State of New South Wales (Fire & Rescue NSW) v Dixon - [2023] NSWPICPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Fire & Rescue NSW) v Dixon [2023] NSWPICPD 14
APPELLANT:	State of New South Wales (Fire & Rescue NSW)
RESPONDENT:	Gregory Dixon
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W5998/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	29 March 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 10 August 2022 is revoked. 2. The matter is remitted to another non-presidential member for re-determination of the remaining issues in accordance with and consistent with these reasons. 3. Each party to pay its or his own costs of the appeal. Costs of the proceedings at first instance to be determined on the rehearing.
CATCHWORDS:	WORKERS COMPENSATION – Clause 3 of Pt 18C of Sch 6 to the Workers Compensation Act 1987 – method of determination of amount by which compensation payable is to be reduced – State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 and SAS Trustee Corporation v Pearce [2009] NSWCA 302 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Khoshaba, solicitor
Bartier Perry Lawyers
Respondent:
Mr P Stockley, counsel
Masselos & Co Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF Member’s DECISION:	10 August 2022

INTRODUCTION

Mr Gregory Dixon, the respondent to the appeal, was employed by the State of New South Wales (Fire & Rescue NSW), the appellant, as a firefighter from 1997 to April 2004 when he was medically retired from the service. He was unable to work as a firefighter from 6 December 2002.
There was no dispute that Mr Dixon suffered a primary psychological injury in the course of his employment with the appellant. The deemed date of injury was 6 December 2002.
Dr Suman, Medical Assessor appointed by the Personal Injury Commission, issued a Medical Assessment Certificate (MAC) dated 8 June 2022, which found the respondent had suffered a 20% whole person impairment.[1]
[1] Dixon v State of New South Wales (Fire & Rescue NSW) [2022] NSWPIC 452 (reasons), [3].
The disputed issue before the Member was the quantum of the respondent’s entitlement to compensation pursuant to s 67 of the Workers Compensation Act1987 (the 1987 Act).
The Member determined that an appropriate award for pain and suffering was 55% of a most extreme case pursuant to s 67, being the sum of $27,500. There is no appeal from that finding.
The appellant submitted that the transitional provisions contained within Sch 6, Pt 18C, cl 3 to the 1987 Act applied so that a reduction in the award of the compensation was required.
The Member determined that there should be no reduction in the compensation payable pursuant to Sch 6, Pt 18C, cl 3.
The appeal challenges that finding.

BACKGROUND FACTS

Only the appellant filed a chronology and this is attached to its submissions on the appeal (page 17). There is no countervailing chronology filed by the respondent and, accordingly, I proceed on the basis that the dates attributed to the events therein are not in dispute.
Dr Cassimatis, psychiatrist, was initially consulted in 2013, following referral from Dr Newman Harris for Attention Deficit Hyperactivity Disorder (ADHD), which Dr Cassimatis believed was a childhood disorder. In 2016, Dr Cassimatis took over the management of all the respondent’s psychiatric disorders including his traumatic experiences, with the exception of pain management.[2]
[2] Dr Cassimatis’ report dated 18 July 2016, Application to Resolve a Dispute (ARD), p 38.
The respondent commenced work with the appellant in 1997 when he was 21 years of age. He recorded in his statement dated 3 May 2021[3] that in 1992 he joined the Rural Fire Service at Katoomba Headquarters as a volunteer. He was then aged 16.
[3] ARD, pp 1–7.
In 1997, when he joined the New South Wales Fire & Rescue Service as a retained firefighter, he was required to attend numerous traumatic events, including serious and fatal motor vehicle accidents, search and rescue and tragic bushfire incidents in the Blue Mountains bushfire area. He said in his statement that he attended body recoveries from motor vehicle accidents.
Although he was unable to recall the exact dates of particular incidents, he was able to recall the rescue of a deceased woman who was the “[spitting] image of [his] wife.”[4] This incident is said in the chronology to have occurred in 2001.
[4] ARD, p 1, [10].
In the statement, Mr Dixon describes an “horrific car accident” where a truck driver had rolled his truck on the Great Western Highway and heavily impacted into a rock wall. He said he had to hop into the truck and comfort the accident victim while fellow teammates were cutting the truck open to try and remove him. This event went on for hours and according to his statement he felt extremely overwhelmed and found it very traumatic.
It is not clear when this event occurred but Dr Suman recorded that it occurred in 2002.
Dr Suman recorded that Mr Dixon started drinking excessive alcohol from 2001 onwards. He continued to use excessive alcohol in order to manage his mental health and sleep issues. Dr Suman further recorded that Mr Dixon used speed and cannabis on a regular basis from 2001 onward.
Because the transitional provision depends on consideration of events before 31December 2001, the absence of findings as to when each of the events in fact occurred makes the analysis required by the transitional provision difficult.
What is important for this brief summary of the background facts is that on the evidence there would appear to be two events of marked significance, one occurring before 31December 2001 and the other occurring after that date.

