Toll Transport Pty Ltd t/as Toll Global Express Wollongong v Apulu - [2023] NSWPICPD 47

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Toll Transport Pty Ltd t/as Toll Global Express – Wollongong v Apulu [2023] NSWPICPD 47
APPELLANT:	Toll Transport Pty Ltd t/as Toll Global Express – Wollongong
RESPONDENT:	Fiti Apulu
INSURER:	Toll Holdings Ltd
FILE NUMBER:	A1-W3434/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	15 August 2023
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 26 August 2022 is amended to correct the date in order (1) to 18 November 2021, but is otherwise confirmed and referred to the Division Head of the Workers Compensation Division to issue the amended certificate accordingly.
CATCHWORDS:	WORKERS COMPENSATION – section 4 of the Workers Compensation Act 1987 – whether worker in course of employment – AV v AW [2020] NSWWCCPD 9 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B Jones, counsel
Colin Biggers & Paisley
Respondent:
Mr C Tanner, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	26 August 2022

INTRODUCTION AND BACKGROUND FACTS

The appeal is from a Certificate of Determination dated 26 August 2022.
The respondent worker, Mr Fiti Apulu, lodged an Application to Resolve a Dispute (ARD) in which he alleged injury on 10 November 2019 whilst employed by the appellant employer as a delivery driver. The injury was described as the onset of sharp pain in the back of the left Achilles as a result of having to jump in and out of his truck several times a day.
An additional injury or event is alleged to have occurred on 9 March 2021 when the worker was endeavouring to push a broken-down vehicle up an incline.
On 8 July 2022, the Member permitted an amendment to the injury details in the ARD to alter the date from 10 November 2019 to 18 November 2020.[1]
[1] See Transcript of 18 August 2022 (T1) at 1.36.
The formal Certificate of Determination (COD) was supported by oral reasons, which had been delivered on 24 August 2022.[2]
[2] Transcript of 24 August 2022 (T2).
I paraphrase the critical findings made by the Member as follows:
(a)    On 18 November 2020 the respondent worker sustained injury to the left leg in the form of aggravation of a pre-existing asymptomatic condition of the left leg around the Achilles tendon.
(b)    Mr Apulu was incapacitated thereby and provided with light duties. An offsider, Ahmed, was assigned to help him because he was not otherwise able to do his full job.
(c)    On 9 March 2021 he sustained a further injury which was an aggravation of the 18 November 2020 injury.
(d)    The injury of 9 March 2021 occurred whilst the respondent worker and his fellow employee, Ahmed, were endeavouring to assist a motorist to move his vehicle which had broken down.[3]
[3] T2, 34.23–35.2.
The Member made a determination in the following terms:
“1. The [appellant employer] will pay the sum of $1,372.70 pursuant to s 37 from 18 November 2020 to date and continuing.
2. The [appellant employer] will pay the cost of and associated with the proposed surgery being a left [Achilles] debridement proposed by Dr Cadden in his report of 24 May 2021.”
After the Certificate of Determination issued, and prior to the appeal being lodged, the employer requested that the weekly payments order in (1) be amended to commence from 18 November “2021” (rather than 2020), an apparent typographical error. The worker consented to the amendment on 15 September 2022.
The parties have agreed the COD can be amended to reflect the correct position. I will thus make an appropriate order to allow this amendment and refer this to the Division Head of the Workers Compensation Division to issue a certificate with this amendment.

