Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery v Andersen
[2024] NSWPICPD 64
•21 October 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery v Andersen [2024] NSWPICPD 64 |
APPELLANT: | Toll Transport Pty Ltd t/as Global Logistics - TGL Grocery |
RESPONDENT: | Dennis Michael Andersen |
INSURER: | Toll Holdings Ltd |
FILE NUMBER: | A1-W3898/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 21 October 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 19 October 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – aggravation of underlying degenerative changes –consequential injury – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 – credibility not impeached by surveillance footage – adequacy of reasons – conducting a business or a hobby – activities performed cannot be regarded as work if they are in the nature of a pastime or recreational activity – profit not determinative in the consideration of the work performed – suitability of employment under section 32A of the Workers Compensation Act 1987 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Colin Biggers & Paisley | |
| Respondent: | |
| Mr L Robison, counsel | |
| Santone Lawyers | |
DECISION UNDER APPEAL: | Andersen v Toll Transport Pty Ltd t/as Global Logistics – TGL Grocery [2023] NSWPIC 552 |
MEMBER: | Mr M Wright |
DATE OF MEMBER’S DECISION: | 19 October 2023 |
INTRODUCTION
The respondent, Dennis Andersen, was employed by the appellant, Toll Transport Pty Ltd t/as Global Logistics – TGL Grocery, as a truck driver from approximately 1995. On 23 January 2020, the respondent was disconnecting leads from a trailer which was attached to the truck he was driving. The respondent says:
“The particular 16 pallet trailer I was driving had the leads located in the centre of the trailer. This meant that I had to physically climb the back of the truck where the turn table is located and stretch out to disconnect the trailer from the truck. I would estimate that there is approximately a 1.5 metre gap between the back of the cab to the trailer.
I disconnected the trailer and as I moved backward, I heard a distinctive and loud crack in left knee.”[1]
[1] Respondent’s statement dated 31 July 2020, Application to Resolve a Dispute (ARD), p 1, [2]–[3].
The respondent reported the incident the following day, and then sought treatment as his condition worsened.[2] On or around 2 July 2020, the respondent was examined by Dr R Wallace, orthopaedic surgeon, for the appellant.[3] As a result of Dr Wallace’s opinion, the appellant declined the respondent’s claim in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[4]
[2] ARD, pp 2–3.
[3] Dr Wallace’s report dated 7 July 2020, Reply to Application to Resolve a Dispute (Reply), p 56.
[4] Reply, p 6.
The respondent has not worked for the appellant since early July 2020.[5]
[5] ARD, p 3, [7].
After the appellant rejected the respondent’s claim, the respondent made a claim in the Personal Injury Commission (Commission) for weekly payments of compensation under ss 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act), as well as seeking a general order under s 60 of the 1987 Act for the payment of medical expenses. The respondent filed his claim in the Commission in 2023.
There was no contest between the parties that the respondent suffered injury to the left knee in the subject incident. The contest was about the resolution of the respondent’s left knee symptoms arising from the incident, and a dispute about whether the respondent suffered a consequential injury to his lumbar spine. There was also a dispute about the respondent’s capacity for work. Allied to this last matter were questions about the respondent’s credit as a witness and what conclusions the Member should draw from surveillance footage of the respondent.
The matter was heard before Member Wright on 30 August 2023, with the Member reserving his decision. The Member delivered his decision, in writing, on 19 October 2023 finding for the respondent. The appellant appeals from that determination.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Transcript issues
There is a further threshold issue. This issue relates to the quality of the transcript of the hearing before Member Wright on 30 August 2023. The transcript contains multiple circumstances where what was said could not be transcribed and the phrase “not transcribable” appears.
The issue with the transcript was brought to the parties’ attention and Directions were issued on 22, 29 and 30 November 2023 seeking the parties’ views on whether, in light of the deficiencies in the transcript, the appeal could be fairly heard. The appellant did not seek to be heard on the transcript issue. Initially, the respondent was of the view that the hearing of the appeal would be prejudiced due to the poor quality of the transcript. Ultimately in a written submission dated 9 December 2023, in answer to the Directions, the respondent put the following position:
“4. It is submitted that proceeding with this appeal is imperfect. However, and not without more than a modicum of reservation, the respondent does not press his objection to the matter proceeding.
5. The test is ultimately one of fact and degree. It is routine that transcripts have some errors or that the occasional word or phrase is noted as ‘not transcribable’. This transcript is certainly worse than average with approximately 400 portions not being transcribed. However, it is accepted that it is not especially dire where oral evidence was not given.”
The respondent noted that the decision was written and thus could be readily understood.[6]
[6] Respondent’s submissions dated 9 December 2023, [6].
Ultimately, both parties were of the view that the appeal could proceed notwithstanding the transcript’s obvious and numerous deficiencies.
Some relevant legal principles and instruments
I am obliged to the parties for their response to the Commission’s Directions about the transcript. In particular I am grateful for the respondent’s thoughtful remarks on this question, remarks that I have outlined above.
Notwithstanding the very practical approach the parties have taken to the transcript, separately I must be satisfied that in light of the problems with the transcript, I am able to perform the appellate function of being able to identify and correct error (if any). Before embarking on this consideration, I will set out the relevant legal principles and relevant provisions of the 2020 Act as well as matters of procedure.
In Wyong Shire Council v Paterson[7] Giles JA said as follows:
“Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary.”[8]
[7] [2005] NSWCA 74 (Paterson).
[8] Paterson, [44].
Giles JA then said this:
“I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.”[9]
[9] Paterson, [44].
Pursuant to s 3 of the 2020 Act, the Commission has the following objects:
“3 Objects of Act
The objects of this Act are as follows—
…
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…”
Additionally, s 42 of the 2020 Act sets out the guiding principle to be applied to practice and procedure. Section 42 relevantly provides as follows:
“42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
…
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.
Further, s 43 provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
At the time that the hearing before the Member was conducted and at all times since, Procedural Direction PIC1 – Conduct of parties during proceedings (PD PIC 1), as amended 19 June 2023, has been in force. Procedural Directions are made by myself as President under s 21 of the 2020 Act. At [37], PD PIC 1 says as follows:
“Parties will be given an opportunity to present their case through providing oral or written submissions, and, where leave is granted, through examination of a witness. Hearings are recorded. A copy of the recording will be made available to the parties in accordance with the Commission’s policy Audio recordings and transcripts.”
This policy states, inter alia, that:
“The Commission records all hearings. The Commission may provide a transcript of the audio recording of proceedings where:
· it has been prepared at the request of a Commission member;
· a Commission member has issued an ex tempore decision;
· an appeal or administrative review application has been lodged, and/or
· there exist other valid reasons.
Audio recordings and transcripts will be made available to parties at no cost.”
Consideration
The power for a Presidential Member to intervene on appeal depends upon being able to identify and correct error.[10] The question for me to determine, consistent with the remarks of Giles JA (above) in Paterson, is whether I am of the view that I can properly and fairly undertake this task in light of the issues with the transcript.
[10] Section 352(5) of the 1998 Act; see also Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston), [19].
This is not a case where there is a complete absence of a transcript. Rather, there is a transcript which has a large number of passages which have not been able to be transcribed.
I have carefully reviewed the eighty-one page transcript. I have created a Table describing my review of the passages where the “not transcribable” phrase appears. I have omitted a small number of such entries where the meaning of what was said was evident. The Table is attached to this decision and marked with the letter “A”. I will return to Annexure “A” later in this consideration.
I would remark that no oral evidence was called by either party, the matter proceeded with both parties making submissions to the Member. Both parties were represented by experienced counsel and instructing solicitors.[11] The Member heard the matter on 30 August 2023, reserving his decision. The written decision was published on 19 October 2023 and is 23 pages in length comprising 125 numbered paragraphs. After describing the evidence, the dispositive section of the decision commences at reasons [85]. For the purposes of this appeal, the Member has at various places after reasons [85] stated, in terms, the submissions made by the appellant on a particular topic and the Member’s reasoning in response to those submissions.
[11] Transcript of proceedings 30 August 2024 (T), T 1.29–35.
The six appeal grounds can be grouped into the following three categories. The first category comprises Grounds One and Two. These two grounds take issue with how the Member dealt with the surveillance footage and the submissions flowing from that footage as it may impact on questions of the respondent’s credit as a witness and his capacity to work. I would remark that the attack mounted on the respondent’s credit was not as a result of cross-examination of the respondent. Rather for the purposes of these two grounds, submissions of a credit nature were made based on the appellant’s view of the respondent’s statement evidence and aspects of the medical evidence as compared to the surveillance footage. The Member dealt with the view that he took of the surveillance footage in his decision. Given there was no oral evidence called, I can assess the two appeal grounds on this issue by reference to the primary material referred to, the transcript that exists and by reference to the Member’s reasons.
The second category, Grounds Three and Four, in broad terms, relate to the medical evidence. The medical evidence was in written form and is available for review. I can assess the appeal submissions by reference to the transcript that exists, the primary evidence (lay and medical) and the Member’s decision.
The third and final category, Grounds Five and Six, relates to how the Member dealt with the submissions about the respondent’s hobby or business and the capacity for work revealed (or not) by those activities. The primary material that this argument was based upon is in evidence and can be examined. The Member has exposed his reasoning on these issues at reasons [92]–[103]. I am therefore able to assess the appellant’s arguments notwithstanding the transcript issues. I have read the submissions before the Member on this issue and can understand what was put.
Returning to the Member’s decision, these three categories are all dealt with by the Member from reasons [85] onwards. I do not read the appellant’s submissions as submitting that an argument that was put was not dealt with by the Member or that the argument has not been correctly repeated or summarised by the Member in his reasons.
Returning to the transcript itself, as can be seen from Annexure “A”, many of the submissions which have not been transcribed in full make reference to documents and even better still, specific paragraphs or pages of a document(s). I am therefore not troubled with this category of transcript problem, as the content of the material being quoted from can be read from the primary source.
There are some passages of the transcript where, notwithstanding the omitted part(s), the meaning or general purport of what is being submitted can be deduced from a consideration of the entirety of the transcript in the area where the passage is found.
There are some other passages where a submission has been made but the text, purport or meaning of it is not able to be discerned.
I agree with the respondent that the transcript is imperfect and this situation is less than ideal. But there is a transcript (such as it is), the evidence that was before the Member is before me, and there is a written decision. Both parties to the appeal are content for the appeal to proceed based on the material that exists. The three categories of appeal grounds I have articulated above were matters that were argued before the Member and I can follow the submissions that were put to the Member, either as they appear in the transcript and as they are described in the Member’s decision, or by reference to the primary material. I am less troubled by the circumstances in the transcript where I cannot discern the purport or content of a submission, given what is otherwise available.
I am of the view that I can discharge my duty to fairly and properly determine this appeal. I am satisfied that based on what I do have and how the appeal has been framed in the grounds, I can identify and correct error (if any) as required by s 352(5) of the 1998 Act.
