Secretary, Department of Education v Wells - [2025] NSWPICPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v Wells [2025] NSWPICPD 11
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Michelle Wells
INSURER:	Allianz – As Agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W9077/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	18 February 2025
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory decision is granted, pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, to the extent that this is necessary. 2. The Certificate of Determination dated 26 March 2024 is revoked. 3. The matter is remitted to a different non-Presidential member for redetermination.
CATCHWORDS:	WORKERS COMPENSATION – Leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, as part of an appeal against the final result – application of Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; appeal on a matter of practice and procedure – application of Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175; Kelly v Mina [2014] NSWCA 9; determination of a deemed date of injury – application of Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr S Grant, counsel
Hall & Wilcox Lawyers
Respondent:
Mr I Latham, counsel
Beilby Poulden Costello Lawyers
DECISION UNDER APPEAL:	Wells v Secretary, Department of Education [2024] NSWPIC 147
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	26 March 2024

INTRODUCTION AND BACKGROUND

Michelle Wells (the worker/respondent) was employed by the New South Wales Department of Education (the Department/appellant) from 2017. She worked at Queanbeyan High School, initially as a full-time classroom teacher, and then (from 2019) in a “concurrent head teachers position”. She stated she “was managing two head teacher positions in 2019” and coped well.[1] She stated that asbestos was found in three classrooms at the school in March 2021. Deep cleaning of the three affected classrooms took three months. The worker and other staff were anxious about their physical health. One staff member was diagnosed with asbestosis and was fearful he would die. The worker stated she was stressed and panicked. The worker was managing ten staff, whose anxiety and anger were partially directed at her. There was negative student behaviour due to difficulty in accessing practical rooms. She said these events caused her “immense anxiety and fear”.[2]
[1] Worker’s statement 29/11/23, [8], [21], [23], Application to Resolve a Dispute (ARD), pp 2–3.
[2] Worker’s statement, [25]–[33].
The worker said that before these events she had experienced “a bit of depression and anxiety” when she was about 20. She stated that prior to March 2021 she saw a psychologist “monthly to bi-monthly to maintain the relationship and as a method of checking in”. She stated that she saw a psychiatrist in July 2021 and her medication was changed. She continued working full-time but “relinquished one of [her] head teachers positions as [she] was stressed and could not cope”. She said she had time off which reduced her weekly earnings, she was unable “to continue to work at the same capacity”. She said that during the second lockdown due to the pandemic in September 2021 she was exhausted and became reclusive. She had exhausted her sick leave and resumed on full duties in term 4.[3]
[3] Worker’s statement, [14], [20], [35]–[44].
The worker said she was “ashamed and thus reluctant to commence a workers compensation claim”. She “applied for 12 months of leave without pay for 2022”. The worker stated that when school resumed after the summer holidays she had financial pressures, the school had not been able to find a suitable replacement, so she taught casually. She stated she was “repeatedly at breaking point every single day”. She saw her general practitioner on 21 March 2022 and made a claim for workers compensation. She said the insurer accepted liability, but with “an injury starting in 2022 not back in 2021 when my symptoms commenced”. Her payments were “much less than my pre-symptom average weekly rate of pay”. The worker stated her “loss of capacity occurred in Term 4 2021 when [she] applied for leave without pay for 2022 because [she] knew [she] wouldn’t be able to continue working”. She said she tried, without success, to have the insurer “correct this”.[4] The worker in her statement dated 29 November 2023, said she had “been able to resume work at a new school”.[5]
[4] Worker’s statement, [46]–[54].
[5] Worker’s statement, [67].
At the worker’s request[6] the insurer reviewed its decision in correspondence dated 22 April 2022.[7] It described the date of injury as 18 January 2022. It confirmed its original decision,[8] that the worker’s pre-injury average weekly earnings (PIAWE) were $1,050.03.
[6] ARD, pp 20–21.
[7] ARD, pp 8–12.
[8] ARD, p 10.
The current proceedings claim weekly compensation from 18 March 2022 at a weekly rate of $2,282.90. These proceedings were listed for hearing in the Personal Injury Commission (Commission) on 20 February 2024 before Member Drake. Mr Latham, counsel, appeared for the worker and Mr Grant, counsel, appeared for the Department. It was accepted that the worker had suffered psychological injury. The worker argued her date of injury was 19 July 2021 (when her symptoms originated) and the Department argued the date of injury was 21 March 2022 (when it said the worker made her claim for compensation).[9] The Department, at the hearing, sought leave to contest whether the worker had suffered injury. The Member dealt with this application, which she rejected, as part of her reasons. The Member said the Department had ample opportunity to contest injury at an earlier stage and had not done so. The Member said there was no application to cross-examine the worker on her mental health history.[10]
[9] Wells v Secretary, Department of Education [2024] NSWPIC 147 (reasons), [1]–[7], [9].
[10] Reasons, [19]–[23].
The Member made orders for the lodgment of written submissions. Those of the worker were dated 26 February 2024. Those of the Department were dated 12 March 2024. The Commission issued its decision on 26 March 2024. The Member determined the worker’s deemed date of injury was 19 July 2021. She determined it “would be manifestly unfair to take the [worker’s] absence on leave without pay into account when calculating her pre-injury average weekly earnings”. She made findings regarding the worker’s PIAWE between 18 March 2022 and 23 November 2023. She made orders for the payment of weekly compensation during this period pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act).

