State of New South Wales (NSW Police Force) v Wakefield
[2023] NSWPICPD 71
•7 November 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (NSW Police Force) v Wakefield [2023] NSWPICPD 71 |
APPELLANT: | State of New South Wales (NSW Police Force) |
RESPONDENT: | Jamie Wakefield |
INSURER: | Employers Mutual Limited – as agent for the NSW Self Insurance Corporation |
FILE NUMBER: | A1-W2467/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 7 November 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 3 November 2022 is amended as follows: (a) Paragraph 12, sub-paragraphs (j), (k) and (l) are deleted and instead the following sub-paragraphs are inserted: (j) for the period 1 July 2019 to 5 November 2019 at the rate of $675.08 per week; (k) for the period from 6 November 2019 to 17 December 2019 at the rate of $168.77 per week; (l) for the period 18 December 2019 to 30 June 2020 at the rate of $675.08 per week; (m) for the period 1 July 2020 to 30 June 2021 at the rate of $617.14 per week, and (n) for the period 1 July 2021 to date and continuing at the rate of $645.34 per week. 2. The Member’s Certificate of Determination dated 3 November 2022 is otherwise confirmed. 3. The appellant is to pay the respondent’s costs of the appeal as agreed or assessed. |
CATCHWORDS: | WORKERS COMPENSATION – psychological and physical injuries, whether the incapacity flowing from the injuries entitled two awards of weekly payments – Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40, Stewart v State of NSW (NSW Police Force) [2021] NSWPIC 133, State of New South Wales v Stewart [2015] NSWWCCPD 1 discussed; Harrington v New South Wales Police Force [2015] NSWWCCPD 31, Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied; Kesen v Luke Singer Pty Ltd (1999) 5 NSWCCR 298 applied – principles applicable to disturbing a member’s discretionary decision – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied – adequacy of reasons section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998; rules 73 and 78(2) of the Personal Injury Commission Rules 2021 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr J Gaitanis, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr M Hammond, counsel | |
| Bourke Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 3 November 2022 |
INTRODUCTION AND BACKGROUND
Mr Jamie Wakefield (the respondent) commenced employment with the State of New South Wales (NSW Police Force) (the appellant) on 17 November 1996. From 2001, the respondent was stationed at the State Protection Dog Unit (the Dog Squad). The respondent suffered a number of physical injuries in the course of his employment, including the following:
(a) left leg injury on 27 March 1997;
(b) right wrist injury on 20 January 2004;
(c) left ankle injury on 17 June 2004;
(d) right knee and ankle injury on 21 February 2009, and
(e) lumbar spine injury in or about July 2010.
The respondent also suffered a psychological injury in the course of his employment, diagnosed as a post-traumatic stress disorder, with a deemed date of injury of 22 October 2010. The appellant accepted liability for the physical injuries as well as the psychological injury. The respondent received ongoing weekly payments of compensation since ceasing work with the appellant. Those payments continued on the basis that the respondent was partially incapacitated for work.
In September 2021, the respondent made a claim for an additional weekly payment on the premise that he was entitled to two awards of weekly compensation, one in respect of his partial incapacity arising from the physical injuries, and the other in respect of his psychological injury. The appellant disputed liability for the claim for the additional payments of weekly compensation on the basis that, in its view, the respondent’s incapacity was a single incapacity resulting from both his physical injuries and the psychological injury.
The respondent commenced proceedings in the Commission, and the dispute proceeded to arbitration before a non-presidential member of the Commission. The Member issued a Certificate of Determination on 3 November 2022, in which he determined that the respondent suffered two separate and distinct incapacities, one resulting from the physical injuries and the other from the psychological injury. The Member also made findings as to the respondent’s probable earnings but for the injuries, and in relation to the exercise of his discretion to reduce the award of weekly compensation in accordance with the former (pre-2012) s 40(1) of the Workers Compensation Act 1987 (the 1987 Act), as it applied to the respondent.
The appellant appeals the Member’s decision.
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.”
The appellant seeks an oral hearing. The respondent does not wish to be heard as to whether an oral hearing is required.
The appellant provides no reasons for seeking an oral hearing. I have read the available evidence and the written submissions made to the Member and on appeal. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties. In the absence of any reason being put forward as to why an oral hearing is preferable, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
The respondent’s statement
The respondent provided a statement dated 11 March 2022.[1] It is not necessary to summarise the whole of the respondent’s statement, as much of that evidence pertains to matters not relevant to the appeal. The respondent described the numerous injuries he received in the course of his employment and gave details of the medical treatment he was given. He said that, as a result of those injuries, he had pain and restriction of movement in the upper and lower spine, the neck, both wrists, both knees and ankles, the left Achilles tendon and the left elbow. He said that he experienced physical difficulties performing activities such as standing, sitting, walking for any length of time, getting in and out of chairs and his bed, heavy lifting, sleeping, getting dressed, washing his feet and putting on shoes, doing household tasks, gardening, as well as sexual relations with his wife and playing with his children. He added that he had issues with his mental health and motivation and provided a history of the psychological traumas he experienced over his career, which caused ongoing significant psychological issues.
[1] Application to Resolve a Dispute (ARD), pp 13–47.
The respondent advised that he was medically discharged from his employment on 24 November 2011. He said that, in 2010, his rank was that of sergeant, level 1. He asserted that he would have reached the highest level, level 9, by 2019 but would most likely have been promoted to Senior Sergeant, level 4, by 2015 and then Inspector, level 3, by 2019.
The respondent further asserted that he would have continued to be paid a loading, which was a flat amount paid for having to work shifts, weekends and public holidays, calculated as a percentage of the base salary. He said he also received a further 10% of his salary to account for overtime and, when he worked in the Dog Squad, he was paid an extra five hours per fortnight for caring for his dog.
The respondent indicated that his general practitioner continued to issue certificates of capacity in respect of his post-traumatic stress disorder and his physical injuries. He said that his psychological difficulties severely affected his ability to function, and he was unable to confront situations, people or places that triggered in him memories of the traumatic experiences he had undergone as a police officer. The respondent was of the view that half of his incapacity was attributable to his psychological difficulties and the other half to his physical pain and restrictions. He provided a summary of the limitations listed in the certificates of capacity. He described the physical difficulties he would have in performing operational duties and said that his psychological injuries prevented him from undertaking an administrative type of role. He said that he had been fortunate in obtaining part-time employment with the Animal Welfare League, who were unaware of his injuries, but he was struggling with his duties both psychologically and physically. He asserted that he could not realistically earn more than he was currently earning.
The medical evidence
Dr Jeff Bertucen, consultant psychiatrist
Dr Bertucen examined the respondent and provided a report dated 24 October 2011 in relation to the respondent’s application for medical retirement at the request of the appellant.[2] He took a detailed history of the traumatic events that had occurred in the respondent’s employment. He described the respondent’s symptoms and diagnosed the respondent as suffering from a chronic post-traumatic stress disorder caused by the respondent’s employment. Dr Bertucen opined that the respondent’s symptoms were highly likely to impair the respondent’s ability to effectively perform his functions as a police officer and the respondent would be unable to comply with the proposed return to work plan because of his psychological condition. He considered that the respondent was totally and permanently incapacitated for those duties and was unfit for other work for at least the following 12 months. Dr Bertucen recommended that the respondent be medically retired.
[2] ARD, pp 145–153.
Dr Alan Searle, consultant orthopaedic surgeon
Dr Searle provided a report in respect of the respondent’s physical injuries dated 11 September 2012 at the request of the respondent’s then legal representatives.[3] He described the respondent’s injuries and symptoms and expressed the view that the respondent was, at the most, fit for part-time light duties and his symptoms were likely to deteriorate. He said the respondent was permanently unfit for work as a police officer, work requiring standing on his feet for any length of time, or prolonged sitting, lifting, repeated bending or twisting of the trunk, or travelling more than short distances. He recommended the respondent be provided with vocational assessment and retraining. He assessed the respondent as suffering 24% whole person impairment in respect of his physical injuries.
[3] ARD, pp 154–161.
Dr John Stephen, orthopaedic surgeon
Dr Stephen examined the respondent in respect of his physical injuries at the request of the appellant and provided a report dated 15 November 2012.[4] He recorded a history and diagnosis of the physical injuries and considered that the respondent’s normal life was significantly and permanently impacted by the injuries but the respondent would be capable of part-time moderately light work with restrictions on bending, lifting, prolonged sitting and standing and work in confined places. He assessed the respondent as having 18% whole person impairment.
[4] ARD, pp 163–173.
Dr Phil Allen, orthopaedic surgeon
Dr Allen reported to the appellant on 28 May 2015 in respect of the injuries to both lower limbs.[5] He considered that the respondent appeared to be fit for his duties at the Animal Welfare League and did not require any restriction on the hours that he was currently working, however, the respondent may have “other issues” impacting his ability to work.
[5] ARD, pp 176–185.
Dr Christopher Oates, occupational physician
Dr Oates reported to the appellant on 17 May 2021.[6] He noted that the respondent had been medically retired in 2011 because of his psychological condition and had worked in alternate employment since 2014. Dr Oates assessed the respondent’s physical impairments and his capacity for work. He was of the opinion that the respondent was not fit for full unrestricted duties as a police officer because of his physical restrictions and was unfit for his former duties in the Dog Squad. He considered that the respondent was fit for full-time suitable duties of a light nature in which he could sit and stand or move about as needed, avoiding lifting greater than 20 kilograms and pushing and pulling weights of more than 20 kilograms. He recommended the respondent take postural breaks after one and a half hours of driving.
