White v Marist Youth Care Limited
[2023] NSWPICPD 41
•17 July 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | White v Marist Youth Care Limited [2023] NSWPICPD 41 |
APPELLANT: | Nathan White |
RESPONDENT: | Marist Youth Care Limited |
INSURER: | Catholic Church Insurances Limited |
FILE NUMBER: | A1-W1863/22 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 17 July 2023 |
ORDERS MADE ON APPEAL: | 1. Order 4 of the Certificate of Determination dated 19 July 2022 is revoked. 2. The remaining orders in the Certificate of Determination dated 19 July 2022 are confirmed. 3. The matter is remitted back to the same Member to determine the issue of work capacity and the claim for weekly compensation in accordance with these reasons. |
CATCHWORDS: | WORKERS COMPENSATION – evidentiary value of medical records and the obligation of a member to consider the evidence – Mason v Demasi [2009] NSWCA 227 considered – Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 applied – requirement to respond to substantial, clearly articulated arguments – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; 77ALJR 1088 and Wang v State of New South Wales [2019] NSWCA 263 applied – failure to have regard to arguments in respect of work capacity – sections 33 and 37 of the Workers Compensation Act 1987 – error in failing to consider consequential psychological injury when addressing capacity for work arising from a physical injury |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Slater & Gordon Lawyers | |
| Respondent: | |
| Mr T Murray, solicitor | |
| Integroe Partners | |
DECISION UNDER APPEAL | |
MEMBER: | Mr P Young |
DATE OF MEMBER’S DECISION: | 19 July 2022 |
INDEX TO DECISION
INDEX TO DECISION
INTRODUCTION
ON THE PAPERS
THRESHOLD MATTERS
THE EVIDENCE
THE MEMBER’S REASONS
GROUNDS OF APPEAL
LEGISLATION
DISCUSSION
As to Ground One – The Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine and/or both shoulders on the balance of probabilities and on the basis of the whole of the evidence
Some principles in relation to the evidentiary value of medical records and the obligation of a member to consider the evidence
Consideration
As to Ground Two – The Member committed errors of law by requiring the appellant to have corroboration in order to succeed
Consideration
As to Ground Three – The Member committed errors of law and failed to accord the appellant natural justice by failing to respond to substantial, clearly articulated arguments
Some principles arising from Dranichnikov v Minister for Immigration and Multicultural Affairs
Appellant’s submissions
Sub-Ground One
Sub-Ground Two
Sub-Ground Three
Respondent’s submissions
Sub-Ground One
Sub-Ground Two
Sub-Ground Three
Consideration
As to Sub-Ground One
As to Sub-Ground Two
As to Sub-Ground Three
As to Ground Four – The Member committed errors of law because he provided reasons that were neither rational nor logical
Consideration
As to Ground Five – The Member committed errors of law by failing to have regard to the appellant’s consequential psychological condition when addressing the question of capacity
As to Ground Six – The Member committed errors of fact by determining the appellant had capacity to work 25 hours per week and earn $25 per hour
As to Ground Seven – The Member committed errors of law by failing to provide adequate reasons for his findings in relation to injury to the appellant’s cervical spine and shoulders in circumstances where he had indicated the appellant’s “credit in view of the evidence has not been shaken”
Consideration
Some principles with respect to the obligation to give reasons and issues of credit where there is no cross-examination
Application of these principles to this Ground
As to Ground Eight – The Member committed errors of fact by determining Dr Anderson “comes to the conclusion that the [appellant] is unfit for his pre-injury work but it follows from his opinion that he is fit for some work, albeit with some restrictions”
Consideration
DECISION
INTRODUCTION
The appellant, Mr Nathan White, was employed on a full-time basis by Marist Youth Care (the respondent) as a youth worker. In this role, the appellant was allocated a home conducted by the respondent in North St Marys. Resident in the home were several young people or “clients” aged between 13–16 years under the care of the respondent’s service. The appellant’s role required him to cook, clean and perform general housework around the home.
The appellant states that on 19 March 2017, he slipped on a set of stairs in the house and suffered injury. The appellant says this was due to shampoo being poured onto the stairs by one of the home’s clients as a practical joke. The appellant alleged injuries to his cervical and lumbar spines, both shoulders and a consequential psychological condition. The appellant alleged that he was totally incapacitated for work.
The respondent denies that the incident occurred as alleged or at all, in dispute notices issued pursuant to the then s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 18 September 2017[1] and 30 November 2018,[2] and subsequently in a notice issued to ss 78 and 287A of the 1998 Act on 6 December 2021.[3] In the initial dispute notice, the respondent disputed injury to the lumbar spine, cervical spine, shoulders, head and bowel pursuant to ss 4, 9A, 4(b), 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act), and also argued that the appellant was not suffering from any consequential injury to these body parts, and that the appellant had recovered from any injury potentially sustained. This dispute was maintained in the second and third dispute notices, which also declined the appellant’s alleged psychological injury, both primary and consequential in nature.
[1] Application to Resolve a Dispute (ARD), p 53.
[2] ARD, p 54.
[3] ARD, p 23.
The matter was heard before Member Young on 1 June 2022. As the hearing could not be completed on that date, the parties exchanged written submissions. By decision dated 19 July 2022,[4] the Member found that the appellant did suffer injury to his lumbar spine in the subject incident and also found that the appellant suffered from a consequential psychological condition. The Member entered awards in favour of the respondent for allegations of injury to the cervical spine and both upper extremities (shoulders). The Member also found that the appellant, whilst unfit for his pre-injury duties, did have a residual working capacity and adjusted the award of weekly compensation accordingly.[5]
[4] White v Marist Youth Care Limited [2022] NSWPIC 391 (reasons).
[5] Reasons, [41]–[44].
The appellant appeals against only those aspects of the Member’s decision which were adverse to his application. The orders in the Certificate of Determination dated 19 July 2022 which are subject to challenge are orders numbered 3 and 4 in respect of the finding of no injury to the cervical spine and shoulders, and the calculation of weekly payments, respectively. There is no challenge to the remaining orders, numbered 1, 2, and 5.
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 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; 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.
THE EVIDENCE
The evidence that is relevant to the issues raised on this appeal is set out in the answer to each of the appeal grounds. However, it is necessary to refer to some of this evidence in some detail here in order to fairly reflect the totality of the material.
The appellant relied upon two statements in support of his claim, both of which set out details of the appellant’s education, qualifications and employment history. The first is dated 15 October 2019[6] and the second is dated 17 July 2020.[7]
[6] ARD, p 1.
[7] ARD, p 10.
In his first statement, the appellant recalls that on the date of injury, he fell backward and experienced “immediate pain” in his “back, neck, shoulder and head”. He says he informed a colleague named Sandra and submitted an “online claim form”.[8] He believed that the pain would subside, but it persisted, thus informing his general practitioner, Dr Farabi of lower back pain on 29 March 2017. He was told by the doctor that his pain was related to tenderness and was recommended exercises and eventually radiology. The appellant says that he also attended Dr Farabi in relation to treatment of his neck. The appellant says his pain was becoming chronic, causing him anxiety. He received treatment with various specialists, including one doctor who informed him that his spinal issues were related to throat infection. In this statement, the appellant acknowledges that he had experienced prior back pain, but it was not the chronic pain he was experiencing after the injury. As a result of his resulting physical and psychological ailments, the appellant states he has been unable to engage in suitable duties.
[8] Appellant’s first statement dated 15 October 2019, [21]–[23].
In his subsequent statement of 17 July 2020, the appellant largely repeats his first statement, with additional detail. He states that he was in a state of “shock” after the fall but believed he “may have just strained [his] back and that the pain would subside”.[9] He says that he informed Dr Farabi on 29 March 2017 of neck pain as well as back pain.[10] When a minor disc bulge was discovered in his back, he underwent an injection which he says only relieved his pain for one day. He described increasing pain in his back and neck which could not be relieved through treatment. He says his back pain eventually radiated into his right leg, and that his medication was causing him bowel issues. This pain prohibited his once active and social life, causing him anxiety, depression and PTSD. Contrary to his first statement, in this statement, the appellant denied any “previous injuries”.
[9] Appellant’s second statement dated 17 July 2020, [19].
[10] Appellant’s second statement dated 17 July 2020, [21].
In terms of the documentary evidence referred to by the appellant completed on the date of injury, there appears to be an online form typed by a “Ms Biki”, which records the fall, the subsequent clean up and reprimand given to the client who dispersed the shampoo on the stairs.[11] This document does not specify any body parts were injured. A handwritten “Register of Injuries”[12] records that on 19 March 2017 at 9.45 am, the appellant sustained “neck, back, head, and shoulder pain” when falling down the stairs. The body parts injured are specified to be his “neck, back, head” (with no reference of the shoulder). This document is both undated and unsigned and is referred to in the appellant’s written submissions before the Member but does not form part of the submissions in this appeal.[13] Also in evidence is a daily run sheet outlining the activities of the day of 19 March 2017 within the residence, as well as a “staff slip on stairs”, but does not provide details of the injury sustained.[14]
[11] ARD, p 21.
[12] Reply to Application to Resolve a Dispute (reply), p 51.
[13] Appellant’s written submissions before the Member, 20 June 2022, [81], [142]–[145].
[14] ARD, p 18.
