Zurawski v Remondis Australia Pty Ltd - [2022] NSWPICPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Zurawski v Remondis Australia Pty Ltd [2022] NSWPICPD 28
APPELLANT:	Miroslawa Zurawski
RESPONDENT:	Remondis Australia Pty Ltd
INSURER:	GIO General Limited
FILE NUMBER:	A1-W3254/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	19 July 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 10 November 2021 is revoked. 2. The matter is remitted to another non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – failure to bring to the attention of the parties an intention to determine a matter on the basis of an issue not raised – Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17; Toll Pty Ltd v Morrissey [2008] NSWCA 197; Stead v State Government Insurance Commission [1986] HCA 54 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Tanner, counsel
Santone Lawyers
Respondent:
Mr A B Parker, counsel
Moray & Agnew Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	10 November 2021

INTRODUCTION AND BACKGROUND

Ms Miroslawa Zurawski (formerly known as Miroslawa Moran) (the appellant), was employed by Remondis Australia Pty Ltd (the respondent) for a period of approximately eleven years, initially in an administrative role. From November 2019 to March 2020, and from about November 2020 to 31 March 2021, the appellant performed a sales role in the respondent’s Liquids Business Development area.
The appellant ceased work on 31 March 2021, following a meeting with her supervisors, in which she was advised that she was to return to her previous role in administration. The appellant subsequently lodged a workers compensation claim, in which she alleged that she was “demoted for the second time from Liquids BDM to Admin and finance, even after the fact that I was stalked … harassed [and] discriminated against [and] … was also not paid accordingly for my role …”.[1]
[1] Application to Resolve a Dispute (ARD), p 18.
On 29 June 2021, the respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the claim. The basis for the dispute was that the respondent asserted that the appellant had not suffered a psychological injury within the meaning of s 11A(3) and s 4 of the Workers Compensation Act 1987 (the 1987 Act), or that the appellant’s employment was a substantial contributing factor to the injury, or the main contributing factor to the injury (ss 9A and 4(b) of the 1987 Act). In the alternative, the respondent asserted that no compensation was payable because any psychological injury suffered by the appellant was wholly or predominantly caused by actions taken or proposed to be taken by the respondent with respect to transfer and/or the provision of employment benefits in accordance with s 11A(1) of the 1987 Act.[2]
[2] ARD, p 26.
The appellant commenced proceedings in the Personal Injury Commission (the Commission). The matter came before a Member of the Commission and proceeded to arbitration. The Member determined that the appellant had suffered a psychological injury but that the injury was caused by reasonable action taken by the respondent with respect to transfer within the meaning of s 11A(1) of the 1987 Act.
The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the matter can be determined on the basis of their written submissions and the documents. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on that basis. 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 decision is not interlocutory in nature, so that leave to appeal is not required.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement dated 29 April 2021.[3] She stated that she had been employed by the respondent for approximately 10 years, initially in an administration role and then as a Liquids Business Development Manager from November 2019. The appellant advised that she was “demoted” to her former administration role in March 2020 and reported to Mr Brad Williams. The appellant stated that Mr Williams left the respondent on 1 July 2020 and Ms Nicole Markovich became her supervisor. She said that her employment contract was always as a Credit Controller, which had been in place since she had commenced with the respondent. The appellant indicated that since March 2020, she had agitated for a return to her former role in Liquids Business Development. She said that Mr Robert Scott advised her to be patient and that she would be moved shortly.
[3] ARD, pp 2–12.
The appellant said that in November 2020 she was again moved into the role of Liquids Business Development Manager, reporting to Mr Josh Richter, who was the NSW and ACT State Sales Manager. She said that when Mr Scott advised her that she was returning to the former sales role from 23 November 2020, he congratulated her. She said that her contract was not changed, and she was paid the same income. She advised that she continuously sought a change in her contract and a review of her salary.
The appellant asserted that she was not provided with a company car, a mobile telephone or a lap-top computer, all of which would normally have been supplied. She said she made numerous requests for those to be provided, as well as for her employment to be classified as her sales role and not her administration role. She said that those requests were not acted upon.
The appellant stated that she was never advised that her role was a trial position and she understood that she was returning to the sales position she had been performing prior to the restrictions imposed because of the COVID-19 pandemic. She added that she met with Ms Markovich and performed a hand-over of her administrative role to another employee.
The appellant stated that she again pressed the respondent to change her employment status and conditions, which remained under the administration umbrella. The appellant said that on 22 February 2021, she met with Mr Richter and again raised the question of her employment contract and its terms, and was advised by Mr Richter that her appointment was only a trial for an undefined period of time.
The appellant said that she went off work on “stress leave” on 31 March 2021, after being called to a meeting with Mr Richter and Ms Markovich. She said she was expecting the meeting to be a positive meeting in which her employment requests were to be discussed, but instead she was advised that the trial period had ended, and she was to return to her former administration role. She stated that Mr Richter advised her that the decision was not a reflection of her performance but that she was inexperienced for the role, and everything in the Liquids Development sector had been put on hold. The appellant said that she was upset and left the meeting.
The appellant advised that she met with Ms Markovich after the meeting, at which time Ms Markovich told her that she wanted the appellant to lead a new project in the administration division. The appellant stated that she did not want the role and wanted to remain in sales. The appellant also raised with Ms Markovich whether she would receive commission for the work done in sales. The appellant explained that she had been receiving commissions from November 2020 in that role but her base rate of pay had not changed. The appellant said that she left work early that day because she was upset and angry.
The appellant stated that after her meal that evening, she felt unwell and experienced elevated blood pressure for the first time. She said that, on the following day, she still felt unwell, her blood pressure remained elevated, and she was suffering from anxiety, so she advised Ms Markovich she would not be at work and sought an appointment with her general practitioner, Dr Ravneet Kaur. She indicated that because of the Easter weekend, she was unable to obtain an appointment until 6 April 2021. She advised that Dr Kaur diagnosed her as suffering from an adjustment disorder with anxiety and referred her to a psychologist, Ms Zareena Anantharaman.
The appellant disclosed that there had been other work-related issues in the past 12 months that had caused her anxiety, but asserted that she had no other past history of anxiety or high blood pressure and gastritis. She described feeling angry, upset, anxious and suffering from high blood pressure when she had been previously demoted to the administration role and sought treatment from her general practitioner at that time. She added that on 30 June 2020, two of the respondent’s management team drove past her house and took photos. She also said that one of those men made inappropriate comments about her conduct to other employees. The appellant said that this matter was investigated by Mr Scott.
The appellant indicated that she wished to have a rehabilitation consultant appointed in order to facilitate a return to her former role in sales, noting such positions were being advertised by the respondent. She said that, at the meeting, if the respondent had given her a permanent contract, with the benefits she requested, she would have happily continued to work in the sales role without any psychological concerns.
The appellant provided a further statement dated 23 July 2021[4] in response to the statement of Ms Markovich, in which she disputed that she had ever been told that her position in Liquids Business Development was a “secondment.” She said her title was that of Liquids Business Development Manager, she was paid a commission for her sales and had full access to the sales-force business support. The appellant also disputed that there was any mention that the sales position was to be on a trial basis.
[4] ARD, pp 14–15.
The appellant said that she was constantly asking Mr Richter and Ms Markovich about her contract and her employment benefits. She said that Mr Richter told her that he was “working on it” and was waiting on Head Office to respond. She stated that Ms Markovich said that she had requested Head Office to implement the changeover and that Mr Richter would have to follow it up. The appellant said that Ms Markovich never mentioned that the position was only on a trial basis.
The appellant further disputed that she had been given a company pool car. She explained that a company pool car was never available to her, and she was only ever once reimbursed for her petrol.
The appellant also provided a further statement in response to Mr Richter’s statement.[5] She disputed that the role she commenced in sales was a “trial” role. She stated that she was appointed to the full-time position by Mr Robert Scott on 23 November 2020 and that there was no mention of the position being a “trial” until the meeting in February 2021. She said that, at the meeting in February 2021, when she asked Mr Richter how long the trial would be for, he responded “how long is a piece of string?” She asserted that she was making budget and bringing in major accounts. She said that she met with Mr Richter on three occasions over the four months she was in the position, including at the commencement of performing the sales role and in December 2020. She stated that at those two meetings nothing was mentioned in relation to the role being provided on a trial basis. She asserted that she was not performing any administration duties at all, except to answer questions if she was approached by a member of the administration team.
[5] ARD, p 13.