[6] ARD, pp 186–199.
Dr Corey Cunningham, sport and exercise medical physician
Dr Cunningham provided treatment to the respondent in respect of the respondent’s back condition, right knee and left ankle. He reported to the appellant on 24 February 2017, indicating that the respondent was fit to work in his current role 32 hours per week, but was precluded from returning to pre-injury duties.[7]
[7] ARD, pp 253–255.
Ms Kim Hadley, psychologist
Ms Hadley was the respondent’s treating psychologist. She provided several reports in respect of the respondent’s progress and in relation to the respondent’s application for medical retirement, her extensive clinical notes were in evidence.[8] Relevantly, Ms Hadley provided a report dated 18 March 2018 in which she advised:
“Since the change at work, Jamie’s condition has stabilised. The main challenges for Jamie are his ongoing triggers that result in disturbing memories, his level of hypervigilance which he describes as feeling ‘wired’, physical injuries that prevent him from exercising at a pace he formerly enjoyed, lack of trust in others, discontent with his wife’s apparent rigidity and excessive worry about his children’s safety.
…
Jamie’s opinion of the triggers for his psychiatric condition are that certain jobs he carried out in the Police Force were particularly horrific. In the past, he managed to cope by exercising to a point of exhaustion and this provided a distraction and an adrenaline release that helped him to switch off and control his active mind.
As time passed, however, his body became riddled with injury and eventually his mind and emotional state declined.”[9]
[8] Application to Admit Late Documents (AALD), pp 3–552.
[9] AALD, pp 102–103.
Ms Hadley provided an update on the respondent’s psychological condition at the appellant’s request on 28 August 2018.[10] She noted that the respondent’s physical symptoms had deteriorated and that the pain was impacting the treatment of his post-traumatic stress disorder, his social life and his work. She recommended a pain management program and additional psychological counselling sessions.
[10] ARD, pp 273–274.
Ms Hadley’s extensive notes also recorded that the respondent’s “physical + psych - go hand in hand”.[11]
[11] AALD, p 13.
Dr Ted Cassidy, consultant psychiatrist
Dr Cassidy was the respondent’s treating psychiatrist. He reported to the appellant on 15 September 2011.[12] Dr Cassidy recorded a history of the respondent’s deteriorating mental state following numerous traumatic experiences as a police officer. He diagnosed the respondent as suffering from post-traumatic stress disorder and was of the view that the respondent should not return to the role of a police officer. He considered that the respondent would benefit from an assessment by an occupational rehabilitation provider in relation to a return to other work in a different role.
[12] Reply to Application to Resolve a Dispute (reply), pp 130–136.
Dr Peter Anderson, consultant psychiatrist
Dr Peter Anderson provided a report dated 24 August 2012 at the request of the respondent’s former solicitors.[13] He recorded the respondent’s history of traumatic events and reviewed the various reports from the treatment providers. In respect of the respondent’s capacity for work, Dr Anderson was of the view that the respondent was unfit for police or similar work but was not permanently totally unfit for work. In assessing the respondent’s whole person impairment in respect of the psychological condition, Dr Anderson said that the respondent was unfit for police work or full-time work that involved stress and responsibility, concentration or working with others and was only fit to work short hours. He assessed the respondent as suffering 17% whole person impairment.
[13] Reply, pp 146–154.
Dr Michael Hong, consultant psychiatrist
Dr Hong was asked by the appellant to provide an opinion in respect of the respondent’s whole person impairment resulting from his psychological condition. He reported on 26 October 2012.[14] He assessed the respondent as having 17% whole person impairment, and described the respondent as “severely dysfunctional,” noting that he suffered from impairment in concentration. He said that the respondent had made no attempt to return to work.
[14] Reply, pp 155–169.
THE MEMBER’S REASONS
The Member noted the issues for dispute. He noted the submissions of the parties and discussed the evidence before him in respect of the respondent’s capacity for work and the cause of the incapacity. He referred to the various authorities dealing with the concept of an entitlement to separate awards of weekly compensation (discussed below). He concluded that the evidence in support of the respondent’s physical incapacity was overwhelming. He noted that the issue before him was whether the respondent’s impairment resulting from the psychological injury was separate and distinct from the physical injury.
The Member concluded that the respondent suffered from separate incapacities and observed that the fact that the respondent’s physical condition affected him psychologically was not determinative of whether the incapacities were separate and distinct.
The Member reviewed the evidence as to the respondent’s subsequent employment and noted the respondent’s assertion that half of his incapacity resulted from the physical injuries and the other half from the psychological injury. The Member reasoned that there was clear evidence that the respondent was incapacitated for duties as a police officer because of his psychological injury but there was also evidence that the respondent’s physical injuries resulted in a partial impairment from performing other employment, thus the nature of the impairments was different. He observed that Dr Stephen, for example, recorded limitations on lifting, bending, working in confined spaces, and prolonged sitting and standing. He referred to the evidence of Dr Oates, who also provided an opinion in respect of the respondent’s physical limitations.
The Member said that the appellant did not rely upon any expert medical opinion that supported the proposition that the respondent suffered from a single incapacity. He noted that the respondent was examined by Dr Haig, orthopaedic surgeon, noting however that Dr Haig’s report was not served. He said that the report was referred to in the dispute notice issued pursuant to s 78 of the 1998 Act and the notice indicated that Dr Haig had provided an opinion as to the type of work that was suitable for the respondent in the light of his physical disabilities. The Member reasoned that it would be expected that the appellant would have relied upon the report if it assisted the appellant’s case, and, in accordance with the authority of Jones v Dunkel,[15] drew the inference that the report would not have assisted the appellant.
[15] (1959) 101 CLR 298 (Jones v Dunkel), 320.
The Member said that the respondent relied upon the clinical notes of Ms Hadley, which recorded fluctuations in the respondent’s psychological condition. He said that those observations did not extend to an indication that the respondent had a single incapacity as a result of the physical and psychological injuries. The Member noted that care should be taken in reaching conclusions on the basis of clinical records of a treatment provider. He reasoned however that:
“It is one thing for a treating practitioner to note a patient’s physical wellbeing might have some effect on their psychological condition, but that is not the same as suggesting any impairment caused by the separate physical and psychological injuries, arising as they do from separate incidents and injurious events, has led to the one incapacity for employment.
In my view, the physical injuries which the [respondent] plainly suffers have impacted upon his ability to earn more generally and in roles other than as a police officer. As such, his partial impairment in my view is separate and distinct and satisfies the requirements as set out in Cordina.”[16]
[16] Wakefield v State of New South Wales (NSW Police Force) [2022] NSWPIC 610 (reasons), [34]–[35].
The Member proceeded to assess the degree of incapacity suffered by the respondent in respect of his physical injuries. He quoted s 40 of the 1987 Act as it was enacted just prior to the amendments made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), noting that the respondent, as a former police officer, was exempt from the 2012 amendments by operation of cl 25 of Pt 19H of Sch 6 to the 1987 Act.
The Member referred to and applied the Court of Appeal decision in Mitchell v Central West Health Service[17] which sets out the procedure to be followed in determining a partially incapacitated worker’s entitlement to compensation. He commenced with a consideration of what the respondent’s probable earnings would be, but for the injuries. He noted that the respondent submitted that although he had reached the level of sergeant, had he remained uninjured he would have attained the rank of inspector. The Member further noted that the respondent adduced evidence from three other former police officers who asserted that the respondent was an exceptional police officer and would have reached the rank of inspector.
[17] (1997) 14 NSWCCR 526 (Mitchell).
The Member observed that the appellant had not adduced any evidence at all in respect of this issue but, although the respondent bore the onus of proof, he was not satisfied that the evidence from the respondent and the three other witnesses was sufficient evidence to discharge the respondent’s onus in establishing that he would have achieved that rank.
The Member indicated that there was an issue between the parties as to the salaries paid to police officers of various ranks. The Member observed that the respondent’s evidence was that he would have been paid a loading of a flat amount to allow for having to work weekends, different shifts, or public holidays. The Member noted that the loading was included in the respondent’s wages schedule and the appellant, while not admitting to an entitlement, calculated any such entitlement based on figures that were consistent with an inclusion of the loading.
The Member further noted that the respondent asserted that he would have received an additional 10% of his salary to account for overtime and additional shifts on top of his rostered shifts. The Member indicated that the appellant had not adduced any evidence to contradict the evidence from the respondent. The Member said the appellant was clearly in a position to do so and expressed the view that the respondent’s assertion was “a matter of common sense” which he could accept “at face value”.[18] The Member concluded that the additional 10% above the salary, including the loading, should be included in the respondent’s comparable earnings.
[18] Reasons, [49].
The Member observed that there was no agreement between the parties as to when the respondent’s claim for weekly payments should commence. He noted that the respondent’s claim in respect of the physical injuries commenced from 25 November 2011, while the appellant considered that the claim should commence on 19 February 2013 because the respondent was unfit from 18 June 2012 to 18 February 2012 and then fit for suitable duties. The Member said that the appellant’s position was not explained but thought that it may be the case that while the respondent was totally incapacitated, the discretion vested in s 40 of the 1987 Act should be exercised to reduce the award to a nominal amount. He said however that he could see no reason why the claim should not commence from 25 November 2011 in circumstances where the respondent had certifications as to his capacity for the entire period thereafter.
The Member concluded that the respondent, having attained the rank of a sergeant, would have progressed through the grades of that rank and would have received the additional 10% loading as well as the average of 10% uplift in respect of overtime and additional shifts across all grades. He further concluded that the start date of the claim for weekly payments was 25 November 2011, in accordance with the certificates of capacity. He provided a table of the calculation of the respondent’s probable weekly earnings but for injury.