Both the respondent and appellant rely on the clinical records of treating doctors to either prove the existence of complaints of injury, or to disprove the presence of same. In addition, the parties rely on expert independent medical opinions. The appellant relies on the independent medical opinion of Dr Tim Anderson, occupational physician, who provided two reports dated 15 August 2018[15] and 28 April 2021.[16] In the first report, Dr Anderson takes a history of the appellant hurting his neck and lower back on the date of the fall. While the appellant was able to get up, he experienced continuing aches and pain thereafter. Dr Anderson considered that the appellant appeared “grossly dysfunctional” on examination, which was indicative of the development of chronic pain. According to the doctor, the appellant was unfit for pre-injury employment, and “very limited” in terms of engaging in other work on the labour market, given pre-existing ADHD and his limited physical capabilities (to avoid lifting, carrying, bending, twisting, pushing and pulling). In the second report, Dr Anderson confirms the history described but also notes that the appellant’s neck pain had radiated to the right shoulder. Dr Anderson was of the view the appellant was suffering a “musculo-ligamentous strain condition of the cervical spine and lumbar spine … there is also a restriction of movement in the shoulders”.[17] Whilst there was improvement since the last examination, Dr Anderson opined that the appellant was still unfit for his pre-injury employment and considered the appellant should be urged to consider a new occupation. According to Dr Anderson, the appellant was still riddled with restrictions in respect to his capacity for work, and recommended that the appellant avoid frequent bending, lifting, carrying (anything more than 5 kg), pulling, twisting, or holding posture.
[15] ARD, p 72.
[16] ARD, p 81.
[17] ARD, p 85.
The respondent relies on Dr Kim Edwards, surgeon, who provided two independent medical opinions on 28 June 2017[18] and 8 September 2017.[19] At initial examination, the appellant described hitting his back, head and shoulders in the subject fall, and that neck problems were present for about one week after the fall. When asked about prior history, the appellant denied any significant back pain but acknowledged occasional back pain which did not require treatment. The appellant did not complain of shoulder problems. In Dr Edwards’ opinion, the cause of the appellant’s symptoms could not be described, even by the radiology. This caused the doctor to query the veracity of the appellant’s complaints. Dr Edwards refrained from providing a diagnosis until given the opportunity to review clinical records of the appellant’s general practitioner, Dr Farabi. These records were provided to Dr Edwards, along with covert surveillance images, for consideration in his second report. Following review of these records, Dr Edwards formed the view that the appellant did not suffer any injury as a result of the incident on 19 March 2017.
[18] Reply, p 1.
[19] Reply, p 10.
THE MEMBER’S REASONS
The primary issue for consideration by the Member was whether the appellant fell in the course of his employment on 19 March 2017, and if so, whether he suffered injury to his back, neck and shoulders. The Member also had to decide whether, as a result of the subject injury, the appellant suffered a consequential psychological injury. Before proceeding to determine these issues, an application for leave was made by the appellant to amend the pleadings to add a primary psychological injury and a claim for permanent impairment, as well as an amendment to plead injury to both shoulders rather than one shoulder (an apparent oversight). In an oral decision, the Member did not allow the inclusion of a primary psychological injury and the permanent impairment claim on the basis of prejudice arising to the respondent,[20] but the Member did allow the amendment to plead injury to both shoulders. In coming to that decision, the Member noted the appellant’s argument that there was ambiguity in the appellant’s claim form as to whether “shoulder injury” was a reference to singular or plural. The Member noted that the respondent had had the opportunity to arrange an examination of both shoulders, and after considering there to be no prejudice, allowed the amendment to plead injury to both shoulders.[21]
[20] Transcript of proceedings 1 June 2022 (T), T 13.24–14.4.
[21] T 26–27.
In discussing the case before him, the Member referred to the respondent’s submission that the various consultation notes of the general practitioners in the three months following injury on 19 March 2017 indicated that the appellant made a “belated” complaint with respect to the fall, and an even later claim of injury to his neck, with no complaint of problem to the shoulders. Noting this, the Member chronologically recounted the general practitioner’s notes from the date of injury. The Member noted the consultation with Dr Farabi, three days after the injury on 22 March 2017, which did not include any complaint regarding the appellant’s neck, back, shoulders or psychological issues. There were however clinical record entries from 29 March 2017 to June 2017 which intermittently referenced treatment of lower back pain and psychological complaints. While there was an entry on 29 May 2017 which reported neck pain, the Member noted there was no complaint of shoulder problems.[22]
[22] Reasons, [13]–[14].
The respondent submitted that the appellant was suffering from a previous back injury which had not been satisfactorily addressed by the medical experts. The Member noted the previous injury was referenced in consultation notes dating around 2015, which referred to back pain as early as in 2011. While the Member was satisfied of “a history of some prior back pain or symptoms”,[23] this required comparison with the “whole of the evidence”, namely the lack of any back complaints in the nine months leading up to the subject incident of 19 March 2017.[24] The absence of complaint was not determinative, but the Member held this weighed in favour of the appellant’s case that he was able to perform duties without complaint for some nine months prior to the injury on 19 March 2017.[25]
[23] Reasons, [15]–[16].
[24] Reasons, [18].
[25] Reasons, [37].
In considering the independent medical opinions of Dr Anderson, the Member noted that Dr Anderson initially referred to injury to the neck and back, but not the shoulders, until his second report some years later.[26] While the “daily running notes” in evidence confirmed the presence of shampoo on the stairs causing a slip, this did not support the assertion of the type of injury sustained, nor was there radiological evidence demonstrating significant pathology in the back, despite Dr Anderson regarding the appellant as totally unfit for work.[27]
[26] Reasons, [19], [24].
[27] Reasons, [19]–[20].
The Member referred to the medical opinion of Dr Edwards in a report of 28 June 2017, to whom the appellant described experiencing neck pain about one week after the fall but also denied a prior history of back pain. The Member noted that the appellant did not alert the doctor to any problem with the shoulders. Although Dr Edwards provided the subsequent opinion of no injury following review of clinical records,[28] after having regard to the series of complaints made by the appellant and treatment received in respect of the lower back injury, the Member ultimately accepted that the appellant had suffered an injury to his lumbar spine at work on 19 March 2017.[29]
[28] Reasons, [21].
[29] Reasons, [39].
The Member referred to the appellant’s statement, wherein the appellant asserts that he reported neck pain to Dr Farabi on 29 March 2017. This was contrary to the actual clinical record on this date, which was silent on any complaint to the neck, nor any complaint to the shoulders.[30] The Member did not accept the appellant’s argument that the absence of complaints should not detract from the injury allegedly sustained, given that several subsequent clinical records from the date of injury were indicative of treatment of the worker’s injuries as a whole. Having regard to the delay in which the complaints were made to the neck and shoulders, the Member held that the “clinical records simply do not support any contemporaneous assertion … and whilst I am mindful of Mason[31] (and similar authorities) and entries which are some months later … in my view there was ample opportunity in earlier consultations for the [appellant] to have mentioned neck and shoulder problems, had they been present”.[32] Although the various clinical records referred to by the appellant were helpful in making reference to chronic pain, they failed to assist the “[appellant’s] problem in not seeking earlier treatment nor making any earlier complaint concerning his neck and shoulders.”[33]
[30] Reasons, [35].
[31] Mason v Demasi [2009] NSWCA 227 (Demasi).
[32] Reasons, [36].
[33] Reasons, [37].
In respect of the secondary psychological injury, the Member held that the appellant’s “chronic back pain [made] a material contribution to his consequential psychological condition”.[34] Despite questioning the strength of the limited treating psychiatrist reports available, the Member was satisfied by the independent medical opinion of Dr Allan of 8 June 2021, as despite it dealing mostly with a primary psychological injury (which was not pleaded), the doctor appeared to support a mix of both primary and secondary psychological injuries given the “partial” diagnosis of “depressive disorder of a secondary nature”.[35] Dr Allan’s opinion of total incapacity, however, was of limited assistance to the Member as it was based on an assessment of whole person impairment for a primary psychological injury.[36] The Member did not accept the independent medical opinion of Dr Roberts of 17 January 2018 (qualified by the respondent), as it was largely predicated upon Dr Edwards’ finding of no physical injury.[37]
[34] Reasons, [38].
[35] Reasons, [30].
[36] Reasons, [22]–[24].
[37] Reasons, [39].
After finding injury in respect of the lower back and a secondary psychological condition, the Member turned to the appellant’s capacity for work. The Member proceeded to determine this issue “regardless” of incapacity arising from the psychological injury given the existing limitations caused by the lower back. According to the Member, Dr Anderson’s opinion was that the appellant could not engage in pre-injury employment but was able to engage in “some work”, and thus, the Member assessed the appellant’s ability to earn in suitable employment as defined by s 32A of the 1987 Act with regard to the appellant’s age, completion of year 11, qualifications in Community Service and past history as a youth worker (which appeared to repeat the history outlined in the appellant’s statements). The Member determined that the appellant had capacity to work 25 hours per week, earning an hourly rate of $25, but, problematically, failed to articulate the source of evidence for these findings. The Member calculated weekly payments at a rate of $523 pursuant to s 37 of the 1987 Act, representing 80% of the appellant’s pre-injury average weekly earnings of $1,148 less the capacity to earn $625 per week in suitable employment.[38] The Member also granted a general award for medical expenses.[39]
[38] Reasons, [41]–[44].
[39] Reasons, [45].
The Certificate of Determination issued on 19 July 2022 thus records:
“1. The [appellant] in the course of his employment with the respondent on 19 March 2017 suffered injury to his lumbar spine.
2. The [appellant] as a consequence of injury to his lumbar spine suffered a secondary and consequential psychological condition.
3. Award for the respondent in respect of allegations of injury to the [appellant’s] cervical spine and both upper extremities (shoulders).
4. Award in favour of the [appellant] for weekly payments of compensation for the period 19 September 2017 for 115 weeks being the remaining second entitlement period pursuant to s 37 of the Workers Compensation Act 1987, as amended, … in the sum of $523 per week.
