1. Leave is granted to the respondent, pursuant to s 48 of the Personal Injury Commission Act 2020, to be represented by an Australian legal practitioner.
2. Pursuant to rule 132 of the Personal Injury Commission Rules 2021 this decision is to be de-identified consistent with the approach taken at first instance.
3. The appellant's application to extend time for the bringing of the appeal pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and rule 133A of the Personal Injury Commission Rules 2021 is refused.

WORKERS COMPENSATION - application to extend time for the bringing of an appeal pursuant to s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and r 133A of the Personal Injury Commission Rules 2021; 'exceptional circumstances' - application of Bryce v Department of Corrective Services [2009] NSWCA 188; s 352(6) of the 1998 Act and 'fresh evidence' on appeal - Chep Australia Ltd v Strickland [2013] NSWCA 351; extension of time to appeal - Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516; Nanschild v Pratt [2011] NSWCA 85; Shapkin v Lorenzato [2024] NSWSC 1620

BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34

1. The names of BOH (the appellant), companies associated with the appellant, and a witness (BOJ) were deidentified pursuant to rule 132 of the Personal Injury Commission Rules 2021 (the Rules) when the first instance decision of Principal Member Harris (the Principal Member) was published.[1] I have used the same pseudonyms in this appeal decision.
2. The appellant suffered injury on 24 December 2020 when he fell from a ladder in the course of his employment with Engineering Solutions and Services Pty Ltd (the respondent). He was admitted to John Hunter Hospital on 24 December 2020. The appellant was discharged later the same day. He did not resume work with the respondent. The respondent's insurer, Employers Mutual NSW Limited (EML), accepted liability to make weekly payments of compensation and medical expenses.
3. EML issued a dispute notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 28 February 2024,[2] in which it denied further liability. An application for review led to the denial of liability being maintained.[3] The current proceedings were commenced by way of the ARD dated 9 October 2024. The matter was heard by the Principal Member, who conducted extended preliminary conferences on 12 November 2024 and 26 November 2024, and a hearing on 14 January 2025. The appellant was unrepresented and the respondent was represented (by leave) by Ms Coleman, solicitor (on the first two occasions) and by Mr Lichaa, solicitor (on the third occasion). At the hearing on 14 January 2025, the respondent's solicitor advised that the appellant had received weekly payments for 173 weeks and thus was "in the section 38 period".[4]
4. The appellant claimed weekly compensation from 16 April 2024 on a continuing basis. The reasons described the appellant as having received more than 130 weeks of weekly compensation. The reasons noted the respondent admitted "soft tissue injuries to various body parts but denied injuries by way of spinal fractures, internal puncture wound, post-traumatic stress disorder, spinal compression, hypertension, whiplash, chronic pain syndrome or thoracic kyphosis".[5]
5. The appellant said he had been in paid employment since mid-November 2024. He had documents that went to the "nature and extent" of this work. The respondent was given leave to rely on s 38(3)(c) of the Workers Compensation Act 1987 (the 1987 Act). Although psychiatric injury was not pleaded in the ARD, it was agreed at the hearing that the appellant alleged psychiatric injury which the respondent disputed.[6]
6. A Certificate of Determination was issued on 5 February 2025, accompanied by the Principal Member's reasons. The Principal Member found the appellant had suffered, since 10 April 2024, from a psychiatric condition caused by the work injury. He found the appellant had not proved the other disputed injuries resulted from the work injury on 24 December 2024. He found that at all times since 10 April 2024 the appellant had current work capacity. He found the appellant had not established "the statutory pre-condition" in s 38(3)(c) of the 1987 Act. There was an award for the respondent on the claim for weekly compensation pursuant to s 38. There was a general order that the respondent pay the appellant's expenses pursuant to s 60 of the 1987 Act from 10 April 2024 to date and continuing related to the psychological injury. There was liberty to apply in respect of any s 60 dispute. There was an order for deidentification prior to publication to include, at least, pseudonyms for the appellant and associated companies.

1. The Principal Member set out the issues in a fashion generally consistent with the discussion above.[7] The Principal Member observed the appellant was "obviously suffering from a psychiatric condition associated with his chronic pain". The Principal Member noted the appellant had "recently commenced employment" which required questioning on this topic. The Principal Member said he advised the parties that material in the admitted documents would not be considered unless it was the subject of submission. He said he had attempted to explain s 38 of the 1987 Act to the appellant and advised him that his evidence did not address s 38(3)(c). He said the appellant declined an invitation to discontinue the proceedings and obtain further evidence.[8]
2. The Principal Member set out, in point form, the appellant's submissions in reply.[9] The Principal Member described the appellant's oral evidence. He noted the respondent had given notice it wished to question the appellant on his financial records. The Principal Member said the process adopted was that the appellant, assisted by the Principal Member's questioning, responded to specific questions raised by the respondent in correspondence, following production of the appellant's bank accounts. The reasons at [25] to [39] set out the appellant's responses. The appellant agreed he was employed in two jobs. He had been unsuccessful in getting work for his business. He had completed a degree in civil engineering in 2023 and was seeking work from home in that business. The appellant said he had completed an RSA course and looked for work at hotels.[10]
3. The Principal Member referred to a Quantum corp report. ASIC documents showed the appellant was the sole director and shareholder of a named company until 5 September 2024. Accompanying documents described its services, which were, in general terms, of an engineering nature. The Principal Member referred to the company's website and said it held itself out as "highly capable of undertaking complex civil engineering projects", although it appeared it had "undertaken no work".[11]
4. The Principal Member referred to a detailed statement from the appellant dated 23 April 2024 and revised on 5 October 2024.[12] I will not seek to summarise the Principal Member's summation in any detail. It said the appellant stated that, in his fall from a ladder, he suffered injury to his shoulder, thoracic spine and possibly a head injury. The appellant stated that his spine forcibly impacted the ladder and a metal tool inflicted a "puncture wound on the left hip which became dislocated". He said that on the day following the injury he awoke "in severe pain in the head, back, eyes and entire spinal region". The Principal Member referred to a "further comprehensive statement dated 25 April 2024". The appellant said the injuries demonstrated "partial incapacity for work". He said he suffered "spinal and rib fractures, head and neck injury, hip and lower back dislocation and extensive musculoskeletal damage as well as psychological injury". The appellant referred to breaches of the Work Health and Safety Act 2011.[13] The Principal Member set out the appellant's description of his injuries in this statement:

"[The appellant] described his injuries as head injury which involved traumatic brain injury, cervical whiplash including mild disc herniations causing nerve compression, two broken ribs affecting the chest wall shoulder and neck, thoracic kyphosis resulting in significant pain and functional limitation, dislocated hip, puncture in the lumbar region causing significant functional impairment, issues in the thoracic spine and moderate hypertension."[14]

1. The appellant described himself as suffering whole person impairment of "approximately 51%". Recent certificates of incapacity issued by the appellant's general practitioner indicated "soft tissue injury to neck, back, hips, knees, lower legs, axillae and somatic symptom disorder and certified the [appellant] with no current work capacity".
2. The Principal Member referred to the appellant's attendance at John Hunter Hospital on the date of accident:

"The clinical notes indicate that the [appellant] had a fall from a ladder of 2.5m, injury in the mid thoracic and right scapular pain with a denial of neck pain and nil motor or sensory deficit. There was no head strike, no loss of consciousness and no complaints of neurological symptoms or other injuries."[15]

1. The Principal Member summarised reports of the multiple scans undergone by the appellant between 24 December 2020 and 8 February 2023.[16] He summarised treating medical reports from Dr New (a qualified orthopaedic surgeon), Mr Awit (a treating psychologist), Dr Pope (a treating neurosurgeon), Dr Nazha (a treating pain physician), Dr Waqar (a treating psychologist), Dr Chow (a treating pain specialist), Dr Yu (a treating pain specialist), Dr Coleman (a general practitioner) and Dr Havryk (a treating respiratory and sleep disorder physician).[17]
2. The Principal Member summarised a report from Dr Gorman, a consultant physician, dated 22 August 2024. Part of the doctor's speciality was pain medicine. Dr Gorman was qualified by solicitors who previously acted for the appellant. Dr Gorman concluded the appellant presented with widespread symptoms associated with psychological distress, he diagnosed "somatic symptom disorder". The doctor considered this diagnosis was consistent with "widespread pain focus with no organic abnormalities".[18]
3. The Principal Member referred to reports from Dr Nagesh, a psychiatrist qualified by the respondent. Dr Nagesh diagnosed major depression. He initially considered the worker to be totally incapacitated, although changed this view when he became aware the appellant was working full-time. The doctor considered the appellant had the capacity to work full-time in suitable duties running his own business.[19] The Principal Member summarised the report of Dr Hale, an orthopaedic surgeon qualified by the respondent, dated 7 February 2024. Dr Hale considered the "diffuse body pain" was inconsistent with any musculoskeletal diagnosis. Dr Hale referred to previous references to "chronic pain syndrome and possible PTSD as a result of the work related injury" but described this as outside his "area of expertise". The Principal Member stated he regarded Dr Hale's conclusion on capacity as an expression of fitness for work based on the musculoskeletal diagnosis".[20]
4. The Principal Member dealt with the appellant's hospital admissions in 2024. He said the appellant "was admitted to hospital involuntarily on at least three occasions in 2024 following threats of violence against third parties associated with the denial o[f] liability by the insurer, prior proceedings and suggestions of self-harm".[21] The Principal Member said there was an involuntary admission to St Vincent's Hospital on 6 June 2024. The records referred to "chronic pain and extensive somatic complaints". The Principal Member quoted from Dr Davis, a psychiatric registrar, who said there were "[m]ultiple symptoms that are largely illogical and don't make medical sense". The reasons quoted the following passage from the views of Dr Davis:

"I believe that [the appellant] is psychotic, with prominent somatic delusions and some persecutory delusions and misinterpretation of normal body sensations. Some of the paranoia reinsurance agency, may be based in reality, re-surveillance for fraud. His Mood is incongruent. Diagnosis - somatic symptom disorder requires a further period of observation. Diagnosis psychotic depression."[22]

1. The Principal Member quoted from the handwritten notes of Dr Huber, also a psychiatric registrar who treated the appellant at St Vincent's Hospital. On 26 July 2024 she referred to the appellant's "sense of injustice which had driven various behaviours including intimidation and threats towards staff of the insurer and suicidal ideation which had now become chronic". Dr Huber wrote that the appellant agreed his symptoms fulfilled the criteria for somatic symptom disorder. Dr Huber thought it likely "his fall directly caused the syndrome".[23]
2. The Principal Member said he accepted the appellant had a "belief that there are serious issues with his body not explained by a multitude of scans which are basically [normal] and otherwise represent mild age-related issues". He said the appellant failed to make full and proper disclosure of his taxation returns and bank statements. He referred to the appellant's taxation return, and an amended return, for the 2024 financial year. The Principal Member concluded the appellant understated his income in both of these documents, indicating a preparedness to deceive others for personal gain.[24] The Principal Member rejected the respondent's submission that the appellant's "late disclosure of recent employment [was] adverse to the [appellant's] credit". The Principal Member said there was "no attempt to hide the work ... and indeed this employment was volunteered".[25]
3. The Principal Member noted the respondent's submission that the appellant was "inconsistent and inaccurate" in medical histories. The Principal Member contrasted histories provided to Dr New and Dr Nagesh (in September 2022 and November 2023 respectively) regarding the appellant's social and personal life, with the history provided at St Vincent's Hospital on 25 July 2024. He accepted this represented an example of a lack of proper disclosure and inconsistency in histories to medical practitioners.[26]
4. The Principal Member referred to inconsistencies in the reporting of prior depressive symptoms. Dr Waqar recorded a psychiatric history "associated with bullying at school and terrorist attacks in Lebanon". The Eastern Suburbs Community Health Service, in August 2015, recorded a history of "suicidal ideation in the context of a relationship breakdown". A subsequent note taken by a GP recorded "a history of suicide threats when in crisis". The Principal Member contrasted this with the history taken by Dr Nagesh on 22 November 2023,[27] in which the appellant "denied any previous history of mental illness". (I note in that history the appellant did say he was exposed to bombs when aged 16 and that a psychologist said he felt there was PTSD stemming from [the appellant's] childhood".) The reasons described the appellant misquoting doctors - the appellant told Dr Nazha that Dr Chow recommended "opioid base medication when Dr Chow made no such recommendation". The Principal Member said the appellant repeatedly submitted there was documented radiological evidence of a spinal fracture. When pressed, he said an unknown doctor had told him this. The Principal Member described the appellant's submissions on this topic as "plainly wrong and misleading" and "another example casting doubt on the [appellant's] credit and reliability".[28]
5. The Principal Member referred to "threats made by the [appellant] against the insurer's representatives and his former solicitors".[29] There were threats made in phone calls on 4 June 2024 of violence and mass casualties (described in an email dated 4 June 2024) which led to police attending the appellant's home and taking him to St Vincent's Hospital, where he was involuntarily admitted.[30] The Principal Member noted the threats extended to possibly blowing up a building, physical violence against his former solicitors and violence against doctors and employees of the insurer.[31]
6. The Principal Member noted the respondent's submission that the threats went to credit.[32] The Principal Member said he "put this pattern of behaviour to one side" on the credit issue; he had "formed an adverse view of the [appellant's] credit" in any event. He said: "others may consider that the conduct directly relates to credit". He noted "portions of the conduct seem to have been accepted by the Courts as due to a psychiatric condition and addressed accordingly".[33]
7. The Principal Member dealt with the appellant's assertion that he had suffered a spinal fracture in the work injury. The Principal Member rejected the appellant's assertion that his experience as a civil engineer qualified him to provide an opinion on whether the fall from 2.5 metres would cause multiple injuries and spinal fractures. There was no medical or radiological evidence to support the presence of a spinal fracture. Having regard to his view of the appellant's credit, the Principal Member did not accept the appellant's hearsay evidence of an unknown doctor saying there was a spinal fracture. He was not satisfied the work injury caused a spinal fracture.[34]
8. The Principal Member dealt with the 'disputed physical injuries'. He listed the following injuries that were accepted by the respondent:

"Strain of muscle, fascia and tendon at neck level; Unspecified sprain of left hip; Strain of muscle, fascia and tendon of lower back; Contusion of left lower leg; Unspecified sprain of right hip; Injury of axillary nerve, unspecified arm; Contusion of right lower leg."

1. The respondent also accepted the appellant "sustained a single episode of a major depressive disorder". The disputed injuries were described in the relevant dispute notice:

"We dispute that you have suffered any spine fractures, internal puncture wound, post-traumatic stress disorder, spinal compression, hypertension, whiplash, chronic pain syndrome or thoracic kyphosis as claimed as a result of your injury at work on 24 December 2020."[35]

1. The Principal Member said the appellant had not explained how his degree in civil engineering provided him with the expertise to comment on the causal nexus between the work injury and the disputed physical injuries. The Principal Member said there was a lack of contemporaneous complaint and a lack of medical opinion to support causation of the disputed injuries. The Principal Member accepted that the work injury caused fractures of the right 3rd and 4th ribs. This was consistent with the whole body bone scan dated 29 April 2021 (which showed uptake consistent with trauma) and with the contemporaneous hospital notes showing pain in that region.
2. The Principal Member said that, apart from general comments in medical certificates, there was no medical evidence to show the disputed injuries were caused by the work injury. There was otherwise no medical evidence that the effects of the disputed injuries were ongoing when liability was declined in April 2023. The Principal Member said he was not satisfied the disputed injuries were caused by the work injury. This was subject to the psychological injury, which the Principal Member then dealt with.[36]
3. The Principal Member rejected a submission that he was obliged to make a specific psychiatric diagnosis. He repeated and adopted his own reasons in BFZ v Inner West Council.[37] He said the presence of a 'pain condition' was supported by Drs Nazha, Waqar, Chow, Yu, Havryk and Coleman. Drs Davis and Huber, psychiatric registrars at St Vincent's Hospital, supported the conclusion that there was a somatic pain disorder.[38]
4. The Principal Member said the conclusions of Drs Davis and Huber were "clearly based on their clinical assessment ... [t]heir reasoning is well explained and based on an appreciation that there was and is no underlying physical basis for the [appellant's] ongoing complaints of chronic pain". The Principal Member said Drs Davis and Huber were aware there was no spinal fracture. Their opinions were part of the St Vincent's Hospital records. It was reasonable to conclude that Dr Huber had the benefit of the material that was before Dr Davis about two months previously on the earlier involuntary admission. The Principal Member said Dr Gorman supported a diagnosis of somatic pain disorder. He said Dr Gorman also acknowledged "widespread pain focus with no organic abnormalities". The Principal Member said the opinion of Dr Gronow was consistent with the absence of ongoing physical injuries but with an ongoing psychiatric component. He considered Dr Williams, the appellant's general practitioner, also supported a diagnosis of somatic form disorder in her certificates.[39]
5. The Principal Member discussed the opinion of Dr Nagesh. He concluded the doctor did not address the body of medical evidence that supported a psychiatric diagnosis "in the form of a somatic form disorder". He described Dr Nagesh's opinion as "an outlier" and deficient in explanation. The Principal Member said the presence of an ongoing psychiatric condition was supported by the frequent hospital admissions (albeit involuntary) and the threats made against others. The Principal Member referred to the respondent's submission that there were other causes for the appellant's psychiatric condition. He noted it was only necessary that the injury be a material contributing factor to the ongoing condition (citing Murphy v Allity Management Services Pty Ltd[40]). The Principal Member said he found that the appellant had "an ongoing psychological condition caused by the work injury".[41]
6. The Principal Member dealt with whether the effects of injury continued. He was not satisfied there was an ongoing physical basis for the appellant's pain. He found the work injury materially contributed to the ongoing psychological condition. The medical reports showed the appellant was convinced there was a physical basis for the symptoms caused by the work injury.[42]
7. The Principal Member dealt with 'work capacity'. He quoted the definitions of 'suitable employment' (in s 32A), and of 'current work capacity' and 'no current capacity' (in cl 9 of Sch 3) to the 1987 Act. He was not satisfied the appellant had 'no current work capacity' having regard to his activities post injury, which included finishing his degree in civil engineering (in 2023), setting up a business and undertaking some work. He was fluent in languages, had obvious intelligence, youth and computer skills. He was attempting to work from home. The Principal Member accepted there was "some incapacity flowing from the psychiatric condition"; he did not accept there was "an underlying physical basis for the chronic pain symptoms". He accepted Dr Gorman's opinion that the appellant was fit for office-based work.[43]
8. The Principal Member said it was difficult to determine 'current work capacity' given the adverse credit finding and the absence of relevant evidence on the topic. He said the appellant bore the onus of establishing the extent of his 'current work capacity'. He went to the gym every two or three days. He accepted the appellant was not working in his own business, given the lack of income in the financial records. He accepted there was a "chronic level of pain ... which would restrict the [appellant] from working full-time". He accepted the appellant could work in sedentary employment "for a significant and majority part of full-time hours". His entitlement would be pursuant to s 38 of the 1987 Act.[44]
9. The Principal Member turned to the issue of whether there was an entitlement pursuant to s 38. He said that the appellant could not succeed pursuant to s 38(2) due to his rejection of the appellant's allegation that there was 'no current work capacity'. He said any entitlement to weekly compensation would be pursuant to s 38(3) and would be subject to the pre-conditions in that subsection. The Principal Member accepted the appellant's evidence that he worked "more than 15 hours [per] week in the first week of December [2024] and from early January [2025]". He concluded the appellant had established the pre-condition in s 38(3)(b) for the first week of December 2024 and from when further employment commenced in early January 2025.[45]
10. The Principal Member referred to his own decision dealing with s 38(3)(c) in Roberts v University of Sydney[46] and said he adopted his earlier reasons. I note the question of the Commission's jurisdiction to make an award pursuant to s 38 of the 1987 Act was subsequently dealt with by Phillips P in Fletcher International Exports Pty Ltd v Lee.[47] The President in Lee accepted that the remarks of Arbitrator Harris (as he then was) in Roberts represented "the proper approach to s 38 disputes and the Commission's power to deal with them". The Principal Member said his consideration of s 38(3)(c) relied on his findings regarding the appellant's capacity, a rejection of the appellant's credit unless corroborated and the absence of evidence on the issue.
11. The Principal Member said there was an absence of evidence consistent with his findings, dealing with the appellant's ability to undertake additional work, that would increase his current weekly earnings. The Principal Member said the appellant had an ability to undertake sedentary work in his profession. The remuneration of a civil engineer would clearly exceed that of a casual labourer at a hotel or performing unskilled work in a store. The Principal Member found the appellant was not entitled to weekly compensation for the period claimed as the appellant had not established the pre-condition in s 38(3)(c) of the 1987 Act.[48]
12. The Principal Member stated that he received no assistance from the appellant regarding the claim for past s 60 expenses in the alleged sum of $48,000. He made a general order pursuant to s 60 of the 1987 Act, for those injuries found to be ongoing, from the date of denial of liability, which was 10 April 2024. The order related to the ongoing psychiatric condition caused by the injury. It was to include pain medication, which was incidental to the psychiatric condition. The Principal Member said the insurer should reinstate future s 60 expenses with respect to the somatic pain condition. It followed the appellant had not succeeded in his claim for the cost of future surgery to remove "extruded discs at the back of the ribs". There was liberty to apply in the event of dispute regarding the s 60 expenses.[49]
13. The Principal Member accepted the respondent's concession that pre-injury average weekly earnings (PIAWE) were $1,550 from 1 April 2024, to be increased to $1,580 from 1 October 2024. He rejected a submission from the appellant that the PIAWE should have increased from 4 October 2024 when his rent increased.[50]
14. The Principal Member ordered de-identification of his reasons, with no objection from the parties, pursuant to r 132 of the Rules. This had regard to the sensitive personal information dealt with and the safety, health and wellbeing of the appellant.[51]