The Member turned to the question of the calculation of the respondent’s actual weekly earnings, which he considered to be uncontroversial. He remarked that the respondent did not appear to be attempting to minimise his post-injury earnings and appeared to be doing the best he could to earn income. He determined that the respondent’s actual income was as set out in the respondent’s wages schedule, which was not contested by the appellant.
The Member proceeded to consider the difference between the respondent’s pre-injury earnings and his actual earnings. He provided a table of the results of those calculations. Having determined the respondent’s actual loss of earnings, the Member progressed to the question of whether the discretion pursuant to s 40(1) should be exercised. He noted that the discretion could not be used to reduce the entitlement to nil,[19] but could be used to reduce the amount to a minimal figure. The Member referred to the appellant’s reliance on Stewart v State of NSW (NSW Police Force),[20] in which the Member exercised his discretion to reduce the entitlement only for a period of total incapacity. The Member acknowledged that in Stewart No. 1 the discretion was only applied in that manner because there was no argument to the contrary of that proposition. The Member pointed out that in Stewart No. 1, Member Sweeney had observed that the decision in Cordina Chicken Farms Pty Ltd v Thoa Hong Le[21] strongly suggested that a deduction pursuant to the discretion was available whenever there are concurrent periods of partial incapacity. The Member agreed with Member Sweeney’s observation, but disagreed with the appellant’s proposition that the deduction should be in the order of no less than 75%.
[19] Kesen v Luke Singer Pty Ltd (1999) 5 NSWCCR 298 (Kesen).
[20] [2021] NSWPIC 133 (Stewart No. 1).
[21] [2008] NSWWCCPD 125 (Cordina).
The Member confirmed that the respondent had concurrently suffered from two partial incapacities for many years and continued to do so. He remarked that the respondent was already in receipt of payments for his psychological injury so that the remaining question was “had his physical injuries not occurred, what would the [respondent’s] capacity for employment be, factoring in the psychological injury.”[22]
[22] Reasons, [60].
The Member referred to Cordina and said that Roche DP suggested that a supervening payment for total incapacity may reduce an award for partial incapacity for an earlier injury to a nominal figure. The Member considered that that observation did not align with the facts of this case. The Member said that, in the present case, there were two partial incapacities, so that the discretion vested in s 40 enables the Commission to “approximate” the worker’s actual loss.
The Member considered it appropriate that he exercise his discretion in respect of the period 18 June 2012 to 18 February 2013, when the respondent was totally unfit for work because of his psychological injury, to reduce the amount of weekly payments to $1 per week. He added that, although the respondent has some capacity for work between 25 November 2011 and 7 June 2012, he did not work, so that the weekly entitlement should be reduced to the weekly compensation referable to his physical incapacity to $100 per week.
The Member determined that, for the remaining periods where there were two distinct and separate partial incapacities, he declined to exercise his discretion to reduce the payment from the amount of the respondent’s actual loss, given that the respondent was working to his full capacity. He reasoned:
“In relation to the balance of the [respondent’s] claim for periods where I have found there are two separate and distinct partial incapacities, I do not consider it appropriate to apply the s 40 discretion. The [respondent] has two partial incapacities, and his actual loss as a result of those incapacities, accepting as I do that he is and has been working to his full capacity, is readily ascertainable.
…
Unlike the facts in Stewart [No. 1], the [respondent] in this matter has retained a quantifiable partial incapacity with respect to his psychological and physical injuries but for a short period of time. This is not a matter where a determination of the [respondent’s] probable weekly earnings and his ability to earn is fictitious. He has been earning income to the best his capacity allows since 2013. The nature of the partial incapacities in my view enables the Commission to accurately determine the difference between the [respondent’s] probable weekly earnings but for his injuries and what he has actually earned.”[23]
[23] Reasons, [63]–[64].
The Member referred to the appellant’s submission that any award of compensation should be reduced by not less than 75%. He said that the appellant did not provide any reason as to why that submission should be accepted, other than the figure had been applied in other matters, including Stewart No. 1. The Member reasoned that, unlike Stewart No. 1, in this case, apart from a short period of time, the respondent’s partial incapacity was able to be quantified with respect to his psychological and physical injuries. The Member observed that this matter was not one where the determination of the probable weekly earnings and the ability to earn was fictitious. The Member added that the respondent had been earning income to the level of his capacity since 2013 and the nature of the respondent’s partial incapacities enabled the Commission to accurately determine the difference between the respondent’s probable weekly earnings and what he has actually earned.
The Member made awards as to the payment of weekly compensation for the various periods.
The Certificate of Determination issued on 3 November 2022 records:
“The Commission determines:
1. The [respondent] suffered an injury to his left leg at or above the knee on 27 March 1997 in the course of his employment with the [appellant].
2. The [respondent] suffered an injury to his right upper extremity (wrist) in the course of his employment with the [appellant] on 20 January 2004.
3. The [respondent] suffered an injury to his left lower extremity (ankle and Achilles) in the course of his employment with the [appellant] on 17 June 2004.
4. The [respondent] suffered injury to his right lower extremity (right knee and ankle) in the course of his employment with the [appellant] on 21 February 2009.
5. The [respondent] suffered injury to his lumbar spine in the course of his employment with the [appellant] in or about July 2010.
6. The above injuries have given rise to a partial incapacity for employment.
7. The impairment for employment caused by the above injuries is separate and distinct from the partial impairment for employment caused by the [respondent’s] accepted psychological injury with a deemed date of injury of 22 October 2010.
8. But for injury, the [respondent] would have progressed to the rank of sergeant level 9 in his employment with the [appellant].
9. The [respondent’s] probable weekly earnings for the purposes of s 40(2)(a) of the Workers Compensation Act 1987 (the 1987 Act) is the loaded rate applicable to that position from time to time plus an above award payment of 10%.
10. The [respondent’s] weekly ability to earn in some suitable employment from time to time for the purposes of s 40(2)(b) of the 1987 Act is as follows:
(a)1 July 2012 to 30 June 2013, $19.92;
(b)1 July 2013 to 30 June 2014, $369.81;
(c)1 July 2014 to 30 June 2015, $904.77;
(d)1 July 2015 to 30 June 2016, $865.87;
(e)1 July 2016 to 30 June 2017, $781.08;
(f)1 July 2017 to 30 June 2018, $827;
(g)1 July 2018 to 30 June 2019, $867.10;
(h)1 July 2019 to 30 June 2020, $915.17;
(i)1 July 2020 to 30 June 2021, $1,005.38, and
(j)1 July 2021 to date and continuing, $1,030.52.
11. In the exercise of the discretion granted by s 40 of the 1987 Act, reduce the compensation payable for the period 25 November 2011 to 17 June 2012 to $100 per week and for the period 18 June 2012 to 18 February 2013 to $1 per week.
12. The [appellant] is to pay the [respondent] weekly compensation pursuant to s 40 of the 1987 Act as follows:
(a)for the period 25 November 2011 to 17 June 2012 at the rate of $100 per week;
(b)for the period 18 June 2012 to 18 February 2013 at the rate of $1 per week;
(c)for the period 19 February 2013 to 30 June 2013 at the rate of $852.66 per week;
(d)for the period 1 July 2013 to 30 June 2014 at the rate of $448.06 per week;
(e)for the period 1 July 2014 to 30 June 2015 at the rate of $390.90 per week;
(f)for the period 1 July 2015 to 30 June 2016 at the rate of $454.55 per week;
(g)for the period 1 July 2016 to 30 June 2017 at the rate of $673.99 per week;
(h)for the period 1 July 2017 to 30 June 2018 at the rate of $690.66 per week;
(i)for the period 1 July 2018 to 30 June 2019 at the rate of $720.63 per week;
(j)for the period 1 July 2019 to 30 June 2020 at the rate of $675.08 per week;
(k)for the period 1 July 2020 to 30 June 2021 at the rate of $617.14 per week, and
(l)for the period 1 July 2021 to date and continuing at the rate of $645.34 per week.
13. Liberty to apply in respect of the above calculations.
14. The [appellant] is to pay the [respondent’s] costs as agreed or assessed, including an uplift for complexity at the maximum allowable rate, the uplift being payable to the legal representatives of both parties.”
GROUNDS OF APPEAL
The appellant brings eleven grounds of appeal, asserting that the Member's decision is affected by the following errors:
(a) Ground One: An error of mixed fact and law in that, in finding that the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries, the Member failed to properly engage and give weight to the opinion of Ms Kim Hadley, the worker’s long-term treating psychologist;
(b) Ground Two: An error of mixed fact and law in that, in finding the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries, the Member did not at any stage find the worker’s physical injuries did not impact on him psychologically;
(c) Ground Three: An error of mixed fact and law in that the Member failed to properly consider and give adequate reasons for his finding that whilst the physical injuries impacted upon the respondent’s psychological wellbeing, it was not determinative as to whether it caused a single incapacity;
(d) Ground Four: An error of mixed fact and law in that the Member, by incorrectly assessing his task, failed to find:
(i)that there was an intertwining or intermingling of the physical and psychiatric injuries so as to create a single incapacity, and
(ii)that the respondent was not entitled to separate awards or payments pursuant to s 40 in respect of his orthopaedic and psychiatric injuries;
(e) Ground Five: An error of mixed fact and law in that the Member failed to engage with the question as to whether the physical constraints upon the respondent had impacted upon his psychological state so as to cause a single incapacity;
(f) Ground Six: An error of mixed fact and law in that the Member failed to engage with Ms Hadley’s notes and reports and found that that material does not go so far as to indicate the respondent’s psychological and physical injuries have led to one impairment;
(g) Ground Seven: An error of fact and law in that the Member overlooked, and accordingly failed to consider and give weight to Ms Hadley’s evidence on the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries;
(h) Ground Eight: An error of mixed fact and law in that the Member reversed the onus of proof in respect of the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries;
(i) Ground Nine: An error of mixed fact and law in that the Member has “raised the bar” in terms of the competence or faculty of a treating practitioner such as Ms Hadley to be decisive on the determination of a medico-legal issue in treating reports or clinical notes;
(j) Ground Ten: An error of mixed fact and law in that the Member has drawn a Jones v Dunkel inference from the absence of a report from the orthopaedic surgeon, Dr Haig, and
(k) Ground Eleven: An error of mixed fact and law in that the Member has failed to exercise his discretion to reduce the award pursuant to the former section 40(1) of the Workers Compensation Act 1987.
