1. The Member's Certificate of Determination dated 12 September 2024 is confirmed.

WORKERS COMPENSATION - procedural fairness - obligation of Member to deal with submissions - adequacy of Member's reasons - Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; Wang v State of NSW [2019] NSWCA 263 considered and applied - Kowalski v Repatriation Commission [2011] FCAFC 43 considered and applied

Hayes v CSR Ltd [2024] NSWPIC 507

1. Mr Jeffrey Hayes (the respondent) was employed by CSR Limited (the appellant) as a National Logicwall Business Improvement Manager from 2016 until he was terminated from his employment on 18 May 2022. The role was primarily office-based, however, the respondent assisted with maintenance duties when required.[1]
2. On 8 May 2021, the respondent states he injured his right shoulder in the following manner. The respondent was standing on the third rung of a step ladder with one foot on the ladder and the other on top of an air dryer. His foot slipped and as he was falling, he reached for an air line with his right-hand causing his right arm to overextend. He fell to the ground landing on his left leg while his right foot remained on the air dryer. He felt immediate pain in his right shoulder region and right knee.[2] The respondent was 60 years of age when the incident occurred.
3. The respondent reported the injury to the appellant on Monday, 10 May 2021. He did not require any time off work and did not seek any medical treatment apart from one consultation with an on-site physiotherapist arranged by the appellant approximately three months later. It was not until the respondent's employment was terminated in May 2022 that he sought medical treatment and subsequently lodged a workers compensation claim in June 2022 for injuries to his right shoulder, right bicep and left knee.[3] The respondent has not worked since his employment was terminated by the appellant. The termination of the respondent's employment was unrelated to the injuries subject to these proceedings.
4. The appellant issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 29 August 2022 denying liability for the respondent's injuries.[4] The appellant issued a further s 78 notice on 23 November 2022.[5] The notices denied injury or that employment was a substantial contributing factor to the injury. Sections 4, 9A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act) were relied on. The appellant also denied the respondent gave notice of his injury nor did he make a claim for compensation within the time prescribed by ss 254 and 261 of the 1998 Act.
5. An Application to Resolve a Dispute (ARD) was filed in the Personal Injury Commission (the Commission) by the respondent on 18 March 2024, claiming weekly compensation. At the conciliation/arbitration hearing before the Member, the respondent discontinued the allegation of injury to his right knee and the appellant withdrew its defence raised under s 254 of the 1998 Act. The remaining issues to be determined by the Member were whether the respondent had sustained injury to his right shoulder on 8 May 2021 in the course of his employment with the appellant and if so, whether the respondent was barred from recovering compensation due to the alleged failure to make a claim within the time frames prescribed by s 261 of the 1998 Act. If the respondent overcame those barriers, the final issue for determination was the extent of the respondent's incapacity for work pursuant to ss 36 and 37 of the 1987 Act.
6. In a Certificate of Determination dated 12 September 2024, the Member made findings in favour of the respondent in respect of injury and held that the respondent has had a continuing incapacity for work since 18 May 2022. The Member determined s 261(1) of the 1998 Act was not a bar to the recovery of compensation payable to the respondent.[6] It is from that decision the appellant now appeals.

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

"(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed 'on the papers' without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