1. The appellant filed an application for reconsideration of the Principal Member's decision, originally dated 16 May 2025 and accompanied by submissions in support dated 19 May 2025. It appears to have been rejected by the Commission for procedural reasons, and a further reconsideration application was lodged, dated 20 May 2025. The current Presidential appeal pursuant to s 352 of the 1998 Act was filed on 31 May 2025 and registered on 3 June 2025. The matter was referred to the Division Head, Workers Compensation who issued a Direction dated 5 June 2025. The Division Head directed that the reconsideration application should be dealt with by the Principal Member prior to the appeal being dealt with.
2. The Principal Member dealt with the reconsideration application in a decision dated 19 June 2025.[52] He rejected a claim by the appellant that he was declared "psychiatrically incompetent". He described the appellant's conduct of the first instance proceedings. He said he was, and remained, satisfied that the appellant was competent to pursue and argue his claim. The Principal Member referred to an allegation that the appellant was not informed he could discontinue the proceedings. The Principal Member said this was inconsistent with the transcript, which confirmed the appellant was advised of the availability of discontinuance. The reasons at [20] of the reconsideration decision confirmed the appellant was told he could discontinue and declined this option. The appellant had, in earlier proceedings, discontinued and then recommenced.[53]
3. The Principal Member referred to an allegation that there was an imbalance of legal representation. He gave examples of his attempts to assist the appellant. He said he led the appellant through various aspects of his evidence and repeatedly questioned the respondent on the scope of its submissions and cross-examination. He warned the respondent that it would lose the right to be represented if it failed to afford proper assistance; the respondent was not permitted to brief counsel. The Principal Member said the appellant previously had solicitors. The record showed the appellant was told he was entitled to free representation and elected to pursue the matter "without legally aided representatives". The Principal Member said s 48 of the Personal Injury Commission Act 2020 (the 2020 Act) allowed a discretion for an insurer to be represented when a worker was not. The appellant did not object to the respondent being legally represented. The Principal Member said that if objection had been taken, he would have permitted the respondent to be represented. The matter was complex and complicated further by the appellant's recent disclosure of post-injury employment. The appellant had a history of threats directed to the insurer. This would have made presentation of the case a concern. The appellant repeatedly disrupted the respondent's presentation of its case, such that presentation by a non-lawyer would have been extremely difficult. The Principal Member rejected the submission that representation of the respondent led to procedural unfairness.[54]
4. The Principal Member noted a submission that there was error in his finding that psychological injury predated the work injury. The Principal Member noted the appellant succeeded on the allegation of psychological injury in any event. The suggested error would not have had relevant consequence. The Principal Member noted a submission that there was no dispute regarding the nature of his physical injuries. He said some physical injuries were undisputed; the extent of these and whether the effects continued were in issue and were addressed in the reasons.[55]
5. The appellant submitted he was denied an order pursuant to s 60 of the 1987 Act. The Principal Member said there was an order pursuant to s 60 in respect of the psychological injury, the effects of which continued. There was liberty to apply in respect of this order, which had not been exercised.[56] The Principal Member noted a suggestion by the appellant that he had a weekly entitlement under s 37 of the 1987 Act. The Principal Member noted the worker had been paid over 130 weeks of weekly compensation; his potential entitlement arose under s 38 of the 1987 Act. The Principal Member said the statutory preconditions to an order under s 38(3) were explained to the appellant during the hearing.[57]
6. The Principal Member referred to the discretion to reconsider found in s 57 of the 2020 Act. He declined to exercise that discretion. He said the appellant's submissions regarding procedural fairness were more appropriately pursued in his appeal. The Principal Member did not consider the respondent required leave to appear on the reconsideration application. He said the appellant made various "incorrect assertions" on the reconsideration application, and the respondent was able to assist with detailed references to the transcript.
7. The reconsideration application failed.[58]

RESPONDENT'S APPLICATION FOR LEAVE TO BE LEGALLY REPRESENTED

1. Section 48 of the 2020 Act relevantly provides:

"(3) In proceedings in respect of a claim within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, the Commission must refuse to permit an insurer to be represented by an Australian legal practitioner if the claimant is not represented by an Australian legal practitioner unless leave is granted by the Commission under subsection (4).

(4) The Commission may, on the application of an insurer, grant leave for an insurer to be represented by an Australian legal practitioner only if satisfied that -

(a) the representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter, or

(b) it would be unfair not to allow the insurer to be represented because the insurer is unable to represent the insurer effectively, or

(c) it would be unfair not to allow the insurer to be represented, taking into account fairness between the insurer and other parties in the proceedings.

(5) The Commission may at any time revoke leave it has granted under subsection (4).

(7) The Commission must take into account any written submission prepared by an Australian legal practitioner acting for a party to proceedings and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at any conference or hearing in the proceedings)."

1. The respondent seeks leave, pursuant to s 48 of the 2020 Act, to be legally represented by an Australian legal practitioner in the current appeal. It submits the matter is complex and it will be more efficient if the respondent has legal representation. It submits it would be unfair to the insurer if such an order is not made as the insurer cannot represent itself effectively.[59] The appellant's submissions in reply acknowledge the application, but do not specifically oppose (or consent) to it.[60] I accept that it may well be of assistance to the Commission, on the appeal, to have the assistance of a legal practitioner acting on behalf of the respondent. I note the Principal Member granted such leave in the proceedings at first instance. Neither party has sought an oral hearing of the appeal proceedings. In my reasons below, I make orders for the appeal to be dealt with 'on the papers'. I note s 48(7) of the 2020 Act. I grant leave to the respondent to be represented by an Australian legal practitioner. It would, in any event, have been necessary that I take into account the written submissions prepared by the respondent's solicitors.

1. There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
2. The Principal Member's decision was issued on 5 February 2025. The appellant's appeal was filed on 31 May 2025 and registered on 3 June 2025, well outside the 28‑day period stipulated in s 352(4) of the 1998 Act. An extension of time is necessary if the appeal is to proceed. This is dealt with below.