THE MEMBER’S STATEMENT OF REASONS

It is convenient to quote the Member’s reasons for his conclusion adverse to the appellant:
“30. I accept the evidence discloses the [respondent] was exposed to a number of traumatic events before 1 January 2022, having joined the [appellant’s] employ in 1997. The [appellant] impresses upon the Commission; however, having examined the medical evidence in this matter, it is apparent there is no expert who provides an opinion as to, firstly, whether there is a deductible proportion, and if so, what it is.
31.    The [appellant] relies in part on commentary contained within the MAC regarding symptoms of post-traumatic stress disorder experienced by the [respondent] in or about 2001. However, in my opinion the mere presence of symptoms is not sufficient to satisfy the requirements for making out a deductible proportion without establishing the presence of functional limitations as required in the Psychiatric Impairment Ratings Scale (PIRS) ratings. It is those ratings which ground findings of impairment, not generalised complaints of symptomology. No medical expert in this matter has commented on whether (and to what extent) any proportion of the 20% whole person impairment assessed on the PIRS ratings is due to something which occurred before 1 January 2002.
32.    Likewise, no doctor has undertaken a causal analysis akin to that contained in s 323 with a view to providing an opinion as to what proportion of the [respondent’s] loss was caused by matters occurring before 1 January 2002. Absent such medical evidence, one is left merely with the reporting of troubling incidents which beset the [respondent], but no causal basis to make a finding those instances actually sounded in a rateable (but non-compensable) impairment at 31 December 2001.
33.    Absent such analysis by any expert in the matter, it matters not which of the approaches is adopted, as the Commission is not assisted with any evidence sufficient to make a finding that a portion of the [respondent’s] loss was due to something that occurred before 1 January 2002, and if so to what extent.
34.    In my view, there is no lay or medical evidence sufficient to satisfy the relevant test. Accordingly, I decline to make a deduction for any non-compensable impairment in this matter.”

CERTIFICATE OF DETERMINATION

On 10 August 2022, the Commission made the following determination:
“1.     The [respondent] suffered a primary psychological injury in the course of his employment with the [appellant] with a deemed date of injury of 6 December 2002.
2.      As a result of that injury, the [respondent] has been assessed by Medical Assessor Dr Suman as suffering a whole person impairment of 20%.
3.      As a result of his injury, the [respondent] has suffered pain and suffering of 55% of a most extreme case.
4.      The [appellant] is to pay the [respondent] permanent impairment compensation as follows:
(a)pursuant to s 66, in the sum of $30,250.
(b)pursuant to s 67, in the sum of $27,500.
TOTAL $57,750.
5.      The [appellant’s] application that the compensation be discounted by virtue of the operation of the transitional provisions is refused.
6.      The [appellant] is to pay the [respondent’s] costs as agreed or assessed.”

ON THE PAPERS

The appellant submits that it is appropriate for the appeal to be dealt with on the papers, whilst the respondent does not seek an oral hearing and is content for the matter to be decided 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.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that it is appropriate for the matter to proceed to be determined “on the papers” without holding any conference or formal hearing.

THRESHOLD MATTERS

The appeal was commenced within the 28 day time limit (s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)).
The appeal meets the monetary threshold stipulated by s 352(3) of the 1998 Act.

NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“(5) 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.”