1. The respondent's credibility was in issue at the hearing before the Member. The respondent provided numerous statements in support of his application and gave evidence under cross-examination and re-examination during the arbitration hearing of his claim. In a statement dated 6 July 2022,[7] the respondent denied having any pre-existing injuries or conditions. He states he was not required to undergo a pre-employment medical examination upon the commencement of his employment with the appellant and describes his work duties as being primarily office based however would perform maintenance duties if required.[8] He describes the circumstances of the incident on 8 May 2021 which I have noted above at [2].
2. The respondent states that although he felt pain in his right arm immediately after the incident, the pain did not prevent him from performing his duties, and did not take any time off work. On 10 May 2021 the respondent reported the incident to the appellant's Workplace Health, Safety and Environment Manager, Ms Nadine Ward, and completed an incident report.
3. In a further statement dated 8 August 2023,[9] the respondent states he had "continually told" Ms Ward and Mr Glen Skinner about his ongoing right shoulder problems and was of the understanding the appellant would pay for his treatment and time off work if needed. The respondent states that fitters in his team, Kerry Noble and Jordan Baxter, were also aware of his right shoulder injury and would assist with the heavier tasks to avoid ongoing aggravation of the injury.
4. The respondent did not seek medical treatment in relation to his right shoulder apart from one consultation with an on-site physiotherapist approximately three months after the incident. He treated his symptoms with pain medication and avoided heavy work duties.
5. The explanation provided by the respondent as to his failure to make a workers compensation claim within the period prescribed is tripartite. Firstly, he says the pain medication assisted with the management of his symptoms, and he was able to continue to fulfill the requirements of his role.[10] Secondly, he explains that he felt an obligation to continue to work and did not want to let his team down by taking time off work.[11] The respondent describes a "lost time injury" quota which affected the individual bonus entitlements of team members. The respondent states: "[i]t was part of the workplace culture to minimise lost time injuries, and it was also a goal of the incentive scheme to have a maximum of two RI injuries per financial year in order to receive a higher bonus."[12] He states that the site was close to exceeding that quota.[13] Finally, due to his management position he was privy to conversations about employees who were on workers compensation and he was aware the general attitude towards these employees was negative and they were regarded as having poor work ethic and/or their injuries were not always believed.[14]
6. The respondent explains that because he did not want to make a workers compensation claim, he did not mention his right shoulder symptoms to his general practitioner nor seek any medical treatment for over a year, despite consulting his GP on numerous occasions during that time. The respondent believed that any complaint to his GP may be discovered by the appellant who may have incorrectly understood it as an intention to bring a workers compensation claim. He reports consulting the on-site physiotherapist on one occasion who advised that the right shoulder should heal over time.[15] The respondent said he accepted this advice.[16]
7. The respondent states that following the termination of his employment with the appellant, he was offered a job with a different employer which was conditional on passing a pre-employment medical examination. The respondent states he knew he would not pass the medical examination due to his right shoulder symptoms which was what prompted him to seek medical treatment.[17]
8. The appellant sought to cross-examine the respondent on the basis of inconsistent statements and put his credibility in issue.[18] During cross-examination the respondent acknowledged he understood the concept of doctor-patient confidentiality, however said he did not complain to his GP of his right shoulder injury as he did not want to open a workers compensation claim. The respondent maintained that he complained to a number of people at work about this right shoulder injury and his reference to being "tight-lipped" was not directed towards his work colleagues.[19]
9. The respondent confirmed he was offered a role at another company which was contingent upon him passing a pre-medical screening. He stated he was not able to carry out a number of physical tasks in that role due to his right shoulder injury.[20] He disclosed his right shoulder injury to the prospective employer who informed him that he would not pass the pre-employment medical screening.[21]
10. Given a ground of this appeal pertains to the Member's treatment of the statements of Ms Ward, Mr Skinner and Mr Kooyman, which were relied upon by the appellant, it is necessary for me to set out the relevant sections of each statement.

Statement of Ms Nadine Ward dated 11 July 2022[22]

"20. My first involvement with Jeffrey from a WHSE incident management perspective was on 10 May 2021 when I was notified of an incident report he had lodged, which was relevant to an incident on 8 May 2021.

1. The incident report entered by Jeffrey advised he fell off a ladder. The relevant incident report noted he suffered a 'twisted back, hyperextended knee, and sore right bicep'.
2. Upon receipt of the incident report, I had a discussion with Glen Skinner, and then TJ Kooyman and I met with Jeffrey to ascertain more information relevant to the incident.

1. CSR Limited do have a site doctor available however, Jeffrey advised he was fine, and he just wanted to log the incident incase [sic] anything was to flare up.

1. Jeffrey did appear to be most concerned about his right knee injury at this time, and I understand that Jeffrey did consult the onsite Physiotherapist on one occasion, but I am not aware of him seeking any further medical treatment.