Statement of Mr Josh Richter

Mr Josh Richter, the State Sales Manager for NSW and the ACT, provided a statement dated 11 May 2021.[6] He stated that the appellant, who had no background in sales, commenced a trial role in Liquids Development sales in about December 2020. He explained that the respondent had lost some contracts and so they moved the appellant into a sales role to see if the respondent could expand its markets and attract new business, which was the reason the sales position was being trialled. He said that he provided the appellant with training and support, which included an introduction into the role. He asserted that he would meet with her every two weeks in order to review her progress, and, although the appellant was at times unfamiliar with her role, she did not appear to be stressed or anxious.
[6] Reply to Application to Resolve a Dispute (reply), pp 83–86.
Mr Richter advised that the appellant would question him about her contract and ongoing role in sales. He asserted that he advised the appellant that she was appointed to the role on a trial basis, and the future of the role was unclear. He added that the appellant was still performing some of her administration duties.
Mr Richter stated that he and Ms Markovich met with the appellant on 31 March 2021 and told the appellant that the trial would not continue and that she was to return to the administration team. Mr Richter said that he explained that the Liquids Business sector was not reaching budget, the fleet was to be reduced or relocated and the sector would go into a maintenance phase. He added that he made it clear to the appellant that the cessation of her trial role was not her fault, she had good customer relations and had procured various good customers, however, the decision to cease the role was a business decision.
Mr Richter said that he encouraged the appellant to keep in touch for the purpose of training and possible sales opportunities in the future. He said that the appellant did not raise any grievances at the meeting but did appear upset towards the end. He added that, during the meeting, Ms Markovich was very supportive towards the appellant.

Statement of Ms Nicole Markovich

Ms Nicole Markovich, Shared Services Manager, NSW and ACT, made a statement dated 28 April 2021.[7] She confirmed that the appellant was employed by the respondent in the role of administration assistant, her performance in that role was satisfactory and she had never had any performance issues.
[7] Reply, pp 88–95.
Ms Markovich referred to the meeting on 31 March 2021, in which, she said, she and Mr Richter were directed to advise the appellant that a business decision had been made to move the appellant from her trial position back to her substantive role in administration. She confirmed that the appellant became upset as the meeting progressed. She stated that:
(a)    Mr Richter spent a fair amount of the time in the meeting praising the appellant for her work;
(b)    he explained that the decision to transfer her back to administration was a business decision because of the implementation of a maintenance phase in the business, and
(c)    the decision did not reflect on her performance.
Ms Markovich added that the appellant was not the only member of staff affected and said that the Liquids Operation Manager was made redundant that day.
Ms Markovich said that she told the appellant that she was keen to have the appellant back in her team, her skills were valued, and there would be the opportunity for the appellant to be involved in particular future projects. Ms Markovich stated that the appellant did not raise any issues at the meeting, including any issue that she thought her position in the sales role was permanent. Ms Markovich stated that the appellant’s contract and conditions had never changed.
Ms Markovich said that she met up with the appellant after the meeting, at which time the appellant indicated that she was upset because she felt that she had failed. Ms Markovich said that she reassured the appellant that it was not her fault. Ms Markovich also said that Mr Richter had indicated at the meeting that he would assist the appellant’s development by supporting her attendance at sales courses and in-house training. Ms Markovich stated that she reminded the appellant that those opportunities were available.
Ms Markovich confirmed that the appellant contacted her by text message that night and advised that she was suffering from anxiety and high blood pressure. She said that on 6 April 2021, the appellant again contacted Ms Markovich by text message, advising that she was lodging a claim for workers compensation.
Ms Markovich stated that the appellant’s change in role to administration was not a demotion. She described the sales role as a trial role or “secondment”, with the only change in her entitlements and conditions being the opportunity to receive commissions.
Ms Markovich said that she was not aware of the appellant ever raising any concerns about work-related stress or any issues in the past. Ms Markovich also explained that at the time of the appellant’s first transfer back to administration duties in March 2020, Ms Markovich was not in her current role and had no knowledge of that occurring. She said that Mr Brad Williams was performing that role at that time. Ms Markovich added that she was also not aware of any enquiries from the appellant about the appellant seeking a review of her contract at that time.
Ms Markovich stated that, in her sales role, the appellant used her own mobile telephone and the respondent reimbursed her for the whole of the telephone costs, including her personal use. Ms Markovich said that the appellant was also given the use of a company pool car if she needed it to visit clients in her sales role. Ms Markovich maintained that, according to her observations, up until the meeting on 31 March 2021, the appellant appeared happy and content at work.
On 12 April 2021, Ms Markovich forwarded an email to Mr Leon Leung, the respondent’s National Injury Management Adviser, in relation to the meeting on 31 March 2021.[8] The contents of the email were consistent with Ms Markovich’s statement evidence, but included the following assertions:
(a)    at the initial meeting (said to be in December 2020), Mr Scott advised the appellant that the move to sales would be on a trial basis and there would be no change in her employment contract;
(b)    at the meeting on 31 March 2021, the appellant was advised that the respondent had made a business decision to wind back proactive sales and reduce costs in the Liquids sector, and
(c)    Mr Richter encouraged the appellant to continue to pursue learning and development in sales and said that he would support her professional development in that area.
[8] Reply, pp 100–101.

