichnikov v Minister for Immigration and Multicultural Affairs[22] (involving a constructive failure to exercise jurisdiction and to afford procedural fairness), in not dealing with the correct test. The submissions on Ground No. 2 include a passage from Federal Broom Co Pty Ltd v Semlitch[23] which deals with the test of ‘injury’ pursuant to s 4(b)(ii). Ground No. 3 asserts error in failing to consider, and engage with, the evidence that supported a finding of ‘injury’ within the meaning of s 4(b)(ii). Grounds Nos. 1, 2 and 3 all relate to the test in s 4(b)(ii), how the application of s 4(b)(ii) was dealt with and whether there was error. A consequence of this is that many of the same submissions made by the appellant in support of Ground No. 2 are simply repeated verbatim as submissions also going to Ground No. 3. A further consequence is that the respondent makes short submissions that purport to engage with Ground No. 2, but in fact appear to relate to Ground No. 3 (that is, they do not refer to Dranichnikov or related authorities). The respondent’s submissions that purport to apply to Ground No. 3 in fact relate to Ground No. 4. Grounds Nos. 1, 2 and 3 raise similar issues going to the test of injury pursuant to s 4(b)(ii) of the 1987 Act and its application. The practical course is that I deal with Grounds Nos. 1, 2 and 3 together.
APPELLANT’S SUBMISSIONS ON GROUND NO. 1: FAILING TO APPLY THE CORRECT TEST UNDER SECTION 4(b)(ii) OF THE 1987 ACT
[22] [2003] HCA 26; 197 ALR 389 (Dranichnikov).
[23] [1964] HCA 34; 110 CLR 626 (Semlitch).
The appellant quotes s 4(b)(ii) of the 1987 Act, which relevantly provides:
“Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, …”.
For convenience, where the phrase “aggravation, acceleration, exacerbation or deterioration” is used I will refer to it as “aggravation, etcetera”. The appellant submits it was necessary for her to demonstrate on the probabilities that her employment was the ‘main contributing factor’ to the aggravation, etcetera of the disease. She submits the reasons should be read as a whole. She submits the reasoning demonstrates the Member did not have regard to all of the evidence and did not engage with evidence favourable to the appellant. She submits the Member did not set out the appellant’s work history nor the nature of the duties with the respondent (save for brief references at [2], [4] and [5] of the reasons). There was evidence going to whether her working conditions were ergonomic and her long hours. The appellant refers to the failure to refer to Dr Ganora’s report dated 9 February 2019, which said the appellant had worked in an unergonomic workstation for about four to five years. She submits this was crucial evidence which was overlooked or ignored.[24]
[24] Appellant’s submissions, [9.1]–[9.8].
The appellant refers to the Member’s acceptance of Dr Moloney’s opinion, that “her condition interferes with her work but that her work is not responsible for her condition”. The appellant submits Dr Moloney identified her as suffering from “constitutional cervical spondylosis and lumbar spondylosis”. The doctor said employment was not a substantial contributing factor to this condition. The appellant refers to the following passages from Dr Moloney’s report:
“Ms Redpath had problems with her neck and with her back for years leading up to that particular day on which the pain worsened and she was unable to continue at work. There was no injury per se apart from the fact that she was working long hours and doing a lot of computer work. This would not, of its own, cause the degree of cervical and lumbar spondylosis evident on her investigations. The occurrence of her pain at work is coincidental.”
“There is no evidence of any injury. I do not believe that she has aggravated or accelerated her underlying condition of cervical or lumbar spondylosis. Employment is not a main contributing factor. She has a long past history of cervical and lumbar spondylosis. She has had surgery carried out by Dr Brian Hsu in 2011 to her cervical spine and she has had a fusion operation carried out also by Dr Hsu to her lumbar spine in 2022. She has ongoing issues with her neck and ongoing issues with her back. These issues are constitutional in origin and do not have a genesis in the nature and the conditions of her employment.” [25]
[25] Reply to Application to Resolve a Dispute (reply), p 26.