THE MEMBER’S REASONS
As noted earlier, the respondent’s case is that he sustained a left knee injury on 23 January 2020 and a consequential back injury due to an altered gait. As a result of those injuries, he does not have any capacity to work.
While the appellant accepts that the respondent sustained a left knee injury on 23 January 2020, it rejected the respondent’s claim on the basis that any symptoms to the left knee resolved shortly thereafter. The appellant denied a consequential injury to the lumbar spine and any ongoing incapacity. The respondent’s credibility was raised as an issue by the appellant, particularly in terms of his capacity to work.
Credibility issue
The Member first considered the issue of the respondent’s credibility. The appellant relied on a surveillance report from Farrell’s Investigative Services dated 23 November 2021[12] which included video footage of the respondent doing various activities outside his house. The appellant argued the video footage is not consistent with someone who has unremitting back pain, significant knee pain that is causing an altered gait or someone who has any restriction whatsoever.[13]
[12] Reply, pp 99–131.
[13] T 64.17–28.
In response to the video footage, the respondent in a statement dated 14 February 2023[14] explained that the footage was taken shortly after he received a cortisone injection and he was advised by his treating orthopaedic specialist, Dr Thomas, that he should rest for three days following the injection, and after such time he should “try and live normally” and “move as much as possible to strengthen the muscles in the left knee”. He states that the cortisone injection numbed his pain which allowed him to perform tasks and manoeuvre in ways that he was otherwise unable to do. The effect of the injection did not last long and over a period of time he felt weak again.
[14] ARD, pp 11–13.
The Member noted the various activities the respondent was seen doing in the video footage which included using an edge trimmer, moving a large wheelie bin, lifting and moving a thin piece of material (with the assistance of another person) onto the back of a vehicle and using a high-pressure hose.[15]
[15] Reasons, [24]–[25].
The Member was of the view that although the footage demonstrated movements in the respondent’s lower back and left knee as a result of the various activities, the activities were not of a repetitive or sustained nature nor did they demonstrate sustained effort on the part of the respondent. The Member noted that the footage was inconclusive as to the nature and extent of the respondent’s movement of his back and left knee, as the footage was often obstructed by objects or it was cut short. The Member refused to draw an inference in respect of the respondent using a line trimmer or undertake any other fact-finding expedition in that regard.[16]
[16] Reasons, [87]–[88].
The Member accepted the respondent’s explanation that the cortisone injection improved his symptoms and noted the explanation was congruent with the medical evidence of Dr Thomas, who, in his report dated 2 November 2021[17] recorded the respondent continued to have symptoms and arranged a cortisone injection. The Member considered the subsequent report of Dr Thomas dated 30 November 2021[18] where the doctor recorded that the respondent felt symptomatically better following the injection and returned to physiotherapy. Given the good result, a second injection was scheduled early the following year.
[17] ARD, p 99.
[18] ARD, p 100.
After considering the contemporaneous medical evidence including that of treating neurosurgeon Dr Gambhir, Dr Thomas and physiotherapist Mr Wood, the Member noted that there was no history recorded in any report of restriction in the respondent’s activities, nor the extent of any restriction. The appellant’s own independent medical expert, Dr Wallace,[19] recorded the respondent was able to mow the lawn and do gardening for 20 minutes at a time, which the Member found was not inconsistent with the video footage.[20]
[19] Reply, p 72.
[20] Reasons, [90].
The Member noted that neither the respondent’s medicolegal expert, Dr Cawthorne nor Mr Wood changed their medical opinion in light of the video footage and the Member ultimately concluded that the footage did not impeach the respondent’s credit.[21]
[21] Reasons, [91].
The appellant submitted that social media posts and the respondent’s financial records discredit the respondent’s claims that he had not been involved in any self-employment work or received paid income in any occupation since ceasing work with the appellant.[22]
[22] T 68.30–70.25.
The Member concluded that the social media posts were of low probative value given the inability to decipher the “circumstances and dates of the postings, how and why they were made, and data input, output and processing of the platforms themselves”.[23]
[23] Reasons, [92].
Financial records for consideration before the Member included an ASIC Business Name Search, the respondent’s individual tax return for the financial year ending 30 June 2022,[24] BAS statements and bank statements.[25] The Member noted the tax return claimed “other business income” for the total amount of $352,324 and under “Expenses” the “cost of sales” was recorded as $348,174. In addition to other expenses, the total expenses were recorded as $361,560 resulting in a net loss of $9,236.[26]
[24] Reply, pp 144–412.
[25] Application to Admit Late Documents dated 24 August 2023 (AALD 24 August 2023), pp 1–232.
[26] Reasons, [26].
The appellant submitted that the respondent was able to conduct a business in relation to the online sale of cars or model cars which generated $352,324 in business income. The appellant said that such business involved the operation of a computer, sitting for a prolonged period, packaging model cars and delivering them to the post office all of which requires both mental and physical effort.[27] The appellant referred to the respondent’s bank statements where $13,856.12 of payments were received from “Adyen Australia” which the appellant submitted was presumably from selling model cars. The appellant carried out an internet search of Adyen Australia which appeared to be a payment process.[28] The appellant noted the respondent‘s explanation that his wife undertakes the technical side of the business as he is “technically challenged”[29] however submitted that it was inconsistent with his wife’s statement dated 13 July 2023[30] where she disclosed that she was aware that Aussie Muscle Cars is the company of her husband’s eBay account where he sells cars, although she was not involved in this. The appellant said that this contradicted the respondent’s claim that he was unfit for work as a truck driver or in any employment due to his inability to stand or sit for extended periods of time.[31]
[27] T 71.8–72.5.
[28] T 72.25–73.6.
[29] ARD, p 13.
[30] Application to Admit Late Documents dated 14 July 2023 (AALD 14 July 2023), p 2.
[31] T 74.8–29.
The respondent submitted that the sale of cars and model cars was a hobby, not a business, which commenced well before the injury, and this was consistent with the financial records.[32]
[32] T 30.28–31.3.
The Member considered the financial evidence and was of the view that the bank entries with respect to Adyen Australia were of low probative value, taking into account there was no evidence as to the reason or the period to which the payments refer.[33]
[33] Reasons, [99].
The Member carefully considered the submissions raised by each party and ultimately found that on the balance of the evidence, the respondent was undertaking a hobby rather than carrying out a business.[34] In forming his opinion, the Member referred to the definition of “hobby” and “business” in the Macquarie Dictionary where “business” in an economic sense was defined as “the sale of goods and services for the purpose of making a profit” and to “be in business” as “to earn a living from commercial activity”. The Member further considered the magnitude of revenue and reported loss noted in the individual tax return was capable of competing explanations which could not be established on the evidence. The registration of the business name on 6 March 2012 and the registration of the ABN in the respondent’s name on 1 July 2011 supports the respondent’s statement that he was engaged in a hobby for a number of years prior to the injury.
[34] Reasons, [93]–[103].
Accordingly, the Member concluded that neither the surveillance footage, social media posts nor the financial records had impeached the respondent’s credibility.
Left knee injury and consequential back injury
Submissions were made by the appellant that although the respondent did suffer symptoms in his left knee on 23 January 2020, the symptoms resolved shortly thereafter. The appellant disputed the claim of a consequential back injury.
The appellant largely relied on the opinion of Dr Wallace. The Member considered the various reports of Dr Wallace addressed to the appellant’s solicitor dated 7 July 2020,[35] 11 November 2020,[36] 20 December 2021,[37] 30 May 2022[38] and 24 August 2023.[39] Dr Wallace was of the opinion that the left knee injury was, at worst, a minor temporary aggravation of pre-existing degenerative osteoarthritis, particularly involving the medial compartment of the left knee which resolved within a month of the incident. Any ongoing left knee symptoms were due to pre-existing degenerative osteoarthritis which is constitutional in origin and unrelated to the respondent’s employment with the appellant.
[35] Reply, p 56.
[36] Reply, p 66.
[37] Reply, p 69.
[38] Reply, p 81.
[39] AALD 24 August 2023, p 233.
The appellant argued that the opinions of Dr Thomas and Dr Cawthorne should not be accepted by the Member as Dr Thomas did not express a clear relationship between the injury and the left knee pathology and Dr Cawthorne failed to identify how the respondent’s knee condition was related to work or how that was an aggravation.[40]
[40] Reasons, [105].
The respondent disagreed with the appellant’s submissions and stated that the medicolegal expert report of Dr Cawthorne should be preferred over that of Dr Wallace as Dr Wallace failed to provide a proper reasoned basis for his opinion. The respondent referred to the report of Dr Cawthorne who was of the opinion that the loud crack at the time of the incident was an osseous fragment breaking from the patella causing the worsening pain, which was subsequently removed by Dr Thomas. There was no evidence of any pre-existing knee pain before the events on 23 January 2020. Dr Cawthorne also said that the injury exacerbated pre-existing patellofemoral degenerative changes which is now the likely cause of the ongoing pain and that the back pain was caused by an altered gait.[41] The respondent submitted that as the back pain started within a few weeks of the original injury, it was close enough in time to establish a causal nexus.[42]
[41] ARD, p 70.
[42] T 14.4-8.
The Member considered the opinion of Dr Thomas[43] and rejected the appellant’s submission that Dr Thomas did not establish a relationship between the injury and the left knee pathology and condition. The Member noted at [104] of his reasons:
“In my view Dr Thomas described two areas of symptoms in the [respondent’s] left knee, being pain and mechanical symptoms in the anterior medial aspect of the knee, and also painful clicking towards terminal extension of the knee. He was of the view that the chondral fracture involving the medial aspect of the patella had held [sic, healed] in a slightly malunited position, accounting for the painful clicking. In my view Dr Thomas in his report of 18 October 2020 was of the view that employment was a substantial contributing factor to the injury, as he noted that the [respondent] denied any injury to the knee or symptoms in the knee prior to the workplace injury and the site of pain that was described by the accident at the time of the injury [sic], the [respondent] continued to have pain at that site, and in the opinion of Dr Thomas corresponded to the area of abnormality seen on the imaging and clinically.”
[43] ARD, p 76.
The Member also rejected the appellant’s submission that Dr Cawthorne did not identify how the respondent’s knee condition was related to work or how that was an aggravation.[44] The Member concluded that Dr Cawthorne carefully noted the outcome of the CT scan of March 2020, explained the cause of the loud crack at the time of the injury, explained that the injury also exacerbated pre-existing patellofemoral degenerative changes which was now the likely cause of the ongoing issues in the knee and the back. Dr Cawthorne’s opinion was not inconsistent with other doctors.
[44] Reasons, [105].
The Member concluded that Dr Wallace failed to explain how any aggravation of a pre-existing degenerative condition would cease when there was a history of continuing pain in the left knee from the date of the incident.
With respect to the back condition, the Member accepted Dr Cawthorne’s opinion that the back pain and knee pain were related, which was an opinion shared by Mr Wood. The Member applied the reasoning in Kooragang Cement Pty Ltd v Bates[45] that a common sense approach should be adopted with respect to causation, and that a painful left knee would alter the respondent’s gait, causing pain in the low back.