The clinical records of the Ropes Crossing Medical Centre

The clinical records of the Ropes Crossing Medical Centre commencing from 15 March 2003 were in evidence. The notes relevant to these proceedings were recorded between 19 September 2017 and 6 April 2021.[9]
[9] ARD, pp 91–123.
The first of those entries (19 September 2017) was recorded by Dr Rowshon Jahan, general practitioner. Dr Jahan recorded a history of anxiety for 2 months in the context of complaints of low back pain. Dr Jahan diagnosed the appellant as suffering from anxiety.
The appellant attended a number of consultations in respect of various other complaints until 4 July 2018, when she attended Dr Pushpika Jayatillake. At that consultation, Dr Jayatillake took the history that the appellant “works as an accountant, very stressful, end of financial yr, not sleeping well, studying, looking after her child, sleeps only 3 hrs.”[10] Dr Jayatillake diagnosed an adjustment disorder. The appellant returned to the medical clinic on 16 July 2018, on this occasion consulting Dr Ravneet Kaur. Dr Kaur noted the appellant worked as an accountant, and recorded complaints of poor sleep with early morning wakening, low self-esteem and evening headaches. He diagnosed anxiety and depression and prescribed Efexor medication. On 1 August 2018, Dr Kaur again noted that the appellant complained of stress and headaches in the context of pressure in her work as an accountant.
[10] ARD, p 95.

The appellant returned to see Dr Jahan on 9 October 2018, requesting a medical certificate for “stress.” Dr Jahan noted that the appellant complained of a lot of stress at work and in her personal life and was unable to attend work the day before the consultation.
On 9 November 2018, the appellant attended Dr Jayatillake, complaining of anxiety and headache in the context of divorce proceedings. The appellant attended the practice on several occasions between that consultation and the next relevant entry, which was recorded by Dr Kaur on 30 August 2019. On that day, Dr Kaur recorded that the appellant was suffering from a headache, related to stress at work as an accountant.
On 3 May 2020, Dr Jayatillake again diagnosed an adjustment disorder in the context of headaches and an inability to cope with a lot of stress at work because of staff shortages from redundancies during the COVID-19 restrictions, resulting in her having to perform extra work. On 3 May 2020, Dr Buddhika Wijerathne also recorded complaints of work-related stress and headache and diagnosed hypertension, and subsequently on 2 June 2020, a complaint of sudden onset of chest pain. Dr Wijerathne referred the appellant to Mt Druitt Hospital citing the presenting problem as tightening chest pain since the evening before and noting a past history of an adjustment disorder, diagnosed in 2018.[11]
[11] Reply, p 453.
On 12 September 2020, Dr Kaur recorded that the appellant was suffering from high blood pressure. He noted that the appellant was suffering stress at work, complaining that her colleague/manager was bullying her and spreading rumours. The appellant declined counselling. The appellant attended Dr Nazneen Hasan on 22 September 2020, complaining of stress and anxiety in the context of workplace bullying by her manager taking photographs outside her house without her knowledge, and disclosing those photographs to other colleagues.
The appellant attended the surgery throughout 2020, seeking treatment for physical ailments until 1 April 2021, when she consulted Dr Kaur by telephone consultation, complaining of ongoing stress at work and harassment by her manager. She consulted Dr Kaur in person on 6 April 2021 complaining of harassment by her immediate boss, which had been ongoing for several months, as well as ongoing work stress. Dr Kaur noted the history of:
(a)    “stalking” by her manager in 2020;
(b)    her demotion from management to administration because of COVID-19 restrictions and downsizing;
(c)    a subsequent return to her management role;
(d)    being issued unrealistic goals implemented by her new manager, and
(e)    being demoted again to administration.
Dr Kaur noted anxiety at work, and a past history of anxiety. He diagnosed an adjustment disorder with anxious mood and certified the appellant as having no capacity for work.

Mt Druitt Discharge summary

Following the referral by Dr Wijerathne to Mt Druitt Hospital, the hospital issued a discharge summary dated 2 June 2020.[12] The reason for presentation was recorded as “chest pain”. The history on presentation recorded the sudden onset of stabbing chest pain while cooking dinner, commencing with nausea and vomiting on the Sunday evening (two nights previously) and accompanied by chest tightness and shortness of breath. The past history noted included hypertension and adjustment disorder.
[12] Reply, pp 446–452.

Dr Abdal W. Khan, forensic psychiatrist

Dr Abdal W. Khan was requested by the appellant’s legal representatives to assess the appellant and provide a forensic medical opinion. Dr Khan provided a report dated 3 July 2021.[13]
[13] ARD, pp 41–47.
Dr Khan recorded a history of the onset of psychological symptoms in late 2019, when the appellant was promoted to the position of Liquids Business Development Manager. Dr Khan noted that the appellant continued in that role until March 2020, when she was demoted to her former role because of the outbreak of the COVID-19 pandemic. Dr Khan recorded the following history as described to him by the appellant:
(a)    the appellant began to experience chest pain on 16 June 2020, which resulted from the “subject injury”;
(b)    the appellant was in a relationship with a co-worker, and her manager made derogatory and sexually inappropriate remarks about her;
(c)    the appellant’s manager drove past her house and took photographs of both her car and that of her co-worker with whom she was in a relationship, which she described as being “stalked”;
(d)    when the appellant was again given the role of Liquids Business Development Manager, she was not provided with a car, a laptop, a mobile telephone or given a salary review;
(e)    the appellant’s attempts to secure a new employment contract were ignored and dismissed, and
(f)    on 31 March 2021, the appellant was told that her position as a Liquids Development Manager was a trial and the trial had come to an end because the Liquids sector was to be placed on a maintenance plan.
Dr Khan noted that the appellant reported to him that she was told that she was an asset to the respondent and that the respondent wanted her to lead a role in administration, which she did not want to do. He additionally noted that the appellant complained that the respondent had initiated these changes without consulting her.
Dr Khan recorded that the appellant had experienced a gradual deterioration in her mental state as a consequence of those stressors. He detailed a number of symptoms which he said were consistent with symptoms of anxiety and depression. He noted the appellant’s treatment regime.
Dr Khan said that the appellant denied any pre-existing history of a psychiatric disorder and denied any recent psychosocial stressors. He noted that, prior to this injury, the appellant was not experiencing any symptoms of anxiety or depression and she was not engaging in any mental health treatment.
Dr Khan formed the view that the appellant had suffered a psychological injury which arose out of the course of her employment. He diagnosed the appellant as suffering from an adjustment disorder with mixed anxiety and depressed mood. He considered that her symptoms were persisting, and that the appellant required further mental health treatment. He was of the view that the appellant’s employment was a substantial contributing factor to the injury and that the appellant had not suffered an aggravation of a pre-existing condition.
Dr Khan opined that the appellant had no capacity for work.
Dr Khan concluded that the appellant’s psychological injury was not attributable to reasonable action taken by the respondent. He referred to the symptoms having manifested in early 2020 when she was demoted from the Liquids Development Management position, as well as other causal factors, which included bullying and harassment, stalking by her manager, the denial of a new employment contract, the deprivation of employment benefits and being told her position would change again without prior consultation.
Dr Khan reviewed the evidence of Dr Brian Potter, who had been qualified by the respondent. He observed that Dr Potter appeared to acknowledge that the appellant’s injury resulted from being treated unreasonably by the respondent, without identifying a diagnosis. Dr Khan said that he did not agree with Dr Potter’s opinion on a diagnosis.