5. General award in favour of the [appellant] in respect of expenses pursuant to s 60 of the 1987 Act, limited to expenses in respect of injuries to the [appellant’s] lumbar spine and secondary consequential psychological condition as determined above.”
GROUNDS OF APPEAL
The appellant advances the following eight grounds of appeal asserting error on the part of the Member.
Ground One - The Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine and/or both shoulders on the balance of probabilities and on the basis of the whole of the evidence.
Ground Two - The Member committed errors of law by requiring the appellant to have corroboration in order to succeed.
Ground Three - The Member committed errors of law and failed to accord the appellant natural justice by failing to respond to substantial, clearly articulated arguments.
Ground Four - The Member committed errors of law because he provided reasons that were neither rational nor logical.
Ground Five - The Member committed errors of law by failing to have regard to the appellant’s consequential psychological condition when addressing the question of capacity.
Ground Six - The Member committed errors of fact by determining the appellant had capacity to work 25 hours per week and earn $25 per hour.
Ground Seven - The Member committed errors of law by failing to provide adequate reasons for his findings in relation to injury to the appellant’s cervical spine and shoulders in circumstances where he had indicated the appellant’s “credit in view of the evidence has not been shaken”.
Ground Eight - The Member committed errors of fact by determining Dr Anderson “comes to the conclusion that the [appellant] is unfit for his pre-injury work but it follows from his opinion that he is fit for some work, albeit with some restrictions.”
LEGISLATION
Section 4(b) of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act—
injury—
(a) …
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
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.”
Section 32A of the 1987 Act provides the following relevant definitions:
“first entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period not exceeding 13 weeks (whether or not consecutive) in respect of which a weekly payment has been paid or is payable to the worker.”
“second entitlement period, in relation to a claim for compensation in the form of weekly payments made by a worker, means an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period in respect of which a weekly payment has been paid or is payable to the worker.”
“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.”
Section 33 of the 1987 Act provides that:
“If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Section 37 of the 1987 Act provides that:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Clause 9 of Sch 3 to the 1987 Act provides:
“9 Meaning of ‘current work capacity’ and ‘no current work capacity’
(1) An injured worker has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the worker’s pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.
(2) An injured worker has no current work capacity if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
DISCUSSION
Before turning to a consideration of the appeal grounds, it is timely to record the function of a Presidential Member when hearing an appeal. Intervention on appeal requires the appellant to establish that the Member’s decision was affected by error of fact, law or discretion.[40] How this approach to appeals operates has been discussed in Raulston v Toll Pty Ltd.[41] In summary, it is the existence of error of the type referred to in s 352(5) of the 1998 Act that sanctions intervention on appeal.
As to Ground One – The Member committed errors of law by not determining whether the appellant sustained injuries to his cervical spine and/or both shoulders on the balance of probabilities and on the basis of the whole of the evidence
[40] Section 352(5) of the 1987 Act.
[41] [2011] NSWWCCPD 25 (Raulston).
The essence of Ground One is the appellant’s complaint “that the Member did not determine the matter on the totality of the evidence and on the balance of probabilities. Rather, the Member determined the matter on the basis of what he considered to be contemporaneous.”[42] Namely, when considering the treating medical records which were created once the appellant sought treatment post injury, there was a lack of recorded complaint about injury to the appellant’s cervical spine and shoulders. The appellant says that this approach to those medical records, being the GP’s clinical notes, was determinative with respect to the Member’s adverse findings regarding cervical spine and shoulders,[43] to the exclusion of a consideration of the “whole of the evidence”. The appellant complains that this was not the standard that he was required to satisfy to be successful.[44] The appellant further complains that the Member did not indicate what he considered to be “contemporaneous”.
[42] Appellant’s submissions in reply, 11 September 2022, [26].
[43] Appellant’s submissions on appeal, 27 July 2022, [43].
[44] Appellant’s submissions on appeal, 27 July 2022, [34].
The appellant points to the SIRA Claim Form dated 18 May 2017,[45] which was completed approximately two months post injury. I would remark that this document, which was filled out by the appellant and signed by him, says as follows in answer to two questions about firstly how he was injured, and secondly, which parts of his body were affected:
“I fell down stairs hurting back shoulder etc”;
and
“My lower back, bowl [sic] etc”.[46]
[45] Reply, p 57.
[46] Reply, p 58.
The appellant is critical of the Member’s failure to deal with the SIRA Claim Form.[47] The appellant says:
“The Member’s reasons do not disclose that he considered the SIRA Claim Form, let alone that he did not consider it as being contemporaneous or that he preferred other evidence in favour of it.”[48]
[47] Appellant’s submissions on appeal, 27 July 2022, [35], [49], [51], [52], [53]; appellant’s submissions in reply, 11 September 2022, [19].
[48] Appellant’s submissions in reply, 11 September 2022, [19].
The appellant also submits the following :
“The Member did not have regard to the following from the Appellant’s lay evidence:
a. The Appellant experienced immediate pain in his back, neck and shoulder (paragraph 21, page 2 of the ARD).
b. An incident report in this regard was submitted and the Appellant reported the incident to a Ms Sandra.
c. Because the Appellant was able to get himself up, he ‘thought that the pain would subside however after a couple of weeks, the pain persisted’ (paragraph 24, page 2 of the ARD).
d. The Appellant was in shock at the time and he considered that he may have just strained his back and that the pain would subside (paragraphs 19 and 20 at page 11 of the ARD)
e. The Appellant ultimately required treatment for his injuries.
f. The Appellant attended upon Dr Farabi, GP, on 29 March 2017, and told him that he had been experiencing severe lower back pain and neck pain (paragraph 21, page 12 of the ARD).
g. As is apparent from paragraph 25 of the Appellant’s initial statement, notwithstanding him having undergone treatment, his issues/symptoms continued.”[49]
[49] Appellant’s submissions on appeal, 27 July 2022, [45].
“The Member had the before him:
a. Clinical entry of Dr Farabi dated 29 May 2017 (page 43 of the Reply). It is apparent from this entry that the Appellant had ‘said he had neck pain as well following the fall at work’ and he was referred to undergo cervical spine imaging.
b. Clinical entry of Dr Farabi dated 30 May 2017 (page 44 of the Reply). The Appellant presented with neck pain.
c. Clinical record of Mt Healius Mt Druitt dated 22 May 2017 (page 498 of the ARD) which made reference to ‘spinal/back/neck/shoulder’ issues.
The Member was also referred to the clinical entry of Healius Mt Druitt dated 21 August 2018 (page 497 of the ARD). In this entry, the subject incident was noted. It was also recorded that the Appellant ‘Landed on back and head’, ‘Reported injury’, ‘Neck back and shoulder’ and ‘Thought it would go away – Dr ‘See how its (sic) goes’’.”[50]
[50] Appellant’s submissions on appeal, 27 July 2022, [62]–[63].
“Viewing Dr Anderson’s first report, dated 15 August 2018 (at page 72 of the ARD), it had been submitted to the Member the following:
a. Dr Anderson’s examination revealed issues with the Appellant’s shoulders.
b. Dr Anderson stated that the cause of the Appellant’s physical injuries were the subject accident.
c. Although expressed when addressing the question of whether he agreed with Dr Kim Edwards’ opinion (qualified by the Respondent), in response to question 11 Dr Anderson stated:
‘No, I do not. If anything, Mr White’s condition has deteriorated progressively since the time of this event. There is no history of any other condition, injury or circumstances which would account for his current condition and therefore however seriously or otherwise the initial injury was when he fell down the stairs, this is undoubtedly the major triggering factor for his current situation.’”[51] (appellant’s emphasis)
[51] Appellant’s submissions on appeal, 27 July 2022, [69].
“The following was brought to the Member’s attention having regard to Dr Anderson’s second report, dated 28 April 2021 (at 81 of the ARD):
a. In response to question 2, Dr Anderson provided his diagnosis and noted the injuries to the claimed body parts, including the cervical spine and both shoulders.
b. The injuries were causally related to the subject incident.”[52]
“The only references to Dr Anderson’s opinion, in respect of the issue of injury, are found at [19] and [24].
At [24] the Member noted the Respondent’s submissions with respect to Dr Anderson’s opinion and indicated that:
‘The respondent makes the point that the [Appellant] relies upon reports of Dr Anderson and Dr Allan but both reports are well after the alleged date of injury.’
The Appellant submits that the Member did not indicate whether he accepted these submissions or not i.e. it is not known what weight, if any, the Member placed upon Dr Anderson’s opinion with respect to the issue of injury.
The dispositive parts of the Member’s reasons with respect to the question of injury appear to be paragraphs [33]–[37] and there is no mention of Dr Anderson’s evidence or these submissions when considering the question of cervical spine and bilateral shoulder injuries.
Accordingly, this emphasises the Member did not consider the whole of the evidence and only focused upon specific pieces of evidence.
Even if, contrary to these submissions, it is determined that the Member’s remarks at [24] demonstrated that he did not accept Dr Anderson’s opinion for the reasons canvassed therein, it remains the case that the Member focused upon contemporaneousness rather than considering the whole of the evidence.
Pertaining to Dr Allan, it had been submitted to the Member that under the sub-heading ‘HISTORY OF WORKPLACE INJURY’ Dr Allan had recorded the history that he had been in constant pain from the time of the subject incident.”[53]
[52] Appellant’s submissions on appeal, 27 July 2022, [70].
[53] Appellant’s submissions on appeal, 27 July 2022, [71]–[77].