The appellant submits it is clear the doctor, discussing the injury, was dealing with the underlying condition, not with whether there had been an aggravation. He did not engage with the evidence of the unergonomic set up at work and the long hours. The time sheets were not challenged by the respondent and showed frequent long hours during the period from January 2021 to June 2023. Responding to a question regarding whether the need for surgery resulted from workplace injury, aggravation or exacerbation, the doctor responded:
“There is no evidence of injury to her cervical spine or to her lumbar spine. The nature and conditions of her employment have not contributed to her constitutional changes.”[26]
[26] Reply, p 27.
The appellant refers to the evidence of long hours. She refers to the ergonomic assessment by WorkFocus commissioned by the appellant in 2019. She refers to the limited space and the unergonomic chair which lost height when she worked from home during COVID. The treating physiotherapist, Laura Lee, referred to long hours and noted that aggravation usually started after the worker sat at her desk for a few hours.[27]
[27] Appellant’s submissions, [9.17]–[9.21].
The appellant submits that “the Member misdirected herself as to the test to be applied to the determination of whether the appellant suffered s 4(b)(ii) injury.[28]
[28] Appellant’s submissions, [9.23].
RESPONDENT’S SUBMISSIONS ON GROUND NO. 1
The respondent refers to the line of authority dealing with s 352(5) of the 1998 Act that is discussed above under the heading ‘Nature of the Appeal’. It submits the appellant has not identified error of law or fact, nor established that the Member’s decision was wrong.[29]
[29] Respondent’s submissions, [2.1]–[2.5].
The respondent submits the Member had regard to all of the evidence, including that which was favourable to the appellant. I take the respondent’s reference to “Post paragraph 29”, in support of this submission, to be a reference to the reasons at [18], where the Member quoted from Dr New’s report going to causation, which included a quote that followed paragraph [29] in the text in that report. The passage included the following:
“I note that Dr Moloney opined there was no evidence of injury to the cervical or lumbar spine in the course of her employment. The patient states that due to the nature and conditions of her office, she did develop neck and back pain which eventually required surgery.
The patient has confirmed she was working very long hours. She had commissioned an ergonomic study which allegedly reported that the circumstances of her workspace were poor. Please refer to the Ergonomic Reports dated 28th June 2022 and 27th May 2019.”
The respondent refers to the reasons at [19] in support of the submission that the Member noted and engaged with all the evidence, including that which was favourable to the appellant. The reasons at [19] read:
“The [appellant] alleges the aggravation and exacerbation of pre-existing injuries as a result of unergonomic workplace stations and equipment, as well as staff shortages and inefficiencies which led to long working hours. These were outlined in her statement as footnoted.”
The respondent refers to the submission by the appellant’s counsel that “unergonomic work conditions and workload were the main contributing factors to her injury and the need for surgery”. The respondent submits the basis of this submission was that, despite the appellant’s history, her condition had stabilised until the nature and conditions of employment aggravated her underlying vulnerability and caused the injury requiring surgery. The respondent submits the appellant’s counsel took the Commission through clinical notes in support of this submission.[30]
[30] Respondent’s submissions, [2.6]–[2.7].
The respondent refers to and repeats its summation of the evidence regarding the appellant’s extensive medical history.[31] It notes the reasons at [26] to [27] which acknowledge the respondent’s submissions. There was “very strong pain medication from 2012 onwards”. There was “significant treatment from the full spectrum of the [appellant’s] medical specialists”. It refers to the reasons at [27] which refer to a “significant absence of complaint regarding the workplace conditions”.
[31] Respondent’s submissions, [2.8]–[2.9].
The respondent refers to the following as “credit findings”:
(a) “the [appellant] had very serious underlying neck and spinal problems when she was employed by the [r]espondent.”
(b) “Sadly, when the [appellant] gave evidence that she was fine, she was operating from a very low base.”[32]
[32] Respondent’s submissions, [2.10]–[2.13].