THE MEMBER’S STATEMENT OF REASONS AND FINDINGS

The references herein are to pages in the transcript of the oral reasons of 24 August 2022 unless otherwise indicated. The transcription of the judgment recording has not been revised by the Member. It contains some errors and omissions which at times may obscure the Member’s intended meaning. The transcript refers to the fellow worker as “Achmed” but other material indicates the correct spelling to be “Ahmed”. I have tried to use the latter.
The Member heard the parties’ submissions on 18 August 2022 and, as noted above, he provided an oral Statement of Reasons on 24 August 2022.
The Member accepted the evidence of the worker and relied on the statement dated 31May 2022.[4]
[4] T2, 34.20, ARD, p 1.
He said “[t]he facts of the matter are fairly well set out in Mr Apulu’s statement. I’m not going to read these paragraphs but I do incorporate them into the decision so they can be uploaded at a later point if necessary.”[5] The Member specifically incorporated paragraphs [14] to [21], [28] to [30], and [34] to [35].
[5] T2, 2.1–5.
The Member noted that the worker was a delivery driver who had to get in and out of his delivery vehicle and that he worked very long hours. The worker noticed that from time to time his left heel would “flare up”, usually around Christmas. In late 2020 the workload increased so that Mr Apulu was making 70 to 100 deliveries per day. This meant he would frequently (every 5 minutes) be required to jump into and out of the delivery vehicle. The distance from the truck to the ground was about half a metre. The jumping motion placed great stress and pressure on the left heel. The worker was required to wear heavy duty boots fitted with a steel cap.
On 18 November 2020 the worker’s left foot became unbearable. He was walking with a limp. He could only work for 2 hours and then he would have to take off his boot. He consulted with his GP and was informed that he was suffering from an inflamed Achilles (tendon) and bursitis. He was put on light duties. From about November 2020, he was provided with a casual employee who was supposed to deliver the parcels. This did not work very satisfactorily because that employee did not have very much experience and it would still be necessary for Mr Apulu to get out of the truck and show the employee where the deliveries had to occur. Mr Apulu was treated with physiotherapy throughout the early portion of 2021.
On 9 March 2021 Mr Apulu was subject to a further incident. The Member quoted paragraphs [28]–[30] of the worker’s statement:
“On 9 March 2021, I exacerbated my left heel injury at work. It was around 9.30 a.m. and there was a lot of traffic on the road. I was at the intersection of Auburn Street and Birrell Street in Wollongong … The car in front of me then broke down at the lights and an elderly man hopped out and asked myself and my colleague Ahmed if we could help him push his car.
At the time, the car behind me had started using the left-hand lane to pass the broken-down car but as I was stationary close behind him, there was no room for me to similarly overtake the car and the traffic was queuing up behind me. Additionally, we were under a lot of time pressure to … complete all our deliveries, so I knew that I needed to get back to driving the truck as soon as possible. Ahmed then jumped out of the car and tried to push the car forwards and to the side. However, the car began to roll backwards as the road was slightly inclined.
Immediately, I jumped out of the truck to prevent the car hitting our work vehicle and to protect Ahmed from getting caught in the middle. However, after taking a few steps while pushing the car I felt sharp pain in my left heel. After the ordeal, I continued working for the rest of the day but by the end was forced to take my boots off as my left heel was in excruciating pain. I can confirm that I have been unable to return to work since 9 March 2021.”[6]
[6] ARD, p 5.
The Member noted:
(a)    Mr Apulu said that he did not think he had any capacity to return to work due to his limitations in standing and walking;[7]
(b)    there was no evidence that Mr Apulu could pursue any form of alternative employment;[8]
(c)    notice of the injury/ies was given to the employer,[9] and
(d)    a report of injury dated 11 March was received with respect to the 9 March incident. This was a contemporaneous report probably compiled by the Operations Supervisor.[10]
[7] T2, 5.10–12.
[8] T2, 5.13–14.
[9] T2, 5.19.
[10] T2, 6.7–10.
The Member considered the medical evidence commencing with the appellant’s qualified Independent Medical Examiner, Dr Yiu-Key Ho, an orthopaedic surgeon. The Member extracted various parts of Dr Ho’s reports.
The most important conclusions derived by the Member from those reports appear to be:
(a)    Dr Ho said the worker did not describe any particular injury on 18 November 2020 but that he started to notice pain on that occasion;
(b)    the medical imaging confirmed one pathology, namely Achilles tendon degeneration or tendonitis and tendinopathy;
(c)    the second injury is an aggravation of the initial injury of November 2020, and
(d)    all of the imaging reports identify a single injury, the degeneration of the Achilles tendon.[11]
[11] T2, 8.16–24.
Dr Ho’s conclusion was that the second injury was an aggravation of the pre-existing condition of 18November 2020. To this aggravation, the employment with Toll was the main contributing factor.[12]
[12] T2, 8.30–33.
The Member quoted Dr Ho as follows:
“I think employment with Toll is still the main contributing factor for the aggravation. I know pushing a broken-down vehicle is not in his job description. However, if a car is broken down in front and if his offsider cannot push it away, I think, it is natural that he would jump down and give a hand.”[13]
[13] T2, 9.5–11.
Although the Member accepted substantial parts of Dr Ho’s evidence, he specifically did not accept the following answer by Dr Ho to a question regarding s 9A of the Workers Compensation Act 1987 (the 1987 Act):
“Based on Mr Apulu’s overall general condition I certainly have to agree employment was not a substantial contributing factor to the injury as the injury would have had a very high probability of happening anyway at about the same time or the same stage of Mr Apulu’s life if he had not been at work and had not worked in that employment due to his excessive bodyweight and obesity.”[14]
[14] T2, 18.21–28.
The Member goes through the three Dispute Notices issued by the appellant employer in a discursive manner in which he rejects various bases for disputing liability.
For the purpose of this appeal, it is not necessary to consider the detail of those matters. However, the Member’s conclusions with respect to the more important matters need to be explicitly noted.
Firstly, the Member rejects the claim by the employer that the worker “wilfully ignored” the treating doctor’s recommendations and the return-to-work plan. Of that allegation he says he did not see any evidence to sustain the accusation.[15]
[15] T2, 22.22.
Secondly, he rejects the assertion that the 9 March 2021 event was a novus actus interveniens.[16]
[16] T2, 23.2.
Thirdly, he rejects the proposition that the assistance rendered to the motorist was of no commercial value, by observing that the worker’s actions were intended to protect the appellant’s vehicle from damage and to prevent a fellow employee from injury.[17]
[17] T2, 24.18–25.
Fourthly, the Member rejects the submission that Mr Apulu’s conduct on 9 March 2021 took him outside the scope of his employment.[18] This was in response to the assertion by the employer that s 14 of the 1987 Act should apply to prevent the worker receiving compensation because the injury was received when the worker acted in contravention of instructions and orders given by the employer.
