Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer
[2023] NSWPICPD 72
•10 November 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer [2023] NSWPICPD 72 |
APPELLANT: | Sonika Australia Pty Ltd |
APPELLANT’S INSURER: | Uninsured |
FIRSTRESPONDENT: | Workers Compensation Nominal Insurer |
SECOND RESPONDENT: | Shree Ram Thapa |
FILE NUMBER: | A1-W1175/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 10 November 2023 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the Principal Member’s Certificate of Determination dated 24 October 2022 pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – Application for an extension of time – s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998; Rule 133A of the Personal Injury Commission Rules 2021 – whether a substantial injustice would result if leave was not granted – Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Gallo v Dawson [1990] HCA 30 considered and applied – acceptance of uncorroborated evidence – Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 applied – no requirement to accept the whole of the evidence of a witness – Chanaa v Zarour [2011] NSWCA 199 applied – decision-maker not required to accept unchallenged evidence – Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr H Simons, solicitor | |
| Remington & Co Lawyers | |
| First Respondent: | |
| Mr S Harris, solicitor | |
| Moray & Agnew Lawyers | |
| Second Respondent: | |
| Mr B McManamey, counsel | |
| Law Partners | |
DECISION UNDER APPEAL | |
PRINCIPAL MEMBER: | Ms J Bamber |
| DATE OF PRINCIPAL MEMBER’S DECISION: | 24 October 2022 |
INTRODUCTION AND BACKGROUND
This appeal concerns an application pursuant to s 145(3) of the Workers Compensation Act 1987 (the 1987 Act) brought by Sonika Australia Pty Ltd (the appellant) in respect of a notice issued by the Workers Compensation Nominal Insurer (the Nominal Insurer) under s 145(1) of the 1987 Act, seeking reimbursement of workers compensation payments made to and in respect of Mr Shree Ram Thapa. Mr Thapa was paid compensation in respect of an injury that was alleged to have occurred on 16 October 2019. The appellant, who at the relevant time did not hold a workers compensation insurance policy, disputed that the injury occurred and disputed that he was liable to reimburse the Nominal Insurer.
The dispute proceeded to arbitration before a Principal Member of the Personal Injury Commission, who issued a Certificate of Determination dated 24 October 2022. She determined that Mr Thapa suffered an injury to his lumbar spine pursuant to s 4(b) of the 1987 Act, which was deemed to have occurred on 2 October 2019, and ordered the appellant to reimburse the Nominal Insurer.
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.”
Each of the parties have indicated that they are content for the matter to be determined on the papers and that an oral hearing is not necessary.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been met.
The appellant lodged the appeal on 21 November 2022, which was within the 28-day time period prescribed by s 352(4) of the 1998 Act. The appeal was rejected for non-compliance with the procedural requirements of s 352 of the 1998 Act, r 123 of the Personal Injury Commission Rules 2021 (the 2021 Rules), and Procedural Direction WC3 – Presidential appeals and questions of law (Procedural Direction WC3).
The appellant re-filed the appeal on 19 December 2022 which was well outside of the time limit imposed by s 352(4) and was still somewhat deficient in respect of satisfying the procedural requirements. A delegate of the President accepted the appeal on the Commission’s online lodgment portal, pending determination by a Presidential member as to whether leave to appeal outside the timeframe should be granted.
The appellant seeks leave to appeal out of time. Section 352(4)(b) of the 1998 Act provides that a Presidential member may extend the period within which an appeal can be filed in accordance with the Commission’s Rules. Rule 133A of the 2021 Rules provides as follows:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a)an appeal under the 1998 Act, section 352,
…
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) …
(4) The extension application must be decided by the following (the decision-maker)—
(a)for an appeal under the 1998 Act, section 352—a presidential member,
(b)otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.”
The appellant submits that it did lodge an appeal which was within time but was it rejected on 22 November 2022. The appellant’s solicitor states that the appellant, who had been informed of the time limit, had overlooked the date for filing and only provided the instructions to appeal on the date it was initially filed, that is, 21 November 2022. The appellant’s solicitor advises that the appellant’s sole director, Mr Sourabh Bhardwaj, had been hospitalised as an emergency patient on 14 November 2022. The appellant’s solicitor said that a document to substantiate that event was attached to the appeal, however that document was not attached. The appellant’s solicitor advised that it had taken “some time” from 22 November 2022 until the time of re-lodging the appeal to obtain appropriate instructions to re-draft the grounds of appeal.
The Nominal Insurer submits that the reasons put forward by the appellant do not constitute “exceptional circumstances” and a refusal to grant leave would not work a demonstrable injustice to the appellant because the appeal lacks merit.
Mr Thapa submits that the appellant has not made out that exceptional circumstances exist, in that the appellant has not explained why it took him until 21 November 2022 to provide instructions to appeal, when the appellant had been advised of the time limit. Mr Thapa adds that there is also no explanation as to why it then took a further 28 days to re-lodge the appeal. In any event, Mr Thapa says that the appeal is without merit and so a substantial injustice would not result if leave was refused.
Consideration of the application for an extension of time
In order to extend the time to lodge the appeal, r 133A(5) requires me to consider whether “exceptional circumstances” exist. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[1]
[1] Bryce v Department of Corrective Services [2009] NSWCA 188 (per Allsop P (Beazley and Giles JJA agreeing), [8]–[10].
Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely, or normally encountered. [2] Although the appellant had lodged the original appeal document within the prescribed time it was rejected by the Commission because the application did not:
(a) clearly and succinctly state the grounds of appeal, did not clearly identify the errors of fact law or discretion which were alleged and did not point to the material findings of fact that the Principal Member ought to have made;
(b) contain a copy of the Certificate of Determination or a chronology containing references to the evidence of the event occurring;
(c) address the monetary threshold, or
(d) contain a list of authorities.
[2] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290, [66] (per Campbell JA).
The fact that an earlier appeal document had been lodged, which was significantly non-compliant, does not excuse the appellant for failing to lodge a procedurally compliant appeal within the time frame. A failure to comply with the legislative requirements for filing an appeal is not uncommon or rare, and unfortunately regularly occurs and thus does not constitute exceptional circumstances.[3]
[3] Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [27].
The appellant’s solicitor described some difficulty in obtaining instructions in respect of the appeal. The delay in the appellant providing instructions is unexplained, noting that Mr Bhardwaj’s purported hospitalisation occurred prior to the first appeal document being lodged. The failure to provide instructions until the last day for filing more than likely affected the solicitor’s ability to lodge a procedurally satisfactory application to appeal. Nonetheless, the explanation is inadequate. Furthermore, there is no other explanation for the extensive delay in re-lodging the appeal other than the appellant’s solicitor being unable to obtain instructions from the appellant, which, in the circumstances, the appellant ought to have been able to provide. The appellant was under an obligation to provide instructions in a timely manner if it wished to proceed with an appeal. The further delay is unacceptable and also does not constitute exceptional circumstances.
I must also consider whether a demonstrable or substantial injustice would result if the application for an extension of time was refused. In Gallo v Dawson,[4] the High Court set out the matters that ought to be taken into account when considering an application to have time extended. Justice McHugh said (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. ... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”[5]
[4] [1990] HCA 30 (Gallo).