LEGISLATION
Clause 25 of Pt 19H of Sch 6 to the 1987 Act provides as follows:
“The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted.”
Prior to the amendments made by the 2012 amending Act, s 40 of the 1987 Act provided:
“(1) Entitlement The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
Note—
Section 35 limits the maximum weekly payment of compensation under
this section.
(2) Calculation of reduction in earnings of worker—general The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and
(b) the average weekly amount that the worker is earning or would be able to earn in some suitable employment, from time to time after the injury.
Note—
The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.
…”.
SUBMISSIONS
Both parties provided written submissions on the appeal. The appellant had the opportunity to respond to the respondent’s submissions opposing the appeal. The appellant provided submissions in response only in respect of Grounds One, Two, and Eight and repeated its submissions already made in Ground Six. The appellant’s submissions in reply to Ground Eight were not in response to the respondent’s submissions and were in fact fresh submissions that did not fall within the parameters of submissions in reply. The submissions said to be in reply to that ground are rejected.
As to Ground One
The appellant’s submissions
The appellant asserts that the Member failed to afford the appropriate weight to the clinical notes and reports recorded by Ms Hadley. The appellant submits that Ms Hadley had treated the respondent for eleven years and her notes were thorough and detailed. The appellant says that Ms Hadley was therefore in the best position to assess the respondent.
The appellant contends that Ms Hadley’s evidence disclosed that the respondent’s physical injuries deteriorated over time which impacted his psychological state, which was not disputed by the respondent. The appellant refers to its submissions to the Member about the numerous reports produced by Ms Hadley, particularly the report dated 18 March 2018, in which Ms Hadley recorded that, in 2017, the respondent was having issues with his manager in his post injury employment which caused the respondent stress. The appellant provides an extract from that report where Ms Hadley recorded that the respondent’s main challenges were ongoing triggers causing disturbed memories, his hypervigilance, the effect of his injuries on his ability to exercise, lack of trust in others, his wife’s apparent rigidity and worrying about the safety of his children.
The appellant refers to the Member’s observation that caution should be taken in drawing conclusions from the records of a treatment provider and says that the Member failed to refer to and did not take into account Ms Hadley’s reports. The appellant submits that Ms Hadley’s reports disclose that the respondent was able to work in his post-injury employment and there was an interaction between the physical and psychological injuries. The appellant points to Ms Hadley’s remark that “[a]s time passed, however, his body became riddled with injury and eventually his mind and emotional state declined”,[24] and her clinical note that “physical + psych - go hand in hand.”[25] The appellant submits that the respondent’s physical condition deteriorated and impacted his psychological issues so that the physical and psychological conditions went hand in hand and were not distinguishable in respect of the respondent’s impairment. Thus, the appellant says, the physical and psychological conditions gave rise to a single incapacity, a submission that the appellant made to the Member. The appellant asserts that the Member’s approach to the question was misconceived in that he ignored the relationship between the two conditions which was established by that evidence.
[24] ARD, p 262.
[25] AALD, p 13.
The appellant refers to the Member’s observations that Ms Hadley’s notes recorded fluctuations in the respondent’s mental health but in his view, that evidence did not go so far as to reach a conclusion that the respondent only had one incapacity. The appellant further refers to the Member’s observation that the evidence that the physical injury impacted upon the respondent’s psychological state was not sufficient to suggest that impairments from distinct injuries led to one incapacity. The appellant submits that those observations did not respond to the appellant’s submissions made to the Member and the reasoning was inadequate. The appellant asserts that, while the Member did have regard to the submission about the clinical notes, he failed to engage in a meaningful way with Ms Hadley’s contemporaneous records and reports and thus the Member ignored the evidence and did not properly engage with the appellant’s submission.
The respondent’s submissions
The respondent asserts that the appellant’s extensive submissions do not identify the requisite error on the part of the Member and submits that the Member was entitled to weigh up the probative value of Ms Hadley’s records and reports. The respondent contends that the Member was entitled to conclude that Ms Hadley’s evidence did not go so far as to establish that the respondent’s incapacity was a single incapacity and that an overlap in the physical and psychological symptoms did not necessarily mean that there was a single incapacity.
The appellant’s submissions in reply
The appellant repeats its submissions already made and submits that the Member completely ignored the notation that “physical + psych - go hand in hand”, and its submissions about the notation.
As to Ground Two
The appellant’s submissions
The appellant asserts that the Member failed to make any finding that the respondent’s physical injuries did not have a psychological impact, and so it was not open to the Member to find separate incapacities. The appellant submits that the Member was required to explain why the physical injury did not contribute to the respondent’s psychological condition and did not cause a single incapacity. The appellant maintains that the Member failed to engage with the evidence from Ms Hadley that as the respondent’s physical injuries deteriorated, his psychological condition was affected. The appellant says that, had the Member properly engaged with Ms Hadley’s evidence, he would have been required to take into account the co-existence of the two conditions and how that impacted the consideration of whether there was a singe incapacity, or separate and distinct incapacities. The appellant asserts that the Member merely provided a “meagre scrutiny”[26] of Ms Hadley’s evidence.
[26] Appellant’s appeal submissions, p 12, [2].
The respondent’s submissions
The respondent indicates that he finds this ground of appeal difficult to understand. He refers to the Member’s reasoning that:
“On balance, I am of the view the [respondent] has sustained separate incapacities for employment. The fact the [respondent’s] physical condition impacts upon his psychological well-being is not, in my view, determinative of whether the impairments arising from each of those categories of injury are separate and distinct.”[27]
[27] Reasons, [29].
The respondent says that, while the ground of appeal is not easy to understand, it is difficult to see how an acceptance of the appeal ground would lead to appellable error.
The appellant’s submissions in reply
The appellant acknowledges the Member’s reasoning quoted by the respondent and repeats his submission that it was not open to the Member to find two separate incapacities without first determining that the respondent’s physical injuries did not impact his psychological condition. The balance of the appellant’s submissions in reply are a repetition of its submissions already made.
As to Ground Three
The appellant’s submissions
The appellant submits that the Member observed that he had considered the appellant’s submission that Ms Hadley’s evidence showed that there was an intermingling and intertwining of the impairments to the extent that it constituted a single incapacity. The appellant submits, however, that the Member failed to refer to that evidence and failed to give any adequate reasons for not engaging with that issue, other than to express the view that the respondent had separate incapacities.
The appellant reiterates that it submitted to the Member that there was intertwining and intermingling of the injuries creating a single incapacity and referred the Member to Harrington v New South Wales Police Force.[28] The appellant submits that the Member appeared to ignore the submissions made in relation to the application of Harrington, which was factually similar to this case.
[28] [2015] NSWWCCPD 31 (Harrington).
The appellant refers to the observations made by O’Grady DP in Harrington that the question to consider was “whether the injuries had resulted in separate compensable incapacities or whether the combined effects of the pathologies … had resulted in one incapacity.”[29] The appellant asserts that, while the Member made reference to the first limb of that observation, the Member failed to consider the second limb, and thus failed to deal with the issue of whether there was an intermingling or intertwining of the symptoms leading to a single incapacity.
[29] Harrington, [55].
The appellant says that the Member accepted that the medical evidence disclosed a physical incapacity as a result of the physical injuries and then proceeded to consider whether that impairment was separate and distinct from that arising from the psychological condition. The appellant submits that the Member failed to engage with the question of whether the respondent’s physical impairments impacted his psychological state, thus causing a single incapacity. The appellant says that the Member simply concluded that the respondent had sustained separate incapacities and that it was, in his view, not determinative that the respondent’s physical condition impacted his psychological condition. The appellant asserts that that approach undermines the argument that there was an intermingling of the physical and psychological injuries, where the physical injury impacted upon the psychological injury. The appellant submits that it was incumbent upon the Member to express a view about the interrelationship between both injuries which might give rise to a single incapacity or to a separate and distinct incapacity. The appellant adds that the Member was required to provide more extensive reasons if he did not deal with the co-existence of the physical and psychological impairments.
The respondent’s submissions
The respondent asserts that the appellant has not provided a fair summary of the Member’s reasons and points to the reasons at [30]–[32]. The respondent submits that Harrington is readily distinguishable from the facts of this case and says that he adopts his submissions made to the Member on this point.
The respondent contends that it was clearly open to the Member to find two separate and distinct incapacities, and the Member’s analysis and acceptance of the medical evidence was readily available to him.
The respondent submits that the Member did in fact express a view as to the co-existence between the physical and the psychological incapacities. The respondent refers to the appellant’s complaint of the inadequacy of the Member’s reasons and, citing NSW Police Force v Newby,[30] says that the obligation to give reasons does not require lengthy or elaborate reasons. The respondent adds that the Member had the benefit of both oral and written submissions so that it was not necessary for him to refer to every point raised by the parties.