[18] T2, 24.31–33.
Fifthly, the Member rejects the submission that Mr Apulu’s size was the main contributing factor to his condition, and that he breached his treatment plan and recommendations in getting out of the car on 9 March 2021. He says:
“In the end [it] doesn’t matter because whether the incident on 9 March 2021 was the main contributing factor or a substantial contributing factor. There are other elements involved. But I’d be satisfied that it was the getting out of the car that was the main contributing factor when he got out of the car because he was in the course of his duty. And concerned as a responsible employee to protect his employer’s property and [another] employee.
But there is also the element that he was being a good Samaritan.”[19]
[19] T2, 27.25–28.2.
The Member refers to the decisions of Rail Services Australia v Dimovski[20] and Temple v WoolworthsGroup Limited[21] as authority for the proposition that where a “frank incident” aggravates a pre-existing condition, then the law is that it is a frank incident because s 4(a) of the 1987 Act means personal injury arising out of the course of employment, and s 4(b) of the 1987 Act says injury includes a disease injury.
[20] [2004] NSWCA 267 (Dimovski).
[21] [2022] NSWPICPD 16.
The Member finds the events of 9 March 2021 satisfy the definition of “injury” under both s 4(a) and (b) in the 1987 Act. He says:
“So technically speaking the test would be under section 9A ‘No compensation is payable under this Act in respect of an injury other than a disease injury unless the employment concerned is a substantial contributing factor.’
As I said in the circumstances under which this injury occurred it clearly showed that Mr Apulu was in the course of his employment and the reason he injured himself was having to get out of the truck or the vehicle whatever it was. And I find that to be either the main or a substantial contributing factor. I’d have to under that application of the law find it a substantial contributing factor which I do.”[22]
[22] T2, 28.22–29.2.
The appellant’s counsel directed attention to State Government Insurance Commission (Western Australia) v Oakley.[23] The Member refers to this as the “Oakley test” and, referring also to the Court of Appeal’s decision Secretary, New South Wales Department of Education v Johnson,[24] says:
“Where the later injury results from the subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident[,] [t]he second injury should be treated as having a causal connection with the earlier accident.”[25]
[23] (1990) 10 MVR 570; Aust Torts Reports 81-003 (Oakley).
[24] [2019] NSWCA 321.
[25] T2, 29.19–23.
The Member finds:
“Mr Apulu’s situation fits into that category. The later injury was the aggravation of his tendonitis to the point … he needs debridement. He’s not been able to work since. If he hadn’t had that earlier physical condition as a result of his earlier injury … his physical condition would not have been as bad. … The later injury to the Achilles resulted from the subsequent accident on 9 March and that would not have occurred had Mr Apulu not been in the physical condition caused by the aggravation of his Achilles tendonitis as described. So in those circumstances the 9 March ’71 [sic] injury should be treated as having a causal connection [with] the earlier accident.”[26]
[26] T2, 29.25–30.7.
The Member rejects the reliance by the appellant on the third category in Oakley. That is, that there is no causal connection between the original injury and the damage subsequently sustained. The Member finds:
“That factual situation simply has not been established before me. And I reject Mr Jones’ submission that it is applicable that the subsequent injury would not have occurred which [sic] he did not have the original injury in my view. And the damage certainly includes aggravation from the earlier injuries as stated by the medical experts.”[27]
[27] T2, 30.31–31.3.
The Member rejected the submission that there was a novus actus interveniens. He found that there was new pathology. But while the tear might have been new pathology, it was all part of the aggravation of the original injury. For this conclusion the Member relied on the reports of Drs Ho and Bodel.[28]
[28] T2, 31.5–10.
The Member directs himself as to the principle that the employer takes the employee as he is found. He cites this as “talem qualem” principle and refers to State Transit Authority v Chemler.[29]
[29] [2007] NSWCA 249, [40].
Having regard to that principle, the Member makes an important finding concerning the relevance of the worker’s existing physical condition. He says the worker was a large Samoan gentleman with size 15 flat feet, and that he did not have an injury when he started working for Toll in 2015. The Member finds that the worker’s pre-existing obesity was legally irrelevant:
“What has caused this injury is the nature and conditions of the employment as Mr Apulu described them getting in and out of trucks all day. Having to wear different footwear and because of the increase in business particularly at the time of the pandemic.
And although his condition as a large Samoan gentleman hasn’t assisted his situation … nonetheless it is not a factor that can be seen in view of the … talem qualem rule. That is legally relevant. Dr Ho steadfastly when pressed about what was the main contributing factor as I’ve indicated always said there were two. One was the nature and conditions and the other was the condition of Mr Apulu as the employer found him when they hired him.
So that I’ve got no hesitation in finding that the circumstances of that first incident that is to say the nature and conditions of employment were the main contributing factor to his injury of 18 November 2020. Which although it’s pleaded as a personal injury I think is more properly described as the aggravation of a pre-existing disease.”[30]
[30] T2, 32.4–27.
The appellant challenged the worker’s statement evidence concerning the 9 March 2021 incident on the basis that it was inconsistent with other evidence and was not otherwise corroborated by evidence, in particular from Ahmed. The Member rejected the submission.
The Member said where there is evidence of a prima facie case, the onus is on the employer to provide contradictory evidence. In any event, the Member said that there was no evidence that would cause him to disbelieve the worker’s evidence.[31] He said that whilst there were some other versions of the accident which were not as detailed, they were all consistent with Mr Apulu’s version.[32]
[31] T2, 34.20.
[32] T2, 34.08.
The Member concludes with the following dispositive findings:
“… for those reasons I find that the [respondent] was injured by the nature and conditions of his work on 18 November 2020, due to the increased workload he had to work under. And that aggravated a pre-existing … asymptomatic condition in his leg, around the Achilles tendon. That he was incapacitated thereby is clear because he was on light duties as he said. And [Ahmed] the offsider went to help him because he wasn’t able to do his full job. And then events were overtaken by the 9 March 2021 incident when in the course of his employment he further injured himself as described. And that injury I accept Dr Ho and Dr Bodel’s evidence was an aggravation of his injury of 18 November 2020 … putting [him] off work.”[33]
[33] T2, 34.23–35.02.
The Member thereafter discusses the worker’s capacity for employment, coming to the conclusion that he does not have any capacity for employment. That finding is not the subject of challenge.