[45] (1994) 35 NSWLR 452 (Kooragang).
The Member then turned his attention to the issue of the respondent’s work capacity. The Member considered the definition of suitable employment contained within s 32A of the 1987 Act and noted that regard was to be had to the nature of the respondent’s incapacity and his age, education, skills and work experience. Whether the work or employment is available was irrelevant.[46] The Member accepted Dr Cawthorne’s opinion that the respondent was unfit to work as a truck driver given his physical limitations as a result of the injury. In addition to the physical limitations, the Member noted the respondent’s age, his poor literacy skills and his past lack of employment outside truck driving prevented him from gaining any employment outside of truck driving. As the respondent was unfit to work as a truck driver, the Member was satisfied that the respondent was not able to return to work in his pre-injury duties or in suitable employment.[47] The Member did not accept the appellant’s submission that the activity of selling model cars demonstrated a capacity for work and concluded that the respondent has no current work capacity and has not had work capacity since 23 January 2020.[48]
[46] Reasons, [121].
[47] Reasons, [117]–[120].
[48] Reasons, [122]–[123].
Accordingly, orders were made in favour of the respondent in the Certificate of Determination issued on 19 October 2023 which records:
“The Commission determines:
1. Pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act) the [respondent] sustained injury to his left knee as a result of injury in the course of employment with the [appellant] on 23 January 2020. I find that the effects of that injury are continuing and that the [respondent’s] employment with the [appellant] was a substantial contributing factor to the injury and the main contributing factor to an aggravation or exacerbation of an underlying pre-existing degenerative condition.
2. The [respondent] sustained a consequential lumbar spine condition as a result of injury on 23 January 2020.
3. The [respondent], as result of injury on 23 January 2020, had and has no current work capacity.
4. [The appellant is] to pay the [respondent] weekly compensation:
(a) pursuant to s 37(1) of the 1987 Act from 26 January 2022 to 22 July 2022 at the rate of $1,626.40 per week, being 80% of agreed pre-injury average weekly earnings of $2,033, and
(b) pursuant to s 38(1) and s 38(6) of the 1987 Act from 22 July 2022 and continuing at the rate of $1,626.40 per week.
5. General order as to s 60 expenses.”
GROUNDS OF APPEAL
The appellant relies on six grounds of appeal. They are as follows:
(a) Ground One: The Member erred in finding that the worker’s “credit” as a witness was not affected by the activity shown in the surveillance video footage, as described in the factual report and shown in still images.
(b) Ground Two: The Member erred in limiting his use of the surveillance video footage evidence to the issue of the worker’s credit and not considering it in relation to the issue of incapacity.
(c) Ground Three: The Member erred in rejecting the evidence of Dr Wallace that the effect of the injury was minor and temporary and in preferring the medical opinion of Dr Thomas and Dr Cawthorne.
(d) Ground Four: The Member erred in finding that the worker’s alleged lumbar spine condition was a consequential condition.
(e) Ground Five: The Member erred in failing to give any or any proper weight to the evidence contained in the financial records that demonstrated that the worker was undertaking a level of activity that was inconsistent with a finding of total incapacity.
(f) Ground Six: The Member erred by asking himself the wrong question.
LEGISLATION
Section 4(a) of the 1987 Act defines injury as follows:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
…”
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
SOME PRINCIPLES ASSOCIATED WITH THE APPROACH TO APPEALS IN THE COMMISSION
Both parties have made reference to the approach taken on appeal in the Commission. The principles associated with appeals under s 352(5) of the 1998 Act are well settled. For the appellant to succeed, error must be identified in a meaningful way[49] and then established. Both parties have referred to the leading case of Raulston and there is no dispute that the principles set out in that decision represent the correct approach to appeals.
[49] Kowalski v Repatriation Commission [2011] FCAFC 43, [21].
To this authority, given the manner in which the appeal grounds have been framed, I would also add the following consideration. The Member was involved in undertaking an evaluative judgement of the evidence and much of this evaluative approach is challenged in the appeal grounds. In Australian Air Express Pty Ltd v Langford,[50] McColl JA (Ipp and Tobias JJA agreeing) made the following observation in relation to the exercise of an evaluative judgement by a first instance decision maker:
“The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”
[50] [2005] NSWCA 96 (Langford), [15].
These are the principles I will apply in deciding this appeal.
DISCUSSION
As to Grounds One and Two
Grounds One and Two both take issue with how the Member dealt with the surveillance footage and can be conveniently dealt with together.
In Ground One, the appellant says that it brought the inconsistencies between the respondent’s evidence and the activities depicted on the surveillance footage to the attention of the Member. The appellant submits:
“The Member’s approach to the submitted inconsistency between the Worker’s activities shown on the surveillance video footage was to consider whether that evidence impugned the Worker’s credit as a witness. In doing so the Member made two critical findings. First, that the activities shown being performed by the Worker in the surveillance video footage ‘were not of a repetitive or sustained nature nor did they demonstrate evidence of sustained effort on the part of the [Worker].’ Second, the Member discounted the evidence on the basis that the footage was ‘often short or obscured by objects such as vehicles, although there were some full views of the [Worker]. On the basis of those findings the Member concluded that the surveillance video footage was inconclusive as to the level of the Worker’s movement of the alleged body parts.
The Appellant submits that the Member erred in rejecting the surveillance video footage evidence (or in ascribing it little weight) by limiting its use to the issue of the Worker’s credit and on the basis that it was ‘inconclusive’.
The Worker provided a number of statements in which he asserted that he described the pain in his left knee and lumbar spine as constant. The Worker’s statement dated 8 February 2022 is significant as the Worker describes the extent of his pain and disability roughly contemporaneous to the surveillance video footage obtained in late 2021. Although [the] Worker sought to qualify some of his evidence about the extent of his symptoms it is fair to say that the impression he has sought to give in that evidence is of significant levels of pain and restriction in his activities. When the Worker’s statement evidence is compared to the activity demonstrated by the Worker in the surveillance video footage it is clear that the footage contradicts the impression the Worker has sought to give to the Commission about his level of disability. The Appellant submits that [the] finding made by the Member that the surveillance video footage was inconclusive was not open to him on the evidence on the issue of the Worker’s credit.”[51]
[51] Appellant’s submissions, [17]–[19].
The appellant refers to the respondent’s evidence about the relief he experienced from a cortisone injection, which was said to be an explanation about his activities depicted on the surveillance footage as the injection had taken place shortly before the film was taken. The appellant says this explanation is not consistent with Dr Thomas’ history.[52] The appellant concludes by asserting that the Member’s rejection of the surveillance film, affecting the respondent’s credit, was not open on the evidence and was thus an error of law.[53]
[52] Appellant’s submissions, [20]–[21].
[53] Appellant’s submissions, [22].
In terms of Ground Two, the appellant submits that the Member erred in limiting his consideration of the surveillance film to questions of the respondent’s credit and not also considering the capacity exhibited by the worker depicted on the film. The appellant submits:
“… the surveillance video footage evidence showed that the Worker had a greater level of physical capacity than his statement evidence and the history contained in the medical evidence suggested. The Member erred in limiting the weight to be given to the surveillance video footage evidence to the issue of the Worker’s credit and in failing to take proper account of the evidence on the issue of the Worker’s incapacity.”[54]
[54] Appellant’s submissions, [26].
The respondent says that in effect Grounds One and Two suffer from a “common vice”, namely they are in fact the appellant seeking to cavil with the Member’s findings about the surveillance footage.[55] The respondent says that the approach to the film, taken by the Member at reasons [87], was an available analysis. In response to Ground Two the respondent says:
“It follows that, having regarding [sic] the film as not impugning the worker’s credit, that, additionally, it had not [sic, no] real influence on the analysis about capacity. This is because if the histories given to doctors were credible, and not discredited by the film, then the medical evidence before the Member on the question of capacity remained open for acceptance. In any event, as noted by the Member at [90]:
‘Further, the video footage was not inconsistent with the histories recorded by various doctors …’.”
[55] Respondent’s submissions, [14].
In its submission in reply, the appellant firstly makes a general submission about what the appellant says is the effect of the decision in Raulston.[56] I have read this submission but do not repeat it other than to say that I am very well acquainted with this authority. In response to both grounds, the appellant says that when the surveillance footage is considered, there is a significant issue about the respondent’s credit (Ground One) and capacity (Ground Two) and the Member was in error not to so find.
[56] Appellant’s submissions in reply, [2]–[4].
Consideration – Grounds One and Two
The Member firstly dealt with the surveillance footage at reasons [23]–[25]. This passage involved setting out factual observations about the footage and the Member confirming that he had viewed it. At reasons [25], the Member recorded what he observed:
“This video footage showed the [respondent] doing various activities, including using an edge trimmer, moving a large wheelie bin, lifting and moving a thin piece of material, being possibly wood or fibre board, with the assistance of another person onto the back of a vehicle, and using a high-pressure hose.”
I would note that on this appeal, the appellant has taken no issue with the factual accuracy of this description of what the Member observed.
As I have said above, the dispositive section of the Member’s decision starts at reasons [85]. The surveillance footage is dealt with in the following passages:
“87. Turning to the credit issues first, I have viewed the surveillance footage. In my view the footage demonstrated movements of the [respondent’s] lower back and left knee in the activities noted above. However, in my view these activities were not of repetitive or sustained nature, nor did they demonstrate evidence of sustained effort on the part of the [respondent], including in respect of moving the wheelie bin and the wood or similar material with the assistance of another person. In my view the video footage was inconclusive as to the nature and extent of the [respondent’s] movement of his back and left knee, as the footage was often short or obscured by objects such as vehicles, although there were some full views of the [respondent] performing activities. I decline to take notice or to make an inference in respect of the use of a line trimmer, as suggested by the [appellant]. As I have noted, the video evidence in this regard is inconclusive and I decline to make or take a further step in the fact finding process from my own experience of the suggested usage of that item.
88. The [respondent] also said that at the time of the video footage on 18 and 20 November 2021 he had had the benefit of a cortisone injection on 9 November 2021. The [appellant] submitted this was a convenient excuse which should not be accepted as it was given after the [respondent] became aware of the video footage by way of the s 78 notice dated 13 January 2022.
89. However, the treating reports of Dr Thomas tend to provide support for the [respondent’s] explanation. In his report dated 2 November 2021, Dr Thomas noted that the [respondent] continued to have symptoms and arranged for the [respondent] to have a cortisone injection. In his report dated 30 November 2021, Dr Thomas noted that the [respondent] had undergone an injection and review on 30 November 2021 and it was noted that the [respondent] said he felt symptomatically better following the injection and had returned to his physiotherapy sessions. Dr Thomas concluded that ‘given the good response I advised [the respondent] to have a second injection done early in the New Year’. In light of these contemporaneous treating reports of Dr Thomas, I accept the explanation provided by the [respondent] in this regard.