The respondent submits these factual findings should not be disturbed or departed from. It submits that, after making these factual findings, it was appropriate that the Member relied on the opinion of Dr Moloney that employment did not cause an aggravation injury. It submits the Member did not misdirect herself in relation to s 4(b)(ii).[33]
APPELLANT’S SUBMISSIONS ON GROUND NO. 2: FAILING TO DEAL WITH A SUBSTANTIAL, CLEARLY ARTICULATED ARGUMENT REGARDING INJURY PURSUANT TO SECTION 4(b)(ii)
[33] Respondent’s submissions, [2.14]–[2.16].
The appellant quotes the following from the reasons of Kitto J in Semlitch:
“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.”[34]
“Moffitt J was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[35]
[34] Semlitch, [4].
[35] Semlitch, [7].
The appellant states she submitted before the Member that an increase in symptoms could constitute a s 4(b)(ii) type injury, if it were established that the increase was caused by work. She submits there is no reference in the reasons to this argument, nor anything from which it could be inferred that the Member engaged with this argument. The appellant quotes from Day v SAS Trustee Corporation:
“The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111].”[36]
[36] [2021] NSWCA 71 (Day), [37].
The appellant refers to her statement at [29], in which she said that between 2015 and 2018 her neck and back were fine, she could work without restrictions, she did not require treatment or medication or have pain in the neck and back. The appellant refers to an increase in pain, it became clear she had been working in unergonomic conditions. During 2020 when she worked from home during the COVID period, her workstation was cramped and confined. The appellant refers to staff shortages around March 2021 and working up to 10 hours per day. She submits this evidence was not disputed by the employer. On 22 March 2022 the appellant was admitted to hospital with excruciating neck and back pain. On 28 March 2022 and 4 April 2022 Dr Hsu performed fusion and decompression surgery at L3 to L5. The appellant submits she resumed work on light duties from 30 May 2022 and normal duties from 11 July 2022. By 18 November 2022 the appellant was experiencing severe neck and shoulder pain at the end of the working day. Evidence of long hours was supported by timesheets and evidence from her physiotherapist.[37]
[37] Appellant’s submissions, [10.1]–[10.9].
The appellant refers to the reasons at [30] to [31], where it was said that she had very serious underlying neck and spine problems when working with the respondent. The appellant submits the clinical notes show that despite her medication, her pain was well controlled and she was able to work without restriction. The appellant refers to Dr Hsu’s reporting on 1 February 2022 where the doctor referred to “long hours of work in unergonomic circumstances and a recent increase in neck and back pain symptoms which had become worse”.
The appellant submits that none of this evidence was engaged with or analysed. The appellant submits Dr Moloney did not address any of the above evidence, such as the unergonomic workstation and the workstation at home. He only referred to “long hours and doing a lot of computer work”. The appellant submits Dr Moloney relied on “an incorrect history and a bare understanding of the work duties”.
The appellant submits the Member failed to address the increase in her symptoms and whether this constituted a s 4(b)(ii) injury in accordance with Semlitch. She submits there was a failure to engage with material evidence and to address central and critical elements of the appellant’s case, which constituted a failure to afford the appellant procedural fairness.[38] The appellant’s submissions refer to a passage from Hodgson JA in Murray v Shillingsworth in which his Honour said:
“However, if the same event can also be regarded as an aggravation of that pre-existing condition, then the employment contribution to the aggravation may not be diluted by the pre-existing condition (although the compensation would then be strictly limited to the effect of the aggravation).”[39]
[38] Appellant’s submissions, [10.10]–[10.14].
[39] [2006] NSWCA 367; 4 DDCR 313, [7].
RESPONDENT’S SUBMISSIONS ON GROUNDS NOS. 2 AND 3
The respondent’s submissions do not specifically address Ground No. 2. The heading in the appellant’s submissions referring to Ground No. 2 is followed by the text of Ground No. 3 and some very brief submissions. These submissions do state that there “has been no error in fact and law”.