1. Jeffrey did not take any time [off] work as a result of the incident on 8 May 2021. Jeffrey continued to work his full duties, and he made nil requests for light or modified duties at any time.
2. I had not observed Jeffrey to display any signs of pain, discomfort, or injury following the subject incident on 8 May 2021.
3. In June 2021 I had a brief conversation with Jeffrey to see how he was tracking, as I was prompted to follow up due to Glen Skinner's investigation. Jeffrey told me he was OK and said he would let me know if he required any treatment. He did not approach me after this date to request any support or treatment."

Statement of Mr Glen Skinner dated 13 July 2022[23]

"8. I am employed by CSR Limited as the fulltime Operations Manager ...

1. I am aware of the alleged incident on 8 May 2021, as Jeffrey lodged an incident report on 10 May 2021 regarding this ...
2. Although Jeffrey lodged an incident report on 10 May 2021, I would have expected that he sent me an email or text on 8 May 2021 to advise of the incident, but he did not. It would have been appropriate for Jeffrey to advise either myself or Nadine Ward.

1. TJ and Nadine investigated the incident, conducting an interview with Jeffrey to obtain all of the relevant information from him. We then came up with some corrective action, which I reviewed at a later date and closed out.

1. I do not recall Jeffrey informing me, at any time, that he had suffered a right shoulder injury.
2. I did have a conversation with Nadine and asked how Jeffrey was going post-incident and she told me he had a physiotherapy appointment, but he did not want to have any further appointments as he reported he was OK.
3. I did not believe Jeffrey had any ongoing injuries as when he lodged the incident report he listed it as 'report only' which suggested to me that he was solely reporting the incident because it occurred, and not because he had any ongoing injuries.

1. Since the alleged incident on 8 May 2021, I have observed Jeffrey to struggle to get up when plugging in something under his desk, and he has mentioned back soreness, but he never made any suggestion that this was related to the alleged incident on 8 May 2021.
2. From 8 May 2021 until his employment was terminated in May 2022, Jeffrey did not take any time off work as a result of alleged injuries. He never requested light or modified duties, and he was able to perform his duties in full."

Statement of Mr TJ Kooyman dated 7 July 2022[24]

1. Prior to 8 May 2021, I had not known Jeffrey to have any pre-existing injuries or conditions.
2. I was aware of the alleged incident on 8 May 2021, but I do not know the specific details of the alleged incident ...
3. He reported he had hurt his right knee as he hyperextended his leg, and he also reported a back and right bicep injury.

1. I came to know of the alleged incident on 10 May 2021 when Jeffrey lodged an incident report.
2. Following this, Nadine Ward had asked me to attend a meeting with her and Jeffrey, as she was new to her role, and she required a senior staff member to be in attendance for the meeting. During the meeting Jeffrey went over the incident circumstances, but he was quite vague.

1. From memory, I believe Jeffrey may have consulted the onsite physiotherapist on one occasion, but he did not continue this treatment, advising he was OK.
2. I had never known Jeffrey to mention any injuries to his shoulder/s ...
3. As far as I was aware, I believed Jeffrey had not suffered ongoing injuries as a result of the alleged incident on 8 May 2021, as he informed the business that he was solely reporting the incident for 'reporting purposes only', because all incidents on site must be reported, no matter how minor.
4. I am aware Jeffrey continued to work post-incident, and he did not make any request for light or modified duties."

1. The treating medical evidence was summarised by the Member commencing at paragraph [38] of the reasons. I do not repeat those passages however I will make the following remarks.
2. The respondent was a patient of Bradfordville Family Medical Centre since October 2009. The first record of any right shoulder complaint was on 17 June 2022. There is no dispute between the parties that the respondent had consulted the medical centre on a number of occasions between 8 May 2021 and 17 June 2022, without mentioning the right shoulder symptoms. It is also noted that the respondent consulted his GP on two occasions following the termination of his employment, without mentioning the right shoulder symptoms.