In support of the appellant’s primary submission that the whole of the evidence needed to be considered, the appellant relies upon the authorities of Chanaa v Zarour,[54] Nguyen v Cosmopolitan Homes[55] and Palise v Australian and New Zealand Banking Group Ltd.[56]
[54] [2011] NSWCA 199 (Chanaa), [86].
[55] [2008] NSWCA 246 (Nguyen), [55].
[56] [2018] NSWWCCPD 13 (Palise), [109].
In response, the respondent submits that:
“a central factor leading to the Member’s ultimate conclusions was the absence of reference of complaint to the neck and shoulders in the GP clinical records of Dr Farabi for a period of over six weeks. Those entries were reviewed by the Member in detail at paragraph 13 his decision and were the subject of detailed consideration by the Member.”[57]
[57] Respondent’s submissions on appeal, 2 September 2022, [14], citing reasons, [35]–[37].
The respondent further argues that the appellant has not shown how these conclusions reached by the Member were not open to him. The respondent says that the real complaint advanced by the appellant is that the Member did not have regard to the balance of the evidence, which the respondent states is incorrect.[58] The respondent points to the passages of the decision where the Member considered Dr Anderson’s reports. The respondent submits:
“The Member has noted that Dr Anderson saw the worker for the first time ‘well after the alleged date of injury’ ...
The Member had clearly earlier preferred the contemporaneous clinical material on the question of whether the worker suffered injury to his neck and shoulders as alleged. Dr Anderson’s reports did not assist that factual determination.”[59]
The respondent submits that this is not surprising given the doctor could only proceed on the history as given.[60]
[58] Respondent’s submissions on appeal, 2 September 2022, [16].
[59] Respondent’s submissions on appeal, 2 September 2022, [28]–[29], citing reasons, [24].
[60] Respondent’s submissions on appeal, 2 September 2022, [32].
The Member at reasons [40] made the following finding: “but the [appellant’s] credit in my view of the evidence has not been shaken.” The respondent submits that, notwithstanding this finding, this does not require that the worker’s evidence on all matters be accepted.[61] In this regard, the respondent also relies upon Chanaa where Campbell JA said that “there is no requirement for the judge to accept the whole of the evidence of any one witness.”[62]
[61] Respondent’s submissions on appeal, 2 September 2022, [23].
[62] Chanaa, [86].
The appellant’s submissions in reply submit that the respondent has failed to understand and grapple with the appellant’s arguments in this ground, nor has it engaged with the three authorities (Chanaa, Palise and Nguyen) relied upon by the appellant.
Some principles in relation to the evidentiary value of medical records and the obligation of a member to consider the evidence
The Member was taken to and referred to the decision in Demasi. Basten JA found as follows in relation to the care to be taken with respect to reviewing medical records and how they ought to be approached in an evidentiary sense:
“First, the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:
(a) the health professional who took the history has not been cross-examined about:
(i) the circumstances of the consultation;
(ii) the manner in which the history was obtained;
(iii) the period of time devoted to that exercise, and
(iv) the accuracy of the recording;
(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;
(c) the record did not identify any questions which may have elucidated replies;
(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and
(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.”[63]
[63] Demasi, [2].
The appellant asserts in very strong terms that it was the Member’s duty to consider the “whole” of the evidence. The appellant cites three authorities to support this submission (referred to above).
In Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230,[64] Roche DP said the following when dealing with the requirement to give reasons and the obligation to refer to the evidence:
“To succeed in having the decision set aside on this ground Mr Singh must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).”[65] (emphasis added)
[64] [2007] NSWWCCPD 230 (Singh).
[65] Singh, [62]–[63].
In Roncevich V Repatriation Commission,[66] Kirby J said that the courts should “avoid overly pernickety examination of the reasons” and that “[t]he focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties”.[67] A similar approach was taken by Bellew J in Bevan v Bingham & Ors[68] in respect of an alleged failure of a Review Panel to properly disclose its reasoning in respect of the issue of costs, but is equally as applicable here. His Honour said as follows:
“… In considering this issue, it is necessary to bear firmly in mind that the reasons of an administrative decision maker are not to be scrutinised by overzealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons have been expressed, nor are such reasons to be minutely construed with an eye keenly attuned to the perception of error.”[69]
[66] [2005] HCA 40 (Roncevich).
[67] Roncevich, [64].
[68] [2023] NSWSC 19 (Bevan).
[69] Bevan, [71], citing AAI Limited trading as AAMI v Boga [2020] NSWSC 1903; 95 MVR 17, [75]–[76] and the authorities cited therein.
In addition to these decisions, I would remark that the Commission’s objects[70] and guiding principles[71] mandate that the Commission resolve the real issues in dispute justly, quickly and cost effectively.
[70] Section 3 of the 2020 Act.
[71] Section 42 of the 2020 Act.
Consideration
I would note that the respondent had always placed injury in issue in this matter, not only injury on 19 March 2017, but also the appellant’s various claims of injury to different parts of his body.[72] Given this was the manner in which the parties framed the dispute, it was thus necessary for the Member to grapple with what were clearly the “real issues” placed in dispute.
[72] Notices issued by the Respondent’s insurer under s 78 of the 1998 Act dated 18 September 2017 (ARD, p 53), 30 November 2018 (reply, p 64) and 6 December 2021 (ARD, p 24).
But before embarking upon consideration of this ground, I should say that I do not accept the appellant’s submission, advanced in this ground, that the Member was obliged to consider the “whole of the evidence”. This submission frames a decision-maker’s obligation perhaps too highly. Rather the approach is as I have outlined above, having regard to the Commission’s statutory mandate and the various authorities that I have referred to. In particular, I refer to the remarks of Roche DP in Singh at [63] which I have emphasised (above).
In summary, it is not necessary for a Commission member to refer to every piece of evidence placed before them. A member is obliged to carefully review, construe and analyse the relevant evidence which pertains to the real issues that are in dispute. Where evidence is to be accepted, preferred, discounted or not given much weight, the member is obliged to expose his or her path of reasoning in arriving at this conclusion. But I do not accept that a member is obliged to refer to every piece of evidence, this is wrong in principle. This is the approach I will take to the consideration of this appeal ground.
A starting point in this consideration is the document that has been described by the appellant as “an incident report”,[73] noting the importance ascribed to it by the appellant. The appellant referred the Member to this incident report at paragraph [44] of his written submissions dated 20 June 2022. Neither reference to this document was footnoted. As such, during the conduct of this appeal, I asked the parties to confirm that the document at ARD, p 18 was the “Incident Report” being referred to in the submissions. The parties confirmed that it was.[74]
[73] Appellant’s submissions on appeal, 27 July 2022, [45(b)].
[74] Email from Slater & Gordon Lawyers dated 10 July 2023.
This document is not an “Incident Report” as alleged by the appellant before the Member or on appeal. The document is entitled “Daily Running Notes” and at the head of the document is the heading “Procedure.” The Procedure provides how the document is to be completed and that events are to be recorded in the Daily Running Notes as they occur. This document, rather than being an incident report, is in fact a recorded log of events at the home as they occur during the day. The purpose of the document, on its face, is not that of a discrete incident report, rather it records all matters occurring at the home, requiring input of the time and details of the event, and the initials of the staff member who presumably made the entry. In this document, the following entry appears:
0945
Staff go to check if YP BF is in his room staff slip on stairs YP BS put shampoo on all stairs staff give hurdle help to YP BS YP cleans shampoo off all steps staff NW mops with hot water staff NW gets senior YW SS to give her opinion steps safe
NW
The initials “NW “appear in the third column which in accordance with the appellant’s submissions I take to be the appellant. This document does not detail any injury having been suffered, nor does it identify any of the body parts now in dispute. It also does not identify the name of the staff member who was involved in the fall. Consequently, I do not accept the inference sought to be made by the appellant regarding the reporting of the incident with reference to this document. This document simply records that on 19 March 2017 an unidentified staff member slipped on stairs and nothing more. I accept that for the purposes of considering this document, the unidentified staff member referred to is the appellant. The Member briefly referred to this document at reasons [20]. So, this document is, at best, neutral in terms of what the appellant now says, and the Member was correct to deal with it in the manner in which he did. I do not accept the assertion made by the appellant that the Member failed to have regard to this document. The Member had brief regard to the document because it possessed little probative value.
Reading the Member’s decision as a whole,[75] it is apparent that the Member was concerned with identifying recorded complaints of injury to the appellant’s various body parts which were contemporaneous to the 19 March 2017 date of injury.
[75] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale).
The relevant section of the Member’s decision is found at reasons [36], which I set out in full:
“The [appellant’s] submissions deal with the absence of early clinical entries concerning the [appellant’s] neck and shoulders … It is true that the [appellant] alleged that he complained of neck and back pain as the submissions assert. But the clinical records simply do not support any contemporaneous assertion in that regard and whilst I am mindful of [Demasi] (and similar authorities) and entries which are some months later (particularly the report made to Dr Farabi on 29 May 2017 regarding neck pain) and the earlier report of 22 May 2017 in the clinical notes of Healius Mt Druitt,[[76]] in my view there was ample opportunity in earlier consultations for the [appellant] to have mentioned neck and shoulder problems, had they been present.”
[76] ARD, p 498.
The appellant complains that he does not understand what the Member means by his use of the word “contemporaneous”. It is quite true that the Member did not ascribe any meaning or time period to what he understood to be contemporaneous. The meaning of this word is not obscure. It is not a term of art or a technical term, it is an ordinary English word which means “adj.1 existing or occurring at the same time. 2. The same period”.[77]
[77] The Australian Concise Oxford Dictionary 5th Edition 2012.