1. The appeal is brought against the decision dated 5 February 2025. The appellant's notice of appeal was registered on 3 June 2025 (see [40] above); it was out of time and contained neither grounds of appeal nor submissions. A delegate of the President issued a Direction dated 3 June 2025 requiring that multiple deficiencies be addressed before the appeal would proceed. On the same date, the Presidential Unit of the Commission furnished the appellant with a link to Procedural Direction WC3, which relates to procedure on Presidential appeals. The letter additionally gave contact details of potential avenues to obtain legal assistance, through the Independent Legal Assistance and Review Service (ILARS), the Law Society of NSW and LawAccess NSW. The appellant forwarded three pieces of correspondence to the Registrar, all dated 5 June 2025. In the first of these he sought an extension of time pursuant to r 133A of the Rules and set out three grounds of appeal pursuant to s 352 of the 1998 Act. In the second he set out five grounds of appeal, three of which were an expanded restatement of those already put. The fifth of these grounds involved an application to admit new evidence. The third document contained the appellant's "detailed submissions in support of [his] appeal".
2. The grounds of appeal and submissions are set out in the appellant's longest letter dated 5 June 2025:

"Ground 1: Error of Law - Misapplication of Section 38 of the Workers Compensation Act 1987

The Member erred in law by misapplying Section 37 of the Workers Compensation Act 1987, leading to an incorrect determination of my entitlement to weekly compensation.

I sustained a significant physical injury and a resultant psychiatric and psychological injury during the course of my employment. Medical evidence confirms that I have no current work capacity.

According to Section 38(1) of the Workers Compensation Act 1987, an injured worker who possesses no current work capacity is entitled to receive weekly payments amounting to 80% of their average weekly earnings prior to the injury, applicable during the third entitlement period, which extends beyond 130 weeks. The decision rendered by the Member did not adequately apply the relevant provision, leading to an unjust denial of my rightful weekly compensation. The individual in question has disregarded any relevant medical findings and claims, thereby engaging in work that is ill-suited to their capacity. This has resulted in exacerbated disabilities and exploitation, culminating in circumstances that have led to involvement in sex trafficking as a means of generating income for survival, placing them at significant risk of homelessness.

Orders Sought: I respectfully request that the Commission set aside the Member's decision regarding weekly compensation and determine that I am entitled to weekly payments in accordance with Section 38 of the Act and medical findings.

Ground 2: Error of Fact - Incorrect Finding on the Onset of Psychiatric Injury

Statement of Issue: The Member made an error of fact by concluding that my psychiatric condition did not predated [sic] the workplace incident, contrary to the medical evidence presented.

Statement of Facts: The medical reports authored by Doctor Chow and Dr Hamid Waqar, dated 23rd June 2022 and 25th March 2022 respectively, elucidate that my psychological symptoms, notably major depression, began subsequent to the workplace incident that occurred on 24th December 2022. A psychiatric disorder arose as a consequence of disputes related to insurance, coupled with experiences of medical torture through the claim period and involvement in sex trafficking to pay medication and living.

Argument: The Member's finding disregards the contemporaneous medical evidence, which clearly links the onset of my psychological condition to the workplace incident and psychiatric condition result from torture and exploiation [sic]. This misinterpretation of the evidence constitutes an error of fact.

Orders Sought: I request that the Commission correct the factual error and acknowledge that my psychiatric injury arose as a direct result of the workplace incident and insurance torture as well trafficing [sic].

Ground 3: Procedural Unfairness - Lack of Proper Guidance on Withdrawal of ARD

Statement of Issue: The Member failed to ensure procedural fairness by not providing adequate guidance regarding the withdrawal of the Application for Review of Determination (ARD) and not assessing my capacity to self-represent.

Statement of Facts: As a self-represented litigant, I was not informed of the implications of withdrawing the ARD. There is no record of any advice or assessment of my capacity to make such a decision.

Argument: Procedural fairness requires that self-represented parties are given appropriate assistance to understand the proceedings. The absence of such guidance in my case constitutes a breach of procedural fairness.

Orders Sought: I request that the Commission acknowledge the procedural unfairness and take appropriate steps to rectify the situation, including reconsideration of the withdrawal of the ARD.

Ground 4: Unreasonable Exercise of Discretion - Denial of Entitlement to Medical Expenses and Weekly Benefits

Statement of Issue: The Member's decision to deny entitlement to medical expenses and weekly benefits under Sections 60 and 65A of the Workers Compensation Act 1987 represents an unreasonable exercise of discretion.

Statement of Facts: My claim includes medical expenses related to both physical and psychiatric injuries sustained during the workplace incident and medical torture incident caused by the insurer. The denial of these expenses overlooks the statutory provisions that entitle injured workers to reasonably necessary medical and treatment expenses arising from their injuries.

Argument: Section 60(1)(a) of the Workers Compensation Act 1987 provides that an employer is liable to pay the cost of any medical or related treatment that is reasonably necessary as a result of a work injury. Additionally, Section 65A outlines special provisions for psychological and psychiatric injuries. The Member's decision failed to consider these provisions appropriately.

Orders Sought: I request that the Commission set aside the Member's decision regarding medical expenses and weekly benefits and determine that I am entitled to compensation for all reasonably necessary medical treatments related to my injuries, including physical and psychiatric care.

Ground 5: New Evidence - Emergence of Material Evidence Post-Decision

Statement of Issue: New evidence has emerged post-decision that was not available during the initial proceedings, however the patient disclosed them verbally which substantiates the inadequacies of the treating doctors and medical examiners, leading to continued physical suffering and exacerbation of mental health issues.

Statement of Facts: The newly presented evidence encompasses 'Quantitative and technological Engineering of CT/Spect, MRI, and X-ray.' The findings reflect a notable accuracy in identifying medical conditions, revealing the extensive harm inflicted upon the individual, which has been consistently dismissed by the insurer. The documented evidence within the liability dispute correspondence underscores a clear pattern of negligence and abuse, directly correlating with the injuries and offences committed and currently commiting by the personal injury comission [sic], employer and the insurer.

Argument: This new evidence is material and has the potential to significantly impact the outcome of the case. It reinforces the assertion that psychological and psychiatric conditions are fundamentally linked to the injuries and mismanagement by the employer and insurer.

Orders Sought: I request that the Commission admit the new evidence and reconsider the case in light of this material information."

1. The appellant deals with the extension of time to appeal in the shorter of his letters to the Registrar dated 5 June 2025, in which he submits:

"Pursuant to Rule 133A of the Personal Injury Commission Rules 2021, I seek an extension of time to lodge my appeal beyond the statutory period. The reasons for this request are as follows:

1. Exceptional Circumstances: Due to unforeseen personal circumstances, including psychological, psychiatric and physical damage, I was unable to prepare and submit the appeal within the prescribed timeframe. The determination made by the insurance provider, in conjunction with the member, has resulted in an exacerbation of the disability, surpassing the initial expectations stemming from the injury itself.
2. Demonstrable and Substantial Injustice: Failure to grant this extension would result in a significant injustice, as I believe there are substantial grounds upon which the original decision should be reviewed, as there are financial hardships and currently working as a sex worker to feed my self [sic]."

1. The respondent identifies multiple procedural deficiencies in the appellant's appeal. The appellant's grounds are expressed in general terms, the paragraphs are not numbered, there is no chronology, there are no transcript or authority references. The respondent submits the appellant failed to serve a sealed copy of the Application to Appeal and attachments.[61]
2. The respondent opposes the appellant's application for an extension of time in which to bring the appeal. It submits 'exceptional circumstances' are not present. Every worker, if he or she is to succeed, has suffered an injury. Incapacity for work does not constitute 'exceptional circumstances'. Such applications are ordinary, not exceptional. The respondent submits while it may be unusual for an appellant worker to be self-represented, this does not constitute 'exceptional circumstances'. It submits it is not unusual for a worker to seek compensation for incapacity. The respondent submits the appellant has, throughout, been entitled to free legal representation through the Independent Review Office. It submits the appellant was informed of his right to free representation by the Principal Member in the proceedings at first instance.[62] It submits the appellant was represented by four legal firms during the proceedings, and by a named firm as at 20 January 2025, prior to issue of the Certificate of Determination on 5 February 2025, and prior to expiry of the appeal period on 5 March 2025.[63] The respondent submits the financial hardship of a worker is not a relevant consideration in dealing with whether r 133A is satisfied.[64]
3. The respondent refers to the appellant's application to admit fresh evidence, being Dr Awit's report dated 5 October 2024 and Dr Faux's report dated 30 August 2024. The respondent submits this evidence was in the original proceedings; it is not fresh evidence.[65] The respondent refers to the appellant's application to rely on a report that the appellant himself prepared, dated 19 May 2025 (the document headed "Quantitative and technological Engineering of CT/SPECT, MRI and X-Ray", discussed below). The respondent submits the appellant "cannot provide objective expert evidence on his own claim". It submits the appellant has not explained how he is qualified to reach the conclusions contained in that report.[66] The respondent seeks leave to rely on fresh evidence set out at [38] of its submissions.

1. The appellant submits 'exceptional circumstances' "emerge" on the basis of the gravity and severity of the injury. The appellant submits his "psychological injury is primary, stems from brain damage, clearly demonstrated by the reduction of grey matter in the provided scans, as identified by our engineering quantitative research, which was regrettably overlooked by the insurance provider. The cerebrospinal fluid escaped beyond the fractured bones, resulting in significant harm to the brain, compounded by the direct impact sustained during the fall from a considerable height."[67]
2. He submits he is entitled to weekly compensation because of the seriousness of his injuries.[68] The appellant confirms that the fresh evidence he relies on is that headed "Quantitative and technological Engineering of CT/SPECT, MRI and X-Ray".[69]
3. The appellant sets out its "Response to Grounds", which constitute submissions in reply to those of the respondent. The appellant makes a general submission that the submissions of the respondent are "devoid of any critique, are excessively lengthy, unwarranted, and serve only to divert attention from the principal issues". It makes the following submissions that it describes as a summary of the grounds:

(a) Ground 1: The appellant submits the finding that there was a pre-existing psychological condition, which deteriorated following the injury, involved factual error. The appellant submits the Principal Member "did not explicitly conclude there was a pre-existing psychological condition, but the absence of a proper causation and contribution analysis renders the findings unintelligible". The appellant refers to Murphy and submits the Principal Member was required to distinguish between secondary psychological injury and primary psychological conditions. There was error of fact and law and the respondent's submission on Ground No. 1 should be rejected.