Dr Brian Potter, psychiatrist

Dr Brian Potter was asked by the respondent to examine the appellant and provide an opinion in respect of the appellant’s claim. He provided a report dated 17 June 2021.[14] Dr Potter recorded a rather confused history of events. He noted that in November 2019, the appellant was unhappy in her role and needed a change. Soon after, she started her new role, but then the COVID-19 pandemic occurred. He said that the appellant asserted that in her new role, she was entitled to a pay rise, a car and a telephone. He recorded that the appellant thought that the change to her new role was permanent, but she was told that it was temporary and the benefits that the appellant thought came with the role did not eventuate.
[14] Reply, pp 105–116.
Dr Potter noted that there was some interaction between the appellant and her manager in which she was questioned about her relationship with another worker. He also noted that the manager was “stalking” the appellant and taking photographs. Dr Potter recorded the appellant’s complaint that investigations into the manager’s behaviour confirmed that he had inappropriately become involved in the appellant’s personal life, but nothing eventuated from that finding.
Dr Potter then took a rather confused history of the appellant’s dissatisfaction with her role, culminating in the appellant suffering from high blood pressure and an anxiety attack on 31 March 2021, which was her last day of work. Dr Potter said that the appellant denied prior depression and anxiety but admitted to brief periods of “stress.”
Dr Potter reviewed the appellant’s activities of daily life and treatment regime. Dr Potter was of the view that, despite the evidence of having suffered a panic attack, the appellant did not demonstrate the signs and symptoms sufficient to arrive at a formal psychiatric diagnosis. He added that the distress suffered by the appellant at work as a result of the lack of professional behaviour in the workplace would require an independent assessment of the workplace.
Dr Potter suggested that the appellant should undergo up to 10 psychological sessions in order to learn techniques to cope with stress. He was of the opinion that, because she did not suffer from a diagnosed psychiatric condition, there was no impediment to her returning to work in a safe and professional environment. He observed that the appellant’s episode of acute anxiety at the time she left work did not meet the timeframe required in order to make a diagnosis of an adjustment disorder. Dr Potter was of the view that, in accepting a lack of professionalism in the appellant’s workplace, the appellant’s attack of acute anxiety was caused by that workplace experience.
Dr Potter was asked to address whether, on the assumption that the appellant suffered a psychological or psychiatric disorder, the disorder was wholly or predominantly caused by the respondent’s actions taken in respect of transfer, demotion, or the other factors referred to in s 11A of the 1987 Act. Dr Potter responded that the question was “not applicable.”