The Member adopted a chronological approach in assessing the medical records in evidence. Firstly, the Member commences a review of the GP’s clinical records, noting that the appellant attended Dr Farabi on 22 March 2017, three days post-accident.[78] There is no record of any complaint about injury at work or any problems with the appellant’s back, neck, shoulders or psychological issues in this consultation. Following this, the Member records the appellant’s GP attendances from 29 March 2017 until 6 June 2017, a period of slightly over two months involving nine attendances:
[78] Reasons, [12].
“Further consultations were had with general practitioners after 19 March 2017 as follows:
(a) 29 March 2017 worm infestation?, fungal infection and lower back pain but no mention of the 19 March 2017 incident, no workers compensation issue and no radiology requested.
(b) 3 April 2017 GORD but no mention of injury.
(c) 9 May 2017 insomnia, back injury but no mention that the [appellant] injured himself on 19 March 2017. (Note however, X-rays were requested for the reason ‘chronic pain following fall at work’.)
(d) 16 May 2017 back pain due to fall, slippery stairs due to shampoo, happened a few weeks ago. Subject to (c) above, this is the first mention of work-related back pain but there is no mention of neck or shoulder injuries.
(e) 17 May 2017 anxiety/depression, anxious about the back injury, CT result and WorkCover.
(f) 19 May 2017 workers compensation lower back pain, nil radiculopathy.
(g) 29 May 2017 ‘he said he has neck pain as well following the fall at work’ – no complaint of shoulder problems.
(h) 30 May 2017 back pain, lumbo-sacral ADHD … anxiety symptoms may need to review with his psychiatrist. (There is no information concerning who this psychiatrist is and what treatment the applicant has already received).
(i) 6 June 2017 feels better, improving pain following physiotherapy, lower back muscle spasm, would like to go back to work with restriction for week.”[79]
[79] Reasons, [13], citing reply pp 41–44.
The Member then notes the respondent’s submission that in the three-month period after 19 March 2017, the appellant “made a belated claim of his fall at work affecting his back and an even later claim of problems with his neck, but no complaint whatsoever of any problems with his shoulders.”[80] It is thus apparent the period that the Member closely examined for complaints of injury was the period of 2–3 months post-incident.[81] I consider that a fair reading of the Member’s decision as a whole leads me to conclude this is the period said to be “contemporaneous” for the purposes of the Member’s decision. Importantly, the Member cautions himself about the care with which such records need to be approached, citing Demasi (see [54] above).[82] Noting that warning, the Member reached the view that “there was ample opportunity in earlier consultations for the [appellant] to have mentioned neck and shoulder problems, had they been present.”[83] I would remark that no issue is taken with this finding on appeal.
[80] Reasons, [14].
[81] Reasons, [13]–[14].
[82] Reasons, [36].
[83] Reasons, [36].
The Member deals with what he describes as “past history”, before reaching a view that “[t]here is no evidence I believe of any back problems, pain or discomfort experienced by the [appellant] in about 9 months up to 19 March 2017.”[84]
[84] Reasons, [15]–[18].
The Member then approaches Dr Anderson’s reports of 15 August 2018 and 28 April 2021,[85] noting a history of injury to the back and neck but nothing about the appellant’s shoulders, other than examination revealing restriction of movement. The Member later records the respondent’s submission that Dr Anderson’s reports “are well after the alleged date of injury.”[86]
[85] ARD, pp 72–80, 81–88.
[86] Reasons, [24].
The Member refers to the consultation with Dr Edwards on 28 June 2017, just over three months post incident. Dr Edwards takes no history of any shoulder injury; he is given a history of back pain and is told that the neck pain commenced about a week after the fall.[87]
[87] Reasons, [21].
The Member then attempts to reconcile the medical records and reports he has reviewed with the appellant’s statements. The Member says:
“At paragraph 49 of his statement, the [appellant] talks about deterioration in his mental health as his ‘pain continued’.[[88]] This is in the context, however, of paragraph 47 where the [appellant] talks of physiotherapy and appears to be related to worsening back pain which pain had extended by March 2018 to the [appellant’s] right leg.
The nature of the injuries sustained by the [appellant] in his fall are clarified in the [appellant’s] second statement at paragraphs 19–20.[[89]] The [appellant] says:
‘19. At the time I was in shock and thought that I may have just strained my back and the pain would subside.
20. The pain persisted for the following week and gradually became worse over this time till I decided [to] go see a doctor at my current medical practice Whalan Medical Centre.
21. On approximately 29 March 2017 I seen [sic] Dr Farabi … I told Dr Farabi what had happened and that I was having severe lower back and neck pain for the past week or so’.”[90]
[88] ARD, p 5.
[89] ARD, pp 11–12.
[90] Reasons, [33]–[34].
At reasons [35], the Member then deals with complaints in the appellant’s statement:
“The difficulty with the [appellant’s] statement in this regard is that whilst Dr Farabi’s note of 29 March 2017 makes reference to lower back pain, there is no reference at all to neck or shoulder pain. Additionally, at paragraphs 19 and 20 of the [appellant’s] second statement he refers only to his back pain.”[91]
[91] Reasons, [35], citing reply, p 41.
There are gaps in the appellant’s statements regarding complaints of pain to his neck and shoulders, as identified by the Member. Apart from the complaint of injuring his shoulder in the accident, the appellant does not refer to his asserted shoulder injury. The major complaint in the statements refers to the appellant’s back injury with some mentions of pain in his neck. The appellant does describe his mental challenges. The Member has noted the series of complaints of back pain, which appear in the appellant’s statements.
The appellant takes serious issue with the following two matters. Firstly, issue is taken with how the Member dealt with Dr Anderson’s reports and opinion. Secondly, the appellant takes issue with the Member’s failure to refer to the SIRA Claim Form at all, notwithstanding being referred to it in the appellant’s submissions. On this appeal, the appellant refers to this document as “extremely important”[92] because of its contemporaneity to the incident date. As I remarked above, this document is completed by the appellant a little under two months post incident and is thus within the period that I consider the Member treated as being contemporaneous to the injury date. I will deal with both of these issues in turn.
[92] Appellant’s submissions on appeal, 27 July 2022, [51].
The appellant makes various submissions about the importance of Dr Anderson’s reports and opinion.[93] The Member dealt with Dr Anderson at reasons [19], [20] and [24]. It seems from a reading of these paragraphs of the reasons that the Member was not persuaded by all of Dr Anderson’s opinion.
[93] Appellant’s submissions on appeal, 27 July 2022, [66], [69]–[76].
It is true that the Member did not deal with the precise aspects of Dr Anderson’s opinions which were raised by the appellant in his submissions. These matters, having been raised, needed to be dealt with in terms by the Member and the Member was in error not to do so. The appellant says Dr Anderson’s reports are important as they provide expert medical support for the appellant’s claims of injury to his neck and shoulders.
I have closely reviewed Dr Anderson’s two reports. The first report dated 15 August 2018, arising from an examination on that date, records the appellant giving a history of injury to his neck and back. The doctor says, “[f]rom the way he described the mechanics of the fall, this would seem perfectly plausible.”[94] Later in this report, the doctor records what he describes as “Present Complaints” which are limited to pain in the lower back, neck and disturbed sleep.[95] On examination, all the doctor finds with respect to the appellant’s shoulders is restriction of movement without ascribing a cause. There is no complaint of any shoulder injury. Dr Anderson’s second report is dated 28 April 2021 also arising from an assessment on that date. The same history is repeated, namely injury to the neck and lower back. In terms of pain, it is noted that there is pain in the low back and in the neck “radiating towards the right shoulder”. The doctor then undertakes an examination of the upper limbs which was unremarkable.[96] The doctor’s opinion under the heading of “Diagnosis” says the appellant “continues to have the effects of a musculo-ligamentous strain condition of his cervical spine and lumbar spine. This has become a permanent feature. There is also restriction of movement of his shoulders.” The doctor says that this condition is directly due to the fall at work.[97]
[94] ARD, p 72.
[95] ARD, p 73.
[96] ARD, pp 82–83.
[97] ARD, p 85.
This latter opinion is relied upon by the appellant in the following way:
“The following was brought to the Member’s attention having regard to Dr Anderson’s second report, dated 28 April 2021 (at 81 of the ARD):
a. In response to question 2, Dr Anderson provided his diagnosis and noted the injuries to the claimed body parts, including the cervical spine and both shoulders.
b. The injuries were causally related to the subject incident.”[98]
[98] Appellant’s submissions on appeal, 27 July 2022, [70].
I do not accept Dr Anderson’s opinion as support for this submission that was made to the Member, and which is relied upon on appeal. Firstly, there is absolutely no history of injury to the shoulders recorded by Dr Anderson. The appellant’s submissions to this effect are not a fair reading of the doctor’s report. The extract I have set out from the doctor’s report above (at [67]) most certainly does not attribute any shoulder restriction to the incident. Reading the report, the doctor has recorded his view of the neck and back strains and then adds in a comment about restriction of shoulder movement. There is no path of reasoning by the doctor linking this “restriction of movement” to any injury. When the doctor gets to his “Causation” finding, it is perhaps a result of inelegant drafting that the appellant’s “current condition,” including the shoulder restriction noted, is then linked to the incident. The doctor had taken no history of injury to the shoulders and posited no view of the relationship of the noted restriction and the incident. In terms of the claimed shoulder injuries, there is no support for the appellant’s claims in Dr Anderson’s opinion.