The respondent submits it relies on its earlier submissions at [2.7] and [2.10] to [2.15]. It submits there was no error of fact and law.[40]
APPELLANT’S SUBMISSIONS ON GROUND NO. 3: FAILING TO ENGAGE WITH EVIDENCE THAT SUPPORTED A FINDING OF INJURY PURSUANT TO SECTION 4(b)(ii)
[40] Respondent’s submissions, [2.16.1]–[2.17].
The appellant’s submissions on Ground No. 3 ([11.1] to [11.11] of her submissions) are largely identical to those in support of Ground No. 2. The passages of Semlitch on which the appellant relies were set out in the submissions dealing with Ground No. 2 but were not set out again in the submissions dealing with Ground No. 3 (at [11.10]). A passage from Day (which was relevant to the Dranichnikov argument) was quoted from and referred to at [10.3] of the appellant’s submissions on Ground No. 2 but not Ground No. 3. I will not repeat my summary of the appellant’s submissions dealing with Ground No. 2.
APPELLANT’S SUBMISSIONS ON GROUND NO. 4: REASONS
The appellant states that she repeats her criticisms of Dr Moloney’s opinion and why it should not be preferred. The appellant refers to Dr Moloney’s views on ‘injury’ and repeats the submission that the doctor’s discussion of causation demonstrates that he is dealing with the underlying condition of cervical and lumbar spondylosis, as opposed to an aggravation of the underlying problem.[41] The appellant submits Dr Moloney failed to engage with the evidence of the nature and conditions of employment. Reference is made specifically to the evidence of her lengthy hours, and her work at home in a cramped space during COVID, with a chair that frequently lost height.[42]
[41] Appellant’s submissions, [12.4]–[12.8].
[42] Appellant’s submissions, [12.9]–[12.14].
The appellant contrasted this with Dr New’s report, which addressed the long hours and unergonomic workstations, both at work and at home. The appellant submits the Member was required to provide adequate reasons for why she preferred Dr Moloney’s opinion over that of Dr New. The appellant submits the Member’s opinion “amounts to a conclusory statement rather than an exposition of the reasoning process and explanation as to why [Dr Moloney’s] opinion is preferred”.[43]
[43] Appellant’s submissions, [12.15]–[12.16].
The respondent’s submissions, under the nomenclature of Ground No. 3, in fact relate to Ground No. 4. It relies on its earlier submissions at [2.10] to [2.15]. The respondent submits there was no error of fact or law.
CONSIDERATION OF GROUNDS NO. 1, 2 AND 3
The appellant’s claim specifically relies on s 4(b)(ii) of the 1987 Act, which is reproduced below for convenience:
“injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,”
The pleaded “Injury description” was:
“Aggravation, exacerbation, acceleration or deterioration of Cervical spine and Lumbar spine Spondylosis”.
It was clear, from the pleaded description of the injury, that the case was presented on the basis that the appellant’s cervical and lumbar spondylosis pre-existed the employment with the Department, and the alleged injury involved the aggravation etcetera of those conditions. The appellant’s counsel at the hearing described the case as “really a nature and conditions claim … the date of injury is identified as the 3rd of May, 2023 which is when the [appellant] stopped working.”[44] In discussion between counsel the issue in dispute was described as “really just causation”.[45]
[44] Transcript of hearing 15/4/24 (T), T 3.7–9.
[45] T 5.17–18.
The alleged misdirection as to the test in s 4(b)(ii)
The appellant submits it was necessary that she demonstrate, on the probabilities, that her employment was the ‘main contributing factor’ to the aggravation, etcetera of the disease. A starting point was whether there was an aggravation, etcetera. The passages from Semlitch on which the appellant relies[46] are well-known and accepted statements of principle. The respondent does not challenge their correctness.
[46] See [36] of these reasons.