THE MEMBER’S REASONS

The Member noted that the issues for determination were whether the appellant’s psychological injury was wholly or predominantly caused by the actions of the respondent with respect to transfer and/or the provision of employment benefits, and if so whether those actions were reasonable. The Member summarised the lay and medical evidence relied upon by both parties and the submissions made by the parties.
The Member referred to the report of Dr Potter. He noted that Dr Potter had difficulty in understanding the history provided by the appellant. He commented that it did not appear that Dr Potter had been provided with relevant information which would enable him to make an informed decision as to the appellant’s injury, noting that Dr Potter was not provided with the clinical notes of the appellant’s treating doctors. He further noted that Dr Potter did not consider that the appellant suffered from a diagnosable psychiatric condition, but it was not necessary to consider Dr Potter’s opinion because the respondent had indicated at the arbitration that it did not intend to rely on that report.
The Member further referred to the respondent’s submission that, in this case, expert evidence as to the whole or predominant cause of the injury was not necessary. The Member quoted from Hamad v Q Catering Limited,[15] in which Snell DP considered relevant authorities and observed that, in questions of causation within s 11A(1) of the 1987 Act, the need for medical evidence will depend on the circumstances of each case.
[15] [2017] NSWWCCPD 6 (Hamad).
The Member observed that the respondent bore the onus of establishing its defence raised pursuant to s 11A of the 1987 Act. He considered that it was the respondent’s task to show that the meeting on 31 March 2021 was the sole instance of major psychological trauma, and that there were no other competing factors, as asserted by the respondent. He noted that the appellant contended that there was an abundance of other factors, and the question could not be resolved on the application of common knowledge and experience alone.
The Member reviewed the facts in Hamad. He noted that the Arbitrator who had determined the matter at first instance found that the respondent’s s 11A defence as to whole or predominant cause of the injury was made out. He further noted that Snell DP overturned the decision on the basis that the medical evidence did not support the finding on causation. The Member referred to numerous issues recorded by Mr Hamad’s treating psychiatrist which were in addition to the disciplinary action relied upon by the respondent in its defence. The Member observed that, in Hamad:
“The medical evidence raised a number of different relevant causes that might have been significant, and the employer failed because it did not call any evidence to establish that the disciplinary actions by the employer had been wholly or predominantly the cause of the injury.”[16]
[16] Moran v Remondis Australia Pty Limited [2021] NSWPIC 448 (reasons), [171].
The Member also referred to the decision of Roche DP in Shore v Tumbarumba Council,[17] in which there were also other events which may have been causal of the injury.
[17] [2013] NSWWCCPD 1 (Shore).
The Member looked to the evidence in the present case pertaining to the question of causation of the injury. He noted that the appellant had submitted that Dr Khan’s evidence was sufficient to establish that there were other potential causes for the appellant’s psychological injury. The Member acknowledged that Dr Khan diagnosed the appellant as suffering from an adjustment disorder with mixed anxiety and depressed mood.
The Member referred to the uncontested fact that the appellant was returned to the Liquids Development position in November 2020, although, he said, there was no evidence to support the appellant’s assertion that this was a management position. The Member said that Dr Khan noted that the appellant was not provided with a car, mobile telephone, laptop or salary review. The Member observed that it was not disputed that:
(a)    the appellant was seeking a review of her salary;
(b)    the appellant had performed a “hand over” of her administrative duties;
(c)    Mr Scott and another manager were made redundant in March 2021, and
(d)    there was a meeting on 31 March 2021,
which were all matters taken into account by Dr Khan.
The Member observed that it appeared, however, that the appellant had access to the respondent’s car pool and that there was some evidence that the appellant had continued to do some administration work while performing the sales role. He further observed that Dr Khan recorded that, at the meeting on 31 March 2021, the appellant was advised that her sales role was a trial, and that the trial had come to an end. The Member pointed out that the history that this was the first time she was advised that the position was a trial role, even on the appellant’s evidence, was incorrect.
The Member further pointed out that Dr Khan had recorded that the trial had been brought to an end because the Liquids sector had been put on hold and had entered into a maintenance program, which was correct. The Member said that the history recorded by Dr Khan was also correct that the appellant was advised at the meeting that she was an asset and that the respondent wanted her to be head of an administration team. He noted that Dr Khan had also recorded that the appellant had raised a query as to how the “unexpected” changes could be made without consultation with her.
The Member said that it was common ground that the appellant did not suffer any incapacitating symptoms until she was advised that she was to return to administration, and it was also common ground that the news of the cessation of her role in the sales sector was upsetting for her. The Member said that this was consistent with the evidence of both Mr Richter and Ms Markovich, as well as the appellant’s evidence of the development of symptoms that evening.
The Member observed that there was “some mutuality in the circumstances described by both parties.”[18] The Member said that this mutuality “underlines the respondent’s contention that it was simply the [appellant’s] disappointment on hearing the news of her transfer on 31 March 2021 that was the whole and predominant cause of her accepted psychological condition.”[19]
[18] Reasons, [186].
[19] Reasons, [186].
The Member considered that both Hamad and Shore could be distinguished from this case because in those cases, there was no challenge as to the accuracy of the medical evidence. The Member reasoned that, where there is medical evidence in a case involving s 11A, it is not correct to say that the evidence should be accepted at face value.
The Member referred to Dr Khan’s conclusion that, as a result of the stressors reported to him, the appellant experienced a gradual deterioration in her mental state. The Member indicated that the appellant complained of symptoms including chest pain, gastrointestinal issues, disengagement with physical activity and reduced self-confidence. The Member said that that evidence did not support the conclusion that there was a deterioration in the appellant’s mental state, unless Dr Khan meant that the deterioration occurred after 31 March 2021.
The Member considered that the unchallenged evidence was that, while the appellant was performing sales duties in the Liquids sector, she was suffering no psychological symptoms, and was clearly performing well. The Member noted that the appellant had been praised by Mr Richter and offered a role in administration, while two of the appellant’s managers were let go. He added that the appellant said that she was doing well in the sales role.
The Member described the appellant’s wish to have her position formalised in a contract and to be given the employment benefits as a “constant refrain.”[20] The Member referred to the appellant’s assertion that, had the meeting been about the respondent providing her with the contract and the employment benefits, she would have been happy to continue in that role without any psychological concerns. The Member considered that the obvious inference was that the appellant’s mental state had deteriorated after 31 March 2021 but there were three other issues included in the appellant’s history that the appellant relied upon.
[20] Reasons, [191].
The Member referred to the first issue, which was the history recorded by Dr Khan that the appellant first started to experience difficulties in late 2019, however Dr Khan did not identify those issues and the appellant did not refer to any work-related problems in 2019 either. The Member observed that there was little evidence about the appellant’s first opportunity to work in sales apart from the evidence that the appellant remained on the same contract under which she had originally been employed. He said the appellant merely noted that she was demoted from that position in March 2020.
The Member referred to the history recorded by Dr Khan that on 16 June 2020, the appellant was admitted to hospital with chest pain, which the appellant was advised was attributable to stress (the second issue). The Member noted that Dr Khan recorded that the appellant presumed the stress was work-related because she did not have any personal stressors at that time. The Member observed, however, that Dr Khan did not report what those stressors were and probably did not enquire about them. The Member added that Dr Khan was given an inconsistent date, as the discharge summary from Mt Druitt Hospital disclosed that the appellant was admitted on 2 June 2020. The Member said that, while that was a minor inconsistency, in her statement, the appellant claimed that her return to the administration role in March 2020 caused anxiety and high blood pressure, requiring her to be admitted to Mt Druitt Hospital. The Member concluded that the clear inference was that the appellant asserted that her admission to hospital was a direct result of her being moved back to administration in March 2020, which was not consistent with the discharge summary. The Member considered that the inconsistency significantly affected the appellant’s credit. He added that it appeared that Dr Khan was not aware of the inconsistency between the date given to him and the appellant’s assertion that the admission occurred at the time of her return to her administration role. The Member also observed that the discharge summary did not list the appellant’s employment as a cause, and nor did Dr Wijerathne in his referral letter or in his clinical notes. The Member said that, while the clinical notes of health professionals should be treated with caution, none of those documents recorded any cause for the sudden onset of chest pain while the appellant was cooking dinner, and certainly did not record acute symptoms of anxiety and panic caused by an undiagnosed psychological injury. The Member said that the only support for Dr Khan’s assumption was the appellant’s retrospective “self-diagnosis,” whose credit the Member considered was in doubt.