[5] Gallo, [2].
In order to determine whether a demonstrable or substantial injustice would occur if the time was not extended, I am required to consider the merits of the appeal.
The evidence
Mr Shree Ram Thapa
Mr Thapa completed a workers compensation claim form on 14 February 2020.[6] He indicated that his date of injury was 16 October 2019, which was a “deemed date.” He further indicated that the injury resulted from the nature and conditions of his employment which was heavy work, requiring him to take delivery of orders and transport the orders to the cool room, stand all day and perform heavy lifting. Mr Thapa said that he suffered lower back pain, a disc bulge with nerve impingement and tingling and radiating pain in his left leg. He asserted that the injury occurred at the appellant’s Warriewood store, but he also worked for the appellant in the Warringah Mall store. He advised that he first noticed the symptoms in October 2019, stopped work on 16 October 2019 and notified Mr Sourabh Bhardwaj.
[6] Mr Thapa’s Reply to Application to Resolve a Dispute (reply), pp 1–8.
Mr Thapa provided a statement dated 7 June 2022.[7] He confirmed that he commenced employment with the appellant on 11 December 2017 in a customer service role working 20 hours per week in the Warringah Mall store and a few times at the Warriewood store. He stated that the work involved repetitive lifting and moving stock and equipment weighing up to 20 kilograms and as a result he injured his low back. He said that he thought the first day that he went off work was 16 October 2019 because that was the day that he commenced annual leave but after checking his payslip for the period, he now knew that the first date was 2 October 2019. He detailed the heavy and physical nature of the work performed, which he said placed great strain and pressure on his low back and would cause back pain at the end of every shift, which would persist when he lay in bed at night. He advised that he thought the pain would go away but it did not improve so he consulted a chiropractor, Mr Adam Gavine.
[7] Application to Admit Late Documents (AALD) dated 8 June 2022, pp 1–9.
Mr Thapa described an event which he said occurred on 1 October 2019 at the Warriewood store. He said he had just finished unloading a delivery and was walking back from the cool room holding ingredients in his arms when he felt a sudden sharp shooting pain in his low back, radiating into his left leg. He said he called Mr Bhardwaj and advised him that he could not continue working but Mr Bhardwaj told him he was required to continue to work in order to look after the store. He said he continued to work until the afternoon shift worker arrived, and he went home.
Mr Thapa said he then took personal leave from 2 October 2019 to 8 October 2019 and consulted his chiropractor on 3 October 2019. He advised that Mr Bhardwaj contacted him at the end of the week and asked him to work a shift, which he did with difficulties. He said he returned to see Mr Gavine on 9, 12 and 18 October 2019 and took annual leave from 16 October to 22 October 2019. He said that Mr Gavine encouraged him to return to Nepal for treatment because, as a foreign student, treatment in Australia would be expensive. Mr Thapa advised that he took annual leave from 23 October 2019 to 29 October 2019, although he did work a five hour shift in that period. He said he then returned to Nepal on 30 October 2019.
Mr Thapa indicated that while he was in Nepal he was admitted to a “physiotherapy” hospital, Sushwastha Hospital, for intensive treatment over 22 days, and underwent an MRI scan of his low back. He said he returned to Australia on 25 or 26 December 2019 and was still in significant pain. He stated that, on his return to Australia, he spoke to a friend who advised him to obtain legal advice about making a workers compensation claim. He asserted that he notified Mr Bhardwaj that he was unable to work and spoke in person to Mr Bhardwaj on 20 January 2020, but Mr Bhardwaj told him he was not entitled to make a claim.
Mr Thapa stated that on 14 February 2020, he obtained legal representation, and his legal representative advised him to consult a general practitioner and obtain a certificate of capacity, which he obtained from Dr Joe Rong Huang at Auburn Medical Centre on 15 February 2020. He said he was certified as having no capacity for work and was referred to Dr Prashanth Rao, neurosurgeon, who recommended surgery in the form of a discectomy. He said he underwent surgery on 26 June 2020, which relieved his leg symptoms, but his low back pain remained.
Mr Thapa described his continuing difficulties, his ongoing treatment and physical limitations.
Mr Thapa was cross-examined in the arbitration before the Principal Member. His evidence was that:
(a) he did not remember the exact date of his injury;
(b) the CCTV footage from the Warriewood store would show him talking with Mr Bhardwaj and the telephone records would have recorded that he had made the telephone call to Mr Bhardwaj on 1 October 2019;
(c) the reason for the delay in making the claim was that he had gone to Nepal for treatment and when he returned, his friends told him about workers compensation, so he sought legal advice;
(d) when asked about his duties of having to make juices, smoothies and berries, he agreed that those activities were included in his duties;
(e) he was unsure of whether he would have asked Mr Bhardwaj for a loan to pay his tuition fees but said that Mr Bhardwaj had lent him money in the past, which he had re-paid, and
(f) transporting the goods that were delivered every second day involved heavy lifting.[8]
[8] Transcript of Proceedings (T), Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2022] NSWPIC 589, T14.5–T38.22.
Mr Sourabh Bhardwaj
Mr Bhardwaj provided a statement dated 23 March 2022.[9] He advised that Mr Thapa commenced employment with the appellant on 11 December 2017 and worked up to and including 11 February 2020. He said Mr Thapa was employed to make fruit juices, smoothies and yoghurts.
[9] AALD dated 24 March 2022, pp 1–3.
Mr Bhardwaj said that, after Mr Thapa left in December 2019, Mr Bhardwaj commenced receiving correspondence from iCare advising that Mr Thapa was receiving compensation payments in respect of an alleged injury on 16 October 2019. He said he also received a letter dated 2 December 2020 seeking repayment of $80,383.44 which had been paid to Mr Thapa in respect of the injury. He said he immediately advised iCare that he believed that Mr Thapa was not in Australia on the day of injury. He said that an investigator from iCare gave him a questionnaire to complete, which he completed to the best of his ability, in which he advised that the allegation of injury was false, and that he believed Mr Thapa had been on leave in Nepal at that time.
Mr Bhardwaj stated that Mr Thapa returned to work on 1 January 2020, worked his allocated hours and was able to perform his usual duties. He advised that Mr Thapa never told him that he had suffered an injury. Mr Bhardwaj added that iCare had not sent him any medical reports and he had not heard of Mr Thapa having an injury, except through iCare.
Mr Bhardwaj referred to payslips that were annexed to his statement, which he said showed wages and annual leave paid during the period 11 September 2019 to 11 February 2020, the date upon which Mr Thapa ceased work. Mr Bhardwaj advised that Mr Thapa had approached him seeking a loan of $20,000 to pay arrears in Mr Thapa’s college tuition fees, which Mr Bhardwaj refused.
Mr Bhardwaj said that the request for annual leave was made orally and advised that Mr Thapa worked on 14 October 2019, which was the last day he worked prior to taking leave on 16 October 2019. Mr Bhardwaj added that Mr Thapa never returned to work after 11 February 2020, gave no notice that he would not be returning and did not answer any of Mr Bhardwaj’s telephone calls.