90. Further, the video footage was not inconsistent with the histories recorded by various doctors. Although the history recorded on 30 November 2021 by Dr Gambhir noted severe knee pain since the injury and lower back pain ‘present every day’ and ‘it gets worse on sitting in 1 position and also walking when he has the knee pain’, that same history did not record any restriction on the [respondent’s] activities nor the extent of restrictions and pain throughout any particular day. As noted above, the video footage was not inconsistent with the contemporaneous reports of Dr Thomas. Mr Wood, after the surgery in June 2021 reported improved mobility to full but with remaining tenderness of the left knee and pain after prolonged standing and soreness in the lumbar spine probably from altered gait. The report of Mr Wood dated 2 June 2022 also provides a plausible, and in my view acceptable, explanation for all the [respondent’s] movements and activities, following Mr Woods review of the video footage. Dr Wallace in his report of 20 December 2021 also recorded the [respondent] performed activities which were not inconsistent with the video footage, for example ability to do some home maintenance activities of mowing and gardening for 20 minutes at a time. Dr Cawthorne recorded that the [respondent] was no longer able to mow the lawn but could clean within the house in short intervals; the [respondent] was still able to drive but with pain; and that the [respondent] owns 14 old cars which he fixes up as a hobby but is no longer able to get under the cars repeatedly due to the pain in his knee.
91. In summary, I am not persuaded that the [respondent’s] credit is impeached by the video footage provided by the [appellant]. This conclusion is supported by the views of Dr Cawthorne and Mr Wood, who did not change their opinion in light of the video footage. I do not accept the [appellant’s] submissions in this regard.”
I accept the appellant’s submission in reply about what is required for appellate intervention according to Raulston.[57] In short, a credibility finding may be overturned if it is shown to be wrong. The task for the appellant, as acknowledged in the submission I have referenced, is to show that the Member was wrong.
[57] Appellant’s submissions in reply, [4].
The appellant asserts that the surveillance footage reveals an inconsistency with the respondent’s claimed level of disability and that the Member was wrong to not find this.
I have reviewed the respondent’s statements.[58] The statements, as are very commonly the case in personal injury litigation, describe the accident, the medical treatment, as well as an account about various activities the respondent can perform, cannot perform, or can only perform with some degree of pain and discomfort.
[58] ARD, pp 1–13.
In the respondent’s second statement[59] he describes his disabilities from paragraph [14] onwards.[60] At paragraph [26],[61] the respondent says that “[i]t is hard to go through with daily activities …”, not that he cannot partake in daily activities. In the next statement,[62] the respondent goes into further detail about what he can do, commencing beneath the heading “Symptoms”.[63] Again he describes various activities that he does engage in from paragraph [41], including “household duties”, mowing, buying groceries, struggling to maintain and drive classic cars, and attempting to pull start a gurney.[64] The respondent describes his pain and/or restriction while doing these activities, noting he takes rests when he needs to. The fourth statement deals with the “CCTV footage”,[65] including making reference to the footage being filmed while the respondent was experiencing some relief after receiving a cortisone injection.[66]
[59] ARD, p 4.
[60] ARD, p 5.
[61] ARD, p 6.
[62] ARD, p 7.
[63] ARD, p 8, [20] and following.
[64] ARD, p 10.
[65] ARD, p 11, [1]–[8].
[66] See ARD, p 11, [2]–[3].
None of the respondent’s statements put his condition as highly as the appellant submits nor does he say that he is unable to engage in day-to-day tasks. The respondent does report discomfort undertaking these activities, but the statements reveal how he endeavours to manage. The essential submission made to the Member and on appeal[67] is that these statements are contradicted by the surveillance film and the Member was wrong not to have found so. I do not accept this submission. In my opinion there is broad correlation between what the respondent says he can do, in his statement evidence, and that which is disclosed on the film. There was not a contradiction between the film and the respondent’s evidence that required the Member to resolve the asserted conflict in the manner submitted by the appellant.
[67] Appellant’s submissions, [19].
The Member was exercising an evaluative judgement[68] on matters of what are genuine considerations of fact and degree. He was not persuaded by the appellant’s argument, with the result that the attempt to impeach the respondent’s credit was not successful. This was a decision within the province of the Member as a first instance fact finder and was an entirely available decision based on the evidence. There is no error established.
[68] See Langford above.
Additionally, the Member, as he was entitled to do, accepted the respondent’s explanation about the relief experienced from the cortisone injection, supported by Dr Thomas’ opinion and evidence about when the injection was administered.[69] Now the appellant takes issue with what the doctor did not say, namely that the “doctor did not state that the Worker’s symptoms had been relieved, as the need to continue attending physiotherapy attests.”[70] With respect to the appellant, this submission is a non sequitur. The fact that the respondent experienced some relief and still required physiotherapy treatment does not prove the appellant’s point. This is because the respondent has never said that he has completely recovered. The appellant has not been able to show how the Member was wrong in his treatment of the injection and Dr Thomas’ support of the respondent’s explanation.
[69] Reasons, [89].
[70] Appellant’s submissions, [20].
Error has not been established, Ground One is dismissed.
Ground Two says that the Member erred in limiting the use of the surveillance film to credit issues only and not considering its impact on the respondent’s capacity for work. The appellant says the film revealed a far greater level of physical capacity than the statement evidence and the histories contained in the medical evidence.[71]
[71] Appellant’s submissions, [26], which is set out in full above.
The Member at reasons [86] said “[the appellant] also put into issue the [respondent’s] credit, particularly with respect to capacity for work and also in [respect] of inconsistencies said to have been recorded in medical histories.” The Member found that the respondent’s credit was not “impeached by the video footage”.[72]
[72] Reasons, [91].
Once this finding is made, it applies pari passu to the question of capacity. Credit in this respect is not divisible. If one reads how the Member recounted the appellant’s submission at reasons [86] which I have set out in the preceding paragraph, it was clear that the credit issue was to be considered with respect to capacity. Whilst the Member did not then proceed to deal specifically with the credit issue as it applied to the question of capacity, in terms, having made the credit finding that he did, namely that the respondent’s credit was not impeached by the film, this failure cannot affect the result.[73] Having found the respondent’s credit remained intact, the failure to then deal specifically with capacity cannot affect the result. If the error does not affect the result, as is the case here, this Ground also must fail.
[73] See Walshe v Prest [2005] NSWCA 333, [27], per Basten JA.
In Ground Two I should note that the appellant also points to inconsistencies between the film and the histories contained in the medical evidence. The appellant does not identify the medical evidence that it relies on in support of this aspect of the submission in Ground Two. The Member dealt with the surveillance footage and the histories in various medical opinions at reasons [90], and reached the conclusion that he did at reasons [91]. The appellant has not submitted why the considerations at reasons [90] were wrong and has not identified with any precision the histories that should have been considered. Error has not been established on this specific complaint.
Ground Two is dismissed.
As to Ground Three
In terms of Ground Three, the appellant asserts that the Member was in error when he preferred the opinions of Drs Thomas and Cawthorne over that of the appellant’s Dr Wallace. This was on the critical question of the cause(s) of the ongoing symptoms in the respondent’s left knee.
The appellant asserts the following about the opinion of Dr Thomas:
“In rejecting Dr Wallace’s opinion, the Member referred to the opinions of Dr Thomas which was to the effect that the Worker suffered a chondral fracture of the left knee on 23 January 2020 and exacerbation of pre-existing patella-femoral changes. The Member noted that Dr Thomas described two areas of symptoms in the Worker’s left knee: mechanical symptoms in the anterior medial aspect and painful clicking on extension. Dr Thomas ascribed those symptoms to a chondral fracture in the medial aspect of the patella that was malunited and degenerative changes in the knee joint. However, the doctor did not provide any clear causal mechanism for the mechanical symptoms that he identified.
The Member correctly noted that Dr Wallace did not agree that the chondral fracture was caused by the injury on 23 January 2020. The Member discounted Dr Wallace’s view on the basis of the observations made by Dr Thomas about a ‘clicking noise in the knee’ and ‘MRI imaging showing a possible bony abnormality in the medial aspect of the patella …’ However, those observations and possible evidence on the MRI scan fall well short of supporting the conclusion that the Worker suffered a chondral fracture at the time of the Injury.”[74]
[74] Appellant’s submissions, [28]–[29].
Turning to the opinion of Dr Cawthorne, the appellant submitted the following:
“Dr Cawthorne went on to state his opinion that the Worker suffered a detachment of an osseous fragment from the patella at the time of the Injury. Notably however, Dr Cawthorne stated that the cause of the Worker’s ongoing left knee symptoms was due to ‘patella-femoral degenerative changes which is now likely the cause of the ongoing issues both in the knee and his lower back, due to the altered gait/stance mechanics.’ Dr Cawthorne asserted that the patella-femoral degenerative changes in the Worker’s left knee had been ‘exacerbated’ by the Injury. However, the doctor did not provide any reasoned opinion or basis for that assertion and it amounts to no more than a ‘bare ipse dixit’.
The Appellant submits that on a proper comparison of the opinions of Dr Thomas and Dr Cawthorne it is clear that the doctors did not agree on the cause of the Worker’s left knee symptoms, contrary to the finding made by the Member. Rather Dr Cawthorne’s opinion as to the cause of the ongoing left knee symptoms complained of by the Worker is consistent with the opinion of Dr Wallace, namely underlying degenerative changes in the Worker’s left knee. The difference in opinion between them is that Dr Wallace considered that any aggravation or exacerbation of those underlying changes would have been transient whereas Dr Cawthorne asserts the exacerbation is ongoing, without providing a reasoned basis for that view.”[75]
[75] Appellant’s submissions, [32]–[33].
The appellant refers to the approach that is taken by the Commission with respect to expert evidence,[76] citing r 73 of the Personal Injury Commission Rules 2021 (the Rules) and authorities such as Hancock v East Coast Timber Products Pty Limited,[77] South Western Sydney Area Health Service v Edmonds,[78] and my decision in Brannigan v Elbon Consulting Services Pty Limited.[79]
[76] Appellant’s submissions, [34]–[38].
[77] [2011] NSWCA 11; 8 DDCR 399 (Hancock), [83], per Beazley JA (Giles and Tobias JJA agreeing).
[78] [2007] NSWCA 16 (Edmonds).
[79] [2021] NSWPICPD 27, [136] (Brannigan).
The appellant concludes its submission in the following terms:
“For the opinion of Dr Cawthorne that the Worker suffers from ongoing left knee symptoms due to exacerbation of underlying degenerative changes to have been given weight by the Member required the doctor to have provided sufficient reasoning to establish a proper basis for its acceptance. The doctor did not do so. Rather he merely asserted that there was an ongoing exacerbation without explaining the basis for doing so. As such, Dr Cawthorne’s opinion did not meet the fundamental requirements for acceptance of and weight being afforded to his medical opinion on that issue. The Member erred in giving weight to Dr Cawthorne’s opinion in those circumstances.