GROUNDS OF APPEAL

The appellant appeals from order 5 of the Certificate of Determination on the following grounds:
(a) That the Member erred in law and fact by refusing to apply a reduction by virtue of the operation of the transitional provisions within the meaning of Sch 6, Pt 18C cl 3 of the 1987 Act on the basis that there is no lay or medical evidence to do so. (Ground One)
(b) The Member failed to give adequate reasons. (Ground Two)

GROUND ONE

Appellant’s submissions

The appellant sets out the argument advanced by the respondent accepted by the Member in its submissions at paragraphs [1]–[10] inclusive. The appellant sets out various matters of fact relevant to the particular circumstances of the respondent, quoting from Dr Cassimatis’ report dated 18 July 2016 to the effect that the respondent commenced as a volunteer in the Rural Fire Service since the age of 16 (from around 1992) and was exposed to body recovery and various episodes, which were horrific. The respondent told the doctor that he felt rattled, angry, edgy, jumpy and experienced nightmares. The symptoms appeared to progress. He rarely talked to anyone about them.
Dr Cassimatis concludes that the respondent’s PTSD commenced in 1997 when he was a young firefighter.
The appellant quotes from the history provided to Dr Suman:
“Mr Dixon told me that in 2001 ‘I witnessed a car accident. …’ Mr Dixon told me that he repeatedly experienced intrusive memory as he interacted with his wife. He started to worry about his wife’s well-being. Mr Dixon told me that ‘the incident (2001 accident) left me feeling distressed all the time. I was feeling agitated all the time. My wife noticed the difference.”[5]
[5] MAC, p 2.
Dr Suman’s certificate provides:
“As per diagnostic clarification, it is evident that Mr Dixon continued in his job from 1997 onwards. The 2001 rescue incident led to him experiencing posttraumatic stress disorder symptoms. He related the traumatic experience to his wife, making it much worse clinically. Mr Dixon struggled with his mental health issues although he continued to work till 2002. Another workplace incident in 2002 added to the post-traumatic stress disorder symptoms. He tried to continue in his role, although gave up work after he suffered multiple physical injuries in Dec 2002.
… His alcohol use from 2001 onwards indicates the diagnosis of alcohol use disorder.”[6]
[6] MAC, p 3.
The appellant submits:
“Accordingly, there is medical commentary, particularly by the Medical Assessor and Dr Cassimatis that would allow the conclusion to be drawn that incidents prior to 1 January 2002 contributed to the respondent’s impairment, despite not being formally diagnosed with PTSD and having consequent impairment, until many years later.”[7]
[7] Appellant’s submissions, [24].
In support of Ground One of the appeal, the appellant submits the Member’s finding that there was an absence of medical evidence to support the reduction is in error.
The appellant further submits that the Member erred by requiring the medical evidence to specifically refer to events predating 2002 which contribute to impairment of the psychiatric injury before it could be used to apply the transitional provisions.
The appellant advances the proposition that the interpretation and application of the transitional provisions is a matter for the Member, not a doctor or an Approved Medical Specialist (Medical Assessor).[8]
[8] Appellant’s submissions, [39] citing Fleming v NSW Police Force [2011] NSWWCCPD 33, [97].
The appellant cites SAS Trustee Corporation v Pearce,[9] State Super SAS Trustee Corporation v Cornes[10] and Young v Commissioner of Police[11] and submits the respondent was plainly exposed to repeated and significant traumatic events before 1 January 2002. The necessary causal link between the incidents and his psychological injury which is the subject of the MAC is apparent from the respondent’s statements and reports to doctors.
[9] [2009] NSWCA 302 (Pearce).
[10] [2013] NSWCA 257 (Cornes).
[11] [2010] NSWWCC 279.
The Member accepted that the evidence disclosed that the respondent was exposed to a number of traumatic events before 1 January 2002 and:
“… doing the best he could with the history the respondent provided to the doctors, and the respondent’s own evidence that his injury is causally linked to exposure to multiple incidents over the course of his entire employment, the Member was required to exercise his own judgement to determine whether a portion of the [respondent’s] loss was due to something that occurred before 1 January 2002, and if so to what extent.”[12]
[12] Appellant’s submissions, [51].
The appellant refers to two decisions of the former Workers Compensation Commission, namely, Corbett v New South Wales[13] and Rae v State of New South Wales[14] as examples of matters in which the arbitrators determined the issue of the reduction on the totality of the evidence even though there was no expert medical opinion to “defer to in respect of the transitional provisions”.[15]
[13] [2012] NSWWCC 272.
[14] [2018] NSWWCC 230.
[15] Appellant’s submissions, [52].