The questionnaire referred to and completed by Mr Bhardwaj, which was dated 7 May 2021, was annexed to his statement.[10] He confirmed that Mr Thapa was directly employed by the appellant, which operated under a trading name of Top Juice Warringah Mall. He advised that Mr Thapa had commenced working for him on 11 December 2017 and worked five to eight hours per shift for 20 hours per week. He asserted that Mr Thapa was on leave on the day of the alleged injury and did not report any injury to him or provide any medical certificates. Mr Bhardwaj asserted that the claim was a false claim and he believed that Mr Thapa was in Nepal at the time of the alleged injury.
[10] AALD dated 24 March 2022, pp 4–10.
Mr Bhardwaj also provided Mr Thapa’s salary and wages details issued between 11 September 2019 to 11 February 2020.[11] The documents showed that Mr Thapa was paid:
[11] AALD dated 24 March 2022, pp 11–22.
(a) 19.5 hours of ordinary pay from 25 September 2019 to 1 October 2019;
(b) 20 hours of personal/carer’s leave from 2 October 2019 to 8 October 2019;
(c) 10.5 hours of ordinary pay and 8.9673 hours for personal/carer’s leave during the period from 9 October 2019 to 15 October 2019;
(d) 20 hours’ annual leave from 16 October 2019 until 22 October 2019;
(e) 15 hours’ annual leave and 5 hours’ ordinary pay in the period from 23 October 2019 to 29 October 2019;
(f) 13.4090 hours’ annual leave and 6.5910 hours’ unpaid leave in the period from 30 October 2019 to 5 November 2019;
(g) 3.25 hours of ordinary pay and four hours at the rate for work on a Saturday in the period 1 January 2020 to 7 January 2020;
(h) 7.5 hours’ ordinary pay and 3.3 hours at the rate for work on a Saturday in the period 8 January 2020 to 14 January 2020;
(i) 4 hours’ ordinary pay and 4 hours at the rate for work on a Saturday from 15 January 2020 to 21 January 2020, and
(j) 2.1661 hours of annual leave and 3.3701 personal/carer’s leave in the period 5 February 2020 to 11 February 2020.
Mr Bhardwaj provided a later statement dated 15 July 2022, in response to the statement by Mr Thapa. The document was admitted into evidence but was not annexed to an AALD. Mr Bhardwaj noted that Mr Thapa asserted that his first day of incapacity was 2 October 2019. He disputed that Mr Thapa had spoken to him on that day about being incapacitated, or that Mr Thapa complained to him of any pain or difficulties with work. He disputed that he told Mr Thapa to continue working. Mr Bhardwaj said that he ceased trading at Warriewood on 30 September 2019 and Top Juice Warriewood took over on 1 October 2019. Mr Bhardwaj referred to the pay records and confirmed that Mr Thapa took sick leave in the week from 2 October 2019 to 8 October 2019, but did not provide a medical certificate.
Mr Bhardwaj asserted that Mr Thapa had never provided him with any medical certification from his general practitioner or from Mr Gavine. He stated that he had no recollection of Mr Thapa calling him in December 2019 and said that Mr Thapa did not advise him of any treatment undertaken in Nepal. Mr Bhardwaj said that he did recall that Mr Thapa approached him in either late December 2019 or January 2020 at the Warringah Mall shop and requested a loan of $20,000 in order to urgently pay for his university fees because he would otherwise not be able to finish his degree and would be deported. Mr Bhardwaj said that he declined to lend Mr Thapa the money.
Annexed to the statement dated 15 July 2022 was correspondence from Ms Hella Nazar, National Human Resources Manager of Top Juice Pty Ltd. Ms Nazar indicated that Mr Thapa was removed from the company’s payroll system on 10 January 2018 and that from 1 October 2019 the Warriewood store was operated by Top Juice Pty Ltd and not by the appellant.
Mr Eddie Huang, physiotherapist
A letter dated 28 July 2022 from Mr Eddie Huang of Essence Physiotherapy directed to Mr Thapa’s legal representatives was in evidence.[12] Mr Eddie Huang reproduced a clinical note recorded by him as follows:
“1/10/2019
S/E Patient presents lower back pain with radiculopathy to L leg. It started few months ago and his walking became more difficult from 2 days ago.
O/E lower back pain aggravated by sitting, walking and standing up from a chair.
Rx. STW on L/S, IF for pain relief, Patient is encouraged to be active, and avoid bed resting.”
[12] AALD 9 August 2022, p 3.
Mr Adam Gavine, chiropractor
Mr Adam Gavine’s clinical notes were in evidence.[13] The notes disclose that Mr Thapa first attended the practice on 3 October 2019 complaining of pain in the lumbosacral region for the past 3 or 4 months but that his symptoms had worsened in the last three days. He noted that there was radicular pain present, radiating down the left leg and that Mr Thapa’s work involved standing all day and lifting heavy boxes of fruit several times a day. At further consultations on 9, 12 and 18 October 2019, Mr Gavine recorded continuing complaints of symptoms and noted that Mr Thapa was intending to return to Nepal for treatment.
[13] AALD dated 8 June 2022, pp 10–14.
Dr Joe Qi Rong Huang, general practitioner
The clinical notes of Dr Joe Rong Huang together with the certificates of capacity issued by Dr Huang were in evidence.[14] It is not necessary to refer to the entirety of those documents. It sufficient to note that:
(a) on 15 February 2020, Mr Thapa presented complaining of back pain. Dr Huang recorded that the pain had been present since October 2019 and Mr Thapa had returned to Nepal for treatment. Dr Huang referred to heavy lifting at work and noted that an MRI scan disclosed mild compression at the L4 level of the spine with an L4/5 disc protrusion;
(b) at the consultation on 15 February 2020, Dr Huang issued a certificate of capacity and referred Mr Thapa to Dr Prasanth Rao, neurosurgeon, and
(c) the certificate of capacity recorded an approximate date of injury as 16 October 2019 and certified Mr Thapa as having no current capacity for work.
[14] AALD dated 3 May 2022, pp 73–145.
Dr Prasanth Rao, neurosurgeon
Dr Rao conducted a telehealth consultation with Mr Thapa on 26 March 2020 and reported to Dr Huang on 6 April 2020.[15] Relevantly, Dr Rao wrote:
“He is a delightful gentleman who present[s] after 4 month pain in the leg on the left side and had to take time off work. He went to Nepal for investigation as he is a student, unfortunately it has not improved.
…
He has trialled physiotherapy and chiropractic management, acupuncture and bed rest which made it better while medication and massage made no difference.
…
We had a detailed discussion and at 4 months when the pain is severe and he is unable to return back to work and having trialled almost everything including steroid medications I think the next best option would be a surgical decompression in the form of minimal invasive discectomy.”[16]
[15] AALD dated 3 May 2022, pp 148–149.
[16] AALD dated 3 May 2022, p 148.