THRESHOLD MATTERS

The appeal was lodged within the 28-day time limit (s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)). The amount in issue is an award at the rate of $1,372.70 from 18 November 2020 to date and continuing, together with the cost of proposed surgery. Section 352(3) of the 1998 Act is satisfied.

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

The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

The jurisdiction I exercise is limited to the correction of errors of fact, law or discretion. The jurisdiction is not engaged by a preference for another outcome.

ON THE PAPERS

The parties are in agreement that it is appropriate for the matter to be determined on the papers.
Section 52(3) of the Personal Injury Commission Act 2020 provides that:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so the appeal can be determined on the papers without holding any formal hearing.
I am so satisfied and propose to determine the matter “on the papers” without holding any conference or formal hearing.

GROUNDS OF APPEAL

The appellant relies upon the following grounds of appeal.
Ground 1:
“The Member erred in failing to find that any compensable injury sustained by the Respondent had resolved and was superseded by the injury on 9 March 2021 in that the Member:
i.       should have found the injury sustained on 9 March 2021 was a distinct injury to the 18 November 2020 injury;
ii.      should have found the injury sustained on 9 March 2021 was not sustained during the course of the Respondent’s employment with the Appellant;
iii.      should have found the injury on 9 March 2021 was, for the purpose of any liability under the 1987 Act a novus actus; and
iv.      did find that any ongoing need for treatment or incapacity for work arose solely from the injury sustained on 9 March 2021 and not the 18 November 2020 injury.”
Ground 2:
“The Member erred in failing to find that the Respondent’s employment with the Appellant was not the main or substantial contributing factor to his injury.”

GROUND 1

Appellant’s introductory submissions

The appellant quotes from the description of personal injury pleaded in the ARD, and thereafter summarises the basis upon which the appellant denied liability in the notices under s 78 of the 1998 Act as follows:
“1.     The Respondent did not suffer an ‘injury’ pursuant to the 1987 Act as any ‘injury’ was a disease injury and his employment was not the main or substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of same.
2.     If an ‘injury’ was sustained by the Respondent, then the only work related ‘injury’ was that of 18 November 2020, the effects of which had ceased and no longer gave rise to any incapacity or need for treatment. The ‘injury’ sustained on 9 March 2021 did not occur during the course of the Respondent’s employment and was a novus actus in that it was distinct from the 18 November 2020 injury, snapping the causal chain.
3.     Absent any injury, there was no liability to pay compensation under the 1987 Act, for weekly benefits or medical expenses.”[34]
[34] Appellant’s submissions, [17].
The Member’s conclusions at T2 34.23 (set forth above at [40]) are said by the appellant to be premised on three findings, namely:
(a) the injury sustained on 9 March 2021 was an aggravation of the injury sustained on 18 November 2020;
(b) the respondent’s evidence about the circumstances of his employment and what occurred on 9 March 2021 was true and correct,[35] and
(c) the injury sustained on 9 March 2021 was during the course of the respondent’s employment with the appellant.
[35] Citing T2, 34.20.
In addition, the Member also found the respondent’s employment with the appellant was the main and substantial contributing factor to his injury.
The appellant submits that there is no challenge to the findings that the cause of the respondent’s ongoing incapacity and need for treatment is the 9 March 2021 injury.
The appellant submits that the Member was in error in failing to find that the injury of 9 March 2021 was distinct from that of 18 November 2020 and that it was not sustained in the course of the respondent’s employment with the appellant.
In the alternative, it is submitted that the Member was in error in failing to find that the respondent’s employment with the appellant was not the main or substantial contributing factor to the injury of 9 March 2021.

Ground 1(i) – The injury of 9 March 2021 was not an aggravation of the 18 November 2020 injury

Appellant’s submissions

The appellant quotes Dr Ho’s report dated 28 September 2021[36] with respect to the questions and answers numbered 3, 4, 7(a), 7(b), 8, 11, and 12 as well as question and answer 13 from the report dated 11 October 2021.[37]
[36] Reply, p 38.
[37] Reply, p 46.
The appellant refers to the reports of the foot and ankle surgeon, Dr Cadden, dated 28 April 2022 (sic, 2021)[38] and 24 May 2021[39] dealing with the contrast in the pathology shown on the MRI imaging before and after the 9 March 2021 incident.
[38] ARD, p 64.
[39] ARD, p 65.
The latter showed “an area of insertional change with bony oedema and a marked bursal change anterior to the tendon” whereas the former showed “only mild changes to the tendon of the distal end”. The post 9 March 2021 changes led Dr Cadden to recommend surgery.
Dr Bodel in his report dated 29 November 2021 was said to be “of no assistance to the issues in the matter” because he did not differentiate between the effects of the episode in November 2020 and injury on 9 March 2021 and did not discuss any difference in the pathology as he did not have the benefit of the imaging scans.
The decision of Dimovski resolved a conflict between two earlier authorities, with the approach in Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited[40] being preferred. The appellant refers to the discussion by Roche DP in New South Wales Police Force v Kearns.[41]
[40] [1998] NSWCC 51; 45 NSWLR 606 (Mecha).
[41] [2008] NSWWCCPD 29, [49].
The ultimate findings about the 9 March 2021 injury made by the Member did not turn on an application of Dimovski. Mecha shows it is possible to have two distinct injuries and “[t]hat is the case here and not a prospect the Member seems to have contemplated.”[42]
[42] Appellant’s submissions, [36].
The appellant submits that the Member had regard only to the first of Dr Ho’s reports and not to the totality of his opinion as embodied in the subsequent reports.
The essential submission appears to be contained in paragraphs [41] and [42] of the appellant’s submissions, namely:
“41. While Dr Ho does refer to the 9 March 2021 injury as being an aggravation in his first report, that is in the general sense that there was further pain in the region rather than being a true aggravation of the pathology/injury of 18 November 2020. The general manner by which Dr Ho described the injury in his first report favours that view. For example, Dr Ho refers to ‘same condition’ (page 41 of the Reply, at questions 3 and 4), ‘overall picture’ (page 42 of the Reply at question 6) and ‘same problem’ (page 42 of the Reply at question 7b). Dr Ho does the same in his second report (page 49 of Reply, at question 9) but it is premised on the question put to him and not a proper reflection of his opinion.
42. Instead, what Dr Ho really says is embodied in his answer to question 13 (page 50 of the Reply) where he talks of more damage, or to put it in terms associated with the s 4 issue, a sudden physiological change; that brings it within terms of a s 4(a) injury for the purposes of the 1987 Act. Dr Ho is clear, when that issue is raised, that it is not an aggravation of the 18 November 2020 injury.”
The appellant submits that there is a clear change in the functioning of the respondent worker after the 9 March 2021 injury.
The appellant submits that the conclusion of the Member with reference to Oakley is unsupported by evidence. The appellant’s submission is that there is no evidence directed to the first or second principles and that if reliance was placed on Oakley, the medical experts needed to frame their opinion in those express terms.
The appellant submits that notwithstanding that the Commission is a specialist tribunal, it is not entitled to complete gaps in the medical evidence with the Member’s views as to the aetiology of a disease which are otherwise unsupported by evidence.