The Member also placed significant weight on the Worker’s evidence that he did not suffer knee pain prior to the Injury on 23 January 2020. While that is a relevant consideration it cannot supplant the need for persuasive medical evidence. Reliance on that evidence without a proper medical basis for a finding that there was an ongoing exacerbation amounts to no more than the application of the fallacy ‘post hoc ergo proper hoc’; that because something occurs after an incident it must be caused by the incident. Without more the Member’s reliance on the evidence of the Worker constitutes an error of law.”[80]
[80] Appellant’s submissions, [39]–[40].
In response to Ground Three, the respondent states that Ground Three is, in effect, merely a case of cavilling with the Member’s decision. The respondent states that preferring one medical case over another does not disclose error. The respondent asserts that Hancock is of no use to the appellant, rather it is a case about the weight to be given to evidence.
In reply the appellant says that the respondent has failed to meaningfully address the arguments raised in this ground and his submissions should be rejected.
Consideration – Ground Three
The Member summarised the salient aspects of the medical evidence at reasons [27]–[84]. The dispositive sections of the decision on the question of the respondent’s left knee appear at reasons [104]–[108].
Dr Wallace for the appellant reviewed the respondent and recounted his findings in his first report dated 7 July 2020.[81] The doctor examined the investigations of the respondent’s left knee and his observations appear at page 59 of the reply, before stating his diagnosis that the 23 January work injury was a “[m]inor aggravation of pre-existing degenerative osteoarthritis left knee - now resolved”, and later, “Mr Andersen’s left knee injury of 23 January 2020, some 21 weeks ago, has resolved. At that time, at worst, he suffered a minor temporary aggravation of pre-existing degenerative osteoarthritis, particularly involving the medial compartment of the left knee which would have settled within a month of this incident.”[82] Dr Wallace is provided with further information and re-examines the respondent on 16 December 2021. The information supplied includes further medical evidence and surveillance footage, and in four supplementary reports Dr Wallace adheres to his original opinion.[83]
[81] Reply, p 56.
[82] Reply, p 60.
[83] Reports dated 11 November 2020, reply, p 66; 20 December 2021, reply, p 69; 30 May 2022, reply, p 81; 24 August 2023, AALD 24 August 2023, p 233.
With respect to Dr Wallace’s opinion, the Member opined that “Dr Wallace in my view did not explain how the effects of such an aggravation would cease when there is a history of continuing pain in the left knee from the date of the accident …”.[84] The appellant makes no challenge to this finding on appeal.
[84] Reasons, [108].
As is evident, the Member preferred the opinions of Drs Thomas and Cawthorne. Dr Thomas was the respondent’s treating orthopaedic surgeon. In his report of 18 October 2020,[85] the doctor noted bony irregularities on both x-ray and MRI scans. The doctor said, “… it appeared he has a chondral or possible osteochondral fracture involving the medial aspect of the patella, which has healed up in a slightly angulated position and is accounting for his clicking and sharp pain.”[86] I would record that Dr Wallace did not agree that there was evidence of an osteochondral fracture.[87] The appellant says that the doctor’s observations of a bony abnormality “fall well short of supporting the conclusion that the Worker suffered a chondral fracture at the time of the injury.”[88]
[85] ARD, p 76.
[86] ARD, p 77.
[87] Reply, pp 60, 67.
[88] Appellant’s submissions, [29].
Dr Thomas noted that despite conservative treatment, the respondent’s symptoms had not improved after 6 months post the injury.[89] Dr Thomas operated on the respondent undertaking a “left knee arthroscopy, excision of bony spur medial facet of patella.”[90] The doctor subsequently noted that “the bony spur/malunited osteochondral fracture was debrided”.[91]
[89] ARD, p 77.
[90] Operation report 2 June 2021, ARD, p 95.
[91] ARD, p 96.
Dr Cawthorne examined the respondent on 4 May 2022 and at ARD page 70 reviewed the various investigations before positing the following:
“It is my opinion that Mr Andersen has ongoing knee pain as a result of an injury he sustained in the course of his work place duties on 23/01/2020. The cause of the loud crack at the time was an osseous fragment breaking from the patella causing the worsening pain. This was subsequently removed by Dr Thomas. This injury also exacerbated pre-existing patellofemoral degenerative changes which is now likely the cause of his ongoing issues both in the knee and his lower back, due to altered gait/stance mechanics.”[92]
[92] ARD, p 70.
The appellant says that Dr Cawthorne’s opinion that the aggravation is ongoing is unreasoned, it does not have a satisfactory basis such that it can be relied upon and hence the Member was in error to rely on it.
With respect to the appellant, I do not consider that this is a fair reflection of Dr Cawthorne’s opinion. I accept that the doctor’s reasoning is not lengthy, however at ARD page 70 he has examined the investigations of the left knee and made a number of remarks about what he saw. The doctor noted the “irregular bone at the medial edge of the patella” on x-ray.
Reading the doctor’s opinion, I think that it is reasonably clear that the doctor attributes the ongoing pain to two sources based upon his examination of the respondent and the investigations. The two sources of pain are the osseous fragment breaking and an exacerbation of pre-existing degenerative changes.
Both Dr Thomas and Dr Cawthorne attribute the respondent’s condition to the bony spur. In finding that the doctors’ opinions in this discrete regard were consistent, the Member was not in error. Dr Thomas posited no opinion about the presence of degenerative changes in the respondent’s knee. However both Drs Wallace and Cawthorne agree that they are present; where they diverge is whether any ongoing symptoms are attributable to the accident or are in fact evidence of this undisputed underlying condition. On this question both Dr Wallace and Dr Cawthorne give very short opinions. Dr Cawthorne specifically attributed the exacerbation of the degenerative changes to “this injury”, meaning the breaking of the “osseous fragment”. I would note that this is consistent with what Dr Thomas described on operative intervention which I have set out at [102] above. This was the reason he relied upon. I therefore do not accept the appellant’s submission that this aspect of the opinion is unreasoned.
In any event, the process that the Member was engaged in was the evaluative exercise discussed in Langford. The Member examined the evidence and plainly preferred the evidence of Drs Thomas and Cawthorne for the reasons expressed. I do not accept that this involved error on the Member’s part. As error has not been established, Ground Three has not been established.
As to Ground Four
In terms of Ground Four, the appellant contends that “the Member did not provide any proper reasons for his acceptance of Dr Cawthorne’s opinion that the lumbar spine symptoms were [a] consequential condition.”[93] The appellant then proceeds to submit that the doctor’s opinion was not reasoned and was thus a bare ‘ipse dixit’. The appellant submits that Dr Cawthorne’s opinion should not have been accorded any weight.
[93] Appellant’s submissions, [46].
Turning to the physiotherapist, Mr Wood, the appellant submits that his evidence should have been given “limited weight.”[94] The appellant says that Mr Wood’s comment of “increased low back pain after an injury altered his gait”, relied upon by the Member is opaque, and it is not clear whether it is a recording of a history taken or Mr Wood’s own opinion. If it is an opinion, the appellant says that it is not supported by reasons.
[94] Appellant’s submissions, [44].
Finally, the appellant says that the reliance on Mr Pappas’ physiotherapy notes by the Member was in error. The appellant says that the notes properly construed do not support the finding of the respondent suffering altered gait and hence a consequential lumbar condition.[95]
[95] Appellant’s submissions, [45].
In reply the respondent says that the Member’s reasons were contained in “six [discrete] paragraphs (in addition to the general analysis given to the facts of the case elsewhere in the reasons).”[96] The respondent says that it was the Member’s approach to the consequential lumbar condition of applying the common sense test from Kooragang and hence it was not surprising that the reasons were not lengthy. The respondent says that he gave evidence on this issue and his credit had not been impugned.
[96] Respondent’s submissions, [27].
In its response submissions, the appellant simply says that the respondent failed to address its arguments.
Consideration – Ground Four
The Member’s reasoning on this point can be found at reasons [109]–[114].
Dr Cawthorne took a history from the respondent in relation to his lumbar spine as follows:
“Right sided lower paravertebral pain. It is worse at the end of the day following walking and is related to the left knee pain. It does not radiate and is described as ‘sore and stiff’. It is improved with heat-packs and lying with his knees and hips flexed.”[97]
[97] ARD, p 68.
Having taken this history, the doctor then posits the following opinion in answer to a direct question about whether the respondent’s lower back pain is a consequential injury:
“Yes. With his altered stance and reported alteration in activities secondary to his knee pain, it is more probable than not that his musculoskeletal back pain developed from this and therefore is a consequential injury.”[98]
[98] ARD, p 71.
For the appellant, Dr Wallace says that there is “no objective medical evidence that he suffered any work-related injury at his lumbar spine whilst in the employ of Toll Group.”[99] The doctor says any lumbar pain relates to pre-existing degenerative changes in the lumbar spine. I note that on appeal, the appellant does not submit that how the Member dealt with Dr Wallace’s opinion[100] was wrong, rather the appellant says that the respondent’s evidence, for the reasons I have set out above, was insufficient to substantiate the finding that there was a consequential lumbar injury.
[99] Reply, p 74.
[100] Reasons, [112].
I accept that the authorities relied upon by the appellant[101] represent the approach to expert evidence in the Commission. The question is whether in this case the application of these authorities to the Member’s reasoning reveals error. The appellant correctly notes that the Member preferred the opinion of Dr Cawthorne to that of Dr Wallace. There is no error in this approach as Dr Wallace, as the Member noted, did not apply the correct test.[102] This is not challenged on appeal. The appellant does however contend that the Member did not provide proper reasons for why he accepted Dr Cawthorne’s opinion, which is criticised as an ‘ipse dixit.’
[101] Appellant’s submissions, [35]–[38].
[102] See reasons, [112].
The requirement to give reasons is defined by s 294(2) of the 1998 Act in combination with r 78(2) of the Rules. This duty is not the same duty as applies to judicial officers.[103] These principles have not been referred to nor has any submission been developed to show how the Member’s reasons failed to meet the requisite standard. Rather there is a broad assertion that there were no proper reasons setting out why Dr Cawthorne’s opinion was accepted.
[103] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136] and following, per Kirk JA.
The starting point for considering this submission begins with this proposition; reasons are read as a whole.[104] The Member summarised the evidence of Dr Cawthorne at reasons [55]–[67]. The history of the development of back pain and his opinion about the cause is referenced at reasons [58], [60], [61], [62] and [63]. There is no challenge to the accuracy of the Member’s description of the doctor’s views which are recounted in these paragraphs. As I have described above, the dispositive reasoning on this issue commences from reasons [109]. The Member in these passages also examined other aspects of the evidence where support for the assertion of a consequential injury could be found, namely that which was identified in the histories taken by Dr Gambhir, Mr Pappas and Mr Wood.
[104] Beale v Government Insurance Office (NSW) (1997) NSWLR 430, 444.