Dr Robert Breit, orthopaedic surgeon
Dr Robert Breit was asked to provide a medico-legal opinion by iCare. Although Dr Breit did not examine Mr Thapa until 22 March 2021, the history recorded by him in his report dated 23 March 2021[17] is relevant to the issues on appeal. Dr Breit recorded the following history of injury:
“I am told that he was getting some low back pain which started slowly and was associated with some stiffness that tended to get better as he became more mobile during the day.
On 16 October 2019 he went to pick up a box and couldn’t move. The matter was reported and at that stage he developed some left leg pain.
It appears that he self-referred and self-funded some chiropractic, there were manipulations as well as other treatment but after a few months it wasn’t better. He returned to Nepal and told me that he had some physiotherapy and hydrotherapy without any benefit.
On returning to Australia he was referred to Dr Rao a neurosurgeon who arranged for some investigations that were said to show a sequestrated disc from the L4/5 level putting pressure on the nerve root. He developed a foot drop.
On 26 June 2020 he had an insurance funded decompression by Dr Rao but I am told the left leg pain is still there however the numbness appears to have settled.”[18]
[17] AALD dated 3 May 2022, pp 165–170.
[18] AALD dated 3 May 2022, p 166.
Dr Breit opined that, assuming the information about the loads Mr Thapa lifted was correct, Mr Thapa’s disc lesion was related to his employment.
Dr Balsam Darwish, neurosurgeon and spinal surgeon
Dr Darwish was asked by Mr Thapa’s legal representatives to examine Mr Thapa and provide a medico-legal opinion. The history recorded by Dr Darwish in his initial report dated 28 April 2021[19] is also relevant to the issues on appeal. Dr Darwish noted that Mr Thapa’s work was physical and involved lifting weights of between 10 and 20 kilograms and that Mr Thapa injured his back in “around October 2019.” He said that, on that day, Mr Thapa experienced low back pain radiating into the left leg and left leg paraesthesia. Dr Darwish said that Mr Thapa was a student in Australia and returned to Nepal during November and December 2019, where he was treated with physiotherapy, hydrotherapy and pain management without improvement. Dr Darwish noted that Mr Thapa underwent an MRI scan in June 2020, which showed a disc protrusion and compressed nerve roots, and Mr Thapa underwent surgery on 26 June 2020. Dr Darwish diagnosed an L4/5 disc protrusion with left-sided radiculopathy and opined that he believed that “the work-related injury and the nature of his employment is the cause of his symptoms and the need for surgery.”[20]
[19] AALD dated 3 May 2022, pp 171–175.
[20] AALD dated 3 May 2022, p 174.
The medical records from Nepal
Mr Thapa underwent an MRI scan in Nepal at the Tribhuvan University Teaching Hospital on 6 November 2019. The scan confirmed a disc protrusion at the L4/5 level with canal stenosis causing mild compression of the left L4 nerve root.[21]
[21] Mr Thapa’s reply, p 14.
Further documents from the Tribhuvan University Teaching Hospital were in evidence. The documents were dated according to the Hamor Patro Calendar used in Nepal, however the dates were translated from the Hamor Patro Calendar to the Gregorian calendar by an accredited Nepalese translator.[22] The documents disclosed that Mr Thapa underwent various pathological tests at that hospital on 4 November 2019[23] and 8 November 2019.[24]
[22] AALD dated 9 August 2022, p 1.
[23] Mr Thapa’s reply, p 16.
[24] Mr Thapa’s reply, pp 17–18.
A discharge document issued by Sushwastha Hospital in Nepal showed that Mr Thapa was admitted with low back pain on 17 November 2019 and discharged on 30 November 2019.[25]
[25] Mr Thapa’s reply, p 15.
The Principal Member’s reasons
The Principal Member identified the issues for determination, summarised the evidence (including the oral testimony of Mr Thapa) and the submissions of the parties.
The Principal Member observed that there was “lack of some clarity”[26] in the evidence from Mr Thapa and considered that some of the evidence, such as that Mr Thapa did not recall whether he asked Mr Bhardwaj for a loan of $20,000 did not seem plausible. She considered that that was a matter that Mr Thapa would have remembered because of the large amount of money involved. The Principal Member observed that Mr Thapa’s evidence in relation to that matter reflected poorly on his credibility as a witness, however, considering his evidence overall Mr Thapa impressed her as a witness of truth. She took into account that he readily admitted when he was not sure about information or could not recall matters and he did not exaggerate. She said that she did not form that view solely on the basis of his witness testimony. She observed that the contemporaneous medical evidence from the treatment providers was consistent with the evidence provided by Mr Thapa.
[26] Sonika Australia Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2022] NSWPIC 589 (reasons), [102].
The Principal Member noted that the medical evidence and the payslips together provided a timeline, which she listed as:
“(a) Up to 1 October 2019 – there is a cumulative total in the payslips recording Mr Thapa had not used any annual leave or ‘Personal/Carer’s Leave’.
(b) 1 October 2019 – Mr Huang physiotherapist examined Mr Thapa noting he presented with lower back pain with radiculopathy to the left leg. The history was ‘it started few months ago and his walking became more difficult from 2 days ago.’
(c) 3 October 2019 – Adam Gavine (Back to Function Allied Health Clinic) notes low back pain for the past three to four months and the pain had become worse over the past three days. The pain was also described as radicular. It was noted that he works in a juice shop and has to stand all day and lift heavy boxes of fruit a few times per day.
(d) Mr Bhardwaj confirms in his statement that Mr Thapa did take ‘sick leave’ in the week 2 to 8 October 2019. His payslip confirms Mr Thapa was paid for 20 hours ‘personal/carer’s leave’ and the balance of his unused personal/carer’s leave was reduced down to 8.9673 hours. I find from Mr Bhardwaj’s statement it is consistent that ‘sick leave’ is more likely than not included in the term on the payslip of ‘personal/carer’s leave’.
(e) On 9 October 2019 – Adam Gavine noted that Mr Thapa was no better, and he could not flex through his lumbar spine.
(f) On 12 October 2019 – Adam Gavine noted some improvement, but he was still in pain.
(g) On 14 October 2019 – Mr Thapa worked according to Mr Bhardwaj’s statement. This is consistent with the payslip for the pay period 09/10/2019-15/10/2019 he was paid for 10.5 hours of ordinary hours and 8.9673 personal/carer’s leave.
(h) Between 16 October to 22 October 2019 Mr Thapa did not work and took annual leave.
(i) On 18 October 2019 – Adam Gavine recorded that his back was still very sore, and he had decided to defer his studies and go back to Nepal so he can recover from his lumbar disc.
(j) The payslip for 23/10/2019-29/10/2019 shows he was paid for five ordinary hours and 15 annual leave hours.
(k) On 30 October 2019 Mr Thapa left Australia for Nepal.”[27]
[27] Reasons, [104].
The Principal Member concluded that Mr Thapa consulted Mr Gavine when he was still working for the appellant and complained to Mr Gavine that he had been experiencing an increase in symptoms leading up to 1 October 2019. The Principal Member noted that Mr Thapa provided a history to Mr Gavine of being required to stand and lift heavy boxes in the course of his employment, which was well before Mr Thapa was aware that he could claim workers compensation for a work injury.