There was ample evidence to support the proposition that there was an increase in the appellant’s symptoms leading to the need for surgery, and that the appellant was exposed to this ‘state of affairs’ in the performance of her duties. Dr Hsu on 14 February 2022 described “recent onset increasing neck pain and back pain”.[47] On 7 March 2022 Dr Hsu reported “she is experiencing increasing symptoms and I feel that she would benefit from surgical intervention”.[48] The appellant stated that her symptoms worsened while she worked from home during the COVID pandemic.[49] On 14 March 2022 Dr Hsu reported “[w]e have agreed that we will proceed with L3-4 anterior and posterior fusion as the next step in her treatment for the lumbar spine”.[50] The lumbar surgery (fusion and decompression at L3–5) was performed on 28 March 2022 and 4 April 2022. On 30 May 2022 the appellant, (consistent with Dr Hsu’s certification) resumed work on light duties, at home. On 11 July 2022 the appellant resumed her pre-injury duties and hours, at home. From September 2022 the appellant acted as Manager, Asset Services. She stated that she worked extremely long hours for many months. The worker described severe pain at the end of the working day on 3 and 8 May 2023. Dr Hsu reported seeing the appellant on 18 May 2023, after a cervical injection failed to provide long term relief. Dr Hsu recorded the appellant had “significant concerns with her neck pain” and arranged a consultation to discuss surgery.[51] Reporting on 23 May 2023, Dr Hsu described the appellant’s neck pain as “quite severe related to her previous work-related injury”.[52] The surgery, C3 to T1 decompression and fusion, was performed by Dr Hsu on 17 and 24 July 2023.
[47] ARD, p 177.
[48] ARD, p 178.
[49] Appellant’s statement, [49]–[60].
[50] ARD, p 179.
[51] ARD, p 181.
[52] ARD, p 184.
The treating physiotherapist, Ms Lee, in a report dated 29 November 2022 (which postdated the lumbar fusion of March/April 2022) recorded a history that the appellant had “chronic left side neck pain, that has been flaring up almost once every three weeks for the past two months”. The history continued:
“This has been quite debilitating for her as she has to continue to work long hours at her desk at home. She reported aggravation usually starts after sitting at her desk for a few hours”.[53]
[53] ARD, p 88.
The appellant on appeal submitted that evidence of long hours was supported by timesheets and evidence from her physiotherapist,[54] a submission that was not contradicted by the respondent.
[54] Appellant’s submissions, [10.9].
Dr Hsu’s report dated 7 November 2023 described both the L3–L5 fusion and decompression in March/April 2022 and the “two stage C3–T1 cervical fusion” in July 2023. Dr Hsu said that the appellant’s “workplace incident has caused both her cervical and lumbar pathologies.” In the same report Dr Hsu said that he disagreed with Dr Moloney’s findings. Dr Hsu said that “her workplace incident has caused both her cervical and lumbar pathologies, due to the repetitive nature of her work”. This is consistent with Dr Hsu’s opinion on causation being based on the nature of the appellant’s duties in a more general sense, notwithstanding the reference to a “workplace incident”. This is also consistent with the evidence overall. Dr New’s report dated 18 October 2023 supported the proposition that there was “a connection between the patient’s employment and the lumbar and cervical presentation”. Dr New said “but for the work conditions, she would not have presented to Dr Hsu as she has”, and “the patient’s employment has materially contributed to the need of [sic] the medical treatment”.[55]
[55] ARD, pp 142–3.
The appellant’s counsel’s oral submissions at first instance dealt specifically with the passage of Semlitch on which the appellant relies:
“… in Federal Broom Company Pty Limited v Semlitch [1964] 110 CLR 626 in terms of the aggravation injury what we - what the [appellant] needs to establish is was there an increase in the symptoms, that is sufficient to establish an aggravation injury and that’s what happened here. There was an increase in the symptoms which then puts her off work.
So, yes, she’s got all of these problems, she’s very vulnerable, there’s an ergonomic assessment, there’s clearly a significant vulnerability and so what’s emerged is that she wasn’t working in an ergonomically sound environment and that over a period of time in combination with the long hours and the computer work she ends up with an increase in symptoms to such a degree that she has to go off work.