Respondent’s submissions

The respondent’s submission in relation to Ground One is brief and I set it out in full:
“The articulation of the ground mischaracterises the reasons of the Member. He did not refuse to do anything. He simply found on the available evidence that there was no basis to apply a reduction. His reasoning, set out at paragraphs 31–34 makes clear that he considered that there was insufficient evidence to support such a finding. He did precisely what the appellant argues for at para 51 of the submission. He exercised his own judgment. He conducted an evaluation and made a finding of fact. The appellant may not agree with that finding, but that is not a basis for identification of error.”[16] (emphasis in original)
[16] Respondent’s submissions, [4].

Appellant’s submissions in reply

In reply, the appellant submits that the respondent’s submission does not address the complaint. The error, so the appellant submits, was the Member’s finding that the absence of medical evidence providing an opinion as to whether there was a proportion of the impairment due to something which occurred before 1 January 2002 meant that no reduction was to be made.

Consideration

The transitional provision, cl 3 of Pt 18C of Sch 6 to the 1987 Act, provides as follows:
“3      Lump sum compensation amendments
(1)     The lump sum compensation amendments do not apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) except as follows—
(a)the amendments to section 66A apply in respect of an injury received before the commencement of the amendments (even if the injury is the subject of a claim made after the commencement of the amendments) and so apply—
(i)subject to such modifications to that section as may be prescribed by the regulations, and
(ii)as if an agreement registered before that commencement by the Authority were registered by the Commission.
(b)the repeal of section 72 applies in respect of an injury received before the commencement of the amendments, but only to the extent that the injury is the subject of a new claim.
(2)     There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.
(3)     A previously non-compensable impairment is loss or impairment that is due to something that occurred before the commencement of the amendments to Division 4 of Part 3 made by the lump sum compensation amendments, being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.
(4)     No contribution or payment of apportioned share in respect of compensation under Division 4 of Part 3 (as amended by the lump sum compensation amendments) is required under sections 15, 16, 17 or 22 to the extent that the employment or injury in respect of which contribution or payment would otherwise be required relates to a previously non-compensable impairment.”
In Cornes Basten JA (with the agreement of McColl JA and Preston CJ of LEC) said:
“The assumption underlying the transitional provisions is that a specific impairment can be apportioned as between causal events … In Pearce it was held that s 323 did not apply with respect to the circumstances in that case. At least if the injuries were each a disease contracted by a gradual process, as the STC contended, s 323 would have no application in the present case; neither party suggested otherwise. The difference between the exercises required by each provision is that s 323 is posited on the existence of a pre-existing condition or impairment, whereas cl 3 of the transitional provisions is not.”[17]
[17] Cornes, [24].
His Honour pointed out: “The key questions of causation turned on the medical evidence.”[18]
[18] Cornes, [43].
His Honour said:
“The trial judge appears to have approached the matter on the basis that there were no symptoms capable of supporting a diagnosis of psychological injury prior to January 2002: that, however, was not the question which was required to be addressed under the transitional provisions.
Section 323 of the [1998 Act] recognises the difficulty that may arise with apportionment, even where there is an identifiable previous injury or pre-existing condition or abnormality. Where the extent of the necessary deduction ‘will be difficult or costly to determine’ a deduction of 10% of the impairment is to be assumed: s 323(2). The transitional provisions do not provide for such a solution. Despite the inevitable difficulties in such a calculation, where it is found that earlier events have contributed to the level of impairment, a calculation must be made.”[19]
[19] Cornes, [57]–[58].