The Principal Member observed that Mr Thapa’s statement contained detailed evidence of the physical tasks he performed and in cross-examination he gave evidence of having to unload and store the deliveries every second day, which was heavy work, and which made his symptoms more severe. The Principal Member concluded that Mr Thapa’s evidence as to the nature of the work was consistent with his statements and consistent with the history provided to Mr Gavine on 3 October 2019.
The Principal Member pointed out that Mr Bhardwaj did not challenge the assertion that the work was heavy work. She added that, while Mr Bhardwaj gave evidence that Mr Thapa’s duties were to make fruit juice, smoothies and yoghurt, there would be ancillary duties of receiving deliveries of fruit and vegetables and accessing the products from the cool room.
The Principal Member described the evidence as overwhelming that Mr Thapa was experiencing back symptoms, recorded by a physiotherapist and a chiropractor, consistent with an injury, before leaving for Nepal. The Principal Member referred to the evidence of Dr Rao, Dr Darwish and Dr Breit. She accepted the submissions of Mr Thapa’s counsel that the history recorded by Dr Breit was “muddled” but said that Dr Breit did attribute the symptoms to lifting a load. She noted that Dr Breit referred to Mr Thapa as having lifted a box on 16 October 2019 when the evidence was that Mr Thapa had back symptoms well before that date.
The Principal Member accepted the evidence of Mr Thapa that he returned to Nepal to obtain treatment because, as an international student, he was not entitled to claim for treatment through Medicare in Australia. She further accepted Mr Thapa’s submission that whether Mr Bhardwaj was or was not told about the injury was not determinative of the issue. The Principal Member considered, however, that the evidence given by Mr Thapa that the CCTV records would show that Mr Thapa had telephoned Mr Bhardwaj on the day of injury was “quite persuasive.”[28]
[28] Reasons, [109].
The Principal Member found the histories recorded by Mr Eddie Huang, physiotherapist on 1 October 2019 and Mr Gavine on 3 October 2019 “most compelling.”[29] She determined that she was satisfied that Mr Thapa did suffer an injury to his lumbar spine pursuant to s 4(b) of the 1987 Act in the course of his employment with the appellant as a result of repetitive and, at times, heavy duties, which became worse towards the end of September 2019 and into October 2019. She observed that it was irrelevant whether the injury fell within s 4(b)(i) (a disease of gradual onset) or s 4(b)(ii) (an aggravation of a disease) and found that the correct deemed date of injury was the date of the first incapacity, which was 2 October 2019. She pointed out that there was no subsequent employer, noting that Top Juice Pty Ltd had advised that Mr Thapa had not worked for them since 2018 and Mr Thapa was still employed by the appellant in 2020.
[29] Reasons, [110].
The Principal Member noted that the amount of compensation paid by the Nominal Insurer to Mr Thapa was not challenged and consequently ordered the appellant to reimburse the Nominal Insurer the amount of $80,383.44.
The Certificate of Determination issued on 24 October 2022 records:
“The Commission determines:
1. Pursuant to s 4(b) of the Workers Compensation Act 1987 Shree Thapa sustained an injury to his lumbar spine in the course of his employment with Sonika Australia Pty Ltd with his employment being the main contributing factor to the contraction or aggravation of the disease injury.
2. The deemed date of injury is 2 October 2019, being the date of his first incapacity for employment.
3. At all relevant times Sonika Australia Pty Ltd did not have a policy of workers compensation insurance.
4. Pursuant to s 145(4) of the Workers Compensation Act 1987 Sonika Australia Pty Ltd is to reimburse the Workers Compensation Nominal Insurer the amount notified of $80,383.44.”
The grounds of appeal
The grounds of appeal are problematic in that they do not clearly and succinctly articulate the grounds upon which the appellant relies. The appellant makes its submissions in a random fashion with the alleged error embodied within the various submissions. In addition, apart from references to three paragraphs from the Principal Member’s reasons,[30] the appellant’s references to the Certificate of Determination where the Principal Member is said to have erred are not in fact part of the Principal Member’s reasoning process. They are simply the Principal Member’s detailed summary of the evidence before her, and the submissions made.
[30] Reasons, [102], [105] and [108].
The approach taken by the appellant is entirely unsatisfactory and should not be adopted. However, the Nominal Insurer and Mr Thapa responded to each allegation in turn so that, in the circumstances, it is fair to proceed with an assessment of the merits of the appeal.
It can be gleaned from the submissions made that the appellant submits that the Principal Member erred by finding that Mr Thapa suffered an injury with a deemed date of 2 October 2019 and in determining that the injury occurred in the course of his employment with the appellant.[31] The alleged errors are identified as:
[31] Appellant’s submissions, [2].
Ground One: The Principal Member erred in law in accepting that Mr Thapa was injured on the dates alleged in that the Principal Member:
(a) afforded too little weight to the evidence that Mr Thapa could not remember the exact date of his injury and that Mr Thapa could not remember whether he took sick leave from 2 October 2019;
(b) found in favour of Mr Thapa when there was no independent or corroborative evidence that Mr Thapa had informed the appellant of his injury;
(c) failed to draw the appropriate inference from the fact that Mr Thapa’s evidence lacked clarity and was implausible and accepted the evidence of Mr Thapa when his credibility was in issue;
(d) accepted the evidence from the hospitals in Nepal as to the dates upon which Mr Thapa was admitted when there was no way of ascertaining whether those documents were authentic;
(e) failed to take into account that the Nominal Insurer and Mr Thapa chose not to cross-examine Mr Bhardwaj;
(f) failed to afford sufficient weight to the fact that Mr Thapa did not provide a statement to the Nominal Insurer, and
Ground Two: The Principal Member erred in determining that the injury occurred in the course of Mr Thapa’s employment with the appellant.
The submissions
As to Ground One (a)
The appellant’s submissions
The appellant refers to Mr Thapa’s statement evidence about the claim form, in which he nominated the date of 16 October 2019 as the deemed date of injury, which Mr Thapa said in his statement was, according to his recollection at the time, his first date of incapacity.[32] The appellant also refers to Mr Thapa’s evidence that he was injured on or about 1 October 2019 at the Warriewood store.[33] The appellant points to the Principal Member’s reasons at [13] and submits that it is difficult to ascertain the date of the alleged injury Mr Thapa sustained and the evidence should have been rejected.[34] The appellant asserts that the Principal Member erred in her discretion when she concluded that the injury occurred on 2 October 2019.[35] The appellant further refers to the Principal Member’s reasons at [102], [105] and [106] and submits that the Principal Member erred in accepting the evidence of Mr Thapa.[36]
[32] Mr Thapa’s statement dated 7 June 2022, [11], AALD dated 8 June 2022.
[33] Mr Thapa’s statement dated 7 June 2022, [14], AALD dated 8 June 2022.
[34] Appellant’s submissions, [2].
[35] Appellant’s submissions, [3].
[36] Appellant’s submissions, [5].