1. The Member considered the numerous reports of Dr Pillemer, who was instructed by the respondent, at [51]-[69] of the reasons. I have reviewed all seven reports provided by Dr Pillemer and remark that throughout his reports, Dr Pillemer expressed concern about the inconsistent histories recorded by himself and A/Prof Miniter. Dr Pillemer comments that an accurate history of the right shoulder injury on 8 May 2021 was crucial in assessing the extent of any aggravation of an underlying condition that may have been caused on 8 May 2021.[25]
2. The principal discrepancy in the histories recorded by the doctors concerned the time the injury was reported to the appellant. Dr Pillemer recorded that the respondent reported the incident two days later, being a Monday. Conversely, A/Prof Miniter recorded the respondent "recalled the shoulder being uncomfortable at the time, but he did nothing about it in particular"[26] and reported the injury about three months later.
3. Dr Pillemer was of the view that further evidence would be helpful in confirming any effect the injury on 8 May 2021 may have had on the underlying condition. The further evidence suggested by Dr Pillemer was the Incident Report confirming the date the respondent reported the injury, statements from the respondent's former work colleagues, Kerry Noble and Jordan Baxter to confirm they were aware of the respondent's injury and assisted the respondent with manual labour[27] and statements from the respondent's employer, Ms Nadine Ward and Mr Glen Skinner confirming they knew of the respondent's injury. Dr Pillemer also suggested that the date the respondent consulted the on-site physiotherapist be confirmed.
4. Ultimately an Incident Report dated 10 May 2021 was provided to Dr Pillemer confirming the respondent reported the injury to the appellant on 10 May 2021, together with evidence that the on-site physiotherapist consultation occurred in August 2021.
5. Dr Pillemer questioned the respondent about why he had not complained to his GP of any right shoulder problem until 13 months after the incident in May 2022. The respondent explained he was still able to do his desk job and was able to work at bench top level. He had a delegate and had no intention of making a workers compensation claim. Dr Pillemer said the respondent "comes across as being a very straight-forward and open person, and I would certainly be prepared to accept the history he has given me as well as the explanation as to why he did not report his symptoms to his General Practitioners until many months later."[28]
6. Dr Pillemer had also recorded in his initial report that after termination of the respondent's employment with the appellant he had "another job lined up"[29] however, in his later report dated 23 February 2024 he recorded that the respondent was not successful in securing the employment due to the inability to pass the pre-medical assessment.[30]
7. After reviewing the further evidence supplied to him and further explanation provided by the respondent, Dr Pillemer confirmed his opinion that there "was a shoulder injury on 8 May 2021, with an aggravation of a chronic/longstanding rotator cuff tear".[31]
8. In Dr Pillemer's final report dated 12 June 2024, he commented on the reports of Consultant Radiologist, Dr Fung and the supplementary report of A/Prof Miniter dated 31 May 2024. Dr Pillemer noted Dr Fung's opinion was based on an incorrect history being that the respondent had no problems with the right shoulder region following 8 May 2021.[32] Dr Pillemer noted Dr Fung had acknowledged the degenerative conditions in his report. Dr Pillemer agreed with A/Prof Miniter that there was no evidence to suggest the respondent had a serious injury on 8 May 2021 however stated that did not exclude the fact there was an injury which likely aggravated an underlying condition.[33]

1. A/Prof Miniter provided numerous reports at the request of the appellant. As noted earlier, A/Prof Miniter recorded a history of the shoulder being "uncomfortable" when the 8 May 2021 incident occurred and that the respondent did not report it until three months later.
2. A/Prof Miniter viewed the CT scan dated 20 September 2022 and said it "demonstrated what appeared to be a rotator cuff arthropathy with upriding of the humeral head, significant AC joint osteoarthritic change and glenohumeral osteoarthritic change. The changes would appear to be longstanding". A/Prof Miniter was of the opinion that there was no evidence to suggest a significant injury occurring on 8 May 2021 and that the respondent presented with bilateral significant rotator cuff disease likely to be aged related. The doctor notes there is evidence of advanced osteoarthritis affecting the shoulder joint, probably secondary to the rotator cuff disease.[34]
3. In a supplementary report dated 20 March 2023, A/Prof Miniter was asked to comment on the clinical notes of the respondent's GP. A/Prof Miniter stated the notes align with his overall impressions that the issue is a longstanding problem and most unlikely to be related to the incident on May 2021.[35]
4. In a further supplementary report dated 31 May 2024, A/Prof Miniter comments in relation to Dr Fung's report dated 24 April 2024. He highlights the respondent consulted his GP on 27 occasions between 8 May 2021 and 17 June 2022 without complaining of right shoulder symptoms. A/Prof Miniter confirms his view that there is no evidence to suggest the respondent had a serious injury on 8 May 2021 and if there was an acute rotator cuff tear, he would have suffered drop arm or profound weakness that had not been present before. He confirms his opinion that the pathology was pre-existing.
5. In terms of capacity for work A/Prof Miniter stated "he is not fit to return to heavy work. He is a fitter by training, but I do not believe he is fit to perform this work. Unfortunately, his overall general health is relatively poor, and this combined with his diabetes, which is poorly controlled, his haematological malignancy, and the significant shoulder findings evident on both sides, make it difficult to determine that [the respondent] will return to work in a functional fashion longer term."[36]