Respondent’s submissions

The respondent firstly deals with the general submission made by the appellant that the Member erred because he did not find that the 18 November 2020 compensable injury had resolved and was otherwise superseded by the injury on 9 March 2021.
The respondent submits there is no evidence to support the proposition that the condition which had been diagnosed in November 2020 had resolved prior to March 2021.
The respondent then refers at length to the clinical notes of Dr Salinas and to the WorkCover Certificates of Capacity, submitting that the records of the worker’s general practitioner plainly illustrate that at the time of the episode of injury on 9 March 2021, the worker continued to suffer from the effects of the injury deemed to have been received on 18 November 2030 (sic, 2020). The respondent further submits that this is borne out by the appellant’s appointment of a co-worker to assist Mr Apulu with deliveries in accordance with Dr Salinas’ certification.
Furthermore, the appellant does not indicate the date upon which it asserts that the compensable injury had resolved. The respondent concludes that the appellant’s assertion that the effects of the injury deemed to have been received on 18 November 2020 had resolved by 9 March 2021 has no evidentiary basis and should not have been made.
As to Ground 1(i) the respondent says that the appellant has failed to identify a relevant error of fact, law or discretion. Further, the Member’s decision involves no error of fact.
The Member found the injury of 9 March 2021 to be by way of aggravation. That finding is consistent with the appellant’s own medico-legal case as found in the opinion of Dr Ho dated 28September 2021.
On a proper reading of the Member’s decision, the respondent submits it is obvious that he considered the evidence as a whole before reaching his finding that the worker suffered an aggravation of the condition with which he had been troubled since 18November 2020.
The appellant’s musings as to the alternate possible or prospective conclusions are said to be of no moment. The only material question is whether the Member has made an error of fact, law or discretion and no case in that regard has been made out.
The respondent submits that the Member correctly had regard to the various categories of Oakley and that, given the evidence as a whole, the appellant’s own forensic case as provided by Dr Ho means that this ground of appeal is “devoid of any merit”.

Appellant’s submissions in reply

The appellant submits that the factual findings made by the Member were contrary to the weight of the evidence and were therefore an error amenable to appeal. It was not a case in which the Member preferred one finding over another available finding preferrable to the appellant. Furthermore the appellant submits that for the reasons given in the primary submissions the Member’s findings were made contrary to law.
The appellant submits that the respondent worker’s reliance on medical certificates and clinical records is not the most compelling evidence for the reasons explained by Basten JA in Container Terminals Australia Ltd v Huseyin[43] and Mason v Demasi.[44] The appellant submits the preferable view of the evidence is that referred to by the appellant.
[43] [2008] NSWCA 320, [8].
[44] [2009] NSWCA 227, [2].

Consideration

Much of the appellant’s submissions in relation to Ground 1(i) appear to me to merely re-agitate the appellant employer’s submissions to the Member at the hearing. They do not really identify the error it is said that the Member made.
The Member made what he could of the answers given by Dr Ho and while the appellant submits that the Member should have reached different conclusions with respect to Dr Ho’s answers, the Member’s interpretation of Dr Ho’s answers were available.
The appellant concedes at [41] of its submissions that in the first report, Dr Ho regarded the 9 March 2021 injury as being an aggravation. Although for the reason he expressed the Member put Dr Ho’s overall answer to one side, the passage at T2, 13.13–31 makes plain that Dr Ho regarded the 9 March 2021 event as an aggravation of the pathology present as at 18 November 2020.
The appellant’s submissions with respect to this ground of appeal, dependant as it is on analysis of Dr Ho’s evidence, are confronted with multiple difficulties.
Firstly, Dr Ho plainly regards the 9 March 2021 event as certainly having caused an aggravation of the pre-existing condition.
Secondly, having regard to the assumptions he is asked to make by the appellant’s instructing solicitors’ question, Dr Ho’s agreement that the incident of 9 March 2021 was not in the course of employment is unconvincing and, as the Member noted, beyond Dr Ho’s expertise and qualification. The medical conclusion which is all that Dr Ho was qualified to provide was that the 9 March 2021 events aggravated the existing pathology.
Thirdly, the Member says that Dr Ho’s reports show that the medical imaging confirms only one pathology, namely “Achilles tendon degeneration or tendonitis or tendinopathy” and that the second injury is only an aggravation of the initial injury in November 2020.[45]
[45] T2, 8.18–20.
Fourthly, it is difficult to see in any of Dr Ho’s subsequent reports how the conclusion that the imaging shows a singular pathology, namely aggravation of the degeneration of the Achilles tendon, is contradicted. Dr Ho says that in his first report dated 28 September 2021 in answer to questions 3, 4 and 7 and in his second report dated 11 October 2021 in his answer to questions 6, 7, 13 and 14. There is, with respect, nothing in Dr Ho’s third report which contradicts the conclusions reached by the doctor in his first two reports.
The Member’s conclusion that the 9 March 2021 events represented an aggravation of the November 2020 injury not only does not show error but is based upon an available reading of Dr Ho’s reports of 28 September and 11 October 2021.
Furthermore, I am not persuaded that the Member has misused his medical knowledge in the manner the primary judge did in Strinic v Singh,[46] or that he has sought to supplant the evidence of the expert witnesses with his own anecdotal knowledge of medical material.
[46] [2009] NSWCA 15, [59].
The debate concerning the decisions of Oakley and Dimovski is not really germane to the Member’s overall reasoning. The Member’s reference to those decisions was peripheral to his consideration of the matter. This is not to say that the Member’s remarks demonstrate error, but simply that the Member’s comments with respect to these decisions were not central to his determination adverse to the appellant.
Ground 1(i) of the appeal is rejected.