THE MEMBER’S REASONS

The Member said she took account of the ARD, the Reply and the written submissions of both parties. The Member set out the insurer’s written reasons for refusing the worker’s application dated 11 April 2022, for review of the insurer’s decision dated 31 March 2022.[11] The reasons indicated the ‘relevant period’ was defined in cl 2(2) of Sch 3 to the 1987 Act. This was a period from 19 January 2021 to 17 January 2022. The insurer’s reasons referred to cl 8E of the Workers Compensation Regulation 2016, which made provision relevant to adjustment for unpaid leave. The insurer’s reasons stated there was a ‘material change’ from 1 February 2022 when the worker ceased working under her contract and engaged in casual employment. The period from 19 March 2021 to 20 January 2022 was excluded. The period from 21 January 2022 to 3 February 2022 was removed to “align your relevant period to your pay cycle”. The insurer’s reasons said the relevant period was 6 weeks, during which the worker earned $6,900.15, which yielded pre-injury average weekly earnings of $1,050.03. On this basis the insurer’s decision was confirmed.
[11] Reasons, [13].
The Member noted the worker submitted she was injured on 19 July 2021.[12] The Member set out paragraphs [24] to [55] of the worker’s statement. The worker described becoming suicidal in June 2021 and seeing a psychiatrist in July 2021. She said she “relinquished one of [her] head teachers positions”. She “had time off work which led to [her] average weekly earnings dropping with the inability to continue to work at the same capacity”.[13] The worker said she consulted a general practitioner on 21 March 2022 and made a claim for workers compensation. The insurer accepted a claim with an injury in 2022, not 2021 when her symptoms commenced. The worker stated her loss of capacity occurred in Term 4, 2021 when she applied for leave without pay for 2022 because she could not continue working.
[12] Reasons, [15].
[13] Worker’s statement, [34]–[38].
The Member set out her reasons for refusing the appellant’s application to contest the issue of ‘injury’, it not having previously done so.[14]
[14] Reasons, [19]–[23].
The Member referred to the reports of the treating doctors and the worker’s statement. She found the injury resulted from the stress and interactions which arose from the discovery of asbestos in the Department’s premises and the diagnosis of asbestosis involving a fellow employee. The Member found employment was the main contributing factor to the condition and incapacity. She found the deemed date of injury was 19 July 2021 when, on the worker’s evidence, she suffered incapacity.[15]
[15] Reasons, [24]–[25].
Dealing with “identification of a period of leave without pay” the Member referred to a decision of Member Isaksen in Al Kibbah v Chandler Macleod Group Ltd.[16] It was a matter in which the worker’s ‘earning circumstances’ changed when he travelled overseas for four weeks and also had a one-week absence when recovering from a sprained ankle. Member Isaksen referred to the second reading speech in the Legislative Council in which reference was made to “an adaptable and flexible approach … to adjust the relevant earning period to accommodate changes in the worker’s earnings circumstances and the ability to align the calculation of weekly payments with an injured worker’s normal pay cycles”. Member Isaksen said the periods of leave for which the worker was not paid should not be included in the calculation of PIAWE.
[16] [2023] NSWPIC 620.
The Member also referred to the decision of Wood DP in Secretary, Department of Communities and Justice v Stewart.[17] The Member noted this Presidential decision was reversed on appeal, on the discrete issue of whether an absence for which workers compensation was paid could be characterised as ‘unpaid leave’. The Member said that, notwithstanding this, she agreed with the general approach and remarks of Wood DP “that the intention of the legislation was to apply fairness to the calculation of PIAWE”. The Member said:
“The [worker] took the period of unpaid leave as a result of the injury she had sustained in the course of her employment. No matter the date of injury, fairness and an accurate calculation of her real average pre-injury earnings, requires the elimination of the [worker’s] period of leave without pay from the calculation of the [worker’s] PIAWE.”[18]
[17] [2023] NSWPICPD 35.
[18] Reasons, [27]–[28].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act 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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Member erred in the exercise of her discretion in not allowing the appellant to place ‘injury’ in dispute. (Ground No. 1)
(b)    The Member erred as a matter of fact in finding that the respondent suffered injury on 19 July 2021 and not 18 March 2022. (Ground No. 2)
(c)    The Member erred in law by not providing any or any adequate reasons for the finding of injury that she made. (Ground No. 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,[19] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[20] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[21]) 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’.”[22]
[19] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[20] (1966) 39 ALJR 505, 506 (Whiteley Muir).
[21] [1996] HCA 140; 140 ALR 227.
[22] 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.[23]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).”[24]
[23] [2020] NSWCA 54 (Hill).
[24] Hill, [20].
In Northern NSW Local Health Network v Heggie[25] 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”.