1. Dr Fung provided a report dated 24 April 2024 at the request of the appellant. Dr Fung was asked to provide advice on the radiological evidence. Dr Fung warned that ultrasounds of the shoulder should ideally be interpreted with the benefit of live "real-time" scanning and as such his report is limited in this context.[37]
2. The Member summarised Dr Fung's opinion at [84] of the reasons as follows:

"(a) it is possible that the pathology identified in the ultrasound dated 10 October 2022 occurred in the workplace incident occurring on 8 May 2021 As to whether the pathology identified in the ultrasound is likely to have occurred in the workplace incident, he was unable to say that;

(b) an absence of reported symptoms between 8 May 2021 and 17 June 2022, although not conclusive, could imply either that the injury identified in the ultrasound dated 10 October 2022 occurred well before 8 May 2021 or occurred sometime between 17 June 2022 and the ultrasound on 10 October 2022, and

(c) from the diagnostic imaging provided (identified) and the clinical records provided to him (not identified) it would not be possible to confidently ascribe the cause of [the respondent's] symptoms to a personal injury sustained on 8 May 2021 'although this cannot be entirely ruled out'."

1. The Member noted both the appellant and respondent made oral submissions. The Member did not reproduce the submissions in the reasons due to a recording being available to the parties if required.[38]
2. The Member was ultimately satisfied that on the balance of probabilities, the respondent had sustained an injury to his right shoulder on 8 May 2021 in the course of his employment with the appellant, with the employment being the main contributing factor to the injury. In making that determination, the Member first considered the circumstances of the incident as recorded throughout the lay evidence, the treating and expert medical evidence.
3. The Member noted an event/investigation-output form completed on Monday, 10 May 2021[39] that recorded a "sprain/strain" injury to the right upper arm that had occurred on Saturday, 8 May 2021. The description of incident was noted as one foot slipping off the third step of a ladder and that he had fallen from "a height".[40]
4. The Member considered the AFS Onsite Assessment document[41] that was relevant to the respondent's attendance with the onsite physiotherapist as arranged by the appellant, which recorded the respondent's right shoulder complaints as a result of falling off a ladder three months earlier. The assessment recommended a right shoulder ultrasound should there be no improvement within one month.
5. The Member noted that although the respondent consulted his GP on two occasions in late May 2021 and August 2021 without mentioning his right shoulder symptoms, he had consulted the onsite physiotherapist in August 2021 complaining of right shoulder symptoms. The Member said that this supported the respondent's explanation of not wanting to disclose his right shoulder symptoms to his GP for fear of the appellant finding out and attracting an adverse reaction.[42]
6. The Member referred to correspondence from Allmac Welding & Fabrication (Allmac) dated 14 July 2023[43] that confirmed the respondent had been in negotiations with Allmac from May 2022 to secure a role as a workshop manager which was conditional upon achieving medical clearance of his shoulder injury. However, after six months of the respondent being unable to achieve the medical clearance for his shoulder, Allmac had to find an alternative to fill the role. It was this conditional employment opportunity that prompted the respondent to consult Dr Aung at the Bradfordville Family Medical Centre on 17 June 2022 to seek treatment for the right shoulder injury with a history of it occurring on 8 May 2021.
7. The Member considered the respondent's statements and ultimately accepted the respondent's history provided in his statements and under cross-examination and re-examination during the arbitration hearing of his claim. The Member was satisfied that the respondent was a credible witness and accepted his history as to the circumstances of injury as occurring on 8 May 2021.[44]