With respect to the cervical, thoraco-lumbar and lumbo-sacral spines, the doctor noted that there were no significant features to these areas as a result of x-rays, CT scans or an MRI scan.[99] As a result, the doctor’s opinion is thus heavily dependent upon the history given to him and the results upon physical examination performed at a time more than 12 months post-accident.
[99] ARD, p 76.
Whilst I accept that the Member did not specifically deal with the appellant’s submissions with respect to Dr Anderson, this error in my view would not affect the result once one reviews the doctor’s reports. In terms of the shoulder injury claimed, there is no support for this claim in either of the reports as I have described at [69]. The complaints of neck injury, as opposed to complaints of ongoing pain, as the Member noted from the respondent’s submissions, are made to Dr Anderson long after the event.[100]
[100] Reasons, [19], [24].
I now turn to the SIRA Claim Form upon which the appellant places much weight. This is because of the fact that the Member looked at the records said to be contemporaneous in order to support or disprove the appellant’s complaints. I would place this document into the period that the Member seems to have used as being contemporaneous (for the reasons that I have described above in paragraph [57] of this decision), that is the period of 2–3 months after the alleged injury. It is true that the Member did not refer to this document in his delivered reasons. I have set out in paragraph [34] of this decision the relevant contents of this document which was completed and signed by the appellant. In reference to this document, the appellant submitted the following before the Member and on appeal:
“The [appellant] lodged a SIRA Claim Form, dated 18 May 2017 (at page 57 of the Reply). The incident causing his injuries and his issues are recorded in this document.
The [appellant] highlights this document was prepared only 1 month and 27 days post-incident, and during this time the [appellant] had already undergone treatment for his injuries.”[101]
And:
“Had the Member paid regard to the submissions and the document, it would have been apparent to him that, at a period approximately 1 month and 27 days following the accident, the Appellant had already indicated that he sustained injuries to body parts other than his lower back. In this document, in response to the question ‘What happened and how were you injured?’ the Appellant clearly made reference to the ‘shoulder’.
The SIRA Claim Form was also important because it was a document that had been lodged with the Respondent and the contents of which the Respondent was aware of and there were no specific submissions made in respect of the document that would suggest it ought to not be accepted.
Accordingly, although the Member determined the issue of injury to the cervical spine and both shoulders on the basis of contemporaneousness, or lack thereof, the Member did not explain why this document, which the Appellant submits was contemporaneous to the incident, was not considered or not considered to be contemporaneous by him.”[102]
[101] Appellant’s written submissions before the Member, 20 June 2022, [82]–[83].
[102] Appellant’s submissions on appeal, 27 July 2022, [52]–[54].
There are a number of things to note about this document. Firstly, the appellant’s complaint in this appeal relates to the findings adverse to his claims related to the neck and both shoulders. At its highest, this document only refers to a “shoulder”, that is a single shoulder, without specifying which one. There is no mention of the neck. Secondly, the deployment of the phrase “etc” in this document is of no assistance whatsoever and no submission is advanced on what this might encompass. Thirdly, whilst the shoulder is referred to in answer to the question about “how were you injured”, the shoulder is not mentioned in answer to the question about injury and affected body parts.
I accept that this document does, perhaps in a less than helpful way, indicate that in the fall a shoulder was injured, and this report is completed by the appellant shortly under two months post incident. But beyond this, it provides no support for the appellant’s allegation of injury to the neck and both shoulders. On one view, this document provides no support for the case actually advanced by the appellant alleging injury to the neck and both shoulders. As with the document incorrectly called the “Incident Report Form”, this document has little probative value.
Given how the Member treated this period he judged to be contemporaneous, this document deserved some commenting upon, although I would remark that the submissions on this document which were made to the Member (set out above) could not be said to have demanded the Member’s attention on construing this document. In any event, there is limited probative value in this document with respect to the alleged shoulder injury, in that it only refers to one unidentified shoulder. The document has no probative value with respect to the neck injury allegation.
Even if I accept that the Member was in error not to deal with this document, and that is by no means clear, again, I do not see that this failure affected the result. Not every error justifies intervention on appeal.
The appellant complains that the Member paid no regard to the appellant’s evidence. I do not accept this submission. I have set out above where the Member specifically examines the appellant’s evidence with respect to neck and shoulder pain.[103] Further, whilst the appellant complains that the Member found that his credit “has not been shaken”,[104] this does not mean that the Member is obliged to accept the appellant’s evidence in its entirety.[105] It is true that the Member made no adverse finding in terms of the appellant’s credit, indeed the contrary is the case. What the Member did do was identify gaps in the appellant’s evidence with respect to the contested body parts of the neck and both shoulders. Clearly, the Member was not convinced as to the provenance of the appellant’s complaints with respect to these body parts.
[103] See [61]–[63] of this decision.
[104] Reasons, [40].
[105] Chanaa, [86], per Campbell JA.
The appellant also complains that the Member failed to address the history that was subsequently taken by Dr Allan. Pausing here, I would note that Dr Allan is a psychiatrist who saw the appellant as a medicolegal expert on 31 May 2021, and was not qualified to examine the appellant’s asserted physical injuries.[106] The member dealt with Dr Allan and his opinion at reasons [23] and [24], stating that Dr Allan’s report was provided “well after the alleged date of injury”.[107] This was a finding that was well within the Member’s decision-making discretion without error.
[106] Report dated 8 June 2021, ARD p 90.
[107] Reasons, [24].
Viewing the Member’s decision as a whole, the Member was concerned to identify the appellant’s complaints of pain and injury to his neck and shoulders during the period which was reasonably proximate to the date of injury. Two of the documents relied upon by the appellant, the incorrectly named “Incident Report” and the SIRA Claim Form, have little or no probative value for the reasons I have outlined above. Both of these documents were completed by the appellant. The reports of Drs Anderson and Allan are, as the Member rightly identified, created well after the date of injury. There are also the issues with the appellant’s statements which the Member identified.[108]
[108] Reasons, [33]–[35].
Whilst the Member has made the errors identified above, they were not determinative in the outcome when one considers the contents of the evidence not specifically referred to. The Member has, consistent with his statutory mandate,[109] provided “brief reasons” revealing his reasoning. It was not the Member’s duty to refer to the whole of the evidence as asserted by the appellant. The Member has referred to evidence, beyond the clinical notes, and was clearly not satisfied that the appellant’s claims of injury to his neck and both shoulders were established.
[109] Section 294 of the 1998 Act.
Ground One has not been established. Ground One is dismissed.
As to Ground Two – The Member committed errors of law by requiring the appellant to have corroboration in order to succeed
The appellant, relying upon Chanaa at [86], says that the Member erred by requiring the appellant’s complaints of injury to his neck and both shoulders to be “corroborated”. Specifically, the appellant alleges that the error relates to the Member’s approach of requiring corroboration of his complaints in the clinical records of his treating doctors. This, the appellant says, is the application of a more onerous burden of proof on the appellant.
In response, the respondent submits as follows:
“Aside from broad assertions as to the manner in which the Member reached his
ultimate determinations, the appellant makes no direct reference to the decision itself
nor to the specific findings and reasons of the Member.”[110]
[110] Respondent’s submissions on appeal, 2 September 2022, [39].
The respondent draws attention to the Member’s reasons at [30] where the Member states as follows:
“It is of course unnecessary as the [appellant] submits for a litigant to have corroboration in a civil matter and only necessary from the strict view of causation for the employment to be a contributing cause to the incapacity or disability.”
The respondent points to the Member’s finding at [36] that “the clinical records simply do not support any contemporaneous assertion in that regard” before proceeding to submit that “[t]he Member correctly acknowledged relevant authorities with respect to the weight to be ascribed to that evidence, and ultimately determined that the clinical records were not supportive of the allegation of injury to the cervical spine or shoulders”.[111]
[111] Respondent’s submissions on appeal, 2 September 2022, [44].
The respondent also says:
“Rejecting a later assertion by a worker with respect to whether certain injury has been suffered on the grounds that such an assertion is not consistent with the contemporaneous evidence is not akin to requiring corroboration.”[112]
[112] Respondent’s submissions on appeal, 2 September 2022, [46].
Consideration
The principle relied upon by the appellant is not controversial. Corroboration is not required in a civil case.[113] The question is whether the Member, contrary to this principle, actually required corroboration of the appellant’s complaints of pain and injury to his neck and both shoulders.
[113] Woolworths Ltd v Warfe [2013] VSCA 22, [151]; Chanaa, [86].
Secondly, as I have outlined above, intervention on appeal depends upon the identification and correction of error.[114] The approach of the appellant under this ground has been to make a broad assertion that the Member has, in his treatment of the clinical notes, required the appellant to have corroboration of his complaints of injury to his neck and shoulders contrary to authority. Attention is not drawn to any particular section or aspect of the Member’s reasoning where it is said that this error has occurred, notwithstanding the fact that the Member was clearly aware of this principle.[115]
[114] Raulston.
[115] See reasons, [30].
The issues in this dispute as framed by the parties required the Member to decide whether in the subject incident the appellant suffered injury to his neck and both shoulders. In approaching this task, the evidence has to induce in the Member’s mind an actual persuasion that the fact does or does not exist at the relevant time.[116]
[116] Nguyen, [55].
I do not consider that the Member’s approach was to require corroboration of the appellant’s complaints. Reading the decision as a whole, the Member was well aware that one of his tasks required the determination of whether the appellant’s neck and both shoulders were injured in the subject accident. This was the dispute presented to the Member for resolution. As I have described in my reasoning with respect to Ground One above, the Member considered and weighed the evidence, more than just the clinical notes. This was a necessary task where the nature of the appellant’s injuries were in issue. I note that the document described as the “Incident Report”, completed by the appellant on the day he said he suffered injury, is silent on the nature of injury said to have been suffered. The Member did consider the clinical notes in detail[117] and no issue was taken with either that recitation of the nine entries reviewed, nor the comments made by the Member with respect to some of the entries. The Member also reviewed the radiological evidence which he found did not reveal “any pathology of any significance”.[118] As I found in Ground One, the appellant’s statements were reviewed by the Member where the relevant complaints were noted.[119]
[117] Reasons, [13].