GROUND NO. 1: THE MEMBER’S EXERCISE OF DISCRETION

[25] [2013] NSWCA 255; 12 DDCR 95, [72].

Appellant’s submissions

The appellant sought leave pursuant to s 289A(4) of the 1998 Act to raise ‘injury’ as an issue, as this was not previously notified in the dispute notice pursuant to s 78 of the 1998 Act (reference is made to Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[26]).
[26] [2007] NSWWCCPD 227 (Mateus).
The appellant submits that relevant medical records came to the appellant’s notice when they were produced in these proceedings; such material formed part of the documents on which the claim was based and was within the worker’s knowledge. The appellant refers to material produced by Dr Chamoli, Dr Curtotti and Ms Leeds, a treating psychologist. The appellant submits the ‘injury’ issue “largely came to light” through material that was in the worker’s hands before the hearing, which contradicted the evidence of the worker and the experts in her case. The appellant submits the material contradicted the Member’s finding at [22] of the reasons, that there was “no material before [the Member] which persuade[d] [her] to reject the [worker’s] evidence regarding her prior mental health”.[27]
[27] Appellant’s submissions, [8]–[13].
The appellant submits the Member exercised her discretion in an unreasonable fashion in that she failed to take account of, or gave insufficient weight to, relevant evidence.[28] The appellant submits there would not have been prejudice if leave were granted as the issue could have been dealt with in the parties’ written submissions. The appellant submits the issues of delay and cost, raised by the worker in opposing the grant of leave, were not of substance.[29]
[28] Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 (Micallef) is referred to.
[29] Appellant’s submissions, [14]–[16].

Respondent’s submissions

The respondent submits the first ground of appeal involves an interlocutory decision, in respect of which leave is required pursuant to s 352(3A) of the 1998 Act. It submits the appellant gave no notice of the amendment application before it was made at the hearing before the Member. It submits leave should be refused.
The respondent submits the Application to Resolve a Dispute was lodged on 30 November 2023 and served on the appellant soon afterwards. The material had been served on the appellant, and considered, as part of the appellant’s “pre-litigation requirements when issuing their decision”. The appellant did not seek to cross-examine the worker.
The respondent submits Ground No. 1 is based on three propositions:
(a)    The Member erred in not exercising her discretion to allow injury to be disputed.
(b)    In taking this course, the Member failed to take into account relevant evidence or gave insufficient weight to relevant evidence, thereby exercising her discretion unreasonably (reference is made to Micallef).
(c)    The ‘injury’ issue arose out of evidence produced at the hearing largely by the respondent’s representatives, so it could not be said the respondent was prejudiced.
The respondent submits these arguments all go to the exercise by the Member of a discretion in making a procedural decision. The respondent refers to House v R.[30] It submits:
“The settled rule is that an appellate body will not disturb the exercise of a discretion by the primary decision maker unless it is convinced that he or she has acted on a wrong principle of law, misapprehended the facts, or taken into account irrelevant matters or failed to take into account relevant matters. In addition, while error may not be apparent or demonstrable, the outcome is so unreasonable or unjust that it can only have been achieved on the basis of error.”[31]
[30] [1936] HCA 40; 55 CLR 499 (House v The King).
[31] Respondent’s submissions, [16].

The respondent describes the discretion being exercised as “a broad one”, referring to Mateus. The respondent refers to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University.[32] In Aon the plurality said that “[i]nvariably the exercise of that discretion [to amend] will require an explanation to be given where there is delay in applying for amendment”. The respondent submits it would inevitably suffer prejudice by way of delay and cost. Had the application succeeded, an adjournment may have been necessary to file further material. There would have been additional time and stress in dealing with a new argument. It references Aon at [92], which refers to principles of case management as “now an accepted aspect of the system of civil justice”. The respondent submits it was a breach of such principles to seek an amendment on the hearing date, without prior notice. The respondent submits there was “no basis to even say that the discretion should have been exercised in a different way”. The respondent notes the need for the appellant to demonstrate error, which it cannot do.[33]
[32] [2009] HCA 27; 239 CLR 175 (Aon).
[33] Respondent’s submissions, [17]–[20].
The respondent refers to the appellant’s argument that the respondent would not be prejudiced as the proposed amendment arose from material produced at the hearing by the respondent. The respondent submits this ignores the fact that the material was attached to the ARD dated 30 November 2023. The respondent refers to the reasons at [21] to [22]. The evidence brief filed by the worker was available to the appellant from 4 December 2023.[34] There was no application to cross-examine the worker. “The [appellant] had ample opportunity to contest injury at an earlier date and did not do so.”[35]
[34] Reasons, [21].
[35] Respondent’s submissions, [21]–[23].