[30] [2009] NSWWCCPD 75.
As to Grounds Four and Five
Both the appellant and the respondent rely upon their submissions already made in respect of Grounds One, Two and Three.
As to Ground Six
The appellant’s submissions
The appellant refers to the issues raised in Ground One of the appeal and explains that this ground of appeal is based upon the fact that Ms Hadley’s clinical notes and reports, had they been considered, would have made it clear to the Member that the respondent’s physical injuries contributed to his psychological issues. The appellant adds that that evidence was not challenged by the respondent. The appellant submits that all the Member did was express the view that conclusions based on clinical notes should be treated with caution. The appellant asserts that, in this case, such an observation was misplaced. The appellant contends that the Member either overlooked or ignored the probative value of that evidence and “raised the bar” in relation to the medical expert’s ability to comment in circumstances where the documents were not prepared in contemplation of litigation.
The appellant concedes that busy doctors at times misunderstand, omit, or mis-record histories, however, in this case the clinical notes expressly described the impact of the physical injuries on the respondent’s psychological state and the Member was taken to those relevant parts of the evidence in the appellant’s oral and written submissions.
The appellant refers to various authorities where the significance of contemporaneous documents was considered to be of great importance. The appellant says that it was not sufficient for the Member to deal with that evidence in the manner that he did, that is, by adopting a cautionary approach. The appellant contends that more weight should have been afforded to that evidence, which pointed to there being an intermingling of two injuries leading to one incapacity.
The respondent’s submissions
The respondent submits that Ms Hadley did not express an opinion that the incapacities were so entwined that they resulted in only one incapacity or employment impairment, and she was not asked to do so. The respondent asserts that the Member was entitled to treat the clinical notes with caution, to assess the evidence in the manner that he did and to prefer other evidence over that of Ms Hadley. The respondent contends that this appeal ground is not made out.
As to Ground Seven
The appellant’s submissions
The appellant relies upon its submissions made in relation to the earlier grounds of appeal. The appellant refers to the authorities of Hume v Walton[31] and Beale v Government Insurance Office of NSW [32] and submits that the decision-maker’s reasons should show that all of the evidence has been considered and should explain why relevant findings of fact were made. The appellant points to the Personal Injury Commission Rules 2021 (the 2021 Rules) which set out what is required in respect of adequate reasons and submits that the Member has failed to comply with those rules.[33] The appellant also refers to authorities, including Whiteley Muir & Zwanenberg Ltd v Kerr,[34] and asserts that the Member erred by overlooking material facts and ignoring relevant material.
[31] [2005] NSWCA 148.
[32] (1997) 48 NSWLR 430.
[33] Rules 73 and 78 of the 2021 Rules.
[34] (1936) 39 ALJR 505 (Whiteley Muir).
The respondent’s submissions
The respondent submits that this ground of appeal and these submissions are merely a repeat of Ground Six.
As to Ground Eight
The appellant’s submissions
The appellant submits that the Member’s comments about the evidence of Ms Hadley and the failure to deal with that evidence suggests that the appellant bore the onus of proving that the respondent had two incapacities, when it was the respondent’s onus to prove he suffered a single incapacity. The appellant submits that the Member erred by reversing the onus of proof.
The respondent’s submissions
The respondent asserts that there was no such error and that the submissions made by the appellant do not support the assertion of error made by the appellant.
As to Ground Nine
The appellant’s submissions
The appellant submits that the Member “raised the bar” in respect of the competency or ability of the evidence of a treatment provider recorded in clinical notes to be decisive in respect of a medico-legal issue. The appellant refers to the Member’s observation that Ms Hadley’s notes did not include an opinion as to whether the respondent’s psychological and physical conditions led to a single impairment. The appellant says that the notes were not prepared in the context of litigation and the issue for determination was not considered so that the Member’s “approach to the task had derogated the notion of a decision maker drawing inferences.”[35] The appellant submits that Ms Hadley’s evidence was sufficiently explicit in order for the Member to determine the issue in dispute, and asserts that the discrete legal principle fell within the province of the Member, not Ms Hadley.
[35] Appellant’s appeal submissions, p 23, [1].
The respondent’s submissions
The respondent indicates that the appeal ground is difficult to understand but submits that the preference of one piece of evidence over the other accompanied by proper reasons does not constitute appellable error.
As to Ground Ten
The appellant’s submissions
The appellant notes that the Member considered that a Jones v Dunkel inference could be drawn from the failure by the appellant to rely on a report of Dr Haig, who had examined the respondent. The appellant further refers to the Member’s observation that the appellant had not relied on any expert opinion in support of the proposition that the injuries had led to one impairment. The appellant submits that Dr Haig is an orthopaedic surgeon, and it was not disputed that the respondent had an incapacity for work as a result of his physical injuries.
The appellant submits that it was the respondent’s case that he suffered two discrete incapacities and the mere existence of physical and psychiatric injuries is not sufficient to establish that case. The appellant submits that “[i]t is simply not within his competence [presumably Dr Haig] to draw conclusions that are those for the Commission to make after a proper consideration of all circumstances and facts.”[36]
[36] Appellant’s appeal submissions, p 24, [4].
The appellant asserts that Dr Haig may provide an opinion, but that opinion is irrelevant. The appellant submits that it is the Commission’s task to determine issues of causation and whether the respondent has two separate incapacities. The appellant adds that Dr Haig’s specialty is not that of a psychiatrist, so that his views are not relevant to the consideration of the impact of the relationship between the physical and psychological injuries. The appellant says that, consistent with Harrington, the question of incapacity and its causal nexus, including consideration of whether there are two distinct incapacities, is one of fact, to be determined on the basis of all of the circumstances of the case. The appellant maintains that it is not simply a consideration of expert evidence but is a matter to be determined by the Commission on the basis of the totally of the evidence and the circumstances of the case.
The respondent’s submissions
The respondent submits that the inference drawn by the Member was clearly available to him and is no higher than an inference, which formed just one small part of the “overall factual matrix.”[37] The respondent asserts that the appellant’s submissions point to no error on the part of the Member.
As to Ground Eleven
[37] Respondent’s appeal submissions, [43].
The appellant’s submissions
The appellant asserts that, apart from the period 18 June 2012 to 18 February 2013, the Member failed to exercise his discretion to reduce the payments for the respondent’s physical injuries. The appellant submits that the Member declined to do so because the nature of the respondent’s incapacities enabled him to determine the difference between the respondent’s probable earnings and the amount he actually earned. The appellant asserts that it is difficult to understand why the Member did not apply any discretion in those periods. The appellant refers to the decision by Member Sweeney in Stewart No. 1 and submits that, while that case is not binding authority, it provides useful guidance as to the exercise of the relevant discretion.
The appellant submits that its written submissions to the Member provided a sound basis as to why the payments should commence on 19 February 2013 if there was an entitlement to an additional award. The appellant adds that the respondent suffered a new injury with his post-injury employer on 4 November 2019 and thus the Member ought to have exercised his discretion to reduce the award “for the supervening psychiatric injury.”[38]
[38] Appellant’s appeal submissions, p 27, [10].
The appellant says that it submitted that from 4 November 2019, when the respondent was unfit because of his injury with his post-injury employer, the discretion to reduce the payments by more than 75% should be applied, in accordance with step four of the Mitchell test.
The appellant submits that it disputed that the respondent was entitled to a separate award pursuant to s 40 of the 1987 Act for his physical impairment and asserts that on the basis of the Member’s errors, the Member’s determinations in respect of the application of s 40 can be reviewed. The appellant asserts that the Member’s discretionary decision can be reviewed on the basis of the principles enunciated in House v The King[39] but the Presidential member has a wider power, extending to the power to re-open the matter and exercise his or her own discretion in the matter.
[39] [1936] HCA 40 (House v The King).
The respondent’s submissions
The respondent submits that, in order for the appellant to succeed in establishing an error of discretion, it is required to establish error in accordance with the principles identified in House v The King. The respondent asserts that the appellant’s submissions relating to the power of a Presidential member to intervene in a discretionary decision are wrong at law and says that appellable error must be identified in order for a Presidential member to intervene.
The respondent contends that the appellant’s submissions do not properly address the test in Mitchell and how that authority was applied in Stewart No. 1. The respondent asserts that the Member applied his discretion when it was appropriate and declined to do so where there were two partial incapacities. He says that such an approach was available to the Member, was a discretionary decision, was in accordance with the law and the appellant has failed to establish error on the Member’s part.
THE RELIEF SOUGHT
The appellant submits that the Member’s Certificate of Determination should be revoked and an award should be entered in its favour in respect of the claim for weekly payments. In the alternative, if the respondent is entitled to two awards, the appellant seeks to have the additional weekly payment determined in accordance with his submissions made to the Member.
The appellant submits that the relevant costs order should be that each party pay its own costs.
The respondent submits that the appeal should be dismissed, and orders made that the appellant pay the respondent’s costs.
CONSIDERATION
A number of decisions relevant to the question of whether the respondent is entitled to a separate award of weekly compensation in respect of his physical injuries were cited by the parties. It is useful to firstly review those authorities.