The Member referred to the third issue, which was that the appellant’s manager and another colleague had taken photographs of the cars parked in front of her house on 30 June 2020 and the derogatory and sexually inappropriate remarks made by the appellant’s manager. The Member noted that the employees’ conduct had been investigated. The Member said that he agreed with the appellant’s counsel that the respondent could not avoid responsibility for the psychological injury that might have been caused by such unauthorised action, for which the employees were disciplined. The Member pointed out that the appellant did not make any allegation of injury as a result of that conduct in her statement and nor did she make a contemporaneous complaint that that issue had any adverse impact on her.
The Member further noted that the appellant denied any past history of psychological issues, and such denial was inconsistent with the general practitioner’s records. The Member accepted Dr Khan’s diagnosis of a psychological injury in the nature of an adjustment disorder with mixed anxiety and depressed mood, but the Member concluded that there was no support for Dr Khan’s assumption that the appellant experienced a gradual deterioration of her psychological state prior to the events of 31 March 2021, if that was his opinion. The Member noted that the general practitioner’s clinical notes were not provided to Dr Khan.
The Member referred to his summary of the clinical notes. He observed that although the appellant was not diagnosed by a psychologist prior to 31 March 2021, Dr Jahan diagnosed anxiety and depression on 19 September 2017, which had been present for two months, causing irritable bowel syndrome. He pointed out that there was no explanation provided for the diagnosis.
The Member added that Dr Kaur diagnosed anxiety and depression on 16 July 2018 and noted the cause to be her work as an accountant. Further, Dr Kaur noted on 30 August 2019 that the appellant suffered from headaches every year as part of her “pressure” job as an accountant. The Member noted that there was no suggestion by the appellant that the appellant was bullied or harassed in that role.
The Member remarked that the word “stress” appeared many times in the clinical notes in relation to her accounting role. He said that “stress and mental health are everyday concerns for well-adjusted people”,[21] and observed that s 11A(7) of the 1987 Act provides that “stress” does not constitute a psychological condition for the purpose of making a claim, and indicates that a more precise diagnosis is required.
[21] Reasons, [205].
The Member referred to the entry in Dr Jahan’s clinical note on 19 October 2018 which referred to work and personal issues while undergoing a separation from her then partner. The Member pointed to the clinical entry recorded by Dr Jayatillake on 3 May 2020, which was at the time of the appellant’s return to administration after her first appointment to Liquid Development sales, and which recorded stress due to staff shortages. He said that there was no complaint of psychological injury, the appellant did not want to seek counselling and another practitioner on the same day reported “work stress.”
The Member remarked that there was no suggestion in that entry that the appellant was upset that she had been returned to her administration role. He said that it might be expected that if the return to the administration role had caused the appellant concern, it would have been mentioned as a cause of stress to the doctor. The Member noted that Dr Jayatillake diagnosed an adjustment disorder. The Member observed that the clinical entry again raised the reliability of the appellant’s recall, in particular in relation to the history relied upon by Dr Khan as the basis for his assumptions. The Member added that it was significant that, while the appellant regularly sought treatment when she was suffering from “stress”, she did not seek treatment in March 2020 when she was returned to her role in administration. Further, there was no support for Dr Khan’s assumption that the appellant was admitted to Mt Druitt Hospital with symptoms of anxiety and panic resulting from “the subject injury.”
The Member said that the first entry in the clinical notes that referred to some cause other than the “ordinary” stress of her occupation was on 12 September 2020 and again on 22 September 2020, which related to the appellant’s allegation that her manager was bullying and “stalking” her. The Member observed that the appellant then accepted a transfer into Liquids Development in November 2020 and worked in that role without difficulty and with enthusiasm. He noted that there was no further reference to the appellant’s psychological state between 22 September 2020 and 1 April 2021 when the appellant’s role in Liquids Development ended.
The Member reasoned that, as a matter of common sense, the fact that the appellant displayed no incapacity for work until 31 March 2021 would indicate that her response to the cessation of her sales role was the whole or predominant cause of her injury. However, he said that the relevant inquiry was, where there were a number of potentially causative events raised in the evidence, whether an opinion from an appropriately qualified medical expert was required to determine the whole or predominant cause of the injury. He concluded that he did not accept the opinion of Dr Khan that there were other causal factors, because the opinion was reliant upon a history provided by the appellant which was not borne out in the evidence.
The Member explained that he had already indicated that the appellant’s credibility was in doubt. He pointed to the lack of corroboration in the contemporaneous material of the appellant’s assertions of other causes upon which Dr Khan relied. He also pointed to:
(a)    an entry in the clinical notes made by Dr Sathiyapal Kulanayagam on 17 February 2020, when the appellant was experiencing migraines and raised blood pressure and reported to be stressed;
(b)    an entry made by Dr Kulanayagam on 15 March 2020, when the appellant complained of conjunctivitis and tension headaches, and
(c)    an entry recorded by Dr Jayatillake on 31 March 2020 that the conjunctivitis had returned.
The Member observed that the consultation in February 2020 was at a time when the appellant was working in Liquids Business Development. He added that, in her statement, the appellant claimed that she was distressed by her return to administration duties in March 2020 and experienced anxiety, shaking and extremely severe gastric problems, for which she consulted her general practitioner. The Member referred to the entry on 3 May 2020 mentioning stress because of lack of staff, which was not the case relied upon by the appellant, and observed that the clinical entries in March 2020 as well as on 3 May 2020 did not disclose that at that time, the appellant was suffering from gastric problems or shaking. The Member reiterated that he did not accept that the appellant was taken to Mt Druitt Hospital in March 2020 with symptoms of high blood pressure and anxiety at the time she was “demoted” to her administration position.
The Member said that:
“The construction of the [appellant’s] statement is consistent with a recital of the [appellant’s] primary complaints regarding the circumstances of her disappointment at being transferred back to her admin role, followed by an attempt to include any matter that might remotely justify the onset of a psychological condition prior to her transfer on 31 March 2021.”[22]
[22] Reasons, [218].
The Member added that it was unclear why the appellant had the expectation that the contract would be changed. He referred to the evidence of Mr Richter, who indicated that the appellant had raised the issue with him, but that Mr Richter had said that, because her role was a trial role, he was unsure what the final position would be. The Member noted that the appellant did not assert that the respondent had made a promise to her, but the appellant had an expectation of entitlement. The Member thought that expectation was odd in the context of the appellant having previously performed the sales role in Liquids Business Development from November 2019 and March 2020 and not claiming an entitlement to benefits at that time.
The Member was critical of the appellant’s complaint that she was not provided with a car, which was contradicted by Ms Markovich’s evidence that there was a car-pool provided. He noted that the appellant then conceded that to be the case but responded that there was never a pool car available. The Member added that the appellant had been reimbursed for petrol on one occasion, which would indicate that there was a procedure in place to claim petrol costs. He further noted that the respondent also paid 100% of the appellant’s mobile telephone account, which included her personal use.
The Member determined that the evidence of Mr Richter that the sales role was a trial and Ms Markovich’s description of the role as a “secondment” was credible, but Ms Markovich’s description was imprecise. He said that, in any event, the appellant admitted to being made aware that it was a trial position on 22 February 2021, when she met with Mr Richter and indicated that she had not agreed to that arrangement. He added that, at that meeting, she was also made aware that the duration of the trial was uncertain.
The Member turned to the question of whether the procedure followed by the respondent was implemented properly. He noted the appellant’s submission that, if the business model was not working and a commercial decision had to be made, the appellant ought to have been informed about those commercial circumstances, which was not done. The Member reviewed the authorities dealing with the notion of reasonableness. He concluded that he was satisfied that the respondent’s actions to transfer the appellant were fair. He observed that the appellant was aware that her role was a trial position on 31 March 2021 and that the duration was unknown. The Member thought that it was probable that Mr Richter explained that the duration depended upon the structure of Liquids Development sales and the success of the business plan.
The Member considered that the description of the meeting as put forward by Mr Richter and Ms Markovich was somewhat consistent with that of the appellant. The Member referred to the appellant’s counsel’s submission that the explanation for the decision to transfer the appellant was not given to her. He said that the explanation was in fact given to the appellant at that meeting. He said that it was explained to the appellant that it was a business decision intended to preserve profitability and nothing to do with her performance, the appellant was praised for her successes, and her knowledge and skills were highly valued. He said that the appellant was advised of an opportunity for her to perform a key role in the financial sector and the appellant also knew that two of her managers had lost their jobs.
The Member concluded that he rejected the appellant’s submission that the meeting was a “ruse” to bring to an end the appellant’s sales role and considered that the respondent’s conduct was not “disingenuous” in circumstances where the appellant was aware that there was no certainty to the continuation of the sales role.
The Member turned to the question of the appellant’s capacity for work, which he determined in the event that his determination that the cause of the appellant’s injury was wholly or predominantly caused by reasonable action taken by the respondent in transferring the appellant back to her former role was wrong.
The Certificate of Determination issued on 10 November 2021 records:
“The Commission finds:
1.     The applicant suffered a psychological injury caused by the actions of the respondent with regard to her transfer.
2.     The whole and predominant cause of the applicant’s injury were the respondent’s actions.
3.     The actions of the respondent with regard to transfer were reasonable.
The Commission determines:
1.     There will be an award in favour of the respondent.”