(b) Ground 2: The appellant submits it involved error that the Principal Member and the respondent's solicitors concurred on several occasions regarding the psychological illness stemming from the injury. The appellant makes various observations regarding what the respondent submitted.

(c) Ground 3: The appellant submits he was not given adequate guidance regarding withdrawal of his Application and assessment of his capacity to self-represent. He submits there is no record of these matters being the subject of advice. He submits this constituted a breach of procedural fairness.

(d) Ground 4: The appellant submits the weekly compensation to which he was entitled was "terminated due to misconduct involving insurance and medical professionals following the third entitlement period." He was obliged to resume work before he was fully recovered, which exacerbated his injuries and reduced his capacity. He was entitled to additional weekly compensation beyond that already paid.

(e) Ground 5: The appellant submits the Principal Member exercised his discretion unreasonably in denying weekly compensation and medical expenses in respect of the psychiatric injury, given the protective scope of ss 60 and 65A of the 1987 Act.

(f) Ground 6: The appellant, in his submissions in reply, has added a sixth ground. He submits: "The statutory scheme under Section 38 supports ongoing entitlement if either no current work capacity or limited work capacity with indexed earnings and inability to earn more is proven."[70]

"(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."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by both 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. There is no reason to conclude that an oral hearing would assist in determining the appeal.

SUBMISSIONS DEALING WITH THE DECISION OF STATE OF NEW SOUTH WALES v CULHANA

1. The decision of the Court of Appeal in State of New South Wales v Culhana[71] was issued on 17 July 2025. This decision is significant as regards the approach to be taken by a Presidential member in dealing with an appeal pursuant to s 352 of the 1998 Act. The Commission issued a direction dated 31 July 2025 inviting the parties to provide supplementary submissions with respect to Culhana and its effect on this appeal, the appellant by 7 August 2025 and the respondent by 17 August 2025.
2. The respondent's supplementary submissions were undated and headed "Respondent's submissions in respect of State of New South Wales v Culhana [2025] NSWCA 147". It referred to its appeal submissions at [63], where it submitted that a finding that the appellant had a pre-existing psychiatric condition was open to be made and did not constitute an error of fact or law. It referred to a finding by the Principal Member that there was "a contribution from other events to the ongoing psychological issues". It submitted this was the only correct finding that could have been made on the evidence, including that of the treating psychologist. It referred to the Principal Member's finding on credit. It submitted that, in any event, the finding that there was a psychiatric condition caused by the work injury was not challenged by the respondent and was advantageous to the appellant. It submitted that, if there was a finding on appeal that there was no contribution from other events, there ought to be no material change to the Principal Member's findings or orders.
3. The appellant put on submissions that were undated and headed "Appellant's submissions in respect of State of New South Wales v Culhana [2025] NSWCA 147". The appellant described "a change in the legal standard - specifically, that appeals necessitate a comprehensive re-evaluation of causation instead of simply determining if a fact was 'open' to the member". The appellant submits "the victim is not required to prove that your psychological distress was exclusively the result of the workplace injury - merely that it played a significant role." He submits:

"Culhana clarified that appeals under s 352 should entail a thorough re-examination of all evidence, rather than merely assessing whether a finding was 'open'. This indicates that the Tribunal is not required to evaluate comprehensively whether the psychiatric injury of the victim van be correctly linked to the workplace incident, in accordance with our medical evidence, and whether external criminal factors were not permitted to be exaggerated, given that the offenders are indeed criminals. The PIC did not adhere to this standard in the vivitms [sic, victim's] case, rendering their conclusions about causation legally inadequate."

1. The appellant additionally refers to the "Insurer's Conduct as Aggravating Factors". The appellant sets out a schedule referring to multiple provisions of the Crimes Act, NSW, the ACT Crimes Act and the Commonwealth Criminal Code. This appears to relate to proposed Federal Court proceedings and cites conduct such as assault, torture, tampering with evidence, forgery and perverting the course of justice.

(a) 28 days after the decision appealed against is made, or

(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules."

"133A Extension of time for making certain applications

(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made -

The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.

(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.

(a) must be made at the same time as the relevant application to which it relates, and

(c) must include full details of the arguments relied on in favour of granting the order, and

(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.

(4) The extension application must be decided by the following (the decision-maker) -

(a) for an appeal under the 1998 Act, section 352 - a presidential member,

(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.

(a) for the 1998 Act - the period specified in section 352(4)(a), ...".

"The principles governing an extension of time are not in doubt: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [4] (Brennan CJ and McHugh J). In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Basten JA (Hodgson and Ipp JJA agreeing) identified four factors of general relevance (although these are by no means exhaustive of the matters that may be relevant): (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application. The plaintiff bears the burden of persuading the Court that there are proper grounds to grant an application for an extension of time: Nanschild v Pratt [2011] NSWCA 85 at [38], [41], [44]."[72]

1. In Jackamarra v Krakouer Brennan and McHugh JJ observed that, in the context of an application for an extension of time to lodge an appeal, "the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent".[73] In the same case Kirby J said:

"It is for the party seeking to persuade the decision-maker that [the extension] should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred."[74]

1. In Nanschild v Pratt McColl JA (Campbell JA agreeing) said:

"The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J."[75]

1. Subrule (5) of r 133A raises the issue of 'exceptional circumstances'. The Court of Appeal, in Bryce v Department of Corrective Services,[76] dealt with the requirement of 'exceptional circumstances' in the equivalent provision in subr (11) of r 16.2 of the former Workers Compensation Commission Rules 2006. Allsop P (as his Honour then was) (Beazley JA, as her Excellency then was and Giles JA agreeing) said:

"A question arises in the circumstances as to whether the phrase 'in exceptional circumstances' is a jurisdictional fact required to be proved objectively or whether it is one of the matters in respect of which the Presidential member must be satisfied."[77]

"Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression."[78]

1. The provision governing the extension of time, in the current form of the rule, is not identical with that at the time Bryce was decided. The phrase 'in exceptional circumstances' in r 133A(5) occurs (as it did in the earlier form of the provision) in the middle of the rule. I note the passage from Parisienne Basket Shoes Pty Ltd v Whyte quoted in Bryce at [8], in which Dixon J said:

"It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed."[79]

1. Application of the above passage to the construction of r 133A(5) is appropriate, as it was to the rule in its previous form in which it was considered in Bryce. The phrase 'in exceptional circumstances' should be considered "as a matter within jurisdiction as opposed to a precondition in the operation of jurisdiction".[80]
2. In Yacoub v Pilkington (Australia) Ltd[81] Campbell JA (Tobias JA and Handley AJA agreeing) dealt with the phrase 'exceptional circumstances', in the Uniform Civil Procedure Rules 2005. His Honour at [66]-[67] said:

"66. In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression 'exceptional circumstances' in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] NZHC 2245; [1996] 2 NZLR 184 (at 186)."

The length of the delay and the reasons for it

1. The Principal Member's decision was issued on 5 February 2025. The period to appeal pursuant to s 352(4)(a) of the 1998 Act was 28 days after the decision was made. The appeal was filed on 31 May 2025 and registered on 3 June 2025, a little less than three months out of time. The delay is relatively substantial.
2. The appellant's submissions refer to "unforeseen personal circumstances, including psychological, psychiatric and physical damage". He submits he was "unable to prepare and submit the appeal within the prescribed timeframe". He submits determinations by the insurer and the Principal Member resulted in an exacerbation. The appellant does not indicate whether he had any assistance in considering and/or preparing an appeal, when and in what regard.
3. The appellant does not proffer medical or other evidence in support of the submission that he was either incapable of, or hindered in, the preparation and submission of his appeal from 5 February 2025 to 31 May 2025.
4. The respondent submits the appellant was legally represented by a firm of solicitors as at 20 January 2025, then during the period to the issuing of the decision on 5 February 2025, and then before the appeal period expired. The appellant's submissions are silent regarding whether he had legal representation in the lead up to the expiration of the appeal period, or subsequently while time was running. The appellant's submissions say nothing about whether he was advised (or was otherwise aware) of the time limitation, whether he was advised to institute an appeal (or not to), the source of any advice, when he received any such advice, and whether and how he acted on any such advice.
5. The respondent seeks leave to rely on 'fresh evidence'.[82] Section 352(6) of the 1998 Act provides:

"Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case."