Cordina
In Cordina, the worker suffered a serious crush injury to the fingers of her left hand requiring partial amputation of the middle finger and skin grafts. Following a period of total incapacity, the worker returned to alternate duties with a graded increase in her hours of work. The duties required sorting chicken parts into tubs, and involved repetitive use of her hands. After a period of time, the worker developed bilateral wrist pain, diagnosed as carpal tunnel syndrome. She ceased work. Liability for the injury was ultimately denied and the worker commenced proceedings in the former Workers Compensation Commission. The proceedings were heard and determined by an arbitrator, who relevantly determined that the employer was to pay the worker continuing weekly payments from 12 December 2005 in relation to the crush injury at the maximum statutory rate for a worker with no dependants. In addition, the employer was ordered to pay continuing weekly payments in respect of the bilateral carpal tunnel syndrome, provided that the total of the weekly payments did not exceed the worker’s probable weekly earnings but for the injuries.
The employer appealed the decision in respect of the weekly payments award. Deputy President Roche considered the question of whether and in what circumstances there could be a concurrent additional award of weekly payments. He reviewed a number of earlier authorities and helpfully summarised the principles applicable to the capacity to make two awards, as follows:
“(a) a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity;[40]
(b) the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards;[41]
(c) whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 40 for the initial partial incapacity calls for the application of the discretion in section 40(1)[42] in determining the amount of compensation that is ‘proper in the circumstances of the case.’[43] The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case, and
(d) an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured.[44] This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for ‘any period of partial incapacity’ as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.”[45] (emphasis in original)
[40] Doudie v Kinneil Cannel & Coking Coal Company Limited [1947] AC 377 (Doudie), 384; Sydney City Council v Ince (1989) 16 NSWLR 690 (Ince); Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583 (Holmes).
[41] Ince, 701D; Holmes, 592.
[42] Holmes, 592.
[43] Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50.
[44] Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 (Jordan), 482E.
[45] Cordina, [59].
The Deputy President further observed that:
“The determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to work or to look for work. It will be a question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities.”[46]
[46] Cordina, [60].
The Deputy President proceeded to consider whether, applying those principles, the worker was entitled to two awards. He noted that the worker had suffered two separate injuries but concluded that the worker was not entitled to separate awards. He referred to Jordan and observed that the facts in that case were “a good illustration of the kind of situation where it was held to be appropriate to find that separate incapacities had resulted from multiple injuries.”[47] In Jordan, the worker developed a condition referred to as “pot room asthma” in 1982, suffered an injury to his back in 1986 and a left knee and further injury to his back in 1989, before his employment was terminated in 1990. The Court of Appeal (Handley JA with Gleeson CJ agreeing) held that the worker had “two distinct partial incapacities”[48] on the basis that the worker was prevented from working in the pot room because of his asthma and was not fit to perform work requiring lifting weights, walking on uneven ground or climbing stairs because of his orthopaedic injuries.
[47] Cordina, [64].
[48] Jordan, 483E.
Deputy President Roche turned to the evidence in Cordina, noting that the worker’s general practitioner’s reports and medical certificates were of no assistance in discerning whether the worker had two separate incapacities and the worker’s statement did not differentiate between which restrictions resulted from one or other of the injuries. He further noted that the medical specialist qualified by the worker’s legal representatives detailed the worker’s restrictions but only provided an opinion on the worker’s incapacity resulting from the carpal tunnel syndrome and did not specifically refer to the worker’s incapacity resulting from the crush injury.
The Deputy President commented on the unsatisfactory nature of the evidence and observed that the evidence disclosed that the worker was unable to perform manual work and had an inability to hold objects firmly in respect of both injuries. He concluded that, applying Ince and Jordan, he was unable to identify two separate and distinct incapacities in the labour market reasonably accessible to the worker. He said that, on the basis of the limited evidence available, the worker suffered one incapacity, which was “an incapacity to engage in full time unskilled manual work requiring the lifting of objects heavier than two kilograms.”[49]
[49] Cordina, [76].
Harrington
In Harrington, the worker (a NSW police officer) suffered an injury to his right shoulder on 27 July 2009 and was exposed to a number of psychologically traumatic experiences, including an incident on 3 July 2009. Following that incident, he suffered continuing emotional disturbance including a panic attack in the subsequent incident on 27 July 2009. He ceased work after the incident on 27 July 2009 and was medically retired on 22 July 2010. He was paid weekly compensation in respect of his psychological injury at the maximum statutory amount on a continuing basis. The worker claimed an additional weekly payment for the physical injuries, alleging that he suffered from two distinct and separate incapacities. The employer denied the claim for the additional weekly payments.
The dispute proceeded to arbitration before an arbitrator in the former Workers Compensation Commission. The Arbitrator referred to Cordina and the analysis of the relevant legislation and authorities provided by Roche DP in that decision and determined that the worker was not entitled to an additional concurrent award. The worker appealed. Deputy President O’Grady confirmed the Arbitrator’s decision, observing that:
(a) the authorities as to the question of incapacity and its causal nexus with the injury is a question of fact;
(b) the question of whether there are separate capacities resulting from multiple injuries or whether those injuries resulted in a single incapacity is also a question of fact;
(c) the evidence suggested that the event on 27 July 2009 caused two injuries (pathologies), namely an orthopaedic injury and an aggravation of the worker’s psychological injury, resulting in an incapacity for work for the first time, and
(d) taking into account the whole of the relevant circumstances, the Arbitrator’s conclusion was consistent with the authorities and open to him on the evidence.
State of New South Wales v Stewart[50]
[50] [2015] NSWWCCPD 1 (Stewart No. 2).
In Stewart No. 2, in proceedings before an arbitrator, the worker (an ambulance officer) was awarded three concurrent awards of weekly compensation. There were numerous injuries with various dates of injury, namely:
(a) a deep vein thrombosis in the right leg as a result of prolonged driving, with a date of injury on 31 October 2007;
(b) a lower back injury when she slipped and fell on 27 December 2007;
(c) injuries to the hips, back and legs as a result of prolonged driving and getting into and alighting from the ambulance, and
(d) injuries to the back carrying a patient up a flight of stairs and lifting a patient onto a stretcher.
The employer appealed the decision. Acting President Roche, as he then was, revoked the Arbitrator’s determination. In doing so, he observed:
“There is no evidence that Ms Stewart has a separate and distinct incapacity from each of her injuries. The evidence clearly establishes that, as a result of the combined effect of her three injuries, Ms Stewart is unfit for her pre-injury employment and unfit for employment that requires prolonged sitting, standing and walking, and an ability to jog and run, squat, kneel, bend and twist. That is a single incapacity that has resulted from multiple injuries.
…
Furthermore, the Arbitrator gave no explanation of what the alleged incapacity was from each injury and, so far as the awards for partial incapacity were concerned, did not apply the five steps required in [Mitchell] for each injury.”[51]
And:
“The evidence assessed Ms Stewart’s incapacity by reference to the combined effect of her three injuries, not by reference to the effect of each injury separately.”[52]
[51] Stewart No. 2, [91]–[93].
[52] Stewart No. 2, [95].
In Sedrak v Rooty Hill RSL Club Ltd,[53] the worker suffered injury to his neck, which, because of the disease provisions, was deemed to have happened on 29 April 2003, and a second injury to his back on 24 July 2007. The worker sought payment of two awards of weekly compensation on the basis that the incapacity flowing from the neck injury was a different incapacity from the back injury. The Arbitrator was not satisfied that the worker had established two separate incapacities. The worker appealed. Acting President Roche (as he then was) made the following observations:
“Dealing with the critical issue of whether Mr Sedrak had established two separate and distinct incapacities, the Arbitrator said, at T11.31 – 4 March 2014:
‘On all of that evidence quite clearly there is an intermingling of symptoms leading to an incapacity for employment. On the balance of probabilities I am unable to determine on the evidence before me that [Mr Sedrak] has a separate and distinct incapacity as a result of an injury to his cervical spine and as a result of injury to his lumbar spine. I am therefore satisfied that [Mr Sedrak] has but one incapacity, which is an incapacity to engage in full time employment involving bending, use of his arms at or above head height or lifting over five kilograms in weight, such incapacity being from 2 September 2008.’
The submissions by [counsel for Mr Sedrak] have not addressed the Arbitrator’s reasons, or the evidence, but have merely repeated [that] the injury to the lumbar spine has affected the lower back and legs and the injury to the cervical spine has affected the neck and arms. So much may be accepted, but much more is needed to establish two separate and distinct incapacities.
The Arbitrator’s analysis of the evidence comfortably established that Mr Sedrak has a single incapacity, namely, an incapacity to engage in full-time employment involving bending, use of his arms at or above head height, or lifting over five kilograms. That incapacity has resulted from the combined effect of his neck injury and his back injury. That is so regardless of when or how Mr Sedrak received those injuries.”[54]
[53] [2014] NSWWCCPD 40 (Sedrak).
[54] Sedrak, [45]–[47].
This appeal
The above authorities relevantly establish that the question of whether the worker has more than one incapacity is a question of fact to be determined on the basis of the available evidence as to the nature of the incapacity flowing from each injury. It is well established that factual determinations will only be disturbed on appeal if they are so against the weight of the evidence that it shows the Member was wrong or that material facts have been overlooked or given too little weight.[55] Further, if a choice arises between conclusions that are equally open, it is not sufficient that the appeal court may have preferred a different outcome.[56]
[55] Whiteley Muir.
[56] Norbis v Norbis [1986] HCA 17.
The appellant must therefore show that the Member committed error of the type identified in those authorities. The appellant cites eleven grounds of appeal.