Ground 1(ii) – The respondent was not in the course of his employment when injured on 9March 2021

Appellant’s submissions

The appellant refers to an employee being in the course of their employment as requiring a temporal relationship, referring to Smith v Australian Woollen Mills Ltd[47] and Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd.[48]
[47] [1933] HCA 60; 50 CLR 504.
[48] [2009] NSWCA 324, (Badawi), [72].
The appellant quotes from Watson v Qantas Airways Limited;[49] Hatzmanolis v ANI Corporation Limited;[50] Henderson v Commissioner for Railways;[51] Humphrey Earl Limited v Speechley;[52] Comcare v PVYW;[53] Tudor Capital Australia Pty Limited v Christensen[54] and Pioneer Studios Pty Limited v Hills[55] as providing the relevant exposition of the determinative principles.
[49] [2009] NSWCA 322 (Watson).
[50] [1992] HCA 21; 173 CLR 473.
[51] (1937) 58 CLR 291 (Henderson).
[52] [1951] HCA 75; 84 CLR 126 (Speechley).
[53] [2013] HCA 41; 250 CLR 246.
[54] [2017] NSWCA 260, [326].
[55] [2012] NSWCA 324, [37].
The appellant then refers to the evidence of the respondent worker concerning the incident of 9March 2021, noting correctly that the Member accepted his evidence.
In light of the principles and the evidence, the appellant submits:
“Here there was one overall period of employment. That period was from when the Respondent started work at the Appellant’s depot through to when he returned having completed deliveries. However, the Respondent’s conduct was such to take him outside the course of that.
The Respondent and his colleague pushed the broken-down car outside the course of their service to the Appellant …
The act of pushing the broken-down car is not incidental to the Respondent’s, nor his colleague’s, work. It was open for the Respondent to have reversed the truck and driven around the broken-down car when traffic cleared as other road users did. …
While the conduct of the Respondent and his colleague was admirable, it was not incidental to their work.”[56]
[56] Appellant’s submissions, [65]–[67], [70].
The appellant then quotes the Member’s reasons for the determination, isolating the conclusions:
(a)    that the worker was protecting the appellant’s vehicle from damage and protecting the fellow employee;
(b)    rejecting the submission that the events of 9 March 2021 were a novus actus interveniens, and
(c)    identifying the conclusion that the respondent was not at any time working outside his employment.
The appellant’s concluding submission in support of this ground is:
“The above ignores or places insufficient weight on what the authorities require and so, the Appellant submits the finding of the Member was in error.”[57]
[57] Appellant’s submissions, [72].

Respondent’s submissions

The respondent submits that the Member was correct to reject this submission from the appellant at first instance. The respondent submits that it would not have mattered whether the aggravation of the worker’s condition occurred in the course of his employment with the appellant or in other circumstances because, on the evidence of Dr Ho, the aggravation of 18 November 2020 continued.
The respondent submits the Member made factual findings which were open to him concerning the 9 March 2021 incident and those findings are not shown to be errors of fact. The respondent submits that “the aggravation in the current case was manifestly work-related – occurring in the course of the worker’s employment as a delivery driver, on the road between the appellant’s premises and the locations at which he was required to deliver goods.”[58]
[58] Respondent’s submissions, [37].
The respondent submits:
“The circumstances of employment as a driver, on the road each day, involve a multitude of hazards which confront drivers suddenly and without warning. This is readily understood by anyone with elementary experience of driving or being driven on a public road. Those hazards include:
· motor accidents caused by other drivers
…
As a matter of common sense and experience, drivers will, in the course of proceeding to their destination, need to make split-second decisions as to how to react to circumstances of the kind noted above.
On 9 March 2021, the worker encountered circumstances on the road he was required to use in order to convey goods from the appellant’s depot to locations at which deliveries were attended to. …
The Member found, as was open to him, that the worker ‘was trying to both stop his work vehicle from being hit and looking to the safety of [Ahmed], his co-worker. That activity was plainly work-related and pursuant to his responsibilities to ensure the safety of his co-worker and to avoid damage to the property of his employer.”[59]
[59] Respondent’s submissions, [38]–[40], [42].

Consideration

In the authorities cited by the appellant is a passage from Watson at [38].
That passage includes the statement that Henderson and Speechley have not been made redundant by later authorities. This is not a case where the injury of 9 March 2021 is said to have occurred in an “interval” between periods of work.