8. The Member considered the differing opinions of experts Dr Pillemer and A/Prof Miniter and was persuaded by Dr Pillemer's opinion on the basis he recorded a consistent history of injury occurring on 8 May 2021 throughout his numerous reports and he had provided considered reasoning canvassing the opinions of Dr Fung and A/Prof Miniter. The Member accepted Dr Pillemer's opinion that the respondent sustained injury to his right shoulder on 8 May 2021, being in the nature of an aggravation of a longstanding underlying rotator cuff problem.[45]
9. The second issue to be determined was whether s 261 of the 1998 Act was a bar to the recovery of compensation that may be payable under the 1987 Act. The Member accepted the respondent's explanation as to his failure to make a claim for workers compensation within six months of the 8 May 2021 incident date and determined the respondent was not precluded from recovering compensation under the 1987 Act.[46]
10. In determining whether the respondent suffered any incapacity for work since 18 May 2022 as a result of the injury, the Member considered the provisions of the 1987 Act noting the assessment of the respondent's capacity for work requires consideration as to whether he had a current work capacity or no current work capacity as defined in Schedule 3 to the 1987 Act.[47] The Member noted consideration also needs to be given as to whether the respondent could undertake suitable employment noting the provisions of s 32A of the 1987 Act.[48] The Member applied Wollongong Nursing Home Pty Ltd v Dewar[49] noting suitable employment "must refer to a real job in employment for which the worker is suited".[50]
11. After considering the evidence the Member was not in doubt that the respondent's right shoulder had deteriorated over time.[51] She noted Dr Pillemer's assessment on 1 November 2022 that the respondent had capacity to work at benchtop level however noted it was evident that between May 2022 to November 2022 the respondent failed to secure a position of workshop manager at Allmac due to the inability to obtain medical clearance for work as a result of right shoulder.[52]
12. The Member was ultimately satisfied that the respondent had no capacity for work from 18 May 2022. Although Dr Aung initially provided a certificate of capacity on 20 June 2022 with the respondent having no capacity for work, the Member accepted the respondent had no capacity from 8 May 2022 given his failure to secure a position as a workshop manager with Allmac due to his shoulder injury.
13. The Certificate of Determination issued on 12 September 2024 records:

"1. The [respondent] sustained injury to his right shoulder on 8 May 2021 in the course of this employment with the [appellant] with his employment being the main contributing factor to injury.

1. Section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of compensation payable to the [respondent] under the Workers Compensation Act 1987 resulting from the injury.
2. The [respondent] has had no current work capacity from 18 May 2022 resulting from the injury. The parties agree the [respondent's] pre-injury average weekly earnings are $2,211.64. The [respondent] has an entitlement to weekly compensation from 18 May 2022 as follows:

(a) payable under s 36 of the Workers Compensation Act 1987 at the rate of $2,101.26, and

(b) payable under s 37 of the Workers Compensation Act 1987 at the rate of $1,769.31 (subject to indexation)."

1. The appellant advances the following three grounds of appeal:

Ground A - The Member committed an error of law by failing to provide the appellant with procedural fairness by not giving the appellant an opportunity to be heard.

Ground B - The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with submissions made on its behalf.

Ground C - The Member committed an error of law in failing to provide adequate reasons for her findings.