GROUNDS OF APPEAL

The appellant brings seven grounds of appeal, alleging error on the part of the Member by:
(a)    Ground One: making adverse findings as to the appellant’s credit in the absence of any submission from the respondent that the appellant’s credit was in issue, and in the absence of any indication from the Member that he intended to make an adverse finding in respect of the appellant’s credit;
(b)    Ground Two: finding that the whole or predominant cause of the appellant’s injury was reasonable action with respect to transfer in the absence of any medical opinion supporting the finding that the Member found causative of the injury and where there was evidence of prior psychological symptoms;
(c)    Ground Three: ignoring the prior development of symptoms diagnosed as an adjustment disorder eleven months prior to the appellant’s role change;
(d)    Ground Four: finding the conduct of the respondent in announcing the role change of the appellant to a position of less status and responsibility was reasonable, when the respondent failed to give the appellant notice of the purpose of the meeting, an opportunity to prepare, and to have a support person present;
(e)    Ground Five: failing to take into account that the role change was in fact a demotion and a set-back for the appellant;
(f)    Ground Six: finding that the appellant was placed on a “trial” in the absence of evidence that at the time the appellant was appointed to the position in Liquids Business Development, the appointment was on a trial basis, and
(g)    Ground Seven: finding that the Member had work capacity.

LEGISLATION

Section 11A of the 1987 Act relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
…”

SUBMISSIONS

For the reasons set out below, it is not necessary to record the submissions made by the parties in respect of Grounds Two to Seven of the appeal.

Ground One

The appellant’s submissions

The appellant asserts that the respondent did not argue that the appellant’s credit was in issue and that the Member did not put the parties on notice that he intended to determine the matter on the basis of the appellant’s credit. The appellant submits that she was deprived of the opportunity to address upon matters which formed the basis of the Member’s findings against her at [196] and [214]–[224] of his Statement of Reasons. The appellant submits that she was thus denied procedural fairness. She relies upon the decision of Acting Deputy President Parker SC in Finney Pty Limited t/as Cut Price Car Rentals v Chequer[23] as authority for that proposition.
[23] [2021] NSWPICPD 13.

The respondent’s submissions

The respondent submits that the issue of the appellant’s credit was squarely raised before the Member. The respondent refers to the transcript of proceedings in which its submissions were recorded that there was a factual dispute and there were conflicts in the evidence in relation to the appellant’s history. The respondent says that it was apparent that issues in relation to the inconsistent histories were raised.

THE RELIEF SOUGHT

The appellant provides draft orders which seek:
(a)    to have the Certificate of Determination revoked;
(b)    an award in her favour in respect of s 11A of the 1987 Act;
(c)    an award of weekly compensation at the rate of $1,371.90 per week from 8 July 2021, and
(d)    an order that the respondent pay her treatment expenses pursuant to s 60 of the 1987 Act.
The respondent seeks to have the Member’s Certificate of Determination confirmed.

CONSIDERATION

The first ground of appeal asserts error in that the Member made adverse findings as to the appellant’s credit:
(a)    in the absence of any submission from the respondent that the appellant’s credit was in issue;
(b)    without giving the appellant notice that he intended to make an adverse finding as to the appellant’s credit, and
(c)    without giving the appellant the opportunity to address on the issue.
The basis of the Member’s rejection of the appellant’s claim was that he considered that her statement evidence was at odds with the recorded entries in the clinical notes from the Rope’s Crossing Medical Centre, as was the history relied upon by Dr Khan in forming his opinion as to causation. The Member determined that the only pleaded stressors that may have led to injury and that were founded in the evidence were the “stalking” by the appellant’s manager and the co-employee, and the meeting on 31 March 2021.
The respondent’s case, as argued at arbitration, was that:
(a)    the “primary” cause of the appellant’s psychological condition was the meeting on 31 March 2021;
(b)    the appellant’s manager, and the other employee who “stalked” the appellant and took photos of her house were not acting at the direction of the respondent but were on a frolic of their own;
(c)    the respondent’s actions in transferring the appellant were reasonable;
(d)    Dr Khan did not address the factual issue that the transfer was not a demotion but was a commercial change of business practice in an attempt to retain the appellant’s services;
(e)    the clinical notes referred to:
(i)a history of anxiety from 19 September 2017 with no connection to the appellant’s employment;
(ii)a further history of stress-related headaches while working as an accountant on 1 August 2018;
(iii)a complaint of anxiety while going through a divorce on 9 November 2018, and
(iv)a further complaint of stress and overwork in the context of being a single mother;
(f)    those entries were not related to the appellant’s current condition, which was caused by the transfer;
(g)    Dr Khan did not make a connection between those entries and the appellant’s reaction on 31 March 2021, and
(h)    there was no link between those entries and the appellant’s current condition.
The appellant submitted that the respondent’s case primarily involved an allegation of a single date of injury, which was the meeting on 31 March 2021. The appellant pointed to the evidence, which she said disclosed that she had experienced work-related stressors over a significant period of time, commencing from 4 July 2018, at which time the appellant was diagnosed as suffering from an adjustment disorder.
The Member interjected at that stage and rhetorically queried whether the appellant had denied in her statement that she had experienced psychological symptoms prior to the pleaded events. The exchange between the Member and counsel for the appellant was as follows:
“MEMBER: Sorry to interrupt you, but didn’t your client deny that, say that it wasn’t correct, in her statement?
MR TANNER: Well, those are contemporaneous records of her treatment.
MEMBER: So what relevance does that have to this case?
MR TANNER: That tells you that there is a succession of work‑related stressors which precede the ultimate incident on the 31^st of March 2021, and I can take you to all of those, which confirm the build-up - in other words, what the respondent needs to do is to show that that single episode on the 31^st of March 2021 is the whole or predominant cause of her condition, whereas the clinical notes record the gradual development of a psychiatric condition, which is work-related.”[24]
[24] Transcript of Proceedings (T), Moran v Remondis Australia Pty Limited [2021] NSWPIC 448, T 10.20– 11.2.