The appellant says that Mr Thapa conceded that he took personal carer’s leave from 2 October 2019 to 8 October 2019, but he did not know if he took sick leave. The appellant points to the evidence of the payslips and submits that the Principal Member fell into error by placing no weight on Mr Thapa’s answers in cross-examination.[37]
[37] Appellant’s submissions, [7].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the Principal Member’s summary of the evidence was accurate. The Nominal Insurer asserts that this ground of appeal is not made out and should be rejected.
Mr Thapa’s submissions
Mr Thapa submits that the appellant’s complaint is unclear, however, the Principal Member did not find an injury occurred on 16 October 2019, but found that there was an injury deemed to have occurred on 2 October 2019. He submits that there was no significance attached to the date of 16 October 2019.
Mr Thapa asserts that the change of address of the business was not relevant when:
(a) there was no evidence that Mr Thapa was employed by a subsequent employer;
(b) Top Juice Pty Ltd confirmed that Mr Thapa had not worked for that entity after 2018, and
(c) the payslips indicated that Mr Thapa was still employed in 2020.
Mr Thapa submitted that the Principal Member correctly found that he had experienced low back symptoms and had received medical treatment prior to 16 October 2019. Mr Thapa asserts that it is immaterial that he could not fix an exact date of injury when he had been experiencing symptoms over a period of time, and the ultimate date of injury is fixed by the legislation. He submits that the Principal Member’s conclusion was consistent with the contemporaneous evidence and was correct.
In respect of the complaint that the Principal Member placed too little weight on the fact that Mr Thapa could not remember whether he took sick leave from 2 October 2019, Mr Thapa maintains that it is unclear what the alleged error is and how any such error would be material to the case. Mr Thapa points out that the Principal Member relied upon Mr Bhardwaj’s evidence that Mr Thapa took sick leave from 2 October 2019 and the payslips indicated that Mr Thapa took “personal/carer’s” leave from that date. He says that the Principal Member thus concluded that the term personal/carer’s leave included sick leave.
As to Ground One (b)
The appellant’s submissions
The appellant submits that the onus rested upon Mr Thapa to establish that the appellant was informed of the injury. The appellant says that the only evidence of Mr Thapa telling the appellant about the injury was given in Mr Thapa’s oral testimony and otherwise did not appear anywhere in the evidence.[38]
[38] Appellant’s submissions, [8].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the Principal Member’s summary of the evidence was accurate. The Nominal Insurer asserts that this ground of appeal is not made out and should be rejected.
Mr Thapa’s submissions
Mr Thapa submits that there is no principle of law that requires evidence to be corroborated before it can be accepted. He further submits that his entitlement to compensation was not dependent upon whether the appellant was informed of the injury. He says the question was whether or not he suffered an injury. He asserts that there was strong evidence to support the fact that he did suffer the injury.
As to Ground One (c)
The appellant’s submissions
The appellant asserts that Mr Thapa’s credibility was clearly put in question by Mr Thapa being unsure of whether he received a loan of $20,000 from the appellant. The appellant submits that the Principal Member, while conceding that Mr Thapa’s response poorly reflected on his credit as a witness, accepted that Mr Thapa was a witness of truth. The appellant asserts that the Principal Member erred in law by accepting Mr Thapa as a witness of truth.[39]
[39] Appellant’s submissions, [9].
The appellant points to the Principal Member’s observation that there was some lack of “clarity” about the dates he was injured. The appellant asserts that the Principal Member placed little or no weight on that fact and says Mr Thapa’s evidence does not appear plausible. The appellant submits that an appropriate inference should have been drawn from that fact.[40]
[40] Appellant’s submissions, [14].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the Principal Member’s summary of the evidence was accurate. The Nominal Insurer asserts that this ground of appeal is not made out and should be rejected.
Mr Thapa’s submissions
Mr Thapa asserts that the appellant fails to identify an error on the part of the Principal Member. He submits that the Principal Member considered his evidence in relation to the request for a loan and that he could not remember having sought such a loan. Mr Thapa says that the Principal Member was nonetheless entitled to accept the balance of his evidence, which was consistent with the contemporaneous material.
As to Ground One (d)
The appellant’s submissions
The appellant refers to Mr Thapa’s evidence that he underwent an MRI scan on 6 November 2019 in Nepal, following which he was admitted to Sushwastha Hospital for 22 days. The appellant contends that that evidence is inconsistent with the evidence from Sushwastha Hospital.
The appellant submits that the Principal Member erred at law in accepting Mr Thapa’s evidence as to the dates of admission, in determining that the dates were the dates when the treatment took place and by concluding that the fact that the documents were not authenticated was not a relevant consideration. The appellant says that the documents from Nepal were not certified, so that it cannot be ascertained whether they are authentic.[41]
[41] Appellant’s submissions, [10]–[11].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the Principal Member’s summary of the submissions and statement of reasons was accurate and consistent with the evidence. It adds that the submission that the hospital records were required to be certified as to their authenticity is misconceived and was properly rejected by the Principal Member. The Nominal Insurer asserts that this ground of appeal is not made out and should be rejected.
Mr Thapa’s submissions
Mr Thapa contends that the appellant is merely reciting the evidence. He says there is no requirement for the documents to be certified, and a Nepalese interpreter interpreted the calendar dates. Mr Thapa points out that the appellant does not refer to any authority to support the submission that the documents required certification, the documents were not challenged, and it was open for the Principal Member to accept them.
As to Ground One (e)
The appellant’s submissions
The appellant again refers to the concessions made by Mr Thapa that he did not recall the exact date of injury.
The appellant says that Mr Thapa firstly nominated a date of injury of 19 October and only sought to change that date when he became aware of the fact that the appellant did not operate the store at Warriewood from 1 October 2019. The appellant says that the Principal Member ought to have rejected that evidence in the circumstances where the Nominal Insurer and Mr Thapa were given the opportunity to cross-examine Mr Bhardwaj and elected not to do so.[42]
[42] Appellant’s submissions, [12].
The Nominal Insurer’s submissions
The Nominal Insurer does not respond to this allegation of error.
Mr Thapa’s submissions
Mr Thapa says that it is unclear as to what constitutes the allegation of error. He says that there is no reason why the Principal Member should not have accepted his evidence that he was unable to recall an exact date of injury. Mr Thapa reiterates that the Principal Member’s finding was in respect of a deemed date of injury and was arrived at by an examination of the contemporaneous medical evidence and so was not dependent upon the identification of an exact date of injury.
Mr Thapa submits that the Principal Member expressly referred to the submission about the date of injury but ultimately it was not relevant because the Principal Member determined the matter on the basis of the contemporaneous material. That is, that by 1 October 2019, Mr Thapa had been suffering from back pain. He says it was irrelevant as to what day of the week 19 October 2019 fell upon.
As to Ground One (f)
The appellant’s submissions
The appellant says that the Principal Member afforded little or no weight to the fact that Mr Thapa did not provide a statement to the Nominal Insurer. The appellant submits that the Principal Member failed to take that fact into account when accepting that Mr Thapa was a witness of truth.[43]
[43] Appellant’s submissions, [13].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the Principal Member’s determination that Mr Thapa should be accepted as a witness of truth was consistent with the overall evidence. The Nominal Insurer submits that the ground of appeal is not made out and should be rejected.