Grounds One, Two, Six, Seven and Nine
Grounds One, Two, Six, Seven and Nine complain of error on the part of the Member in relation to the evidence of Ms Hadley. The errors are said to be that the Member either overlooked or failed to properly engage with and give weight to her evidence (Grounds One, Two, Six and Seven), and that the Member ought to have been satisfied that her evidence was sufficient to establish that the respondent had only a single incapacity (Ground Nine). The appellant submits that the Member was required to explain why he did not consider that the physical injury impacted the psychological condition (Ground Two). The submissions made in respect of Grounds Two and Seven in part also appear to assert that the Member failed to give adequate reasons for not accepting that evidence.
The Member reviewed the appellant’s submissions about the evidence of Ms Hadley, noting that that evidence disclosed that the respondent strongly identified as a police officer and that the respondent was experiencing psychological issues as a result of the physical injuries. He particularly noted that in February 2022, Ms Hadley recorded that the respondent’s “physical and psychological [conditions] go hand-in-hand” and that the physical injuries impacted upon his ability to exercise, an activity recommended as therapy for his psychological issues. The Member quoted a lengthy passage from Ms Hadley’s report dated 18 March 2018 and further passages from her reports dated 28 August 2018 and 7 May 2021.
The Member commented that “[t]he [appellant’s] submission was the [respondent’s] physical injuries added to the effects of the psychological condition to the point they gave rise to an incapacity.”[57] He considered that:
(a) the fact that the respondent’s physical injuries impacted his psychological condition was not determinative of the existence of two incapacities;
(b) the respondent clearly had an incapacity for police work flowing from his psychological condition, and
(c) the physical injuries led to a separate and distinct impairment from performing other employment, the nature of which was different to the psychological impairment for performing work.
[57] Reasons, [25].
The Member referred to the physical restrictions recorded by Dr Stephen and those recorded by Dr Oates, which he said were different to the restrictions the respondent had with respect to his psychological symptoms. In relation to the evidence of Ms Hadley, the Member observed that:
“It is one thing for a treating practitioner to note a patient’s physical wellbeing might have some effect on their psychological condition, but that is not the same as suggesting any impairment caused by the separate physical and psychological injuries, arising as they do from separate incidents and injurious events, has led to the one incapacity for employment.”[58]
[58] Reasons, [34].
The above summary of the Member’s reasons discloses that the Member was alive to the point raised in the appellant’s submissions, the Member reviewed the evidence from Ms Hadley, referred to by the appellant, considered that evidence and reached a factual conclusion about that evidence. It cannot be said that the Member overlooked the evidence or failed to properly engage with it.
The appellant asserts that the Member ought to have afforded weight to Ms Hadley’s evidence and that her evidence was sufficient to satisfy the Member that there was only a single incapacity. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[59]
[59] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16.
The Member gave cogent reasons for considering that the evidence of Ms Hadley fell short of establishing a single incapacity. That is, he considered that, while the evidence indicated that the respondent’s physical injuries may have impacted the respondent’s psychological condition, that did not extend so far as to say that it impacted the respondent’s incapacity in relation to his accepted psychological condition of post-traumatic stress disorder. The Member was required to determine, on the basis of the medical and other evidence, what the restrictions were in respect of the respondent’s ability to work because of his physical injury by looking at “the labour market in which the worker is working or may reasonably be expected to work or to look for work.”[60] The Member clearly looked to the physical restrictions on the respondent’s capacity to work. The Member formed the view that the evidence that there was a physical incapacity as a result of the physical injuries was overwhelming and observed that those restrictions were different to the restrictions suffered by the respondent as a result of his post-traumatic stress disorder. The Member concluded that the respondent suffered from separate incapacities. The manner in which the Member dealt with the evidence was consistent with the relevant authorities and discloses no error. The appellant’s assertion that the Member gave “meagre scrutiny” of Ms Hadley’s evidence is not borne out.
[60] Cordina, [60].
Although none of these grounds of appeal expressly complain of error on the Member’s part for not giving adequate reasons for failing to accept that Ms Hadley’s evidence was sufficient to establish there was a single incapacity, the submissions made in respect of Grounds Two and Seven appear to suggest such error. The Member’s reasons appear in his reasons at [15]–[26] and [34]–[35].
The minimum standard that a decision of a member of the Commission must reach in providing adequate reasons is defined by the duty imposed in the Commission’s statutory framework.[61] Section 294(2) of the 1998 Act provides that a member is to provide a brief statement setting out the Commission’s reasons for the determination. Rule 78(2) of the 2021 Rules requires the member’s reasons to set out his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based, the member’s understanding of the applicable law, and the reasoning processes that led to the member’s conclusions.
[61] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, [43].
The review of the Member’s process of reasoning recorded above discloses that the Member’s reasons satisfied these statutory provisions. Any assertion that the Member’s reasons were inadequate is not made out.
It follows that Grounds One, Two, Six, Seven and Nine do not disclose error on the Member’s part and fail.
Grounds Three, Four and Five
Grounds Three, Four and Five concern asserted errors on the part of the Member in relation to the Member’s finding that the respondent suffered from two separate incapacities, in that the Member failed to:
(a) engage with the question of whether the impact of the physical injuries on the respondent’s psychological condition caused a single incapacity (Ground Five);
(b) make a finding that the two injuries were intertwined or intermingled (Ground Four (i));
(c) make a finding that the respondent’s physical injuries did not impact upon the respondent psychologically (Ground Four (ii)), and
(d) consider and give adequate reasons as to why the impact of the physical injuries on the psychological condition was not sufficient to result in a single incapacity (Ground Three).
The appellant asserts that the Member ignored its submissions in relation to the application of Harrington. The appellant again refers to Ms Hadley’s evidence and says that it submitted that the injuries were intertwined and intermingled, which led to a single incapacity.
The Member noted the submission in relation to Harrington and pointed to O’Grady DP’s observation that the causal nexus between an incapacity and a particular injury is a question of fact to be determined having regard to all the circumstances of the case.[62] The Member proceeded to consider the facts and the evidence relied upon by the appellant in the case before him and drew a conclusion from that evidence. He was not required to arrive at the same finding as that made in Harrington, a decision which was decided on the basis of its own facts and circumstances. Although the Member did not adopt the expressions “intertwined” or “intermingled” (words adopted in various cases on this point), he clearly took into account the evidence from Ms Hadley as to the impact of the physical injury on the respondent’s psychological condition and the assessment of the respondent’s capacity to work. The Member identified that the respondent’s post-traumatic stress disorder prevented the respondent from working for the appellant, then proceeded to identify the evidence of the respondent’s physical incapacity. The Member reasoned as follows:
“The physical injuries sustained by the [respondent] were separate to the incidents and traumatic scenes which caused the psychological injury, a fact which in itself is not determinative of whether there are separate incapacities. However, the evidence discloses the nature of the impairment caused by the physical injuries is different to that of the psychological injury. For example, Dr Stephen, spinal surgeon notes limitations on lifting, bending and working in confined spaces, together with avoidance of prolonged sitting and standing. Dr Oates, IME also noted the following when asked about limitations to work capacity brought about by the physical injuries:
‘…
He is fit for full‐time work but of a sedentary or light nature only, where he can sit or stand/move about alternately, as required for the comfort of his back and lower limbs. He should avoid duties which involve lifting greater than 10kg, bending or twisting at the waist, heavy pushing and pulling greater than 20kg equivalent, and he should have postural break after each 1.5 hours of driving to get out, move around and stretch his back and lower limbs.’
In my view, that evidence is clearly supportive of the proposition the [respondent] suffers a separate and distinct incapacity for employment caused by his physical injuries compared with that brought about by his psychological injury.”[63]
[62] Reasons, [17].
[63] Reasons, [31]–[32].
The appellant contends that the Member did not provide adequate reasons for failing to deal with the “co-existence of the physical and psychological impairments”. The Member’s reasons have been discussed in respect of the earlier grounds of appeal and this assertion is merely a repetition of the complaints made in under those grounds. As discussed, the Member’s reasons adequately explain his conclusion.
It follows that Grounds Three, Four and Five fail.
Ground Eight
Ground Eight of the appeal asserts error on the part of the Member, expressed as “[a]n error of mixed fact and law in that the Member reversed the onus of proof in respect of the issue of whether the respondent suffered from two separate and discrete incapacities arising from his psychological and physical injuries.”
The appellant submits that the respondent bore the onus of establishing that he suffered a single incapacity. It submits that the Member’s observations about Ms Hadley’s evidence and the Member’s failure to deal with that evidence suggested that the Member considered that the appellant bore the onus of proving “two separate and discrete incapacities arising from his psychological and physical injuries.”[64] The appellant says that the Member thus reversed the onus of proof.
[64] Appellant’s appeal submissions, p 22, [1].
As the respondent, submits, the appellant’s submission does not support the asserted ground of error. The respondent did not bear the onus of proving a single incapacity, he was required to establish that he had two separate and distinct incapacities. There is nothing in the manner in which the Member weighed the evidence, drew inferences from that evidence and dealt with the parties’ submissions that would suggest that the Member thought that the appellant bore the onus of proving two separate incapacities. In addition to the extensive reasons already discussed, the Member noted that Ms Hadley did not provide an opinion in respect of the respondent’s incapacity flowing from the primary or secondary psychological injury. He also noted that there was an absence of evidence from the appellant as to the respondent’s physical incapacity. The consideration of that lack of evidence was appropriate.
There is nothing helpful in the appellant’s submissions that might support this ground of appeal. The Member did not reverse the onus of proof and the ground of appeal fails.
Ground Ten
Ground Ten of the appeal complains of error by the Member in drawing a Jones v Dunkel inference in relation to the absence of the report of Dr Haig. The appellant submits that Dr Haig is an orthopaedic surgeon and there was no dispute that the respondent had an incapacity because of his physical injuries. The appellant submits that “[it] is simply not within [Dr Haig’s] competence to draw conclusions that are those for the Commission to make after a proper consideration of all circumstances and facts.”[65]
[65] Appellant’s appeal submissions, p 24, [4].