That’s consistent with what Dr Hsu records, increasing neck pain and back pain.”[56]
[56] T 74.33–75.17.
I note that, consistent with the above, in Cant v Catholic Schools Office[57] Burke J referred to the reasons of Windeyer J in Semlitch and said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”[58]
[57] [2000] NSWCC 37; 20 NCWCCR 88 (Cant).
[58] Cant, [17].
This argument based on Semlitch went to the test to establish ‘injury’ pursuant to s 4(b)(ii). It was an argument that was not addressed in the reasons. In Pollard v RRR Corporation Pty Ltd McColl JA said that “reasons must do justice to the issues posed by the parties’ cases”.[59] In Jones v Bradley Santow JA said it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.[60] The appellant’s case on ‘injury’ ultimately failed, without its argument referring to the test in s 4(b)(ii) and Semlitch being considered. This was a fundamental part of how the appellant’s case was presented. It had the capacity to affect the result.[61] I accept that this involved appealable error. Ground No. 1 is made out.
[59] [2009] NSWCA 110 (Pollard), [59].
[60] [2003] NSWCA 81, [129].
[61] See Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478, [6]–[7].
The alleged constructive failure to exercise jurisdiction
The appellant additionally relies on the principles discussed in Dranichnikov, in which Gummow and Callinan JJ said: “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”[62] Relevant principles, in the context of an appeal from the District Court dealing with entitlements under the Police Regulation (Superannuation) Act 1906, were considered in Day, where Meagher JA (Payne and White JJA agreeing) said:
“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation.”[63]
[62] Dranichnikov, [24].
[63] Day, [37].
The appellant’s submission, based on Semlitch and the definition of ‘injury’ in s 4(b)(ii) of the 1987 Act, raised a clearly material argument, which was central to the appellant proving ‘injury’. The Member failed to address that argument in determining the claim. Ground No. 2 is made out.
The appellant’s submissions dealing with Grounds Nos. 2 and 3 refer to multiple other examples of lay evidence which she submits were not addressed by the Member (or Dr Moloney).[64] The appellant submits, in respect of Ground No. 3, that the “Member’s failure to engage with and consider the [a]ppellant’s evidence has resulted in an error of law being a failure to accord the [a]ppellant procedural fairness”.[65] The passage of Day, quoted in the appellant’s submissions, makes it clear that “a mere failure to consider evidence or to address an argument or submission” is insufficient to lead to a finding that there has been a constructive failure to exercise jurisdiction. In Mifsud v Campbell Samuels JA said:
“It is plainly unnecessary for a judge to refer to all of the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.”[66]
[64] See [37]–[41] and [44] above.
[65] Appellant’s submissions, [11.12].
[66] (1991) 21 NSWLR 725, 728D.
I have concluded that Grounds Nos. 1 and 2 are made out. Ground No. 4 also is made out, for reasons that follow. This is sufficient that the appeal succeeds. It is unnecessary to further consider the appellant’s submissions, going to whether there was appealable error in failing to refer to other evidence, raised in the balance of Ground No. 2 and in Ground No. 3
CONSIDERATION OF GROUND NO. 4: REASONS
The way in which this ground is framed raises both whether it was erroneous that the Member preferred the opinion of Dr Moloney to that of Dr New, and whether the reasons in this regard were adequate. The appellant submits she has addressed the ground already, and states that she repeats the criticisms levelled at Dr Moloney’s opinion.[67] The appellant summarises Dr Moloney’s report.[68] The appellant repeats the submission that Dr Moloney, in purportedly discussing whether there was injury in the nature of an aggravation etcetera, “was only considering the genesis of the underlying condition”. Reference is made to the doctor’s response to the ninth question directed to him:
“There is no evidence of injury to her cervical spine or to her lumbar spine. The nature and conditions of her employment have not contributed to her constitutional changes.”[69]
[67] Appellant’s submissions, [12.1].