At paragraph [55] of its submissions, the appellant quotes a passage from Dixon J in Speechley. That passage includes the following:
“Whatever is incidental to the performance of the work is covered by the course of the employment.”[60]
[60] Speechley, [3].
In Watson, in the passage immediately following the paragraph quoted by the appellant, appears the following:
“We refer to these cases dealing with Hatzimanolis not to encourage those at the Commission to employ them in reasons; to the contrary. Most are particular factual applications of the principles in Hatzimanolis. They are not precedents. The task is to approach the matter with the assistance of Hatzimanolis. …”.[61] (emphasis added)
[61] Watson, [39].
The difficulty with the argument advanced by the appellant is that, as the respondent submits, a delivery driver inherently will be confronted with situations on the road in the course of his employment. A worker employed as a driver will in the course of his employment be required to respond to various situations which present themselves on the roadways. Those responses with respect will in the usual course be incidental to work as a delivery driver.
The appellant says that it was open for the respondent to have reversed the truck and driven around the broken-down car when traffic cleared, as other road users did.[62] That is true, but that does not make what the respondent did any less incidental to his employment as a delivery truck driver employed by the appellant.
[62] Appellant’s submissions, [67].
The appellant’s submission amounts to this: if the worker had sustained his injury while reversing his truck that injury would have been sustained in the course of employment, but the injury sustained when trying to remove the broken-down car is not, presumably because the former involved driving whereas the latter did not. I do not accept that the work of a delivery truck driver comes to an end when he gets out of the truck.
Furthermore, I accept the respondent’s submission in reply to this ground that the Member’s acceptance of the evidence of Dr Ho meant that the effects of the 18 November 2020 aggravation were continuing as at 9 March 2021. I have in considering Ground 1(i) of the appeal concluded that the Member did not err in his conclusion that the aggravation of 18 November 2020 continued.
Ground 1(ii) of the appeal is rejected.

Ground 1(iii) – The injury of 9 March 2021 was a novus actus

Appellant’s submissions

The appellant submits that this ground is incidental to Ground 1(ii) in that by not being in the course of his employment on 9 March 2021, the injury was a novus actus which snapped the causal chain for the purpose of any liability under the 1987 Act.

Respondent’s submissions

The respondent submits that this ground proceeds on the same argument that the events of 9March 2021 involved no connection to the emergence of the ankle symptoms in November 2020 (and which did not resolve). The respondent submits the argument of novus actus rejected by the Member was the only conclusion open on the evidence given the medical evidence, including the appellant’s own medicolegal case as presented by Dr Ho.

Consideration

For the reasons given with respect to Ground 1(ii), in my view, the events of 9 March 2021 were correctly regarded by the Member as being incidental to the worker’s employment by the appellant. The Member has made no error of fact, law or discretion in rejecting the submission that the 9 March 2021 events represented a novus actus.
Ground 1(iii) of the appeal is rejected.

Ground 1(iv) – The Member erred in finding that any ongoing need for treatment or incapacity for work arose solely from the injury sustained on 9 March 2021 and not the 18 November 2020 injury

Neither party addressed any submissions in support of this sub-ground of appeal. I assume that it is not pressed and I accordingly dismiss it.

GROUND 2: The Member erred in failing to find that the respondent’s employment with the appellant was not the main or substantial contributing factor to his injury

Appellant’s submissions

The appellant submits that the relevant principles are to be found in State Transit Authority of New South Wales v El-Achi,[63] citing Einstein J at [62] in Murray v Shillingsworth[64] to the effect that s 9A requires the employment to be a substantial contributing factor to the aggravation. Roche DP, adapting what was there said for the purpose of s 4(b)(ii) in the form in which it appeared in El-Achi, said the employment needed to be the main contributing factor to the aggravation, not to the disease process as a whole.
[63] [2015] NSWWCCPD 71 (El-Achi).
[64] [2006] NSWCA 367.
The appellant notes that in Sami v Victory Lodge Pty Limited[65] I said that it was not an error of law to take other factors into account when determining whether an applicant’s employment was the main contributing factor to the aggravation, etc., of the disease.
[65] [2020] NSWWCCPD 34.
The appellant quotes Dr Bodel that there were other contributing factors, including obesity and the peri-diabetic condition, which were relevant to the Achilles tendonitis as identified by Dr Ho. Further, the appellant submits that Dr Bodel said the primary treatment concern was to reduce the worker’s weight dramatically.
The appellant submits that clearly work was only one of the contributors.
The appellant quotes Dr Ho saying that various factors were all contributing to the overall picture and that the respondent’s condition would likely have occurred around the same time regardless. The appellant submits that the Member rejected that part of Dr Ho’s opinion[66] but was wrong to do so because it was a matter of expert opinion, an opinion that Dr Ho was able to give after weighing up all the various matters as he did.
[66] T2, 11.1, 18.30.
Furthermore, Dr Ho’s opinion in the second report made it plain that work was not the main contributing factor.
The appellant refers to the Member’s reasons at T2 27.17–35 and submits:
“While the Appellant must take the Respondent as they find them, work must still be the main contributing factor. Dr Bodel does not say it is nor does Dr Ho, in his ultimate opinion. On the evidence it was not open to the Member to find the Respondent’s work with the Appellant was the main or substantial contributing factor to any injury.
Additionally, no expert opines that the main contributing factor to the later injury in March 2022 [sic, 2021] was caused by ‘getting out of the car’ nor does the Member explain on what basis such a factual finding was drawn.”[67]
[67] Appellant’s submissions, [82]–[83].

Respondent’s submissions

The respondent submits that the condition which manifested itself in November 2020 did not resolve. The respondent suffered an aggravation of that condition on 9 March 2021.
The respondent submits that he would not have suffered the aggravation had he not been at work and engaged in the particular activity of responding to a broken-down vehicle. That event was traumatic and the obvious cause of the onset of more acute symptoms and greater pathology.
The appellant’s reliance on the worker’s weight fails to appreciate the clear injurious episode which resulted in the change in the worker’s pathology. The respondent refers to the factors listed in s 9A, namely time and place of injury, and the nature of the work, as factors in favour of the worker.
The respondent submits there is no basis to suggest that had the worker not been at work, and had he not encountered a broken-down vehicle on 9 March 2021, he would have injured his ankle at the same time.