Consideration

The respondent’s argument that leave to appeal an interlocutory decision is required, and should be refused, can be dealt with briefly. In Gerlach v Clifton Bricks Pty Ltd[36] the plurality said:
“6. The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis in original).
7. It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.”
[36] [2002] HCA 22; 209 CLR 478 (Gerlach).
Applying settled principles, it is open to the appellant to challenge the Member’s refusal to grant leave, as part of its challenge to the final result. To the extent that it is necessary to grant leave pursuant to s 352(3A) of the 1998 Act, I do so.
In Kelly v Mina[37] the Court of Appeal (Barrett JA, Ward and Leeming JJA agreeing) dealt with an appeal regarding an application to amend a defence made on the opening day of a civil trial (notice had been given in the preceding week). His Honour said:
“The judge’s decision was obviously discretionary, so that appellate intervention will be warranted only upon the principles stated in House v The King. The fact that the decision was a decision on a matter of practice and procedure means that this Court should be slow to interfere and ought not to reverse the judge’s decision unless convinced that it is plainly erroneous.”[38] (excluding references)
[37] [2014] NSWCA 9 (Kelly).
[38] Kelly, [46].
The respondent submits granting the application would inevitably have involved “prejudice by way of delay and cost”. It may have been necessary to file further material in reply. It would necessarily have involved “extra time and stress in having to deal with a new argument”. It is submitted to be contrary to the principles of case management discussed in Aon at [92], for the amendment to have been sought on the day of the hearing without prior notice. The respondent submits the appellant should have given an explanation for why the application was made at such a late stage.
The appellant refers to the Member’s reasons at [22] in which she said there was nothing in the material that persuaded her to reject the respondent’s evidence regarding her prior mental health. The appellant describes this as “clearly incorrect” given the material from three treating practitioners.[39] The appellant’s argument based on House v The King relies on an alleged failure by the Member to take appropriate account of, or give sufficient weight to, this evidence. The worker did not present her case on the basis that there was no relevant prior psychological history. Material from the treating practitioners formed part of the worker’s ARD. Her statement (also in the ARD) said that prior to March 2021 she saw a psychologist “monthly to bi-monthly to maintain the relationship and as a method of checking in” (see [2] above). The worker was examined at the appellant’s request by Dr Boulton, psychiatrist, who reported to the insurer on 20 July 2023, well before these proceedings were commenced.[40] Dr Boulton recorded a prior history of treatment for mental health (which is summarised below) dating back to when the worker was 19. That history recorded the worker had seen Ms Leeds, psychologist, for “a number of years before the incident at school”. She had stopped seeing Ms Leeds after the incident, as she felt too exposed talking about her feelings.[41] I do not accept the submission that there was significant inaccuracy in how the prior history was dealt with in the respondent’s case. There was a significant prior history, that was referred to in the evidence presented by both parties.
[39] Appellant’s submissions, [11]–[12].
[40] ARD, p 44.
[41] ARD, p 46.
I do not accept the appellant’s submission that “the argument arose largely out of evidence produced at the hearing”. This is inconsistent with the treating medical material to which the appellant refers, which was available to the appellant at least from when the ARD was served (the reasons at [21] describe this as 4 December 2023 and that specific date is not challenged on appeal). I note also that the appellant had previously had Dr Boulton’s initial report, dated 20 July 2023, which was commissioned by the appellant and which referred to the prior history. In summarising the past history given by the worker, Dr Boulton said that “in the context of her regular psychotherapy and medication adherence, she had been well and stable for a number of years in the lead up to 2021”[42] (emphasis added).
[42] ARD, p 46.
Ground No. 1 goes to the appellant’s application to add ‘injury’ as a disputed issue. This was a discretionary matter. Dr Boulton’s multiple reports are summarised below. Dr Boulton discussed the impact of the treating material on the issue of ‘injury’. He referred to a history recorded by Dr Curtotti in her report dated 19 July 2021 referring to relationship issues. Dr Boulton concluded that the respondent was “sensitive to developing stress, anxiety and mood problems after relationship breakups”. Notwithstanding this, he said “I think it would be unlikely that the breakup played a predominant role in her symptoms in March 2021 or now.”[43]
[43] ARD, p 68.
The appellant’s submissions, relevant to delay, describe the period from when the ARD was filed (30 November 2023) to the initial date of hearing (20 February 2024) as “so short as to be of no substance”. This cannot be accepted in the statutory context of the Commission. That period represented the time from the commencement of the Commission proceedings to the hearing date, when it would be anticipated the matter would either resolve or be heard. The “Objects” of the Commission are set out in s 3 of the 2020 Act. These include “to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”. Section 4(2) of the 2020 Act provides:
“In the exercise of a discretion conferred by a provision of this Act, the Commission rules or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or the provision concerned.”
The respondent’s submissions at [14]–[16] refer to the principles in House v The King. These require that the decision-maker have acted upon a wrong principle, taken into account extraneous or irrelevant matters, mistaken the facts, failed to take into account a material consideration, or where upon the facts the outcome is unreasonable or plainly unjust. The appellant attacks the Member’s reasons at [22], where she said there was “no material before me which persuades me to reject the [respondent’s] evidence regarding her prior mental health or the history she provided to her treating doctors”. The alleged factual error revolves around an alleged discrepancy between the worker’s evidence and that of treating practitioners who formed part of the worker’s case. The appellant refers particularly to the material from Dr Chamoli, Dr Curtotti and Ms Leeds. I have, above, rejected the proposition that there was significant inaccuracy in how the prior history was dealt with. This material is also discussed in detail below in the reasons dealing with Ground No. 2.
I am not persuaded that the Member’s decision on the application to amend was erroneous. It was a discretionary application relating to a matter of practice and procedure. I agree with the Member’s conclusion that the appellant had “ample opportunity to contest injury at an earlier date and did not do so.”[44] The appellant has not satisfactorily explained the delay in making the application to amend, which occurred on the hearing date, in the absence of prior notice. Error of the kind in House v The King is not identified, in the appellant’s challenge to how the discretion was exercised.
[44] Reasons, [22].
Ground No. 1 fails.