1. The appellant alleges that the Member failed to afford it procedural fairness with respect to a discrete finding made at reasons [95].
2. Reasons [95] reads as follows:

"In his initial statement dated 6 July 2022, which he provided to an investigator, [the respondent] said he felt immediate pain in his right shoulder when his foot slipped off the ladder in the incident occurring on 8 May 2021, his history as to the circumstances of injury being in consistent terms to that provided to Dr Aung a few weeks' earlier, on 17 June 2022. [The respondent] was cross examined and re-examined during the arbitration hearing of his claim and as did Dr Pillemer, I am prepared to accept [the respondents'] history of injury occurring on 8 May 2021 and also his explanation as to why he did not report his symptoms to his general practitioners until some considerable time later. I consider [the respondents'] evidence to be believable and I accept him as a credible witness, despite the evidence provided by Ms Ward, Mr Skinner and Mr Kooyman more than a year after the incident occurring on 8 May 2021 to the effect that [the respondent] had made no complaint to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later. It may be that with the passage of time Ms Ward, Mr Skinner and Mr Kooyman merely have no recollection of any complaint made by [the respondent] to them of a problem with his right shoulder between 8 May 2021 and the termination of his employment a year later." (emphasis added)

"The appellant has reviewed the sound file of the hearing on 28 May 2024 and 1 July 2024. The appellant submits that the respondent worker's counsel made no submissions supporting that the appellant employer's statements should not be accepted due to the passage of time or for any other reason" (appellant's emphasis).[53]

1. The appellant says that no submission was made or invited about discounting the recollections of Ms Ward, Mr Skinner and Mr Kooyman due to the passage of time. To elucidate the effect of this asserted error, the appellant sets out at paragraph [16(a)-(k)] a number of submissions it says it would have made had it been aware that the Member was contemplating discounting those three witnesses' recollection of events, and thus preferring the respondent's evidence, because they may have been affected by the passage of time.
2. In opposition to this ground, the respondent submits the following:

"2. The Member, in determining the issue, found that the [respondent's] claim was supported by evidence sufficient to discharge his onus of proof. It is our submission that the 'basis' of the determination was that the [respondent's] statement and oral evidence, which were supported by the records from Goulburn Physiotherapy ([reasons] at [45] and [92]), and included his complaints of right shoulder symptoms during the year following the injury and beyond, were to be preferred over other evidence, including the statements of three employees (Ms Ward, Mr Skinner and Mr Kooyman) from the appellant which were admitted to contradict the worker's evidence ([reasons] at [95] and [104]).

1. The [respondent] was cross examined by the appellant's counsel in relation to those matters (T 28-5-24 at pages 23-26). During cross examination, it was not put to the [respondent] that he was being untruthful as to either his answers or his written statements in relation to those complaints. In relation to his right shoulder injury, the [respondent] was not asked any questions under cross examination about the recollections of Ms Ward, Mr Skinner or Mr Kooyman as recorded in their written statements.
2. Final submissions were made some weeks later. The appellant's submissions are recorded at T 1-7-24 at pages 1-32 and the submissions in relation to the evidence of the respondent's witnesses are in the same group of pages at 4-12. The appellant, we would say properly, did not submit that any of the respondent's 3 witnesses asserted outright that after his injury the [respondent] had never complained to them of right shoulder pain.

1. Therefore, despite making comprehensive submissions in relation to the evidence of those employees during its application to cross examine the [respondent], no questions were asked about that evidence nor, as is said above (at [5]), submissions made asserting a direct contradiction between that evidence and either the evidence of the worker or the physiotherapy notes.
2. We say therefore that the Member did not need to decide the case on the basis might be suggested by the appellant. There was no relevant contradiction raised by the appellant in cross examination or in closing submissions and in making, as the Member did, observations as to why the appellant's witnesses might not have recollected the worker making complaints of shoulder pain, the Member was not commenting in relation to the basis of her decision.
3. Significantly the Member's remarks were supported by the qualified manner in which those witnesses themselves actually gave their statement evidence (see what was said by Mr Skinner ([reasons] at [32]) and Mr Kooyman ([reasons] at [34]) whose statements expressly referred to, and were qualified by, a reliance on their memory and personal observations and Ms Ward whose statement did not specifically address the issue).
4. Further, the appellant in its appeal submissions did not expressly identify what it says was the basis of the Member's decision. In our submission, that omission is significant because any lost opportunity to make further submissions will depend on a connection between the finding under challenge and the 'basis' of the determination."
5. The respondent also responded at length to the appellant's "foregone submission" argument[54] at paragraphs [13]-[19] of the respondent's submissions. At paragraph [19] the following is said:

"There was no such element of surprise in this case. The [respondent's] counsel did not concede that the [appellant's] lay witnesses had a good memory of the events or that their evidence directly addressed what had been said by the [respondent]. During the application for cross examination of the [respondent] it was submitted on his behalf that his complaints of shoulder pain to those witnesses were not specifically contradicted by them in their statements and that further evidence would be required from the appellant if that point was to be addressed (T 28-5-24 at page 16)."