Mr Thapa’s submissions
Mr Thapa contends that this appeal ground does not articulate how it is said that the Principal Member erred. He says that the appellant has not explained why the failure by him to provide a statement to the Nominal Insurer is significant or how that failure would affect the outcome of this case.
As to Ground Two: The Principal Member erred in determining that the injury occurred in the course of his employment with the appellant
The appellant’s submissions
The appellant refers to the Principal Member’s summary of the evidence at [17] and [45] and submits that the appellant did not operate at the Warriewood store after 30 September 2019. The appellant further refers to Mr Thapa’s evidence that he could not remember the exact date of the injury. The appellant submits that if 2 October 2019 was the correct date and the injury occurred at the Warriewood store, the injury would not have been sustained in the appellant’s employ. The appellant says that the premises were operated by Top Juice Pty Ltd after 30 September 2019.
The appellant points out that Mr Thapa consulted Mr Gavine on 1 October 2019, so that the injury must have been sustained at the Warriewood store, which was operated by Top Juice Pty Ltd.
The appellant asserts that Mr Thapa did not change his mind about the date of injury until he was aware that the appellant no longer operated the Warriewood store beyond 30 September 2019 and after he had accessed his pay slips. The appellant asserts that the Principal Member should not have accepted the evidence from Mr Thapa about the date of his injury and thus fell into error in determining that Mr Thapa was injured in the course of his employment.
The appellant further asserts that the Principal Member erred in law by not taking into account that Mr Bhardwaj was not cross-examined about these matters.[44]
[44] Appellant’s submissions, [2]–[6], [12], [15]–[16].
The Nominal Insurer’s submissions
The Nominal Insurer submits that the appellant ignores the statement from Mr Bhardwaj dated 24 March 2020, in which Mr Bhardwaj conceded that Mr Thapa was employed by the appellant between 11 December 2017 and 11 February 2020. The Nominal Insurer says that the Principal Member’s summary of this evidence was entirely consistent with the evidence and submits that this ground of appeal should be rejected.
Mr Thapa’s submissions
Mr Thapa asserts that the appellant again provides no explanation as to why the Principal Member should have arrived at a different conclusion about his evidence. He submits that the Principal Member considered the deficiencies in his evidence but overall accepted him as a witness of truth, a conclusion which the Principal Member was entitled to reach.
Mr Thapa submits that the evidence supports the fact that he continued to be employed by the appellant up until he left Australia for Nepal on 30 October 2019. He says that it is irrelevant as to whether the work was performed in Warriewood or Warringah Mall, and there is no evidence that he worked for any other employer.
Mr Thapa points out that he attended Mr Eddie Huang on 1 October 2019, complaining of back pain which had commenced a few months before, and which worsened two days prior to the appointment.
Mr Thapa submits that no error is identified in the Principal Member’s determination.
Consideration
In its preliminary submissions, the Nominal Insurer refers to s 352 of the 1998 Act and provides extracts from authorities applicable to the determination of an appeal from a member of the Commission. The principles drawn from the legislation and the relevant caselaw are well established in the Commission.
Firstly, s 352(5) of the 1998 Act provides that an appeal is limited to a determination of whether the Member’s decision was or was not affected by error of fact, law or discretion and to the correction of any such error.
Secondly, Roche DP reviewed the authorities relevant to the nature of the Commission’s appeal process in Raulston v Toll Pty Ltd,[45] a decision frequently applied in the Commission and summarised the principles as follows:
“(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’.”[46]
[45] [2011] NSWWCCPD 25 (Raulston).
[46] Raulston, [19].
Deputy President Roche also provided an extract from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd,[47] in which Allsop J (as his Honour then was) with Drummond and Mansfield JJ agreeing, observed:
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”
[47] [2001] FCA 1833, [28].
The Principal Member’s conclusion that Mr Thapa was injured in the course of his employment is a finding of fact, so that the above authorities are relevant to this appeal.
Ground One (a)
The appellant asserts that the Principal Member erred in affording insufficient weight to the fact that the Mr Thapa could not recall the exact date of injury. The appellant submits that it is difficult to ascertain the date of the alleged injury and the evidence should have been rejected.
In this case, the matter proceeded (without challenge from the appellant) on the basis that the injury asserted by Mr Thapa was a ‘disease’ injury as defined by s 4(b) of the 1987 Act. The Principal Member was therefore required to assess the evidence in order to ascertain the ‘deemed’ date of injury. Sections 15 and 16 of the 1987 Act provide that, if an injury is a disease of gradual process (s 15(1)) or an aggravation of a disease (s 16(1)):
“(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”.
Applying the legislation, the Principal Member was required to determine the first date of Mr Thapa’s incapacity, which she clearly identified from the documents before her to be 2 October 2019. This was the day after Mr Thapa first sought treatment and first took sick or personal leave. It was not necessary for Mr Thapa to have recalled the exact date of injury, particularly where, as in this case, the “injury” referred to by the appellant was the date upon which Mr Thapa received the alleged final insult to his lumbar spine. That date could correctly be identified from the contemporaneous medical evidence and the payslips. In those circumstances, the fact that Mr Thapa could not recall the exact date was not material to the outcome and was not a sufficient basis upon which to reject Mr Thapa’s testimony.
Additionally, and for the same reasons, the fact that Mr Thapa could not remember whether he took sick leave from 2 October 2019 to 8 October 2019 was not material to the consideration of when the injury occurred. The evidence from the payslips confirmed that Mr Thapa took personal leave and Mr Bhardwaj’s evidence was that that leave was sick leave. It was on this basis that the Principal Member ascertained that the first date of incapacity was 2 October 2019. Thus, there was no error in the Principal Member’s reasoning.
The appellant has not identified error of the kind required and this ground of appeal has no merit.
Ground One (b)
The appellant asserts that the Principal Member erred in accepting that Mr Thapa suffered the injury when there was no corroborative evidence that he reported the injury to Mr Bhardwaj. As Mr Thapa submits, there is no principle of law that requires evidence to be corroborated before it can be accepted. In Woolworths Ltd v Warfe,[48] Kaye AJA (with Tate and Whelan JJA agreeing) said:
“Notwithstanding the absence of corroborative witnesses who the party might be expected to call, the tribunal of fact is free, nevertheless, to accept the evidence of the particular party as credible. That proposition is trite law.”[49]
[48] [2013] VSCA 22 (Warfe).
[49] Warfe, [151].
Warfe was considered in the context of the former Workers Compensation Commission by Roche DP in Bi-Lo Pty Ltd v Brown.[50] Roche DP said that in civil proceedings:
“it is not the law that a worker must have corroboration before he or she can succeed”,[51]
and:
“It is trite law that, even without corroborating witnesses, a tribunal of fact is free to accept the evidence of a claimant as credible.”[52]
[50] [2013] NSWWCCPD 66 (Brown).
[51] Brown, [75].
[52] Brown, [76].
In any event, Mr Thapa is correct in his submission that whether he was entitled to compensation was not dependent upon whether he informed the appellant of his injury. Whether Mr Thapa reported his injury as required by s 254 of the 1998 Act was not an issue raised in the proceedings. The appellant has not identified error on the part of the Principal Member and this ground of appeal lacks merit.