GROUND NO. 2: THE DATE OF INJURY

Appellant’s submissions

The appellant submits the Member overlooked material facts in arriving at her decision. It states the respondent’s statement dated 29 November 2023 is not supported by evidence from treating practitioners, in particular Dr Chamoli and Ms Leeds, psychologist. The appellant submits this establishes the respondent suffered from a psychiatric condition for a considerable time before July 2021. It submits there were other significant stressors leading to the development or aggravation of her psychiatric condition. It submits there was no explanation by the respondent of these, going to the significance (or lack of it) of the stressors.[45]
[45] Appellant’s submissions, [17]–[21].
The appellant submits contemporaneous documents are important in weighing contested evidence. It submits contemporaneous medical evidence does not refer to asbestos exposure in July 2021, that history is not given until March 2022. It submits there was no medical evidence to establish incapacity in July 2021, the first such certificate was dated 21 March 2022. The appellant submits that, if there is a finding that employment was causative of the respondent’s disease injury, the evidence does not support incapacity until 21 March 2022, which would be the correct deemed date pursuant to s 16 of the 1987 Act.[46]
[46] Appellant’s submissions, [22]–[24].

Respondent’s submissions

The respondent submits the appellant argues that medical and lay evidence needs to be contemporaneous if it is to be relied on. It submits there is no need for evidence to be contemporaneous and the appellant quotes no authority for such a proposition.[47]
[47] Respondent’s submissions, [24]–[25].
The respondent submits the evidence points strongly to injury in July 2021. The respondent’s statement referred to coming to “breaking point” in June 2021 and becoming suicidal. In July 2021 she reached out to Lifeline and saw a psychiatrist. The respondent submits its medical evidence also supports the occurrence of injury in June 2021. Dr Miller, who treated the worker between 29 September 2021 and 21 March 2022, said the injury started in April 2021 due to “trying to manage asbestos”.[48] Dr Rastogi traced the respondent’s adjustment disorder with anxiety to an asbestos incident in March 2021.[49] Dr Boulton gave a date of injury of March 2021.[50] The respondent states the date of July 2021 comes from Dr Curtotti’s assessment[51] which is supported by Dr Miller.[52]
[48] ARD, p 31.
[49] ARD, pp 38, 41.
[50] ARD, p 65.
[51] ARD, p 33.
[52] ARD, p 36.