A fair reading of the decision reveals that the Member was satisfied that the respondent has suffered a consequential back injury and there was support for this finding in the evidence as the Member identified. This finding is even more available once one considers that the opinion of Dr Wallace has fallen away for the unchallenged reasons at [112]. The Member’s reference to Kooragang[105] is apt, Dr Cawthorne had made findings about the left knee pain leading to the consequential adverse effect this had upon the respondent’s gait and stance. The doctor’s reason are succinct, no submission has been made that they are wrong or not available, merely that they are unreasoned. This submission cannot be accepted. Dr Cawthorne’s reasons were not lengthy but they do not have to be. The path of reasoning to the ultimate opinion, which has to be exposed, is readily evident. I do not accept the description of Dr Cawthorne’s opinion as an ipse dixit.
[105] Reasons, [114].
Ground Four has not been established. Ground Four is dismissed.
As to Grounds Five And Six
The appellant asserts in Ground Five that the respondent’s involvement in his model car business demonstrated that he had a “significant residual earning capacity”[106] and the Member should have so found. The evidence about this business, the appellant submits, when given “proper weight” goes directly to the respondent’s capacity for work and the failure to give it proper weight is an error of law.[107]
[106] Appellant’s submissions, [55].
[107] Appellant’s submissions, [53].
In response, the respondent says that “the ‘proper weight’ to give to evidence is a matter solely within the discretion of the decision maker, in this case, the member below.”[108] The respondent points to evidence referred to at reasons [12], [20] and [21] as supporting the findings made by the Member that the respondent’s hobby did not demonstrate capacity for work.
[108] Respondent’s submissions, [31].
In its reply submission, the appellant says that in dealing with this ground the respondent’s argument fails to understand the relevance of the approach in House v King.[109]
[109] [1936 ] HCA 40; 55 CLR 499, 504–5 (House).
With respect to Ground Six, the appellant argues that the Member asked himself the wrong question. Namely whether the respondent’s “model car sales activity was a business or a hobby, rather than addressing the proper question – whether the activities engaged in by the [respondent] demonstrated an earning capacity in suitable employment.”[110] The appellant points to reasons [122] as being demonstrative of this error in approach. The appellant says that due weight ought to have been given to the capacity that this activity revealed for the purposes of the considerations required under s 32A of the 1987 Act. Additionally it is said that the respondent’s medical evidence failed to consider the evidence about this activity in terms of the sale of model cars.
[110] Appellant’s submissions, [56].
Finally the appellant submits that the Member’s rejection of the evidence that the respondent could work as a mail sorter disclosed error. The appellant submits the following:
“The Member states as a reason for rejecting that evidence that Dr Wallace had not provided an analysis of the suitability of that job. That is, with respect, not the correct test or approach. The Member was required to consider the suitability of that role in light of all of the evidence, and not simply reject it because it was not the subject of comment by Dr Wallace. When viewed in the context of the type of activity the Worker would have performed in generating the substantial sales revenue in his model car sales business the suitability of the role of a mail sorter was [a] live issue, which could not simply be rejected in the way the Member did.”[111]
[111] Appellant’s submissions, [60].
In reply, the respondent submits:
“35. The formulation of this ground is respectfully obscure. From the submissions given in support of same, from [56] onwards, it is understood that the allegedly ‘wrong question’ was whether the model car business was a business or a hobby.
36. Of course, this question, so formulated, was not the ultimate issue. The ultimate issue was whether the worker had capacity. The member was mindful of, and cited s 32A of the Workers Compensation Act 1987 which modifies the common law test of employability in determining an entitlement to weekly benefits under that act. At para [121] the member correctly directed himself in law by saying that:
‘The definition of suitable employment is contained within s 32A of the 1987 Act. Among other matters, regard is to be had to the nature of the [respondent’s] incapacity and the [respondent’s] age, education, skills and work experience. Regard is not to be had to such matters as whether or not the work or employment is available, and the nature of the worker’s pre-injury employment.’
37. However, the factual matrix being such that it was, including reference to this business or hobby activity, meant it was appropriate, but not necessary to characterise the nature of that undertaking before considering what it meant on the question of capacity. It appears from para [101] of the reasons, that the member ultimately did not regard it as necessary to answer the question that Ground 6 complains was answered in preference to the correct question. In this paragraph the member said:
‘This view of the [respondent’s] activity as a hobby in my view is consistent with the [respondent’s] submission that an explanation for the magnitude of the revenue recorded could include the sale of valuable collector cars. It is not necessary to accept the [respondent’s] contention on this point … and it might be implied that [the revenue] may be an indicator that amount received was in respect of a business activity, not a hobby.’
38. Therefore, it is clear that [the] member was aware that, ultimately, he did not need to decide that question. This does not render the conclusion at [103] that the hobby had not evolved into a business inappropriate. Rather, there had been submissions made about the nature of the activity and its proper character, and the member considered those arguments.
39. The member returned to this issue, after considering medical and other matters, at para [122] when he said (emphasis added [by respondent]):
‘I have not accepted the [appellant’s] submissions that the activity performed by the [respondent] in respect of model cars was a business for which he had demonstrated a capacity for work. I have found that the [respondent] was engaged in a hobby in this regard and his activities cannot be regarded as work as they are in the nature of a pastime or a recreational activity. I have had regard to the [respondent’s] age, limited skills, and narrow scope of work experience over his working life. I have not accepted the [appellant’s] mail sorter document on the basis that an application of that document to the [respondent’s] particular circumstances was not made, and an analysis was not made by Dr Wallace in this regard. In my view, this not a real job that is available to the [respondent].’”
In its response submission, the appellant maintains its argument in chief that the characterisation of the activity as a “hobby” infected the Member’s approach and thus produced error.[112]
[112] Appellant’s submissions in reply, [14].
Consideration – Grounds Five and Six
In terms of Ground Five, I do not consider that the appellant’s complaint about the Member’s approach is a fair reflection of what he found. At reasons [122] the Member found as follows: “I have not accepted the [appellant’s] submissions that the activity performed by the [respondent] in respect of model cars was a business for which he had demonstrated a capacity for work. I have found that the [respondent] was engaged in a hobby in this regard and his activities cannot be regarded as work as they are in the nature of a pastime or a recreational activity.” The Member clearly links his decision in this regard to the “activities”, having correctly identified this as the correct approach at reasons [100] where he said: “The [appellant] was correct in its submission that a profit is not determinative in the consideration of the work performed, and the [respondent’s] capacity, in the conduct of a business.” The question about whether the sale of model cars was a business or a hobby was how the Member approached the activities actually performed by the respondent in order to appropriately characterise them. The appellant raised this issue for determination about the sale of model cars and it was necessary for the Member to deal with that argument.
The appellant nevertheless says that this is a House type error, without specifying exactly which of the circumstances set out in House has been offended. My assumption is that the House category which is said to have been offended is that the Member “ … does not take into account some material consideration.”[113]
[113] House, 505.
The Member has simply found against this argument. The Member weighed the evidence about the model car activity and did not find that it affected his decision regarding capacity for work. Capacity was clearly considered, so one cannot say that this “material consideration” was not taken into account. The asserted House error has not been established.
No error has been established in Ground Five. Ground Five is dismissed.
Ground Six in terms challenges the Member’s approach to the whole question of the capacity exhibited in the respondent’s model car sales undertaking as not being consistent with the requirements for “suitable duties” in s 32A of the 1987 Act.[114]
[114] Appellant’s submissions, [58].
“Suitable employment” in s 32A of the 1987 Act is defined as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
At reasons [119] the Member said the following about the respondent:
“In his statements, the [respondent] said that he had been a truck or delivery driver since he was 17 years old and he had no other skills besides driving large vehicles. He stated that the medication he takes for his injuries makes him drowsy and tired throughout the day. The [respondent] also stated that he has poor literacy and he struggles with spelling and writing. He stated that he can only walk for short periods and he struggles with bending and picking things up. He also stated that he is ‘technically challenged’. He is now 54 years of age.”
The Member then summarised the definition of suitable employment in s 32A of the 1987 Act at reasons [121] before reaching the following conclusion at reasons [122], after finding that he did not regard the model car activities demonstrated a capacity for work:
“I have had regard to the [respondent’s] age, limited skills, and narrow scope of work experience over his working life. I have not accepted the [appellant’s] mail sorter document on the basis that an application of that document to the [respondent’s] particular circumstances was not made, and an analysis was not made by Dr Wallace in this regard. In my view, this [sic] not a real job that is available to the [respondent].”[115]
[115] Citing Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
I do not consider that the appellant’s argument that the Member asked himself the wrong question is a fair reflection of the Member’s approach at reasons [122]. Section 32A talks about “work for which the worker is currently suited.” The Member’s approach was to examine the model car activities and he characterised them as not being “work” for s 32A purposes.[116] No issue is taken with this determination other than to label it as a “narrow approach”,[117] rather the appellant says that the focus ought to have been on the capacity exhibited in undertaking this “hobby’’. The Member at [119] (set out above at [136]) described the respondent’s skills and experience as well as the limitations that exist with respect to his physical capacity for work before making his finding that the model car activity did not demonstrate a capacity for work.[118] In part this was made on the basis of the finding that the activity was a “hobby”, but that in my view reads the decision too narrowly. The Member had extensively canvassed the worker’s injuries, incapacities, and the model car activity. The Member then turned his mind directly to the requirements of s 32A which I have set out above . There was no error in this approach, rather it was the Member undertaking an evaluative assessment of all relevant matters in reaching his ultimate finding. This was an exercise of fact and degree of the nature referred to in Langford. No error has been established.
[116] Reasons, [122].
[117] Appellant’s submissions, [58].
[118] Reasons, [122].
Finally, the appellant takes issue with the Member’s dismissal of Dr Wallace’s opinion that the respondent has the capacity to work as a mail sorter or a postman. The Member dealt with this issue at reasons [117].
The relevant opinion of Dr Wallace on the question of fitness to be a mail sorter or postman is contained in his report dated 24 August 2023:
“As the claimant has been engaged in running his own business on the eBay store selling hobby diecast model cars and seen on surveillance moving delivery boxes to and from the post office on a trolley out of his car, would you agree the claimant would have capacity to perform the duties of a mail sorter or post-man?
I agree based on the surveillance evidence that Mr Andersen would currently have the capacity to perform the duties of a Mail Sorter or Postman.”[119]
[119] AALD 24 August 2023, p 235.
With respect to Dr Wallace, he was merely being asked to “agree” (or not) with the appellant’s solicitor’s proposition as contained in the question. The doctor responds to what I consider to be an inadequate question. For the doctor’s answer to be of any probative value for s 32A purposes, it had to engage with the provisions of that section. Additionally, the doctor answers a question which is posited on a very narrow basis, namely the surveillance footage only. There is no description by the doctor of what he understands a mail sorter or postman does in order to substantiate his opinion, which is unreasoned. The Member was entirely correct to deal with this argument in the manner he did at reasons [117]. No error has been established.
Ground Six is dismissed.
DECISION
The Certificate of Determination dated 19 October 2023 is confirmed.