[68] Appellant’s submissions, [12.2]–[12.7].
[69] Appellant’s submissions, [12.8].
The appellant’s submissions on this ground deal with aspects of the appellant’s history, with Dr Moloney’s alleged failure to engage with various aspects of the history, and with associated evidence.[70] The appellant refers to Dr New’s report, which supported the appellant on the basis that there was an aggravation and acceleration of the underlying changes in the appellant’s spine that led to the requirement for surgery.[71] This material was raised in the first three grounds, and to the extent to which it was necessary, was dealt with in the discussion dealing with those grounds.
[70] Appellant’s submissions, [12.9]–[12.14].
[71] Appellant’s submissions, [12.15].
The appellant submits the Member “did not provide any, or any adequate reasons for preferring one [medical] opinion over the other”. The appellant submits the Member’s statement at [33] of the reasons was “a conclusory statement rather than an exposition of the reasoning process and explanation of why that opinion is preferred”.[72]
[72] Appellant’s submissions, [12.16].
The parties’ medical cases
There were two competing medical cases. In Eckersley v Binnie Bingham LJ said:
“In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons …”.[73]
[73] (1988) 18 Con LR 1 (Eckersley) at 77–78, quoted with approval by Beazley JA (as her Excellency then was) in Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293 at [133], and by Ipp JA (Bryson JA and Stein AJA agreeing) in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127.
In Archibald v Byron Shire Council Sheller JA (Beazley JA, as her Excellency then was, agreeing) said:
“Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the Court and to an explanation by the judge as to why the judge prefers one case over the other. This is particularly so where there is disputed expert evidence.”[74]
[74] [2003] NSWCA 292, [54].
The matters referred to at [30] to [31] of the reasons are factual findings; I do not accept the respondent’s submission that they should be regarded as credit findings.[75]
[75] Respondent’s submissions, [2.13]–[2.14].
The Member quoted lengthy passages from the reports of both Dr New (qualified in the appellant’s case) and Dr Moloney (qualified in the respondent’s case).
The passage from Dr New’s report accepted there was “no doubt that the [appellant] had a long history of cervical and lumbar spondylosis”. The doctor noted the history that the appellant worked very long hours. He noted the ergonomic reports dated 27 May 2019 and 28 June 2022, which he said “allegedly reported that the circumstances of her workspace were poor”. He referred to the worker’s employment and noted her history that “she had poor sitting posture, although there was no specific cervical or lumbar accident”. Dr New said he agreed with Dr Moloney that there were “no specific index injuries to her cervical and lumbar spine”. Dr New described the history as “consistent with an aggravation and acceleration of the pre-history to the point where her symptoms were severe enough to require surgical intervention”.
In disagreeing with Dr Moloney’s opinion, Dr New said he disagreed with use of the term ‘constitutional’. He described the appellant’s employment as “a substantial contributor in aggravating her pre-existing spondylosis”. He said the “nature and conditions of her employment did contribute to her deterioration”.
The case, consistent with the factual background, proceeded on the basis that there was a long history of spinal complaint, pathology and treatment. The case was presented as one involving a symptomatic aggravation of the pre-existing condition, resulting from the ‘nature and conditions’ of employment, both when working in the appellant’s office premises and working at home. The medical histories referred to various specific aspects of the duties that increased her symptoms. These included working long hours, poor sitting posture, sitting for more than a few hours at her desk at home, the cramped and confined conditions when she worked from home and the repetitive nature of the duties. Dr Hsu’s recorded histories were consistent with a symptomatic worsening, leading to the surgical procedures carried out in 2022 and 2023. Dr New specifically referred to the ergonomic reports.