The medical evidence

Dr Curtotti is a general practitioner who works from the same practice as Dr Miller. There is a Mental Health Care Plan from Dr Curtotti dated 19 July 2021.[53] The recorded history includes mention of the worker being Deputy Principal of Queanbeyan High School and says she “has ongoing stress”. It refers to “anxiety and panic attacks and hypervigilance”. There is mention of relationship issues and PTSD. The plan does not refer to incapacity for work.
[53] ARD, pp 33–4.
Dr Miller, general practitioner, issued a certificate dated 17 June 2022.[54] It stated the worker had suffered from:
“… depression and anxiety for some time and has been on medication and psychological care for this in the past.
She was reviewed by my colleague Dr Curtotti at this practice and a referral to a psychologist was made on 19/7/21 to address these issues as well as to address increasing anxiety due to stressors as Deputy principal at Queanbeyan High School as also contributing to her worsening symptoms.
I would support Ms Wells in her claim that her psychological health had been impacted from this time.”
[54] ARD, p 35.
Dr Miller’s report dated 23 December 2022[55] states she treated the worker from 29 October 2021 to August 2022. There were physical symptoms that “reflected her Anxiety, depression and work stressors”. The history was of these symptoms “fluctuating in intensity since April 2021 as a result of trying to manage asbestos in building at work with migraines escalating as a result Anxiety escalating through this period”. Dr Miller said the worker took “leave without pay for 2022 to address her mental health and stress issues which were related to her work. She said that in her opinion the worker was “eligible for workers compensation at the end of 2021 due to her illness which had been evident since April 2021”. Dr Miller’s notes have an entry on 21 March 2022.[56] The reason for visit was given as “anxiety/depression”. The substance of the doctor’s note reads:
“depression and anxiety fluctuating since 4/21 as a result of stressors at work
started as a resul[t] of trying to manage asbestos in building at work
has been to psychiatrist
migraines escalating as a result
osteo helps with this
sees counsellor 2 weekly last 2 months
next appointment with psychi[a]trist pending
advised lamotrigine may help with migraine and mood”.
[55] ARD, p 31.
[56] ARD, p 101.
There is a series of certificates from Dr Miller. That dated 21 March 2022[57] describes the worker as not fit for work from 21 March 2022 to 22 April 2022. It states the worker was first seen at the practice in relation to this condition on 21 March 2022. The “Date injury was sustained/disease was contracted” is given as “April 2021”. It is described as an “aggravation of a pre-existing condition”. There are certificates that certify the worker as unfit from 22 April 2022 to 22 August 2022, and thereafter as having some capacity. In short, none of these certify incapacity prior to 21 March 2022, which is the date the appellant submits should be the deemed date of injury.
[57] ARD, pp 184–5.
Dr Chamoli is a treating psychiatrist. She reported on 30 July 2021.[58] She took a history of the worker teaching for 10 years and working as a head teacher and a Deputy Principal. She recorded the worker was halfway through a Masters Degree in educational leadership and was “looking for new opportunities”. The history said the worker had “given up excessive responsibilities now” and was “happier” in her work.[59] The report essentially dealt with matters of a personal (rather than work) nature. This report does not describe incapacity for work associated with the worker’s employment. Dr Chamoli reported again on 28 August 2021.[60] There was reference to a “worsening of anxiety”. The only reference to work matters was to “feeling overwhelmed an[d] irritated” by “tiny things such as emails and phone calls from work”. A report dated 1 September 2021[61] said “mood and ability to cope with stress has improved with the recent changes in medications”. Dr Chamoli’s report dated 27 September 2021 said the worker had “improved significantly”.
[58] ARD, p 211
[59] ARD, p 212
[60] ARD, pp 215–6.
[61] ARD, p 217.
In her report dated 27 March 2022 Dr Chamoli’s history recorded the worker working as a head teacher for the last four years. It said the worker “enjoys teaching and she has gone back to being a classroom teacher. She is feeling burnt out from prolonged periods of stressful working environment”. Dr Chamoli diagnosed “Relapse of major depressive disorder with severe anxiety symptoms in context of workplace stress on background of a complex post-traumatic stress disorder and cluster B personality traits.”[62]
[62] ARD, p 32.
The worker relied on a medicolegal report from Dr Rastogi, psychiatrist, dated 11 October 2022.[63] In her “Diagnosis and Opinion” Dr Rastogi said:
“She experienced anxiety with heightened response in March 2021 following asbestosis being evident on the school premises and one of the staff members possibly had asbestosis causing threat to his life. This induced marked anxiety and arousal and fear among staff and she tried to contain the situation providing support but her emotional state was depleted. She was not provided any support for herself. She presented with adjustment disorder with severe anxiety in June 2021 needing intensive psychological treatment. She relinquished one of her head teachers positions as she displayed poor stress coping and her anxiety was debilitating. Her function declined during this time and she pushed herself to persist working. She experienced exacerbation of anxiety with resuming work and had poor stress coping leading to inability to work since March 2022.
Her onset of her psychological condition and decline occurred in June 2021 with her relinquishing her other position and gradually deteriorated with resuming school with exacerbation and inability to work since March 2022. She was partially incapacitated since 2021 and became fully incapacitated in March 2022 due to progression of anxiety with adjustment disorder.”[64]
[63] ARD, pp 37–43.
[64] ARD, p 41.
Dr Boulton, psychiatrist, saw the worker at the insurer’s request on 20 July 2023.[65] Dr Boulton recorded a history that the worker had seen a psychiatrist at age 19 in the context of a parental separation which triggered anxiety and major depression. She had seen different psychotherapists over intervening years. Dr Boulton recorded that the worker saw Ms Leeds, a psychotherapist, for a number of years before the school incident. He recorded that “in the context of her regular psychotherapy and medication adherence, [the worker] had been well and stable for a number of years in the lead up to 2021”.
[65] ARD, pp 44–63.
Dr Boulton recorded the worker “believed that she lost capacity for work in December 2021. She burnt through all of her sick leave during this time because of the migraines, recovery from the binge drinking, depressed mood, and anxiety.”[66] She told Dr Boulton that:
“… because she had felt slightly better, she started to return to school in February of Term 1 2022. She decided to do some casual work. Initially she had wanted to do three days but the school needed her for five. She filled in in her old role. She said she spent the next six days in bed. She said she could not sleep, had lost her appetite, and continued to have panic attacks. She had regular migraines. She started to feel like she had slipped back to how she was in December 2021.
She did two more days of work and realised that she could not keep functioning this way. She talked to a friend at work who had been shocked how she had been managing things. He suggested going on workers compensation.
This process was initiated in March 2022 and this is when Allianz believed the injury had occurred. Ms Wells believes that loss of capacity for her employment was in December 2021 because that is when she was unable to sustain work for a period of time and went through her leave.”[67]
[66] ARD, p 51.
[67] ARD, p 52.