The Member made the findings at [30]–[32] of the reasons set out at [19] above. He declined to make a reduction because no doctor assessed the functional limitations as required by the PIRS ratings with respect to the events that occurred before 1 January 2002. However that is to make the reduction dependent on the existence of a pre-existing condition or impairment which is not what cl 3 of the transitional provision requires.[20]
[20] Cornes, [24], [58].
The transitional provisions require a deduction for any proportion of the permanent impairment concerned that is a “previously non-compensable impairment”. A “previously non-compensable impairment” is a “loss or impairment that is due to something that occurred before the commencement of the amendments … being loss or impairment that is of a kind for which no compensation was payable under that Division before that commencement.”
The Member’s findings at [30]–[31] of the reasons meant that a calculation of the reduction was required. The evidence before the Member included the history recorded by Dr Suman in the MAC and the history in the medical reports from Dr Cassimatis. This material indicated that events before 1 January 2002 were likely to have contributed to the level of impairment.
Dr Suman said:
“Mr Dixon provided me with a history indicative of him having gone through various traumatic events during his job with NSW Fire and Rescue since 1997. The rescue incidents in 2001 and 2002 (as highlighted in my report) had an adverse impact on Mr Dixon’s mental health. It is evident he started experiencing post-traumatic stress disorder symptoms from 2001 onwards. Mr Dixon relied on alcohol and illegal drugs to help manage his mental health stressors.
I was not able to elicit details about Dixon’s previous mental health issues as he refused to discuss with me in detail about his childhood and other developmental history. As per review today, it is evident that he might have struggled with ADHD symptoms which would have probably affected his mental health and general functioning prior to 2001.”[21]
[21] MAC, p 8.
Dr Cassimatis said:
“Prior to 2001 he did not have a psychiatric diagnosis or treatment despite many traumas commencing in 1994 as part of his volunteer and employed work.”[22]
[22] Dr Cassimatis’ report dated 9 December 2019, ARD, p 34.
Later Dr Cassimatis said:
“The client’s condition of a PTSD is related totally to his employment as a fireman.”[23]
[23] Dr Cassimatis’ report dated 9 December 2019, ARD, p 35.
In the context of Mr Dixon’s employment as a firefighter from 1997 until he ceased working as a firefighter on 6 December 2002, Dr Cassimatis was plainly saying that to some extent the events before 31 December 2001 made a contribution to the Post-Traumatic Stress Disorder diagnosed after 1 January 2002.
The Member said the medical evidence did not provide a sufficient basis to satisfy the relevant test[24] because he said that the medical evidence had to address the presence of “functional limitations” as required by PIRS.[25] But that is to postulate that the medical evidence is required to establish a pre-existing impairment before a reduction can be made. However the issue to be addressed is whether the events before 1 January 2002 contributed to the impairment.
[24] Reasons, [34].
[25] Reasons, [31].
The Member erred in requiring the medical evidence to address the PIRS and/or functional limitations. The medical evidence was required to address the extent to which the events before 1 January 20202 contributed to the post-traumatic stress disorder diagnosed after 1 January 2002.
Although the Member was incorrect in the test he applied to the medical evidence, neither Dr Cassimatis nor Dr Suman in their material adequately addressed the statutory test.
In Pearce Basten JA (with the agreement of Beazley JA, Giles JA dissenting) said this:
“To the extent that the PTSD constituted, or was the consequence of, an injury received before the commencement of the amendments, the lump sum compensation amendments did not apply. However, once the Commissioner determined that the injury happened in 2005 because the PTSD constituted a disease within the terms of s 15 or s 16, it was an injury received after the commencement of the amendments on 1 January 2002. The transitional provisions are then engaged.
The reduction required by the transitional provision turns on a causal connection between the impairment and events which occurred before the commencement of the amendments. There may be various circumstances in which an injury is received after a particular date but is ‘due to something’ that occurred before that date. Circumstances which engage ss 15 or 16, providing for deemed dates of injury, could also engage the transitional provision and require a reduction under cl 3(2). They require the assessment of a ‘proportion’ of the impairment which is ‘due to’ events occurring before 2002.”[26]
[26] Pearce, [111]–[112].
Later his Honour said:
“Whatever the precise finding made by his Honour under s 323 of the [1998 Act], that finding concerned the proportion of the impairment ‘due to any previous injury’. That is not the same as a finding as to the proportion of an impairment, due to a previous event.”[27] (emphasis added)
[27] Pearce, [122].
Dr Suman’s MAC illustrates the problem. Under the heading “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality”, he relies on s 323(2) to reduce the assessment by 10% for the pre-existing condition of ADHD.[28] This was correct, but an additional reduction in the compensation repayable was required by cl 3 because the events before 1 January 2002 contributed to the impairment.
[28] MAC, p 10.
The medical evidence did not provide proper guidance as to the contribution of the events before 1 January 2002 to the PTSD. That was a medical causation question. In my view, the parties should be given an opportunity to secure further medical evidence on that issue.
Even on the findings made by the Member, the decision of Cornes meant he should have made a determination as to the reduction required by the transitional provisions.
In my view, the Member erred in the application of the transitional provisions and Ground One of the appeal is established.
Ground One of the appeal is upheld.