The appellant’s counsel then took the Member through the further entries in the clinical notes which, he submitted, related to the appellant’s stressful employment with the respondent as an accountant. He referred to the entry on 12 September 2020, which recorded stress and anxiety in relation to workplace gossip about her relationship with a co-worker and her manager, and to the entries on 1 April 2021 and 6 April 2021. The further submissions dealt with the complaints made by the appellant in her statement, the factual contest as to whether the appointment to the position of sales in the Liquids Development sector was a trial, or was a promotion, and whether the conduct of the respondent was reasonable.
In respect of this ground of appeal, the most relevant point in the respondent’s case was the submission that the earlier entries in the clinical notes, in which the appellant was diagnosed as suffering an adjustment disorder with anxiety, did not relate to the onset of symptoms on 31 March 2021. The submission was made in response to the appellant’s submission that the appellant’s psychological condition, diagnosed as an adjustment disorder, manifested well before the meeting on 31 March 2021. At no point did the respondent invite the Member to infer from the evidence that the appellant’s credit was in issue. Nor did the respondent squarely raise the issue before the Member that there was a sufficient conflict between the appellant’s evidence and the contemporaneous medical records to reject the appellant’s statement evidence and the opinion evidence of Dr Khan.
At no time did the respondent articulate an argument that the records were so inconsistent with the case put forward by the appellant that the appellant’s evidence as to the matters that were causative of her injury should be rejected. Nor did the respondent submit that such evidence called into question the appellant’s credibility to the extent that the whole of her evidence should be rejected where it was not corroborated by objective evidence.
The Member was clearly required to evaluate the evidence, including the evidence from the clinical notes and the competing lay evidence. The Member touched upon the question of how the entries in the clinical notes were relevant to the case brought by the appellant in his exchange with the appellant’s counsel recorded at [111] above. It is unclear, however, whether the question raised by the Member related to the respondent’s submission that the earlier complaints of symptoms recorded in the clinical notes were relevant to the symptoms arising in March 2021, or to a potential concern that the causative factors recorded in those notes were not pleaded.
Thus, the Member decided the case on the basis that was never put to him, and without providing the appellant the opportunity to address the Member about those concerns. This amounts to a denial of procedural fairness. In Seltsam Pty Ltd v Ghaleb,[25] Ipp JA (with Mason P agreeing) reviewed the relevant authorities as to the obligations of a decision-maker in such circumstances and said:
“These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.”[26]
[25] [2005] NSWCA 208 (Ghaleb), [78].
[26] Ghaleb, [78].
In Inghams Enterprises Pty Ltd v Jones,[27] Roche DP considered the application of the principle in the context of the Commission. He observed (citations omitted):
“More importantly, by determining that Mr Jones did not become aware of his injury until after the receipt of Dr Tamhane’s report, the Arbitrator decided the case on a basis that was never argued by the worker’s solicitor and without giving the appellant the opportunity to be heard. It is a basic rule of fairness, disregard of which can be an error of law, that a party must have an opportunity to deal with any material ingredient in a Court’s decision-making process.
This principle was applied by Bathurst CJ (McColl JA agreeing) in Workers Compensation Nominal Insurer v Al Othmani, where it was observed that a decision or award based on a point not raised by the parties or by the Commission constitutes a denial of procedural fairness and is susceptible to challenge under s 353 of the 1998 Act, which is restricted to appeals from Presidential member where a party is ‘aggrieved by a decision of the Presidential member in point of law’. The same principle applies to proceedings before Arbitrators and appeals under s 352.
While I accept that an Arbitrator is not obliged to decide a case by reference only to the matters put by counsel, and that, in deciding a case, an Arbitrator is entitled to think for himself or herself, if an Arbitrator is minded to determine a case on a basis not argued, he or she is required to give the parties an opportunity to be heard. The Arbitrator erred in failing to do so in this case.”[28]
[27] [2012] NSWWCCPD 17 (Jones).
[28] Jones, [82]–[84].
An error in the form of a denial of procedural fairness must be corrected unless it could not possibly have affected the outcome.[29] In Stead v State Government Insurance Commission,[30] the Court said:
“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact (Supreme Court Rules O.58 rr.6 and 14). However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”[31]
[29] Toll Pty Ltd v Morrissey [2008] NSWCA 197, [10].
[30] [1986] HCA 54 (Stead).
[31] Stead, [11].
It is difficult to see how the absence of an opportunity for the appellant to address the Member on this issue could have no bearing on the outcome of this case. The appellant should have been given the opportunity to give some explanation for the apparent inconsistencies, if there was such an explanation available. The appellant ought to have been given the opportunity to persuade the Member that the apparent inconsistencies were not so great as to warrant a rejection of the whole of the appellant’s evidence.
It follows that the Member erred in his determination by failing to provide the appellant with the opportunity to address the Commission on a matter critical to the outcome of these proceedings. Ground One of the appeal therefore succeeds, the Certificate of Determination is revoked and the matter requires re-determination. It is thus not necessary to deal with the remaining grounds of appeal.
Given the re-determination of the matter may involve an assessment of the appellant’s credit and further submissions may be required, it is not appropriate for me to re-determine the issues on appeal. The matter is therefore remitted to a non-presidential member of the Commission for re-determination.

DECISION

The Member’s Certificate of Determination dated 10 November 2021 is revoked.
The matter is remitted to another non-presidential member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

19 July 2022