Dr Moloney’s report included multiple misapprehensions, on the doctor’s part, regarding the proof of ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act. Responding to written questions from the insurer the doctor said:
“There is no injury or mechanism of injury that occurred during the course of her employment with a deemed date of injury of 03 May 2023. Ms Redpath had problems with her neck and with her back for years leading up to that particular day on which the pain worsened and she was unable to continue at work. There was no injury per se apart from the fact that she was working long hours and doing a lot of computer work. This would not, of its own, cause the degree of cervical and lumbar spondylosis evident on her investigations. The occurrence of her pain at work is coincidental.” (emphasis added)
“There Is no evidence of any injury. I do not believe that she has aggravated or accelerated her underlying condition of cervical or lumbar spondylosis. Employment is not a main contributing factor. She has a long past history of cervical and lumbar spondylosis. She has had surgery carried out by Dr Brian Hsu in 2011 to her cervical spine and she has had a fusion operation carried out also by Dr Hsu to her lumbar spine in 2022. She has ongoing issues with her neck and ongoing issues with her back. These issues are constitutional in origin and do not have a genesis in the nature and the conditions of her employment.” (emphasis added)
“There is no evidence of injury to her cervical spine or to her lumbar spine. The nature and conditions of her employment have not contributed to her constitutional changes.” (emphasis added)
“I believe that the enclosures with your letter of request together with your background setting out problems prior to her deemed date of injury of 3 May 2023, together with the history that I have provided above, which is similar to the history that you have offered, that her condition interferes with her work but that her work is not responsible for her condition.” (emphasis added)
I note the Macquarie Dictionary defines ‘genesis’ as “origin; production; creation”.[76] It was no part of the appellant’s case that the nature and conditions of her employment contributed to the constitutional changes. It was not the appellant’s case that working long hours and doing a lot of computer work, on its own, caused the cervical and lumbar spondylosis evident on investigations. It was not the appellant’s case that the ongoing issues with her neck and back had “a genesis in the nature and conditions of her employment”. Dr Moloney said “her condition interferes with her work but that her work is not responsible for her condition”. It would represent a significant misstatement of the test of ‘injury’ pursuant to s 4(b)(ii) to simply ask whether a worker’s “work” was responsible for the worker’s condition.
[76] 9th edition, 2023.
In Goodrich Aerospace Pty Ltd v Arsic Ipp JA said:
“It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.”[77]
[77] [2006] NSWCA 187; 66 NSWLR 186 (per Ipp JA, Mason P and Tobias JA agreeing), [28].
The Member ultimately accepted the opinion of Dr Moloney, who was qualified in the respondent’s case. The Member was satisfied the appellant had “very serious underlying neck and spinal problems when she was employed by the respondent”. In the reasons at [32] to [33] she concluded:
“32. I am satisfied and find that the [appellant’s] symptoms of pain in her neck and back, and the consequent necessity for surgery, arose from her underlying condition without any aggravation, acceleration, exacerbation or deterioration from the conditions of her employment.
33. I accept and rely on the opinion as to causation provided by Dr Maloney that ‘her condition interferes with her work but that her work is not responsible for her condition.’”
The appellant submits that no reasons were provided for preferring one medical opinion over the other. The appellant submits that the way in which the Member dealt with the conflicting medical evidence, at [32] to [33] of the reasons, “amounts to a conclusory statement rather than an exposition of the reasoning process and explanation as to why that opinion is preferred”. I accept that submission. It was necessary, consistent with the passages from Eckersley and Archibald referred to above, that there be an explanation of why the Member preferred the opinion of Dr Moloney to that of Dr New. There was no such explanation.
Ground No. 4 is made out.
CONCLUSION
The appeal succeeds. There has been a finding, dealing with Ground No. 1, that the Member failed to apply a correct test of ‘injury’ in considering whether there was ‘injury’ within the meaning of s 4(b)(ii) of the 1987 Act. There has been a finding, dealing with Ground No. 2, that the appellant was denied procedural fairness. There has been a finding that adequate reasons were not provided. The appropriate order is that the matter be remitted for redetermination by a different member.
DECISION
The Certificate of Determination dated 14 May 2024 is revoked.
The matter is remitted to a different non-Presidential member for redetermination.
Michael Snell
DEPUTY PRESIDENT
2 April 2025
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