Dr Boulton’s “Clinical Impression” included the following:
“She felt initially unable to access workers compensation and after a period of exhausting her sick leave and going on holidays, she attempted to return to work. This exacerbated her situation again. She eventually saw her general practitioner for assistance with a workers compensation claim in March 2022.”[68]
[68] ARD, p 57.
Dr Boulton was asked for his opinion on the worker’s date of injury. The doctor said:
“… this date is most likely March 2021 when the issues around the asbestos started. According to the history provided by Ms Wells, this led to a deterioration in her mental state. She had continued to try and work as her mental state was deteriorating which further exacerbated the situation.”[69]
[69] ARD, p 63.
The appellant’s solicitors sought further clarification from Dr Boulton, referring to the test in ss 15 and 16 of the 1987 Act in these terms: “the date of injury is the time of incapacity, or if incapacity has not resulted, the time the worker makes a claim for compensation with respect to the injury”. Dr Boulton suggested the dispute regarding date of injury should “be answered by legal professionals or the [Commission]”. He said his clinical opinion was that “the date of injury (as indicated by the onset of distressing psychological symptoms) was March 2021 and that Ms Wells’ psychological health deteriorated progressively until the eventual Workers Compensation claim was lodged”.[70]
[70] Dr Boulton’s report, 3/9/23, ARD, p 65.
Dr Boulton provided a further report dated 13 October 2023, in which the appellant’s solicitor sought to explore the possible role that other stressors may have had in the worker’s psychological injury. The doctor concluded that the worker “was sensitive to developing stress, anxiety and mood problems after relationship breakups, the predominant contributor in this case remains the workplace injury”.[71]
[71] Dr Boulton’s report, 13/10/23, ARD, p 68.
Dr Smith (an injury management consultant) reported to the insurer on 11 May 2022,[72] following a file review. Dr Smith described discussing the matter with Dr Miller, the worker’s general practitioner. Dr Smith said:
“At the present time, Ms Wells is struggling with core activities of daily living and even struggling to go out of the house …
At this stage, [Dr Miller] feels it is unlikely that Ms Wells will be able to return to work before the start of Term 3.”[73]
[72] ARD, pp 69–70.
[73] ARD, p 70.
The insurer wrote to Dr Miller on 6 July 2022,[74] querying why the worker had not been able to resume work at the start of Term 3 in 2022, contrary to some earlier indications. The heading of the document included “claim details”. These gave a claim number (770519170671) and a “date of injury” as 18 January 2022. I note the respondent, in her statement, said the school “put in a Workcover claim to DoE Incident Hotline for the entire faculty as we had all been exposed to the asbestos”. She said this was not formally processed and was “remediated in February 2023”, when a claim number was allocated. The respondent said the insurer told her “this was then merged with my other claim number”.[75] The claim number referred to in the respondent’s statement is different to that which appeared in the insurer’s correspondence that referred to a date of injury of 18 January 2022.
[74] ARD, pp 191–2.
[75] Worker’s statement, [28], ARD, p 3.