[118] Reasons, [20].
[119] Reasons, [33]–[35].
I would also note that in the Member’s approach to the clinical records, nowhere has the appellant taken issue with the construction of those documents.
The Member’s approach to fact-finding was consistent with the approach I have identified above in terms of Nguyen. By the time the Member reaches reasons [36], he is not expressing a view of being actually persuaded in terms of the allegation of injury to the neck and both shoulders. This finding took place after the review of the evidence which was more than just the clinical notes.
No error has been identified, Ground Two is dismissed.
As to Ground Three – The Member committed errors of law and failed to accord the appellant natural justice by failing to respond to substantial, clearly articulated arguments
Some principles arising from Dranichnikov v Minister for Immigration and Multicultural Affairs[120]
[120] [2003] HCA 26; 77 ALJR 1088 (Dranichnikov).
The appellant in this ground advances an argument that, contrary to the High Court decision in Dranichnikov, the Member failed “to respond to a substantial, clearly articulated argument relying upon established facts.”[121]
[121] Dranichnikov, [24].
Before turning to the substance of the appellant’s submissions, and the respondent’s reply, it is necessary to state the principles arising from not only Dranichnikov, but also Wang v State of New South Wales.[122]
[122] [2019] NSWCA 263 (Wang) per McCallum JA (Macfarlan and Meagher JJA agreeing).
Dranichnikov was an immigration case. Mr Dranichnikov was a Russian citizen who sought a protection visa on behalf of himself, his wife and child. The basis on which he sought such a visa was twofold. Firstly, that as a Russian businessman he is at risk from criminal organisations who operate in Russia who have links to the authorities. Secondly, he asserted that he was part of a more limited group consisting of businessmen who had publicly criticised law enforcement authorities for failing to take action against criminals.
In dealing with Mr Dranichnikov’s case, the Refugee Review Tribunal at first instance accepted that Mr Dranichnikov was a witness of credit, and therefore accepted the correctness of his account of the situation in Russia.
But the Refugee Review Tribunal dismissed his case and failed to deal with the argument that he was one of the more limited class of businessman who had taken a public stance against law enforcement authorities for failing to take action against criminals. It is failure to deal with this latter argument which gave rise to the error of law. The decision of the Refugee Review Tribunal was quashed by the High Court, and it was directed to review the delegate’s decision in accordance with law.
In Wang, the Court of Appeal was called upon to deal with a Dranichnikov submission in that it was asserted that the primary judge had failed to address written submissions advanced by the appellant. This is very similar to the argument being pursued (in part) by the appellant under this ground. The Court of Appeal said as follows:
“The submission invoked the decision of the High Court in Dranichnikov … in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.
As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language … and the submissions in relation to wrongful arrest ... Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.”[123] (emphasis added)
[123] Wang, [63]–[65].
One must be careful not to ascribe Li type unreasonableness to mere errors in decision-making.
The appellant has failed to establish that the Member’s errors were of the unreasonable nature or quality required by Li.
Ground Four is dismissed.
As to Ground Five – The Member committed errors of law by failing to have regard to the appellant’s consequential psychological condition when addressing the question of capacity
This appeal ground is, for all intents and purposes, the same argument as I have found to be established with respect to Ground Three (sub ground three). The only difference is that Ground Three was advanced as a Dranichnikov argument, but the underlying error is still the same. Namely, when considering the incapacity of the appellant, the Member having found injury to both the lumbar spine and a consequential psychological injury was obliged to take both injuries into account when dealing with incapacity. The Member failed to have regard to the consequential psychological injury when considering the appellant’s incapacity for work. This was an error.
Ground Five is established.
As to Ground Six – The Member committed errors of fact by determining the appellant had capacity to work 25 hours per week and earn $25 per hour
The relevant paragraph of the Member’s decision which is impugned in Ground Six is found at reasons [42], which provides as follows.
“In respect of the physical injuries, Dr Anderson comes to the conclusion that the [appellant] is unfit for his pre-injury work but it follows from his opinion[[142]] that he is fit for some work, albeit with some restrictions. In terms of s 32A of the 1987 Act, the evidence supports that the [appellant] is relatively young (37 years of age), completed high school until year 11[[143]] and holds a Diploma in Community Services. He has past experience working as a youth worker and in my view since the date of injury could perform that work at all material times with an ability to earn in the order of 25 hours per week at $25 per hour. That yields a capacity to earn of $625 per week in economic terms for the period in question.”
[142] ARD, p 86.
[143] See Dr Allan’s report, ARD, p 94.
The appellant’s argument in this ground is relatively simple - Dr Anderson’s evidence was that the appellant did not possess capacity to undertake his pre-injury role as a youth worker, and consequently provides no support of the Member’s finding at reasons [42] that he can engage in that work. Indeed, the appellant, with some justification, says that the Member’s findings at reasons [42] are internally inconsistent. I accept this submission unreservedly. The Member has clearly and accurately recorded Dr Anderson’s opinion that the appellant is unfit for his pre-injury work but then goes on to find that he could work in that calling for 25 hours per week.
I have set out above the respondent’s submissions with respect to this issue when I was dealing with Ground Three (sub ground three) (see paragraphs [108]–[109] above). I do not need to repeat them here. Both parties are in agreement that the Member was wrong to draw the conclusion that the appellant was fit for his pre-injury duties based upon Dr Anderson’s opinion. Dr Anderson’s opinion was in fact to the contrary. The Member was thus in error in relying upon an opinion that Dr Anderson did not hold to substantiate his decision regarding the appellant’s capacity for work.
Ground Six has been established.
As to Ground Seven – The Member committed errors of law by failing to provide adequate reasons for his findings in relation to injury to the appellant’s cervical spine and shoulders in circumstances where he had indicated the appellant’s “credit in view of the evidence has not been shaken”
The appellant submits that the Member’s summary of his evidence is incomplete and fails to consider relevant parts of his evidence. The following is stated at [165] of the appellant’s submissions on appeal:
“The Member’s summary of the Appellant’s lay evidence at [34] of his reasons was not a complete reflection of the Appellant’s evidence. The Appellant refers to, and relies upon paragraph 45 above and highlights that he had indicated that:
a. He experienced immediate pain in his, inter alia, neck and shoulders (paragraph 21 of statement at page 2 of the ARD);
b. He completed an incident report/claim form on the day of the incident and also reported the incident to Ms Sandra;
c. He believed that his pain would subside, but the pain persisted (paragraph 24 at page 2 of the ARD); and
d. As his pain did not subside, he ultimately attended upon his GP and obtained treatment.”[144]
[144] Appellant’s submissions on appeal, 27 July 2022, [165].
The appellant then makes the following complaints about how the Member dealt with these issues:
“The Member did not find there were issues with the Appellant’s credit so as not to accept this evidence.
Therefore, the Member, it is submitted, did not provide adequate reasons for his findings.
Upon the Appellant’s evidence not being doubted on the basis of credit, the Member ought to have indicated why he did not accept same.”[145]
[145] Appellant’s submissions on appeal, 27 July 2022, [166]–[168].
The appellant notes that the Member’s remarks at reasons [35] to [37] but says they do not adequately reconcile themselves with the Member’s finding in favour of the appellant’s credit.[146] Ultimately the appellant submits that his credit was not challenged and that he was not cross-examined. This leads to the following submission:
“Accordingly, the Member’s findings in respect of the Appellant’s evidence were effectively that they were false and the Member made these findings without providing adequate reasons, even though he had indicated the Appellant’s credit was not shaken and despite the Appellant not being cross-examined.”[147]
[146] See [21], [62] and [54] of this decision for a summary of the Member’s reasons at [35]–[37].
[147] Appellant’s submissions on appeal, 27 July 2022, [179].
The respondent characterises this appeal ground as incorporating two separate complaints. The first relates to a failure to give reasons, the second is an assertion that the Member fell into error by failing to accept the entirety of the worker’s evidence in circumstances where no adverse findings made as to the worker’s credit.
The respondent says that the assertion that the Member failed to give adequate reasons has not been established. The respondent refers to reasons [13] where the Member reviewed in detail the clinical notes for relevant complaints of injury before making the various findings at reasons [35] to [37] where the Member clearly drew inferences from the clinical material.
In terms of the appellant’s credit, the respondent says that the appellant’s assertion that no one adverse credit finding can be made absent cross-examination is incorrect at law, referring to Calvary Home Care Services Ltd trading as Calvary Silver Circle v Vernon[148].[149] The respondent says that the Member clearly preferred the contemporaneous clinical notes as providing an accurate account of the symptoms that the appellant was suffering. This was preferred to the Member’s statement completed on 15 October 2019,[150] which was well over two years post injury. The respondent says that the conclusions drawn by the Member were clearly open and available to him without error.
[148] [2020] NSWWCCPD 54 (Vernon), [73].
[149] Respondent’s submissions on appeal, 2 September 2022, [114].
[150] ARD, p 1.
The appellant briefly responded to the respondent’s submissions with respect to this ground.[151] I accept the appellant’s submission in reply that the credit finding was not limited to the appellant’s lumbar spine.
[151] Appellant’s submissions in reply, 11 September 2022, [51]–[53].