Consideration

The Member said:
“In the end [it] doesn’t matter because whether the incident on 9 March 2021 was the main contributing factor or a substantial contributing factor. There are other elements involved. But I’d be satisfied that it was the getting out of the car that was the main contributing factor when he got out of the car because he was in the course of his duty. And concerned as a responsible employee to protect his employer’s property and [another] employee.”[68]
[68] T2, 27.25–33.
For the reasons that follow, I agree that the circumstances of the injury of 9 March 2021 satisfy both s 4(a) and (b). Further I agree that the appellant has failed to show error in the Member’s conclusion that the worker’s employment was a substantial contributing factor and the main contributing factor.
In Badawi an employee was injured in the snowfields when skiing down a mountain to attend a meeting with her supervisor.
Three members of the Court of Appeal (Allsop P, Beazley and McColl JJA) gave an example of a case where s 9A was in issue:
“Before going to the President’s reasons which we consider demonstrate this error, it is useful to consider an example which might be seen as a more routine or traditional case of an injury occurring in the course of employment. Take the case of a storeman who is required to unload goods in the course of his employment. Assume a case where the delivery van is late and the storeman is told by his supervisor that as there is nothing immediate to do, he can go to the staffroom until called. The staffroom is notoriously a place where employees play cards, as this storeman does while waiting for the delivery van. If the storeman responds to his supervisor’s call when the delivery van arrives and is injured when he trips over his chair in the staffroom, or whilst walking to the loading dock, there would be little difficulty, one would think, in finding that the employment was a substantial contributing factor to the injury. The circumstances in which the appellant’s injury occurred were no different in concept from that of the storeman hypothesised above, save that the accident in that example happened on the employer’s premises. That would be a matter to be considered in determining whether the employment was a substantial contributing factor.”[69]
[69] Badawi, [103].
The example given by the majority of the Court of Appeal is apt in the circumstances of this case. Mr Apulu was injured on 9 March 2021 because of his employment activity. It was because he was working, driving his delivery truck, that the need to remove the obstruction constituted by the broken-down in the manner in which he did.
If the injury of 9 March 2021 is viewed as a simple injury under s 4(a), then the test given by s 9A, that is, that the employment must be a substantial contributing factor, is satisfied.
If, as the Member held, the injury is viewed as an aggravation of a disease condition, then it is necessary for the employment to be the main contributing factor.
Contrary to the appellant’s submission, the question of main contributing factor is not solely dependent on the medical evidence. The Member was required to assess the medical evidence in the context of the other evidence overall.
In AV v AW Deputy President Snell said this:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above [a reference to the authorities that Deputy President Snell considered in some detail]:
(a)     …
(b)     The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)     …”.[70]
[70] [2020] NSWWCCPD 9, [77]–[78].
Although in the dispositive passage quoted at [124] above the Member only refers to “getting out of the car”, the Member in accepting the evidence of the respondent must be taken to have embraced the entirety of the description given by Mr Apulu of the events of 9 March 2021, including the effort required to push the broken-down vehicle.
The oral statement of reasons should not be scrutinised meticulously for inadvertent misdescription, particularly is this so where the Member has not edited or revised the draft.[71]
[71] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The worker’s evidence as to the events of 9 March 2021 included the following:
“Immediately I jumped out of the truck to prevent the car hitting our work vehicle and to protect Ahmed from getting caught in the middle. However, after taking a few steps whilst pushing the car I felt a sharp pain in my left heel. After the ordeal, I continued working …”.[72]
[72] ARD, p 5.
The Member accepted the medical evidence of Drs Ho and Bodel that the events of 9March 2021 had an effect on the underlying pathology.
Dr Ho said:
“I believe the debridement of the bone and the tendon is a result of the aggravation which happened in March 2021. As stated above, if that incident is decided as a non-related injury because it was outside the scope of his employment, then it would not be related to the work injury …”.[73]
[73] Reply, p 50.
Dr Bodel said in a passage apparently accepted by the Member:
“I have carefully read the report from Dr Ho and I largely agree with his clinical assessment as to the contribution from this gentleman’s obesity to his onset of symptoms. I do, however, still hold the view that there is a work-related component to this injury by way of aggravation, acceleration, exacerbation and deterioration of the disease process being the Achilles tendonitis that has been caused by work.”[74]
[74] T2, 17.7–14.
The Member was not persuaded that the worker’s obesity was causative. Rather, he took the view that the worker’s obesity was an existing factor upon which the employment activity of 9March 2021 acted. The Member concluded that the worker was an obese, overweight man who was not provided with appropriate footwear and for whom the nature and conditions of his employment resulted in the underlying condition of tendonitis or tendinopathy affecting the Achilles tendon being aggravated.
The main contributing factor is a reference to the effective cause of the aggravation. In Mr Apulu’s case the main contributing factor arising from the 9 March 2021 incident was the attempt to push the broken-down car, which was an incident of the worker’s employment by the appellant.
The lay evidence was that the 9 March 2021 injury occurred shortly after the worker got out of the car and started pushing the broken-down vehicle. The medical evidence is that that activity caused a worsening of the existing pathology. There was no evidence that the pathology on that day was impacted in any way except by the worker’s efforts to remove the broken-down vehicle.
The appellant has not established error in the Member’s assessment of the medical and lay evidence overall, or in his conclusion that the employment was the main contributing factor to the aggravation.
Ground 2 of the appeal is rejected.
The appeal is dismissed.

DECISION

The Certificate of Determination dated 26 August 2022 is amended to correct the date in order (1) to 18 November 2021, but is otherwise confirmed and referred to the Division Head of the Workers Compensation Division to issue the amended certificate accordingly.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

15 August 2023