1. The provision contains "... two threshold questions. They arise as alternatives and are set out in the second sentence of the provision."[83] The two documents, the subject of the respondent's leave application, both postdate the Principal Member's decision and fall within the first of the alternatives in subs (6). The appellant put on submissions in reply dated 29 July 2025 (31 July 2025 in the appellant's index of documents). The appellant's submissions in reply at [26] acknowledged the respondent made an application to rely on fresh evidence but did not make a meaningful submission in opposition to it.
2. The first piece of 'fresh evidence' relied on by the respondent is an authority to act, signed by the appellant and directed to EML (the insurer), received from Masselos & Co Lawyers, dated 20 January 2025.[84] It authorised EML to supply that firm with any documents and information the firm may request. The second piece of evidence is a letter from CMC Lawyers, directed to iCare Workers Insurance, dated 16 April 2025. The letter referred to "[The appellant] v Engineering Solutions and Services". It stated that CMC Lawyers acted on behalf of the appellant and gave notice of an intended claim for common law damages.[85]
3. The two documents, the subject of the respondent's leave application, go to the knowledge and actions of the appellant during the period of delay. They are relevant to the appellant's explanation and to exercise of the Commission's discretion to extend time. I give leave to the respondent, pursuant to s 352(6) of the 1998 Act, to rely on these documents. The earlier document, dated 20 January 2025, predated by about two weeks the issue by the Commission, on 5 February 2025, of the Principal Member's decision. It is consistent with the appellant having solicitors acting for him from prior to the issue of the decision the subject of the proposed appeal. The second document is consistent with the appellant having instructed a further firm of solicitors about his rights in respect of the injury, by no later than 16 April 2025. This was well prior to the filing of the current appeal on 31 May 2025. These documents are consistent with the respondent's submission described at [78] above. They are not contradicted or explained by evidence from the appellant.
4. The Principal Member made factual findings, relevant to the appellant's capacity, in his reasons at [244]. The appellant completed a Bachelor of Civil Engineering in 2023, he set up a business in 2023/24, he held himself out as an integral component of, and undertook research work for, the business. In November 2024 he completed an RSA course, he worked part-time at hotels in late 2024. He had other work in early 2025. I do not understand the appellant, in this appeal, to challenge the accuracy of these findings. He does, in his third ground, dispute the appropriateness of the work he undertook.
5. It appears the appellant also pursued other activities during the period from 5 February 2025 to 2 June 2025. He acted for himself on a reconsideration application in respect of the Principal Member's decision, prior to the appeal being lodged. The material includes a document headed "Submission for Review and Reconsideration (s 57 PIC Act)" dated 16 May 2025. There is a second document headed "Resubmission of Reconsideration Application", variously dated 16 May 2025 and 20 May 2025. The document states it was initially rejected by the Commission on 14 May 2025 for procedural reasons. It states it was served on the "other parties" on 15 May 2025. The document, directed to the Registrar, consists of four to five pages of submissions in support of an application to reconsider the Principal Member's decision. This application is discussed above under the heading "Reconsideration Application".
6. The appellant relies on a document headed "Quantitative and technological Engineering of CT/SPECT, MRI and X-Ray". The document is attributed to the appellant at "[redacted], [email address], Dep. of Biomedical Engineering, Western Sydney University, Sydney, NSW, 2000. 19/05/2025." It is over 60 pages in length and apparently of a technical nature. The appellant's submissions in support of the appeal, at "Ground 5: New Evidence", refer to:

"New evidence [that] has emerged post-decision that was not available during the initial proceedings, however the patient [sic] disclosed them verbally which substantiates the inadequacies of the treating doctors and medical examiners ...".

1. The document comprising the 'fresh evidence' describes an "A-frame defective ladder with a vertical aspect of three meters [sic]". The document includes a "Case Injury" (effectively a case study by the appellant about himself). This describes a "backwards fall directly above it. The ladder's feet caused two pins to be embedded in the thorax and scapular region of the upper right side, resulting in a head injury". It describes multiple other injuries and continues, "The patient was so traumatized by the experience that he believed I [sic] was on a verge of death, as he had been hissing prior to landing." The history of scans that follows commences from 24 December 2020 (the appellant's date of injury). The material referred to in the 'new evidence' includes a chest x-ray from John Hunter Hospital dated 24 December 2020. The 'fresh evidence' attaches copies of multiple scans and x-rays, with descriptions of what they are said (by the author of the "Case Injury") to show. This includes a fracture at T5, fractures of the third, fourth, fifth and sixth ribs, a dislocated "flying rib bone", intestinal damage, acute fractures of C3 and C4, a comminuted fracture of T12, a comminuted fracture of L1, ligamentous disruption at T1-2, shoulder injury to the scapula and rotator cuff, a fracture of the right scapula, compression fractures of T12 and L1 and traumatic disc herniation at T2-T3.
2. The appellant, in his letter to the Registrar dated 5 June 2025, set out his "detailed submissions in support of my appeal". He sought leave to rely on the above 'fresh evidence' document as "[n]ew evidence that has emerged post-decision".
3. The period of delay is relatively lengthy. The reason for the delay is not adequately explained. The explanation given is vague and uninformative. The appellant submits that "[d]ue to unforeseen personal circumstances, including psychological, psychiatric and physical damage, I was unable to prepare and submit the appeal within the prescribed timeframe". The submission is vague regarding what symptoms relevantly affected the appellant, when, and in what way they restricted or delayed the appellant in the preparation of his appeal. The respondent submits the appellant had legal representation during part of the period constituting the delay. This is consistent with the 'fresh evidence' relied on by the respondent. The appellant's explanation of delay does not deal with the role of any solicitors who acted for him, when they acted, what advice the appellant received, why an appeal was not lodged while the appellant had solicitors, or why any solicitors ceased to be instructed. The explanation does not explain why or how the appellant was unable to file an appeal until 31 May 2025 yet was able to attend to activities such as acting on the reconsideration application and drafting the document the subject of the 'fresh evidence application' on which he seeks to rely. The inadequate explanation of the delay is a factor that counts against the appellant's application to extend time.

1. As observed in the discussion of Bryce above, the presence of 'exceptional circumstances' should be considered as a matter within jurisdiction rather than as a precondition to the operation of the jurisdiction. The statutory context in which the phrase was considered by Campbell JA in Yacoub was different to that in which the phrase is employed in r 133A of the Rules. The construction and application of r 133A is subject to ss 4 and 42 of the 2020 Act. The observations of Campbell JA in Yacoub are of assistance in dealing with the application of the phrase 'special circumstances' in r 133A.
2. The respondent argues the fact that the appellant suffered an injury at work, and has an incapacity, does not of itself constitute 'exceptional circumstances'. Such circumstances in the Commission are ordinary, not exceptional.
3. I respectfully agree with Campbell JA, in the passage of Yacoub quoted above, that in deciding whether circumstances are 'exceptional' within the meaning of a particular statutory provision, one must keep in mind the rationale of that provision. Rule 133A(5) of the Rules is a beneficial provision that provides for an extension of time in circumstances where to lose the right to make an application "would work demonstrable and substantial injustice". It is necessary to consider the prospects of success of the proposed appeal.
4. In Yacoub Campbell JA said that exceptional circumstances "need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered". I respectfully agree with this observation, which is consistent with the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, where it was said:

"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy."[86] (excluding references)

1. The circumstances identified by the appellant, in support of the application for an extension of time, were that he had suffered an injury and that there was associated incapacity. As the respondent correctly submitted, such circumstances are routinely encountered in the Commission. If there were other matters explaining the delay, they were not identified in the appellant's submissions in support of the extension.
2. The appellant has not established the presence of 'exceptional circumstances'. Consistent with the decision in Bryce, this does not preclude an extension, but it is a matter that militates against the extension of time.

1. The appeal does not, in my view, have reasonable prospects of success. The discussion of the grounds of appeal that follows is based on the grounds as set out in the appellant's longer piece of correspondence dated 5 June 2025. This correspondence followed the issue of a Direction, by a delegate of the President, dated 3 June 2025 (see [51] to [52] above) setting out the matters that needed to be rectified before the appeal could proceed.

1. The appellant, dealing with Ground No. 1, submits payment of weekly compensation to an injured worker with no current work capacity extends beyond 130 weeks. He submits medical evidence confirms he has "no current work capacity". He submits he has been denied his "rightful weekly compensation". This submission is contrary to the Principal Member's factual findings.
2. The Principal Member, after referring to the definitions of 'no current work capacity' and 'current work capacity' in cl 9 of Sch 3 to the 1987 Act (which he reproduced) specifically found that the appellant did not fall within the definition of an injured worker with 'no current work capacity'. The Principal Member referred to the medical certificates on which the appellant relied, describing these as "brief and unexplained certificates of capacity". He said this certification was "inconsistent with the obvious fact that the [appellant] is undertaking some work". The Principal Member at [244] of the reasons referred in detail to the appellant's post-injury capabilities. These included completing a degree in civil engineering (in 2023), setting up a business, completing an RSA course and working part-time in hotels.[87] The Principal Member concluded the appellant was capable of working "in sedentary employment for a significant and majority part of full-time hours". The factual finding that the appellant had current work capacity was well-open on the evidence and is one with which I agree. The consequence of this was that the appellant, contrary to his submissions on this ground, was not entitled to weekly compensation pursuant to s 38(2) of the 1987 Act.[88] This is probably sufficient to dispose of the appellant's submissions on this ground, which proceed on the basis he has 'no current work capacity'. For completeness, it is appropriate that I also refer to the Principal Member's reasons dealing with s 38(3) of the 1987 Act.
3. In the circumstances the appellant's potential entitlement to ongoing weekly compensation was pursuant to s 38(3) of the 1987 Act, which provides:

"(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if -

(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and

(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and

(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings."