Judge Phillips
PRESIDENT
21 October 2024
Annexure A
Review of transcript of proceedings No. W3898/23 on 30 August 2023
| Topic | Pages | Is there a material problem with the transcript | |
| 1 | Objections to evidence by respondent employer | Pg 2-7 | No, despite gaps in the material the objectives are readily ascertainable |
| 2 | Amend ARD General Order s 60 | Pg 8 & 9 | No, application is readily apparent |
| 3 | Submission re altered gait and a consequent back injury | Pg 11, line 13 | No, submission can be understood |
| 4 | Submission about injury | Pg 11, lines 25-30 | Submission is incomplete and confusing as it reads |
| 5 | Submission about the circumstances of the injury | Pg 12, lines 15-17 | No, can be read or ascertained from ARD and statement of worker |
| 6 | References to worker’s statement | Pg 14, paras 3 & 4 | No, references to paragraphs in statements are clear |
| 7 | References to worker’s statement | Pg 16 | No, references to pages in statements are clear |
| 8 | Submissions about film | Pg 17, paras 1, 2 & 3 | Despite gaps in transcript, purport of submission can be understood |
| 9 | Reference to Dr Cawthorne’s report p 74 | Pg 19, line 20 | No, meaning able to be ascertained from doctor’s report |
| 10 | Submission | Pg 20, lines 7-8 | The content of the submission and its conclusion cannot be ascertained |
| 11 | Submission re MRI | Pg 20, line 23 | No, meaning is ascertainable |
| 12 | Unidentified speaker | Pg 21, line 8 | Not possible to ascertain what was said |
| 13 | Submissions | Pg 21, lines 11-12 | No, submission can be understood |
| 14 | Submission | Pg 21, line 33 | No, meaning of submission can be ascertained |
| 15 | Submission | Pg 22, line 8 | No, purport of submission criticising medical opinion can be understood |
| 16 | Submission | Pg 23, line 16 | No, purport of submission criticising medical opinion can be understood |
| 17 | Submission | Pg 23, line 26 | No, purport of submission criticising medical opinion can be understood |
| 18 | Submission | Pg 24, para 1 | Submission cannot be understood |
| 19 | Submission | Pg 24, line 10 | No, there is a reference to a report and page number, submission can be understood |
| 20 | Submission | Pg 25, line 5 | This is the end of a submission about the GP’s opinion, cannot know what was said in an apparent conclusion |
| 21 | Submission | Pg 25, lines 17-18 | No, submission about a medical report able to be understood |
| 22 | Submission | Pg 26, lines 3-4 | Final line of submission cannot be understood |
| 23 | Questions about time | Pg 26-27, lines 21- 4 | Not material at all |
| 24 | Quote from a doctor’s report | Pg 27, lines 15 & 20 | Not material, reference to a report |
| 25 | Submission about medical report | Pg 28, lines 7 & 12 | The purport of what is being submitted can be understood despite the transcript omissions |
| 26 | Submission about Dr Wallace | Pg 28, para 3. | There are 4 transcript errors in this single paragraph. It is a submission about Dr Wallace’s opinion. The paragraph is clearly critical of the doctor as are the subsequent paragraphs. This paragraph cannot be understood but its general tenor is able to be understood |
| 27 | Submission about Dr Wallace | Pg 29, para 2 | There are 2 omissions in this paragraph. It is not possible to know precisely what was said, but the general thrust of the submission is to the effect that the opinion is not persuasive |
| 28 | Submission about social media/ surveillance material | Pg 30, para 1 | Sense of paragraph can be understood, not material |
| 29 | Submission about payments made | Pg 31, line 23 | The general thrust of the entire paragraph is apparent but what is omitted cannot be discerned |
| 30 | Submission about back injury | Pg 32, line 10 | The submission is apparent, despite the omission, when this paragraph is read in conjunction with the subsequent paragraph that this submission is about the worker’s altered gait causing his lumbar injury |
| 31 | Member’s question | Pg 32, line 32-24 | While the purport of the question being asked is not clear, the answer is clearly transcribed |
| Pg 33, line 15 | Member’s question has 3 omissions but enough has been transcribed to understand that the question is directed to a Presidential decision | ||
| Pg 33, line 24 | Answer is to previous question and is only partly transcribed. Not possible to discern what else may have been put | ||
| 32 | Submission | Pg 33, final para | There are 2 omissions in the opening statement by the respondent, whilst it is not possible to discern what was said, this is the opening sentence of the reply submission and does not appear to be a material omission |
| 33 | Respondent’s submissions | Pg 34, para 1 | There are 4 omissions in this paragraph. The sense of what is being said where the first two omissions are located can be discerned. However the final two omissions at lines 11 + 12 are such that one cannot understand the purport of what was put |
| 34 | Respondent’s submissions | Pg 34, para 2 | There are 3 omissions within this single paragraph. This paragraph, when taken with the subsequent 3 paragraphs, can be understood as the respondent’s submission in support of Dr Wallace’s opinion. Not a material omission |
| 35 | Submission | Pg 35, line 13 | No, it is apparent that the remark is about a named doctor |
| Pg 35, line 18 | No, this references a page in a doctor’s report which can be located and read | ||
| 36 | Submission | Pg 36, line 27 | No, apparent remark about respondent’s solicitor’s entitlement to an opinion |
| 37 | Submission | Pg 36, last para | No, reference to page in Dr Wallace’s report made clear |
| 38 | Submission on Dr Wallace’s report | Pg 37, line 16 | No, the purport of what is being submitted can be understood |
| 39 | Submissions | Pg 37, lines 26-31 | No, despite the 3 transcript errors in the paragraph, the reference to the paragraph in the doctor’s report is clear |
| 40 | Submissions | Pg 38, para 2 | No, the reference to the doctor’s report is clear |
| 41 | Submission on Dr Wallace’s report | Pg 38, para 5 | There are 2 transcript omissions in this paragraph. The final conclusion cannot be ascertained |
| 42 | Submission on Dr Wallace’s report | Pg 38 (last para) – pg 39 (first para) | No, there is a reference to a report and page number, submission can be understood |
| 43 | Submission on Dr Wallace’s report | Pg 39, line 15 | No, the submission is a direct quote of a medical report where there is a reference to a page number. Submission can be understood |
| 44 | Submission | Pg 39, line 25 | No, submission can be discerned |
| 45 | Submission on Dr Wallace’s report | Pg 39, last para | Final remarks of a submission cannot be discerned |
| 46 | Submission | Pg 40, line 12 | No, the submission can be discerned from the balance of the paragraph |
| 47 | Respondent’s submission about surgery | Pg 40, third para | No, although there are 3 transcript omissions in the paragraph, the purport of what is being said can be understood |
| 48 | Submission about bony spur | Pg 40, line 31 | No, the submission can be understood from the preceding remarks |
| 49 | Submission | Pg 41, line 2 | No, the remark that was omitted was withdrawn |
| 50 | Submission | Pg 41, line 6 | Submission cannot be discerned |
| 51 | Submission on Dr Wallace’s report | Pg 41, lines 11 & 13 | No, the respondent is trying to locate the documents he seeks to rely on |
| 52 | Submission | Pg 41, line 19 | Submission cannot be discerned |
| 53 | Submission on Dr Wallace’s report | Pg 41, line 22 | No, the respondent is quoting evidence where references to paragraphs in Dr Wallace’s report are clear |
| 54 | Pg 41, line 32 | No, the submission can be discerned | |
| 55 | Submission | Pg 42, para 2 | There are 4 omissions in the paragraph, cannot discern the submission |
| 56 | Submission on Dr Cawthorne’s report | Pg 42, para 4 | No, there are two omissions in this paragraph. The submissions are referring to Dr Cawthorne’s report where a page reference has been provided in the preceding paragraph |
| 57 | Submission | Pg 42, line 32 | No, the submission relates to a paragraph in Dr Cawthorne’s report where the location of the reference is made clear |
| 58 | Submission on Dr Cawthorne’s opinion | Pg 43, first para | There are two omissions in the paragraph, cannot discern submission |
| 59 | Submission | Pg 43, second para | No, there are two omissions in the paragraph relating to a direct quote from medical evidence. Although there are no clear references provided as to where counsel is quoting from, it can be determined by looking at the preceding and subsequent paragraphs |
| 60 | Submission | Pg 43, third para | There are two omissions, the first omission cannot be discerned |
| 61 | Submission | Pg 43, line 27 | No, the submission made is in the subsequent paragraphs |
| 62 | Submission on Dr Wallace’s report | Pg 43, line 33 | No, although the quoted material can be readily found, the submission was withdrawn |
| 63 | Submission on Dr Cawthorne’s report | Pg 44, second para | No, the submission is a direct quote of Dr Cawthorne’s report where the page number in the material has been clearly stated |
| 64 | Submission | Pg 44, third para | No, submission can be discerned by looking at the subsequent paragraphs |
| 65 | Submission | Pg 45, line 4 | No, it is clear the submission is being critical of Dr Cawthorn. Submission can be discerned from the balance of the paragraph |
| 66 | Submission | Pg 45, line 18 | No, submission is clear on the balance of the paragraph |
| 67 | Submission | Pg 45, last para | No, the purport of what is being submitted can be understood |
| 68 | Submission on Dr Thomas’ report | Pg 46, line 8 | No, the submission is describing the facts noted in the report of Dr Thomas. The reference to the report is made clear |
| 69 | Submission | Pg 46, lines 18 & 20 | No, the two omissions are a direct quote from Dr Thomas’ report where the reference to the report has been made clear |
| 70 | Submission | Pg 46, line 22 | The submission cannot be discerned |
| 71 | Submission | Pg 46, line 29 | No, the omission is a direct quote from Dr Thomas’ report where the reference to the report has been made clear |
| 72 | Submission | Pg 47, line 4 | No. the omission is a direct quote from Dr Thomas’ report where the reference to the report has been made clear |
| 73 | Submission | Pg 47, line 15 | No, the purport of the submission is made clear |
| 74 | Submission on Dr Thomas’ report | Pg 47, second last para | No, the two omissions are a direct quote from Dr Thomas’ report where the date of the report has been made clear so can be located |
| 75 | Submission | Pg 47, line 32 | Submission cannot be discerned |
| 76 | Submission | Pg 48, line 1 | No, the omission is a direct quote from Dr Thomas’ report dated 18 May 2020 and can be located in the evidence |
| 77 | Submission | Pg 48, line 5 | No, the purport of the submission can be understood |
| 78 | Submission | Pg 48, para 4 | No, the two omissions in this paragraph are a direct quote from Dr Thomas’ report where the reference to the material in the evidence is made clear |
| 79 | Submission | Pg 48, second last para | The submission cannot be discerned |
| 80 | Submission on bone spur | Pg 48, line 33 | No, submission can be discerned |
| 81 | Submissions | Pg 49, second para | No, the page number of the document referred to is clearly articulated so can be easily located |
| 82 | Submissions | Pg 49, line 20 | No, the submissions are quoting Dr Thomas’ reports and the preceding paragraphs indicate the location being quoted from |
| 83 | Submissions | Pg 49, line 25 | The submission is not clear |
| 84 | Submission | Pg 49, line 31 | No, the submission is merely quoting a doctor’s report. The location of the report is clearly articulated so can easily be found |
| 85 | Submissions | Pg 50, second para | No, the purport of the submissions can be determined from the preceding and subsequent paragraphs |