Ground One (c)
The appellant asserts that the Principal Member failed to draw the “appropriate inference” from the fact that Mr Thapa’s evidence lacked credibility. The appellant refers to Mr Thapa’s inability to recollect whether he approached the appellant for a loan of $20,000 in order to pay his student fees and the Principal Member’s conclusion that it was implausible that Mr Thapa would not recall such an event. The appellant further refers to the Principal Member’s comment that Mr Thapa’s evidence as to the dates of the injury lacked “clarity.”
The relevance of Mr Thapa’s recollection of the date of injury is discussed above in relation to Ground One (a) of the appeal.
The Principal Member considered the evidence referable to the alleged request for a loan. It is implicit in the Principal Member’s reasoning that she considered Mr Thapa’s evidence about that matter as unreliable. That, however, did not act as a bar to the Principal Member concluding that the balance of Mr Thapa’s evidence could be accepted. In Chanaa v Zarour[53] Campbell JA (with whom Bathurst CJ and Tobias AJA agreed) observed:
“However, in the civil law corroboration is not a technical term, or a legal requirement … Rather, the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness.”[54]
[53] [2011] NSWCA 199 (Chanaa).
[54] Chanaa, [86].
It is well settled that the acceptance or rejection of evidence, the preference of some evidence over the other, and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[55] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[56] It was open to the Principal Member to accept Mr Thapa’s evidence which was rationally supported by the contemporaneous evidence, despite her having found parts of his evidence unreliable.
[55] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; Shellharbour City Council v Rigby [2006] NSWCA 308.
[56] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
It follows that the appellant has failed to identify error on the part of the Principal Member in accepting Mr Thapa as a credible witness and this ground of appeal has no merit.
Ground One (d)
The appellant asserts that the Principal Member erred by accepting the evidence from the hospitals in Nepal because the authenticity of those documents had not been established. The appellant says that Mr Thapa’s evidence was that he underwent an MRI scan in Nepal on 6 November 2019 and was admitted to Sushwastha Hospital for 22 days, which evidence was inconsistent with the documents from that hospital. The appellant does not explain where the inconsistency lies.
The content of the documents from both the Tribhuvan University Teaching Hospital and Sushwastha Hospital are summarised above at [44]–[46]. The only identifiable inconsistency in that evidence is that Mr Thapa stated that he was admitted for a period of 22 days, when in fact the dates on the discharge document recorded a period of 14 days. Nonetheless, the documents confirm that, while in Nepal, Mr Thapa underwent investigations on 4 November 2019, 6 November 2019 and 8 November 2019 at Tribhuvan University Teaching Hospital, before being admitted to Sushwastha Hospital on 17 November 2019. The significance of this evidence is that it confirms that Mr Thapa continued to seek extensive treatment for his low back symptoms during the time he was in Nepal. I do not consider that the inconsistency between the number of days of hospitalisation is material in the context of establishing that Mr Thapa was injured as alleged.
The appellant further complains that there was no certification that the documents were authentic. The MRI scan results were recorded on the Tribhuvan University Teaching Hospital letterhead, bearing the “Institute of Medicine” insignia and the document was signed by Dr P Kayastha. It contained detailed medical terminology in respect of the results of the scan. There is nothing in that document that would lend suspicion as to its authenticity. Similarly, the Sushwastha Hospital discharge report and the hospital notes from both hospitals bore the letterhead of each hospital and were signed. There was nothing on the face of the documents to indicate that those documents lacked authenticity. The documents were admitted into evidence just as copies of any medical records are admitted in Commission proceedings. The assertion that the documents may lack authenticity is purely speculative.
The appellant has not established error of the kind described and there is no merit to this ground of appeal.
Ground One (e)
The appellant contends that the Principal Member erred by failing to take into account the fact that both the Nominal Insurer and Mr Thapa elected not to cross-examine Mr Bhardwaj.
There is no rule of law that a court must accept unchallenged evidence.[57] If the evidence that has not been the subject of cross-examination is inconsistent with other evidence, which the decision-maker has accepted, then it is open for the decision-maker to reject it.[58]
[57] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, per Samuels JA, [79].
[58] Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234, per Allsop P (Basten and Campbell JJA agreeing), [105].
The appellant reiterates the complaint that Mr Thapa could not remember the exact date of injury. As discussed above, the Principal Member considered and dealt with that inconsistency in Mr Thapa’s evidence and determined the date of injury in accordance with the legislation. It is difficult to see how cross-examination of Mr Bhardwaj would have affected the Principal Member’s conclusion in that regard.
The appellant has not identified any error on the part of the Principal Member by her acceptance of the corroborated evidence from Mr Thapa in circumstances where Mr Bhardwaj was not cross-examined. There is no merit to this appeal ground.
Ground One (f)
The appellant asserts that the Principal Member fell into error by failing to afford sufficient weight to the fact that Mr Thapa did not provide a statement to the Nominal Insurer and failed to take that into account when assessing Mr Thapa as a witness of truth. The appellant does not point to any reason why the absence of such a statement reflected badly on Mr Thapa’s credit or was otherwise of significance. Nor did the appellant explain how, as submitted by Mr Thapa, the absence of such a statement has affected the outcome of this case. The appellant’s submissions are rejected, and the ground of appeal lacks merit.
Ground Two
The appellant asserts that the Principal Member erred in finding that Mr Thapa suffered injury in the course of his employment when the appellant did not operate from the Warriewood store after 30 September 2019 and the Principal Member found the date of injury to be 2 October 2019.
The appellant’s allegation of error discloses that the appellant does not comprehend the Principal Member’s finding and the legislation applicable to “disease” cases (ss 15 and 16 of the 1987 Act). The Principal Member was required to determine the deemed date of Mr Thapa’s injury by ascertaining the first date of Mr Thapa’s incapacity, which was 2 October 2019.
It is apparent from the evidence that Mr Thapa attended Mr Eddie Huang for treatment on 1 October 2019 and the history provided was of months of back pain, which worsened two days before the consultation. That evidence is sufficient to indicate that Mr Thapa’s symptoms and the worsening of those symptoms fell well within the period that Mr Thapa performed work for the appellant. That evidence is consistent with the histories recorded by the other treatment providers. The fact that Mr Thapa was employed by the appellant is evident from the appellant’s own evidence that Mr Thapa worked for him until February 2020, and that Mr Thapa took sick leave from 2 October 2019. As Mr Thapa submits, Top Juice Pty Ltd indicated that Mr Thapa had not worked for that entity since 2018 and there is no evidence to suggest that Mr Thapa worked for anyone else, other than the appellant. The contemporaneous medical evidence makes it abundantly clear that Mr Thapa was in the course of his employment when he suffered the injury.
It follows that there is no merit to this ground of appeal.
CONCLUSION
As the appeal lacks merit, a refusal to grant leave to appeal would not result in a substantial injustice and leave is refused.
DECISION
Leave to appeal the Principal Member’s Certificate of Determination dated 24 October 2022 pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
10 November 2023
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