1. Notwithstanding the references in s 38(3) of the 1987 Act to assessment by the insurer, I accept the correctness of the conclusion by Phillips P in Fletcher International Exports Pty Ltd v Lee that the Commission has jurisdiction to hear disputes about a worker's entitlement pursuant to s 38 of the 1987 Act.[89]
2. The Principal Member found the appellant had satisfied the pre-condition in s 38(3)(c), for the first week in December 2024 and then from when employment with [redacted] commenced in early January 2025. However, the Principal Member was not satisfied the appellant had established, on the probabilities, that he was "incapable of undertaking further additional employment or work that would increase [his] current weekly earnings"[90] (a requirement of s 38(3)(c)). The Principal Member referred to the reasons dealing with s 38(3)(c) in his earlier decision of Roberts. He stated that he adopted those reasons. In his earlier decision the Principal Member said the word 'indefinitely', in context, was "akin to an unknown or non-specific period". It did not mean permanent.[91] The Principal Member said his conclusion that the appellant had not discharged his onus on this issue relied on his findings about the appellant's capacity, his rejection of the appellant's credit unless corroborated and the absence of evidence on the issue.
3. The Principal Member said there was an absence of evidence, consistent with his findings, on the appellant's ability to earn and the extent to which the appellant could undertake additional employment that would increase his current weekly earnings. The Principal Member observed that the appellant had "an ability to undertake sedentary work in his profession. The remuneration of a civil engineer will clearly exceed the remuneration of a casual labourer at a hotel or performing unskilled work in a store". The Principal Member concluded the appellant had not satisfied the pre-condition in s 38(3)(c) and was not entitled to weekly compensation for the period claimed.[92] I agree with the Principal Member's analysis and findings on this issue.
4. The Principal Member's reasons in this regard included his finding on credit. The Principal Member dealt at length with the appellant's credit. He said he did "not accept the [appellant's] evidence unless there is corroborative evidence".[93] Adverse comments relevant to credit, made by the Principal Member, are referred to above in my reasons at [18], [19], [20], [23] and [35]. The Principal Member, in his reasons at [150] to [158], identified "examples of a pattern that [the appellant] is inaccurate in his reporting". The Principal Member said that the appellant's statements, that there was documentary evidence of a spinal fracture, were "plainly wrong and misleading". He rejected the appellant's submission that, where there were inconsistencies, "the medical records are wrong and that histories have been incorrectly recorded by various medical practitioners".[94]

1. In dealing with the prospects of success of the present appeal it is necessary to have regard to the decision of the Court of Appeal in Culhana. In that decision Leeming JA said:

"No one doubts that questions of law must be determined afresh by a Presidential member if it is said that the member erred. Nor is it doubted that where the member has seen the applicant or other witnesses and made findings of fact based on their evidence, the member will be in a position of advantage over a Presidential member who will, in the ordinary case, determine the appeal on the papers."[95]

"If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it."[96]

1. In Lee v Lee[97] the plurality said:

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."[98] (excluding references)

1. The way in which the appellant gave evidence was a little unusual, clearly intended by the Principal Member to accommodate the appellant's status as an unrepresented litigant. The appellant gave evidence and was cross-examined by the respondent's solicitor. The evidence-in-chief and cross-examination were carried out, to an extent, through the Principal Member. The Principal Member saw and heard the appellant give evidence and made findings based on his acceptance or rejection of that evidence. This is consistent with the Principal Member being in a 'position of advantage' compared with mine, in dealing with the appellant's credit. I do not regard the Principal Member's credit finding as 'glaringly improbable' or 'contrary to compelling inferences'. The Principal Member did not specifically indicate his findings on credit were made on the basis of demeanour. If he did not enjoy such a position of advantage, I would not, in any event, disturb the Principal Member's credit finding. He gave careful reasons dealing with the appellant's taxation returns and with inconsistencies and inaccuracies in the medical histories. He concluded there was "a pattern that [the appellant] is inaccurate in his reporting". The Principal Member described the appellant making repeated submissions that "there was documented radiological evidence showing a spinal fracture", until eventually conceding there was no such document. He ultimately said his (the appellant's) "view of the scans showed a fractured spine" and "an unknown doctor told him there was one". The Principal Member described this as "misleading" and "casting doubt on the [appellant's] credit and reliability".[99] I accept the correctness of the Principal Member's assessment of credit.
2. Ground No. 1 would not succeed.
3. The appellant put on a Response to the respondent's submissions (described in the reasons at [57] to [59] above as the appellant's 'submissions in reply'). In that document the appellant's complaint regarding how his weekly claim was dealt with was set out as Grounds Nos. 4 and 6 (see [59] above). The material in those submissions does not add usefully to the discussion above dealing with Ground No. 1.

1. Ground No. 2 is expressed by the appellant in various ways; it essentially alleges error in the finding of the Principal Member that there was a pre-existing psychological injury. The appellant submits contemporaneous medical evidence links the onset of the psychiatric condition to the workplace incident, and subsequent disputes related to insurance, medical torture and exploitation. The appellant's submissions in reply describe this ground as Ground No. 1.
2. The Principal Member noted s 294(2) of the 1998 Act required that he give a brief statement of his reasons for determination. The Principal Member discussed the appellant's credit at some length.[100] He stated he had formed an adverse view of the appellant's credit.[101]
3. The Principal Member summarised the extensive medical evidence.[102] In the course of this he referred to multiple medical histories, some of which touched on the appellant's history prior to the injury on 24 December 2020. This included reference to his experiences before coming to Australia, his sexual orientation and an attendance at a Community Health Service in 2015.[103] The Principal Member's ultimate finding on injury was made at [234] to [236] of the reasons. He found there was a contribution from "other events" to the ongoing psychological issues but that, applying Murphy, it was only necessary to find the work injury was a material contributing factor to the ongoing condition. He found the appellant suffered from a pain condition that was caused by the work injury, and the perception of chronic pain was a material contributing factor to the ongoing psychological condition.
4. The finding of injury was one in the appellant's favour. It did not involve error. It applied an appropriate test on causation. If it did involve error the appellant could not establish that any error was material to the outcome. Ground No. 2 would not succeed.

1. This ground involves an alleged breach of the rules of procedural fairness, on the basis the appellant was not informed of the implications of withdrawing his Application, nor was his capacity to self-represent assessed.
2. The appellant pursued a similar argument in the reconsideration application that was dealt with in the Principal Member's decision dated 19 June 2025 (see [41] above). The appellant, prior to commencement of the current proceedings, had discontinued earlier proceedings. This was specifically raised in the current proceedings in discussion at the preliminary conference on 12 November 2024:

"PRINCIPAL MEMBER: Well, with respect, ... this case was filed four weeks ago. I'm dealing with this case and this case was only commenced four week ago.

PRINCIPAL MEMBER: That was discontinued and the case starts again when you refiled four weeks ago."[104]

1. On the same date there was discussion regarding the prospect of the appellant being legally represented:

"PRINCIPAL MEMBER: You realise you're adversely affecting your case by not getting legal representation?

PRINCIPAL MEMBER: Well, it's free, it's legally-aided and I've had countless people say that and it's legally-aided and there's lots of lawyers that will act for you so you're entitled to legal representation. So you can take it up, it's a legally-aid scheme, that's what you can do but if you don't get it I'm not assisting you beyond being an umpire and trying to assist where possible."[105]

"MS COLEMAN: Member, ..(not transcribable 00:46:16).. been our position that this matter is not well prepared and that it should be discontinued so that [the appellant] can seek legal advice.

PRINCIPAL MEMBER: That's a matter for [the appellant].

PRINCIPAL MEMBER: That's a matter for [the appellant]. I've already said that he should get legal advice, it's not a matter for the insurer. I've told him he should get legal advice, it's a matter for him whether he discontinues or not. It's not a matter for the insurer, ma'am."[106]

"PRINCIPAL MEMBER: You understand this case is being seriously defended by the other side? You understand they're disputing your claim?

PRINCIPAL MEMBER: You understand your case would be assisted by legal representation which is provided free to you?

PRINCIPAL MEMBER: You understand - you understand you're making mistakes in the preparation of your case by not having legal representation?

PRINCIPAL MEMBER: Well, I can tell you, sir, you're making mistakes and it's not assisting your preparation."[107]

"PRINCIPAL MEMBER: Yes, I understand that, ... This is a directions hearing, we're not arguing your case today. ... at the hearing you'll have to refer me to the evidence, filed evidence. That's why I asked you in the directions to get legal representation. You'll have to take me to the evidence that supports your case rather than just saying that you're in pain and that's why you should win. You'll have to refer to the medical evidence and your own statements.

PRINCIPAL MEMBER: And I want you to - and - and when we start the hearing I keep on saying page reference, I will keep on saying page reference, where is the evidence in support of this. Do you understand that?

"PRINCIPAL MEMBER: ... the problem about acting for yourself is every time you say something it can be used against you.

PRINCIPAL MEMBER: I put in writing that you should get legal advice but you've declined that.

[BOH]: That's okay. That's okay."[109]

1. The Direction issued by the Commission on 12 November 2024 included various procedural orders, together with the following:

"The applicant is again advised that he should contact the Independent Review Office to obtain free legal advice." (emphasis in original)

1. The appellant, in his submissions in reply dealing with Ground No. 3, submits he was "not given adequate guidance regarding withdrawal of his Application and assessment of his capacity to self-represent". He submits this constituted "a breach of procedural fairness". This submission is inconsistent with the transcript and is rejected. There is no basis to conclude the appellant required assistance in understanding both the concept of discontinuance and that discontinuance was available to him if he wished. It was a procedure he had utilised in his previous proceedings. The Principal Member repeatedly informed the appellant of the availability of legal aid and strongly encouraged him to take advantage of the scheme. The appellant did not do so. Ground No. 3 would not succeed.