| 86 | Submissions | Pg 50, line 31 | No. the submission can be determined by reference to Dr Gambhir’s report |
| 87 | Submission | Pg 51, line 3 | No, although the submission can be found by page reference, the submission was ultimately withdrawn |
| 88 | Submission | Pg 51, line 17 | No, submission can be made out from the balance of the sentence |
| 89 | Submission | Pg 51, line 20 | No, the page reference is articulated so can be found |
| 90 | Submission | Pg 51, lines 28-29 | No, the submission is referring to clinical notes where the page number has been articulated |
| 91 | Submission | Pg 52, line 15 | No, the page number the submission relates to has been articulated so the evidence can be found |
| 92 | Submission | Pg 52, line 19 | No, the submission can be made out from the balance of the paragraph |
| 93 | Submission | Pg 52, line 23-24 | No, the submission can be made out as it is referencing a medical report where the page number has been given |
| 94 | Submission | Pg 52, last para | No, the submission is a continuation of the previous paragraph, reading a medical report where the page number has been articulated |
| 95 | Submission | Pg 53, line 4 | No, the submission is referring to a medical report where the page number has been articulated |
| 96 | Submission | Pg 53, line 14 | No, the submission is referencing medical evidence where the page number has been articulated |
| 97 | Submission | Pg 53, line 19 | No, the submission can be made out |
| 98 | Submission | Pg 53, line 23 | No, it is a reference to medical evidence which the subsequent paragraph notes where it can be found in evidence |
| 99 | Submission | Pg 54, line 26 | No, the submission can be discerned from the balance of the paragraph |
| 100 | Submission | Pg 54, last para | No, there are 3 sections that are not transcribable however the submission can be made out as the page numbers it is referencing have been articulated |
| 101 | Submission | Pg 55, second para | No, the submission is merely quoting medial evidence where the page number in the evidence has been articulated |
| 102 | Submission | Pg 55, lines 13 & 17 | No, the submission is referring to medical evidence where the page number in the evidence has been articulated |
| 103 | Submission | Pg 55, second last para | No, there are 4 parts that are not transcribable however all are simply quoting Dr Cawthorne’s report where the page number in the evidence has been identified |
| 104 | Submission | Pg 55, line 30 | No, submission can be made out as it is referencing medical evidence where the page number in evidence was identified in an earlier paragraph |
| 105 | Submission | Pg 56, second para | No, there are three parts in the paragraph that are not transcribable however it is a reference to medical evidence where the page number in the evidence has been articulated |
| 106 | Submission | Pg 56, line 19 | No, the submission is quoting medical evidence where the page number has been articulated |
| 107 | Submission | Pg 56, second last para | No, the submission is quoting medical evidence where the page number has been articulated |
| 108 | Submission | Pg 57, line 20 | No, the submission is referencing case law that can be discerned from the balance of the paragraph |
| 109 | Submission | Pg 58, first para | No, there are 3 parts that are not transcribable in the paragraph however the submission is a direct quote from case law which can be located |
| 110 | Submission | Pg 58, lines 18 & 21 | No, the submission can be made out from the previous paragraph |
| 111 | Submission | Pg 58, line 24 | No, although the submission cannot be made out, the same submission is repeated again on pg 58 (lines 31-32) and pg 59 (lines 1-3) |
| 112 | Submission | Pg 58, line 28 | No, relates to a request to open the door as it was hot |
| 113 | Submission | Pg 58, last line | No, the submission can be discerned from the balance of the paragraph |
| 114 | Submission | Pg 59, second para | No, it is a reference to medical evidence where the page number has been provided |
| 115 | Submission | Pg 59, third last para | No, there are 4 parts that are not transcribable in the paragraph however all are quoting a medical report where the page number has been referenced |
| 116 | Submission | Pg 60, third para | No, there are 4 parts that are not transcribable in the paragraph however the submission is making observations of surveillance footage which can be discerned from the totality of the paragraph |
| 117 | Submission | Pg 60, line 27 | No, the sentence that is not transcribable relates to the reason the [respondent] gives for using a whipper-snipper and the page number in the evidence has not been articulated, however the submission itself can be discerned |
| 118 | Submission | Pg 60 (last line) & page 61 (first line) | No, submission can be discerned |
| 119 | Submission | Pg 61, second para | There are 4 transcription errors, submission cannot be discerned |
| 120 | Submission | Pg 61, lines 14 & 16 | No, although the submission cannot made out, the submission can be discerned from preceding and subsequent submissions |
| 121 | Submission | Pg 61, lines 24 & 31 | No, not material |
| 122 | Submission | Pg 62, lines 15-16 | Cannot discern purport of the submissions. It appears as though the respondent was asked a question that cannot be discerned |
| 123 | Submission | Pg 62, lines 28 & 29 | No, the submissions in the overall paragraph can be discerned |
| 124 | Submission | Pg 62 last para | No, the submission can be discerned |
| 125 | Submission | Pg 63, first para | No, there are 3 parts that were not transcribable however they relate to medical evidence where the page number in the evidence has been articulated |
| 126 | Submission | Pg 63, line 13 | No, it relates to medical evidence where the reference has been articulated in the preceding paragraph |
| 127 | Submission | Pg 63, line 25 | No, submission can be discerned from the balance of the paragraph |
| 128 | Submission | Pg 63, last para | No, although there are 3 parts that are not transcribable, the paragraph is a direct quote from evidence where the page number has been identified in preceding paragraphs |
| 129 | Submission | Pg 64, first para | No, submission can be discerned from the balance of the paragraph |
| 130 | Submission | Pg 64, lines 8-9 | No, the submission is a direct quote from medical evidence where the page number has been articulated in a preceding paragraph |
| 131 | Submission | Pg 64, line 13 | Cannot discern submission |
| 132 | Submission | Pg 64, line 25 | No, the submission can be discerned |
| 133 | Submission | Pg 65, line 7 | No, the submission relates to evidence where enough detail has been given that it can be located |
| 134 | Submission | Pg 65, lines 13-15 | No, the submission is a direct quote from the evidence that can be located |
| 135 | Submission | Pg 65, line 22 | No, the submission is in reference to evidence where the location of the document has been provided in that paragraph and preceding paragraphs |
| 136 | Submission | Pg 66, second para | There are three parts that were not transcribed, cannot discern submission |
| 137 | Submission | Pg 66, line 15 | No, can discern submission |
| 138 | Submission | Pg 66, second last para | No, can discern submission from preceding paragraphs |
| Submission | Pg 66, last para | No, the part missing from the transcript refers to case law. The case reference can’t be discerned however it appears to end in Rich. It can be requested from the parties if needed | |
| 139 | Submission | Pg 67, second para | No, submission can be discerned |
| 140 | Submission | Pg 67, line 17 | No, submission can be discerned |
| 141 | Submission | Pg 67, line 33 | No, the submission can be discerned |
| 142 | Submission | Pg 68, first para | No, there are two parts that are not transcribed however the submission can be discerned from the balance of the paragraph |
| 143 | Submission | Pg 68, line 10 | No, can discern submission from the balance of paragraph |
| 144 | Submission | Pg 68, lines 19 & 20 | No, the submission is a reference to Dr Wallace’s report and the page number where the evidence can be found has been articulated |
| 145 | Submission | Pg 68, line 25 | No, the submission is a direct quote from evidence where the relevant page number in the evidence has been articulated |
| 146 | Submission | Pg 69, first para | No, there are two parts that are not transcribed, the submission can be discerned |
| 147 | Submission | Pg 69, second para | No, there are three parts that were unable to be transcribed. However, the submission relates to evidence where the page number has been articulated |
| 148 | Submission | Pg 70, first para | No, the submission can be discerned |
| 149 | Submission | Pg 70, line 20 | No, the submission can be discerned |
| 150 | Submission | Pg 70, line 31 | No, the submission is a direct quote of evidence where the page number of the evidence has been articulated |
| 151 | Submission | Pg 71, first para | There are 4 parts that were not transcribed however the general gist of the submission can be discerned |
| 152 | Submission | Pg 71, second last para | There are 3 parts that were not transcribed, submission cannot be discerned |
| 153 | Submission | Pg 72, line 5 | Cannot discern final remarks of submission |
| 154 | Submission | Pg 72, lines 19 & 21 | No, the submission is referring to evidence and the location of the evidence has been clearly articulated |
| 155 | Submission | Pg 73, line 15 | No, the submission can be discerned |
| 156 | Submission | Pg 73, lines 25 & 26 | No, submission can be discerned from the paragraph and subsequent paragraph |
| 157 | Submission | Pg 74, first para | The submission cannot be made out |
| 158 | Submission | Pg 74, second para | No, although there are 3 parts that were unable to be transcribed, the submission can be discerned |
| 159 | Submission | Pg 74, line 21 | No, the submission is a direct quote from evidence where the reference has been provided |
| 160 | Submission | Pg 75, lines 4 & 5 | No, the submission is a direct quote of evidence where the reference has been provided |
| 161 | Submission | Pg 75, lines 7 & 13 | No, the submission can be discerned |
| 162 | Submission | Pg 75, lines 19-21 | No, the submission is referring to the evidence and a page number and location of the evidence has been articulated |
| 163 | Submission | Pg 75, second last para | There are 4 parts that have not been transcribed, the submission cannot be discerned |
| Submission | Pg 76, lines 8 & 10 | There are 2 parts that were not transcribed, submission cannot be discerned | |
| 164 | Submission | Pg 76, lines 16 & 17 | No, submission can be discerned from the balance of the paragraph |
| 165 | Submission | Pg 76 last para | No, the submission can be discerned |
| 166 | Submission | Pg 77, para 2 | No, there are 2 parts that have not been transcribed. The submission is in reference to evidence where the page number and application has been articulated |
| 167 | Submission | Pg 77, third para | No, while there are 2 parts that were not transcribed, the submission can be discerned |
| 168 | Submission | Pg 78, line 2 | Submission cannot be discerned |
| 169 | Mr Robison’s submissions in reply | Pg 78, line 9 | No, submission can be discerned |
| 170 | Submissions in reply | Pg 78, last para | No, there are 5 parts that were not transcribed. The submission can be discerned however the case authorities cannot |
| 171 | Submissions in reply | Pg 80, line 10 | No, the submission can be discerned |
| 172 | Question from Mr Doak to Mr Robison | Pg 81, first para | No, the question can discerned |
| 173 | Submissions | Pg 81, line 13 | No, can discern Mr Robison’s answer from Mr Doak’s statement in the subsequent paragraph |
| 174 | Submission | Pg 81, lines 19 & 20 | No, cannot discern Mr Doak’s remarks but indicates that he has dealt with it in his submissions |
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