Consideration

Section 15(1) of the 1987 Act provides:
“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.”
Section 16(1) of the 1987 Act similarly provides:
“16    Aggravation etc of diseases—employer liable, date of injury etc
(1)     If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(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 that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Regardless of whether the ‘injury’ finding was to be made pursuant to s 15 or s 16 of the 1987 Act, the deemed date of injury was:
“(i) at the time of the worker’s … incapacity, or
(ii) if … incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury”.
The description of ‘injury’ in the ARD was consistent with reliance on the ‘disease’ provisions of the workers compensation legislation. The “Injury Description” described various aspects of the employment as a cause of injury. It stated: “The [worker’s] condition continued to deteriorate and by 18 March 2022 the compounded stressors in the workplace caused her to suffer injury and claims weekly wage compensation”. The Member made a finding of ‘injury’ consistent with the ‘disease’ provisions of the workers compensation legislation:
“24. I have considered the reports of the [worker’s] treating doctors and the [worker’s] statement. I am satisfied and find that the [worker] was injured in the course of her employment as a result of the stress of her obligations and the interactions which arose from the discovery of asbestos in the [appellant’s] premises and the diagnosis of asbestosis in a fellow employee. I find that the [worker’s] employment was the main contributing factor to the development of her condition and incapacity.
25. I am satisfied and find that the [worker’s] deemed date of injury was 19 July 2021 when on [her] evidence she suffered incapacity.”
Grate Lace Pty Ltd v Theiss Watkins White (Constructions) Pty Ltd[76] was a ‘disease’ case, in which Kirby P said that the trial judge’s “basic mistake was, with respect, in endeavouring to return to the assignment of liability according to a notion of true causation.” His Honour described the objects of s 15 of the 1987 Act as:
“·     To avoid unnecessary litigation;
·        To simplify the assignment of liability;
·        To remove the highly disputatious debate about ‘true’ causation, and
·        To fix the last relevant employer with the primary liability (subject to the limited contribution right provided in section 15(2)).”[77]
[76] (1995) 12 NSWCCR 365 (Grate Lace).
[77] Grate Lace, 368E–G.
The respondent’s submissions dealing with the date of injury (see [44] above) do so by reference to whether, applying a true test of causation, July 2021 should be accepted as the date. This is not the correct approach.
In Haddad v The GEO Group Australia Pty Ltd[78] the Court of Appeal recently dealt with the identification of a deemed date of injury pursuant to the ‘disease’ provisions. Griffiths AJA (Kirk and Stern JJA agreeing) observed that “each case necessarily turns on its own particular facts and circumstances”. His Honour 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.”[79]
[78] [2024] NSWCA 135 (Haddad).
[79] Haddad, [80]–[81].
His Honour referred to Gales v Lovett, McCracken & Bray[80] and said:
“It is only if an entitlement to compensation is unrelated to any incapacity, as was the case in Alto Ford,[81] that the deemed date of injury is the date of the claim.”[82]
[80] [2008] NSWCA 171 (Gales), [31].
[81] Alto Ford Pty Ltd v Antaw [1999] NSWCA 234.
[82] Haddad, [105].
The Member dealt with the date of injury at [25] of the reasons, where she said:
“I am satisfied and find that the [worker’s] deemed date of injury was 19 July 2021 when on [the worker’s] evidence she suffered incapacity.”
The appellant submits:
“No medical evidence was provided by the respondent to establish that she had suffered incapacity in July 2021 indeed the first medical certificate to that end does not appear until 21 March 2022.”
The medical evidence is summarised above. Dr Curtotti’s Mental Health Care Plan dated 19 July 2021 confirmed the presence of psychological symptoms at that time. The doctor did not refer to incapacity for work (see [45] above). Dr Chamoli reported on multiple occasions between 30 July 2021 and 27 September 2021 (see [49] to [50] above). These reports do not describe incapacity for work. Dr Miller’s report dated 23 December 2022 describes her treatment of the worker from 29 October 2021 to August 2022 (see [46] to [48] above). On the topic of incapacity, Dr Miller said that the worker took “leave without pay for 2022 to address her mental health and stress issues which were related to her work”. Dr Miller also said that in her opinion the worker was “eligible for workers compensation at the end of 2021 due to her illness which had been evident since April 2021”.
I accept the appellant’s submission that there was not medical evidence of incapacity for work in July 2021. The identification of a deemed date of injury is not restricted to a search for a relevant medical certificate. In Haddad Griffiths AJA said:
“… the question whether or not the worker has an incapacity for the purposes of the application of the two alternative limbs of the deeming provision in s 15(1) is a question of fact to be determined by reference to all the relevant evidence.”[83]
[83] Haddad, [69].
The respondent’s statement at [33] to [47] dealt at some length with her psychological symptoms in the latter part of 2021. She said she was at “breaking point with [her] emotional reserves depleted in June 2021 during the school holidays. [She] then became suicidal.” She said she had time off work without specifying when and that her continued absences exhausted her sick leave.[84] The evidence does not support the found deemed date of injury of 19 July 2021. The appellant submits this was an error of fact.
[84] Worker’s statement, [34], [38], [40],
I accept that the finding of a deemed date of injury at [25] of the reasons involved error.
The appellant submits the first medical evidence of incapacity was the certificate dated 21 March 2022, as there was not “evidence of incapacity supported by medical evidence before this date”. The appellant submits (assuming the respondent’s success on the issue of ‘injury’) that there should, on appeal, be a finding that 21 March 2022 is the correct deemed date of injury. The finding of a deemed date in the circumstances is not simply a matter for medical evidence; it is to be determined “by reference to all the relevant evidence”. Of necessity it will involve a consideration of the lay and medical evidence.
It is appropriate to bear in mind the remarks of Griffiths AJA in Haddad regarding whether a worker may have an incapacity:
“In applying s 15 it may be accepted that there are multiple scenarios which reveal whether or not a particular worker may have an incapacity as defined in s 4(1) of the 1998 Act (see at [39] above and as applied and understood in the cases referred to below, particularly Thoroughgood) and may be entitled to make a claim for compensation arising from that incapacity. One scenario is where the worker makes a claim for compensation which in its terms asserts or depends upon incapacity, as was the case here with the appellant’s initial claim dated 19 January 2021, when he sought weekly payments of compensation on the basis of an incapacity which he claimed dated from 20 January 2017. Another possible scenario is where incapacity for work may be apparent from objective facts which are independent of any formal claim or entitlement to claim compensation, such as the worker’s unauthorised absence from work. In the circumstances here, merely because the claim was then reformulated so as to seek a benefit which does not depend upon incapacity does not mean that the previous evidence indicating that there may have been incapacity can be ignored.”[85]
[85] Haddad, [72].
The respondent’s submissions do not deal with the issues relevant to the fresh determination of the date of injury. The date may well be relevant to the weekly entitlement given the issues regarding assessment of PIAWE. It is preferable that the matter be determined afresh.
Ground No. 2 succeeds.

GROUND NO. 3

Ground No. 3 goes to the adequacy of the reasons. It is unnecessary to consider Ground No. 3 in the circumstances.

CONCLUSION

The appeal is upheld. The matter is remitted to a different non-Presidential member for redetermination.

DECISION

The Certificate of Determination dated 26 March 2024 is revoked.
The matter is remitted to a different non-Presidential member for redetermination.

Michael Snell
DEPUTY PRESIDENT

18 February 2025