1. This ground is described as Ground No. 5 in the summary in the appellant's submissions in reply. The appellant submits there was an unreasonable exercise of discretion in denying him weekly compensation and medical expenses. He refers to ss 60 and 65A of the 1987 Act and submits the Principal Member failed to consider these provisions "appropriately".
2. Section 65A forms part of Division 4 of Part 3 of the 1987 Act; it relates to the recovery of lump sum compensation in respect of psychological and psychiatric injury. Such a claim was not pursued in the current proceedings and s 65A is irrelevant to the current proceedings. To the extent that this ground deals with whether the appellant had an ongoing entitlement to weekly compensation, that topic is dealt with in the discussion above dealing with Ground No. 1.
3. The appellant submits he was denied medical expenses in respect of both his psychological and physical injuries. He submits the Principal Member's decision to the contrary, regarding both physical and psychiatric care, should be set aside. He is entitled to reasonably necessary medical treatment, "including physical and psychiatric care".
4. The Principal Member dealt separately with liability pursuant to s 60 of the 1987 Act, for each of physical care and psychiatric care. This is clear from the Certificate of Determination dated 5 February 2025. In that document the Principal Member at [1] found the appellant "suffers from a psychiatric condition caused by the work injury from 10 April 2024". The Principal Member's reasons at [279] said: "I note that the insurer should be reinstating future s 60 expenses with respect to the [appellant's] somatic pain condition."
5. In the Certificate of Determination at [2] the Principal Member found that, save for the ongoing psychological injury, the appellant had failed to establish that "the work injury caused the disputed injuries referenced in these reasons". This finding at [2] encompassed all of the disputed physical injuries alleged. The Principal Member dealt with these at [182] to [195] of the reasons.
6. The finding in the Certificate of Determination at [2] was a finding of fact, it did not involve the exercise of discretion. The disputed injuries were set out at [185] of the reasons. The Principal Member, clearly correctly, did not accept the appellant was qualified to give a medical opinion on the causal link between the work injury and the disputed physical injuries.[110]
7. The Principal Member accepted there were two right rib fractures due to the work injury, as this was consistent with abnormalities on a whole body scan dated 29 April 2021 and with the contemporaneous hospital notes. These fractures did not form part of the "disputed injuries". The Principal Member referred to an absence of contemporaneous complaint in respect of the disputed injuries. He referred to evidence from Dr Gronow and Dr Hale, that did not support the appellant's case, and Dr Pope, who said the various scans showed only age-related changes. The Principal Member said there was no medical evidence, "apart from general comments in certificates of capacity", to establish a causal connection between the work incident and the disputed injuries.
8. The Principal Member's reference to the often-limited probative force of certificates of capacity is generally consistent with the reasons of Keating P in DHL Exel Supply Chain (Australia) Pty Ltd v Hyde[111] in which his Honour said:

"The certificates are of little probative value in the absence of a medical report to explain them or to set out the history on which they are based: Greif Australia Pty Ltd v Ahmed [2007] NSWWCCPD 229; 6 DDCR 461."

"194. There is otherwise no medical evidence that these disputed injuries were ongoing at the time when the respondent denied liability in April 2023.

1. I am not satisfied that the disputed physical injuries were caused by the work injury save as the discussion of the psychological injury set out below."
2. In the above passages, the Principal Member accepted the continuing effects of a psychological injury that resulted from the work injury on 24 December 2020. The consequence was that there was an order for the ongoing payment of expenses pursuant to s 60 of the 1987 Act in respect of the psychological injury. The Principal Member did not accept that the disputed injuries (which were physical in nature) were caused by the work injury on 24 December 2020. He additionally concluded there was no medical evidence that the effects of the disputed injuries continued beyond the date to which the respondent made voluntary payments of compensation. The consequence of these findings was that further compensation pursuant to s 60 of the 1987 Act, in respect of the physical injuries, was not payable. Further compensation pursuant to s 60 of the 1987 Act, in respect of the found psychological injury, was payable. The Principal Member's reasons in this regard, with which I agree, do not involve error.
3. Ground No. 4 would not succeed.

1. Ground No. 5 refers to the 'fresh evidence' in the document headed "Quantitative and technological Engineering of CT/Spect, MRI and X-ray" (see [85] to [87] above).
2. The evidence in the case indicates the appellant became qualified in the field of civil engineering in 2023. There is no suggestion the appellant has any qualifications or experience in the field of medicine. In Bugg v Day[112] Dixon J dealt with the appropriateness of a motor vehicle repairer, with ten years' experience, giving evidence about the likely speed of a vehicle involved in a collision, on the basis of damage to one of the vehicles. His Honour, dealing with the admissibility of evidence given over objection on this issue, said:

"... his conclusion would involve a problem far beyond his capacity and qualifications and one to which he did not purport to address himself. It was not evidence based upon a branch of knowledge or an art in which the witness was skilled but a wild and unsophisticated conjecture."[113]

1. The evidence does not establish the appellant has an appropriate background, in training or experience, to equip him to provide the 'fresh evidence' on which he seeks to rely. Additionally, he seeks to give the evidence in his own case. He is not independently objective and impartial, which would reduce any probative value the fresh evidence might have. To place reliance on the 'fresh evidence' would be contrary to r 73 of the Rules, which states:

The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles -

(b) evidence should be relevant to the facts in issue and the issues in dispute,

(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,

1. The appellant, in its submissions in reply (see [59] above) has purported to add a further ground (Ground No. 6) in the following terms:

"The statutory scheme under Section 38 supports ongoing entitlement if either no current work capacity or limited work capacity with indexed earnings and inability to earn more is proven."

1. This purported ground was added without leave, which was not sought. The appropriate course is that I ignore it.[114] It would not have assisted the appellant. Whether the appellant had an ongoing weekly entitlement pursuant to s 38 of the 1987 Act is dealt with above in the discussion of the merits of Ground No. 1.
2. It follows from the above discussion that the appeal does not have reasonable prospects of success. There is no injustice to the appellant if the extension of time to bring the appeal is refused.

1. The respondent does not submit it would suffer prejudice if time were extended. It would lose its vested right to retain the decision at first instance, to the extent that it succeeded in resisting the claim, other than the award in the appellant's favour for medical and related expenses resulting from the proved psychological injury.
2. Having regard to the discussion above, I have concluded:

(a) the period of the delay is moderately substantial, a little less than three months;

(b) the appellant's explanation does not adequately explain the period of the delay or the reasons for it;

(c) 'exceptional circumstances' are not present;

(d) the appeal does not have reasonable prospects of success, and

(e) loss of the right to make the relevant application would not work demonstrable and substantial injustice.

1. Consideration of the relevant factors does not support the extension of time which the appellant seeks.

1. Leave is granted to the respondent, pursuant to s 48 of the Personal Injury Commission Act 2020, to be represented by an Australian legal practitioner.
2. Pursuant to rule 132 of the Personal Injury Commission Rules 2021 this decision is to be de-identified consistent with the approach taken at first instance.
3. The appellant's application to extend time for the bringing of the appeal, pursuant to s 352(4) of the 1998 Act and r 133A of the Personal Injury Commission Rules 2021 is refused.

[1] BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 34 (the reasons), [287].

[2] Application to Resolve a Dispute (ARD), pp 32-39.

[4] Transcript 14/1/25 (T3), T3 5.12-18.

[8] Reasons, [13]-[14], [18], [20].

[12] ARD, pp 1 and 10. Reasons, [44].

[13] Reasons, [45]-[46], [51]-[52].

[23] St Vincent's Hospital clinical notes, Application to Lodge Additional Documents 7/1/25, p 83. Reasons, [133]-[134].

[31] Reasons, [164]-[165], [170].

[37] [2024] NSWPIC 167, [11]-[26].

[40] [2015] NSWWCCPD 49 (Murphy).

[47] [2023] NSWPICPD 67 (Lee).

[52] BOH v Engineering Solutions and Services Pty Ltd [2025] NSWPIC 283 (reconsideration decision).

[53] Reconsideration decision, [13]-[17], [18]-[22].

[54] Reconsideration decision, [23]-[37].

[55] Reconsideration decision, [39]-[42].

[58] Reconsideration application, [46]-[52].

[59] Respondent's submissions, [1]-[3].

[60] Appellant's submissions in reply, [1]-[3].

[61] Respondent's submissions, [6]-[10], [12].

[62] Respondent's appeal submissions, [25]. Transcript of hearing 12/11/24 (T1), T1 35.19-31.

[63] Respondent's appeal submissions, [26].

[64] Respondent's appeal submissions, [30]-[32].

[65] ARD, p 153 (Dr Awit) and p 257 (Dr Faux).

[66] Respondent's appeal submissions, [45]-[46], [49]-[54].

[67] Appellant's submissions in response, [14].

[68] Appellant's submissions in response, [14]-[16].

[69] Appellant's submissions in response, [28]-[29].

[70] Appellant's submissions in response, [33].

[71] [2025] NSWCA 157 (Culhana).

[72] [2024] NSWSC 1620 (Shapkin), [32].

[73] [1998] HCA 27; 195 CLR 516 (Jackamarra), [4].

[74] Jackamarra, [66], applied in Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61, [80].

[75] [2011] NSWCA 85 (Nanschild), [38].

[76] [2009] NSWCA 188 (Bryce).

[79] [1938] HCA 7; (1938) 59 CLR 369 (Whyte), 391.

[81] [2007] NSWCA 290 (Yacoub).

[83] Chep Australia Ltd v Strickland [2013] NSWCA 351, (per Barrett JA, Macfarlan JA agreeing), [27].

[86] [2009] HCA 41; 239 CLR 27, [47].

[89] [2023] NSWPICPD 67, [22]-[23].

[97] [2019] HCA 28; 266 CLR 129 (Lee).

[103] Reasons, [75], [92], [114], [154]-[156].

[106] T1 38.17-31. See also T1 43.32-44.22, 52.29-32.

[108] Transcript 26/11/24 (T2), T2 24.13-30.

[111] [2011] NSWWCCPD 22, [86]-[100].

[112] [1949] HCA 59; 79 CLR 442 (Bugg).

[114] Bale v Mills [2011] NSWCA 226, [56]-[57], [61].