GROUND TWO

Appellant’s submissions

The appellant submits that the Member’s reasons failed to explain and provide a rational analysis for concluding that there was insufficient expert and lay evidence to support a reduction based on the transitional provisions.
The appellant concludes:
“In the present case, the Member’s failure to:
(a)     refer to evidence of the respondent’s allegations of incidents causing his injury and impairment over the course of his employment in any detail in the various documents, assessments and reports,
(b)     give weight to the [Medical Assessor’s] conclusion that the respondent’s history indicates PTSD symptoms and an alcohol use disorder in 2001,
(c)     refer to Dr Cassimatis’ opinion on the causal connection of the respondent’s employment from 1997 with his psychological injury,
all combine to demonstrate a lack of effective analysis by the Member which would have enable[d] him to exercise his judgement to find that the application of the transitional provisions applies.”[29]
[29] Appellant’s submissions, [71].

Respondent’s submissions

The respondent submits that the critical part of the Member’s reasons was that he could not identify evidence upon which to apply a reduction. That was a negative finding. It is difficult to conceive what more he could have said about the absence of evidence. It was neither necessary nor possible to provide further reasons. There is no obligation on him to say more. No error is disclosed.[30]
[30] Respondent’s submissions, [5].

Appellant’s submissions in reply

The appellant refers to further material in the case and repeats its conclusion that the Member failed to provide reasons for his decisions taking into account the evidence and thereby showing “a lack of effective analysis by the Member which would have enable[d] him to exercise his judgement to find that the application of the transitional provisions applies.”[31]
[31] Appellant’s submissions in reply, [9].

Consideration

The obligation on the Member to provide reasons is controlled by s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021. Critically, r 78(2) provides:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.”
For the reasons advanced above, the Member was in error, however, the reasons provide for his findings on material questions of fact and evidence on which the findings were based. The reasons show his understanding of the applicable law and demonstrate the reasoning process. I am not satisfied that in the circumstances there was a failure to provide reasons in compliance with s 294 of the 1998 Act.
I reject Ground Two of the appeal.

COSTS

The appellant submits there should be no order for costs. The respondent submits that the appeal should be dismissed and the appellant ordered to pay the respondent’s costs. Neither party has provided detailed explication of their submission.
Costs are controlled by s 341 of the 1998 Act. Section 341 was amended in 2012 by the Workers Compensation Legislation Amendment Act 2012. However, those amendments do not apply to the respondent as he received his injury whilst a ‘firefighter”.[32]
[32] Schedule 6, Pt 19H, cl 25 of the 1987 Act.
It follows that the award of costs, if any, is controlled by the previous s 341. Section 341(2) provides that the “Commission has full power to determine by whom, to whom and to what extent costs are to be paid”.
But s 341(4) prohibits an order of costs against a claimant unless the Commission is satisfied “that the claim was frivolous or vexatious, fraudulent or made without proper justification” (or partly so (s 341(5)). I am not so satisfied.
The appeal has succeeded. This is not a matter where s 341(4) or (5) are satisfied. The appellant employer has not been guilty of misconduct or otherwise invited the litigation and has not acted unreasonably in the conduct of the litigation. For these reasons the matter is not one in which the appellant should pay the respondent’s costs.[33]
[33] Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124, [79].
The appropriate order is that each party should pay its or his own costs of the appeal. The costs of the first instance proceedings should be reserved to be determined on the rehearing.

DECISION

The Certificate of Determination dated 10 August 2022 is revoked.
The matter is remitted to another non-presidential member for re-determination of the remaining issues in accordance with and consistent with these reasons.
Each party to pay its or his own costs of the appeal. Costs of the proceedings at first instance to be determined on the rehearing.

Geoffrey Parker SC
Acting Deputy President

29 March 2023