Consideration
The approach in this appeal has been for the appellant to advance various grounds of appeal, some of which overlap or are identical to other grounds. Consistent with this approach, Ground Seven is a variation of what was alleged in Ground One, the exception being that this ground is advanced on the basis that the Member failed to give adequate reasons with respect to the same or similar issues as dealt with in Ground One.
Some principles with respect to the obligation to give reasons and issues of credit where there is no cross-examination
I have dealt with the principles with respect to the obligation to give reasons in Commission proceedings with respect to Ground One.[152] In these paragraphs, I have referred to or quoted from the relevant cases: Singh, Roncevich, Bevan and Beale. I will not repeat those passages, and from a review of the appellant’s submissions,[153] this approach is not a matter of controversy.
[152] See [44]–[46] of this decision.
[153] Appellant’s submissions on appeal, 27 July 2022, [160]–[161].
Secondly, the appellant makes much of the Member’s finding that the appellant’s credit “has not been shaken”.[154] In light of this favourable credit finding, the appellant says that the reasons do not adequately explain why his evidence was not thus accepted with respect to his complaints of injury to his neck and both shoulders. There are a number of principles associated with this issue about credit and cross-examination. I briefly set them out.
[154] Reasons, [40].
There is no right in Commission proceedings to cross-examine a witness. The Member has to grant leave.[155] Moreover, given the requirements of pre-hearing preparation in the Commission in its Workers Compensation Division, usually parties will be aware of the issues in the proceedings so there is no breach of the rule in Browne v Dunn[156] if the witness’s account is not challenged in cross-examination.[157]
[155] Procedural Direction PIC 1 – Conduct of parties during proceedings, [37]. See also Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34, [37].
[156] (1893) 6 R 67
[157] New South Wales Police Force v Winter [2011] NSWCA 330, [81], per Campbell JA.
In relation to credit, as I have referred to above, there is no requirement for a decision maker to accept all of the evidence of any one witness.[158] I would remark that while an adverse credit finding may be made absent cross-examination,[159] no such finding was made in this matter. As the Rules of Evidence do not apply to Commission proceedings,[160] issues regarding evidence are ones involving considerations of weight, not admissibility.[161]
Application of these principles to this Ground
[158] Chanaa, [86].
[159] Vernon, [73].
[160] Section 43(2) of the 2020 Act.
[161] Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, [83]–[84], per Basten JA.
I have earlier referenced the respondent’s dispute notices at the outset of this decision. The parties were at all times during these proceedings aware that the appellant’s complaints of injury to his various body parts, and for the purposes of this ground, his neck and shoulders, were directly in issue. At the hearing, as is quite common practice in Commission proceedings, there was no application to cross-examine the appellant, the matter proceeding on the papers and by way of a combination of oral and written submissions. The respondent’s written submissions in reply provided to the Member clearly take issue with the appellant’s version of events.
I would remark that no adverse credit finding was made contrary to the appellant. The appellant says that this not so because his version of events was not challenged in cross-examination and ought to have been accepted without demur. This submission cannot be accepted.
It was the Member’s task to review the relevant evidence, ascribing to it such weight as was thought necessary. Clearly with injury in issue, this required a close consideration of all the surrounding facts and as is usual in such cases, an interrogation of the medical records. The appellant complains that certain lay evidence was not referred to by the Member.[162] In relation to the four specific complaints at [165] of the appellant’s submissions, as set out at [139] above, the following is the case:
(a) 165(a) - This is an accurate description of what the appellant included in his statement more than two years post-accident. It was clear, with respect, that the Member was concerned with a close examination of the material which was more proximate or “contemporaneous” to the accident date.
(b) 165(b) - For the reasons I have described above, the probative value of this material is low, this document did not need to be referred to by the Member.
(c) 165(c) – This is a statement of the appellant’s subjective belief over two years post-accident and is not very probative in the determination the Member was undertaking.
(d) 165(d) – the GP’s notes were extensively reviewed by the Member at reasons [13] with his ultimate findings appearing at reasons [33] to [37].
[162] Appellant’s submissions on appeal, 27 July 2022, [165].
There was no error on the part of the Member in not dealing with these four pieces of evidence.[163] A fair reading of the Member’s reasons as a whole reveals that he was not persuaded that the appellant suffered injury to his neck and shoulders. The Member carefully reviewed the contemporaneous material and was not satisfied of the appellant’s claims of injury to his neck and shoulders. This did not involve an adverse finding contrary to the appellant’s credit, rather it was the end point of the evaluative exercise undertaken by the Member to establish whether injury occurred as alleged. The Member’s reasons do not have to be lengthy[164] nor does he have to refer to all the evidence.[165]
[163] Singh.
[164] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280 per McHugh JA.
[165] Singh.
The relevant findings made by the Member, being the terminus of his decision making on this issue, are at reasons [35] to [37]. No issue is taken with these findings, nowhere does the appellant point out how they were made in error in order to justify appellate intervention.
Ground Seven has not been established. Ground Seven is dismissed.
As to Ground Eight – The Member committed errors of fact by determining Dr Anderson “comes to the conclusion that the [appellant] is unfit for his pre-injury work but it follows from his opinion that he is fit for some work, albeit with some restrictions”
As with Ground Six (above), issue is taken in this ground with the Member’s findings at reasons [42]. In short, the appellant states that there is no support in Dr Anderson’s opinion for the view taken by the Member that the appellant was fit for “some work”.[166]
[166] Appellant’s submissions on appeal, 27 July 2022, [184]–[191].
The respondent resists the appellant’s claim of error in this ground, pointing to the following passage from Dr Anderson’s report of 28 April 2021 where Dr Anderson answered as follows in response to direct questions as to the appellant’s capacity:
“6. What restrictions would you place on his capacity to work in the open labour market?
No frequent bending, lifting, carrying, pulling, twisting or holding himself in a fixed postural position. Similarly, he cannot look up and reach up, nor can he carry anything more than about 5kg ergonomically.”[167]
[167] ARD, p 86.
This question and answer, the respondent submits, reveals that the appellant had physical capacity to undertake suitable employment with restrictions.[168] The respondent asserts in these passages that had the doctor been of the view that the appellant had no capacity, he could have said so but did not. The respondent says error has not been established.
[168] Respondent’s submissions on appeal, 2 September 2022, [137]–[143].
Consideration
Dr Anderson has provided two reports, summarised in evidence at [14] above. In the first report the doctor has been asked the following questions and he provides these answers:
“6. What restrictions would you place on the client's capacity for work on the open labour market?
At the moment, he is very limited in what he could do. I think there is a lot of work that needs to be done to get him to a stage where he would be able to do anything on the open labour market. There is also the very salient issue of his pre-existing clinical pathology with his ADHD and possibly with the effects of the previous intra-cranial pathology although there were no details at all about this in the file.
7. Please detail the client's present physical capabilities and identify any activities, whether work or recreational, which he should avoid.
His current physical capabilities are very limited. Any kind of activities which he must avoid at the moment would include:
a. Lifting.
b. Carrying.
c. Bending.
d. Twisting.
e. Pulling.
f. Pushing.”
I appreciate that the second report is more than 2½ years after the first. It is clear that in the first report the doctor is of the view that a lot of work needed to be done to get the appellant to the stage where he could work on the open labour market. The doctor is not saying that he has at that time, any current capacity for work. It was rather dependent upon the appellant receiving treatment. The next answer to Question 7 needs to be read in that light.
Moving to Dr Anderson’s second report, he notes that the appellant has had “no further clinical management of his condition other than for his mental condition”.[169] The appellant continued to be totally incapacitated for his pre-injury work, and then the doctor provided the answer to question 6 relied upon by the respondent. I do not read anywhere in the second report Dr Anderson expressing an opinion, in terms, that the appellant is fit for any work. Nowhere has the doctor resiled from the opinion he expressed in answer to Question 6 in his report dated 15 August 2018. The doctor in that report was of the view that treatment was required before the appellant could do anything on the open labour market. By the time the appellant saw Dr Anderson in 2021, he had not had any relevant treatment (from the point of view of Dr Anderson’s speciality). In the 2021 report Dr Anderson, and I note his apparent exasperation, says as follows;
“10. What are his likely future treatment needs and rehabilitation needs?
These are exactly the same as I wrote in the Treatment section in my previous report. Unfortunately, none of this (absolutely none at all) has been put into practice. If there is to be any improvement in this young man, this type of management must be put into practice and must prevail and continue for the foreseeable future.”[170]
[169] ARD, p 84, [32].
[170] ARD, p 86.
Dr Anderson is clearly saying that there has been no improvement in the appellant and that is because he has had no treatment for his physical injuries. Whilst he has recommended certain restrictions for work in the open labour market, similar restrictions were given in the 2018 report. But whether it could work was dependent upon receiving treatment and that position had not changed by 2021.
Consequently, the Member was in error when he found at reasons [42] that the appellant was fit for “some work” based upon Dr Anderson’s answer to question 6 in the second report. A consideration of the entirety of Dr Anderson’s two reports does not support the Member’s finding.
Ground Eight has been established.
DECISION
Appeal Grounds Five, Six, Eight and an element of Ground Three have been established. These grounds all relate to the Member’s findings with respect to the appellant’s capacity for work. The other appeal grounds advanced by the appellant have not been successful. Consequently, the Certificate of Determination will only be partially revoked, with the remaining orders remaining undisturbed.
Accordingly, order 4 of the Certificate of Determination dated 19 July 2022 is revoked. The matter is remitted to the same Member for that aspect of the application to be reheard and determined in accordance with these reasons.
Judge Phillips
PRESIDENT
17 July 2023
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