In making an assessment of the respondent’s physical incapacity, the Member drew the inference that the failure to rely on the report of Dr Haig indicated that Dr Haig’s evidence would not have assisted the appellant’s case. The appellant asserts that Dr Haig’s opinion was irrelevant because he was not a psychiatrist. It is curious as to how the Member was said to be in error in those circumstances. If the report was “irrelevant,” it would not have assisted the appellant’s case. In any event, the report of Dr Haig was available to the appellant and was not relied upon by the appellant. The inference was clearly available to the Member, and he correctly applied that principle.
It follows that Ground Ten of the appeal fails.
Ground Eleven
Ground Eleven of the appeal asserts that the Member was in error by failing to exercise his discretion to reduce the award for the incapacity flowing from the physical injury. The appellant submits that apart from the period from 18 June 2012 to 18 February 2013, the respondent’s entitlement should have been reduced, but the Member declined to do so because he was of the view that he was able to determine the amount by reference to the nature of the respondent’s incapacities.
The appellant says that its submissions to the Member provided a sound basis for commencing the payments from 19 February 2013. In those submissions, the appellant set out the periods of capacity as:
(a) unfit for work from 25 October 2010 to 8 January 2011 in respect of both injuries;
(b) fit for pre-injury duties from 3 February 2011, and
(c) unfit for work from 18 June 2012 to 18 February 2013.
The appellant submitted to the Member that the respondent would not be entitled to an award pursuant to s 40 before 19 February 2013 because the respondent was unfit for work. This ground of appeal asserts error on the basis of the exercise of the Member’s discretion rather than the suggested error of when any award should have commenced. In any event, the assertion that the respondent was fit for pre-injury duties from 3 February 2011 does not take into account that the respondent was at least partially incapacitated for work and paid some weekly compensation from 25 May 2011.[66] Nor does it acknowledge that the respondent ceased work on 24 November 2011 because of his injuries and was paid compensation in respect of his psychological condition from that date.
[66] List of payments, ARD, pp 80–120.
The Member noted that the appellant submitted that any award should not commence until 19 February 2013 because the respondent had been totally unfit as a result of his psychological claim prior to that date. The Member observed that the appellant did not explain why that was the case. The Member considered that, in the circumstances where the respondent was totally unfit for work and applying s 40, any award in respect of the physical injuries should be reduced to a nominal amount. The Member commenced the payment of the award for the physical injuries from 25 November 2011 (the date the respondent ceased work with the appellant) because from that date, the claim for compensation was supported by medical evidence as to capacity.
The appellant’s assertion that there should be no award payment during the period prior to 19 February 2013 is contrary to law. The exercise of discretion vested in s 40 does not permit the decision-maker to reduce the compensation entitlement for partial incapacity to nil.[67] The Member was alive to that principle.
[67] Kesen.
Additionally, in Cordina, Roche DP said:
“Thus, Doudie is clear authority, accepted and applied in New South Wales, that, in the appropriate case, a worker is entitled to recover an award of partial incapacity and, in respect of a ‘different total incapacity’ (Ince, at 698F), an award of total incapacity. However, the recovery of such awards is subject to two important qualifications. First, there must be a finding that there are two separate and distinct incapacities, and, second, the quantification of the award for partial incapacity is subject to the application of the discretion in section 40(1) of the 1987 Act.”[68]
And:
“The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case”.[69]
[68] Cordina, [56].
[69] Cordina, [59].
Thus, there was no error in the Member commencing the award from 25 November 2011.
In respect of the complaint that, apart from the period from 18 June 2012 to 18 February 2013, the Member failed to exercise his discretion, the appellant refers to Member Sweeney’s decision in Stewart No. 1 and submits that the Member should have exercised his discretion to reduce the weekly award by not less than 75%. The appellant says that, additionally, for the period during which the respondent was unfit for work because of the injury suffered in the employ of the post-injury employer, the entitlement should be reduced by greater than 75%.
The Member applied his discretion to reduce the weekly compensation amount to $100 per week for the period from 25 November 2011 to 17 June 2012 because the respondent was certified partially fit for work but was not working. The respondent’s loss per week was recorded by the Member as $605.17[70] and not challenged on appeal. The amount by which the potential award was reduced is clearly greater than 75%, so the appellant identifies no error in that calculation, and the assertion of error in respect of those periods is rejected.
[70] Reasons, [56].
In respect of the period from 19 February 2013, the Member declined to exercise his discretion to reduce the award.
The appellant submits that a Presidential member has wide powers to intervene in a discretionary decision extending to re-opening the matter for further consideration. The appellant cites no authority for that proposition and the proposition is contrary to s 352(5) of the 1998 Act, which provides that:
“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.”
The appellant must therefore establish that the Member’s decision to decline to reduce the award of weekly payments was affected by error. As observed by Heydon JA (with Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd,[71] in order to disturb the Member’s refusal to exercise his discretion, the appellant is required to establish that the Member:
“(a) made an error of legal principle,
(b) made a material error of fact,
(c) took into account some irrelevant matter,
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
[71] [2001] NSWCA 274 (Micallef), [45].
The appellant relies on Stewart No. 1. In that case, Member Sweeney applied Cordina, and reduced the compensation payable for the physical injury during a supervening period of total incapacity because of a psychological injury by 75%. The Member declined to reduce the compensation payable during the period when the worker was partially fit in respect of both injuries because the employer had not submitted that a reduction should occur in those circumstances. Member Sweeney remarked that Cordina might suggest that such an approach was not correct.[72] The Member may well have been referring to the following passage from Cordina:
“The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case.”[73]
[72] Stewart No. 1, [59].
[73] Cordina, [59].
Stewart (No. 1) does not assist the appellant in this case. In this case, the Member reduced the compensation payable during periods when the respondent was not working and when the respondent was totally unfit by more than the 75% applied by Member Sweeney in Stewart No. 1. Member Sweeney declined to reduce the compensation payable for the periods of dual partial incapacity because that suggestion was never put by the employer. Each case must be decided on its own facts and circumstances and the amount awarded should only be reduced on the basis of what may appear proper in the circumstances of the case.[74]
[74] Section 40(1) of the 1987 Act.
The appellant makes no other submissions as to how the Member erred in respect of the periods when the respondent suffered dual partial incapacities. The Member gave cogent reasons for declining to reduce the amount of compensation payable during the period of dual partial incapacity, reproduced above at [43]. Applying the principles set out in Micallef, the appellant has failed to establish that the Member committed an error of the type that would be sufficient to displace his discretionary decision in relation to these periods.
The appellant submits that the respondent suffered a further injury in his post-injury employment on 4 November 2019 and thus the compensation payable from that date until the respondent was fit for his pre-injury duties performed for the post-injury employer should also be reduced by 75%. The respondent did not respond to this submission, either to the Member or in response to the appellant’s appeal submissions. The Member did not deal with the submissions about this short period of total incapacity.
In respect of this injury, the respondent’s treating general practitioner, Dr Michael Tay, certified the respondent as unfit for work, presumably from the date of consultation, which was 6 November 2019.[75] Dr Tay certified the respondent as fit for some type of work from 17 December 2019[76] and fit for pre-injury duties from 8 January 2020.[77]
[75] AALD, pp 554–556.
[76] AALD, pp 558–560.
[77] AALD, pp 561–562.
The Member was in error not to consider this submission and to decline to exercise his discretion in respect of the period of total incapacity. I am permitted to correct an error of law or discretion on appeal. Applying the principles enunciated in Cordina and in the circumstances of this case, I do not accept that the award of compensation made by the Member should be reduced other than for the period that the respondent was totally unfit for his post-injury employment. That is, during the period from 6 November 2019 to 17 December 2019. The appellant submits that the compensation payable should be reduced by 75% of that award. Accordingly, I intend to amend the Certificate of Determination to reduce the amount payable during the period from 6 November 2019 to 17 December 2019 to $168.77 per week.
This appeal ground otherwise fails.
CONCLUSION
Appeal Grounds One to Ten are dismissed. Appeal Ground Eleven discloses a minor error on the part of the Member which I have corrected on appeal. The Member’s Certificate of Determination is amended accordingly.
The respondent has sought a costs order. The appellant submits that each party should pay their own costs. Neither party sought an uplift in those costs on the basis of the complexity of the matter. The appellant brought eleven grounds of appeal, ten of which were unsuccessful and one of which was only partly successful. In the circumstances, I consider it appropriate for the appellant to pay the respondent’s costs of the appeal.
DECISION
The Member’s Certificate of Determination dated 3 November 2022 is amended as follows:
(a) Paragraph 12, sub-paragraphs (j), (k) and (l) are deleted and instead the following sub-paragraphs are inserted:
(j)for the period 1 July 2019 to 5 November 2019 at the rate of $675.08 per week;
(k)for the period from 6 November 2019 to 17 December 2019 at the rate of $168.77 per week;
(l)for the period 18 December 2019 to 30 June 2020 at the rate of $675.08 per week;
(m) for the period 1 July 2020 to 30 June 2021 at the rate of $617.14 per week, and
(n)for the period 1 July 2021 to date and continuing at the rate of $645.34 per week.
The Member’s Certificate of Determination dated 3 November 2022 is otherwise confirmed.
The appellant is to pay the respondent’s costs of the appeal as agreed or assessed.
Elizabeth Wood
DEPUTY PRESIDENT
7 November 2023
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