1. I would remark that no reply submission was filed by the appellant to either this ground, or Grounds B and C.

1. There are a number of principles regarding how procedural fairness is observed in the Commission. It is necessary to set them out before turning to the complaint made in this ground.
2. Firstly, the rules of evidence do not apply in Commission proceedings.[55] Secondly, the relevant Personal Injury Commission Rules 2021 (Rules) are r 34 (Calling witnesses) and r 67 (Documents lodged under division). These rules are supported by Procedural Direction PIC1 at paragraph [38], which states that leave is required for the examination of a witness. The effect of these rules and procedural direction is to require parties to lodge and serve all the material, including witness statements, upon which they intend to rely. Thirdly, there is no presumptive right to cross-examine witnesses in the Commission.[56] Whilst Aluminium Louvres was stated in relation to the former Workers Compensation Commission, the principles remain applicable to Commission proceedings having regard to the legislation, rules and Procedural Direction I have referred to above. Fourthly, in the context of Commission proceedings, there is no denial of natural justice if a party is aware of the case that he or she has to answer and there is an opportunity to reply.[57] Fifthly, a Commission Member is bound to follow the obligations of procedural fairness.[58] Sixthly, the nature and extent of the procedural fairness right is considered by reference to the context within which the decision maker is operating.[59] Seventhly, a Commission Member does not have to give a "running commentary" upon what the Member is thinking about the evidence.[60] A similar statement was made in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[61] where the Full Court said at [591]: "Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case ...". The Full Court at [591] did note that this general proposition may be qualified by, for example, "the right of persons affected by decisions to have their minds directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with them" and "the right to respond to any adverse conclusion drawn by the decision-maker on materials supplied by or known to be subject of the decision 'which is not an obvious and natural evaluation of that material'."[62]
3. In a similar vein, the Federal Court has also said that a decision-maker is generally not required to expose his (or her) provisional views for comment by the persons affected.[63]
4. In this matter, whether the respondent suffered injury as alleged was always in issue.
5. The s 78 notice disputed all injuries, not just the right shoulder injury.[64]
6. The respondent relied on five statements.[65] In particular, in his first statement that was given to the appellant's investigator, the respondent says the following: "I am aware that my employer has alleged they do not have any knowledge of my right shoulder injury."[66] His statements otherwise confirm the history of the accident and the injuries he suffered, including to his right shoulder.[67] I would also remark that the right shoulder is listed as an injury in the subject incident in the Worker's Injury Claim Form[68] which is dated 23 June 2022. Additionally, the respondent was cross-examined by counsel for the appellant after the Member granted leave for this to occur.[69]
7. In its case, the appellant relied upon three statements, that of Ms Ward dated 11 July 2022,[70] Mr Skinner dated 13 July 2022[71] and Mr Kooyman dated 7 July 2022.[72]
8. Ms Ward describes the incident report which was made on 10 May 2021 as "twisted back, hyperextended knee, and sore right bicep".[73] Ms Ward then states that the right knee injury seemed to be the most concerning[74] and did go on to state that the respondent did not display any signs of pain or discomfort.[75] Otherwise, Ms Ward says nothing about any knowledge on her part about the asserted right shoulder injury.
9. For his part, Mr Skinner says that "I do not recall [the respondent] informing me, at any time, that he had suffered a right shoulder injury."[76]
10. Mr Kooyman confirms "... I do not know the specific details of the alleged incident",[77] before going onto to say, "I had never known [the respondent] to mention any injuries to his shoulder/s."[78] Mr Kooyman does say that he attended the meeting with the respondent on 10 May 2021 with Ms Ward, remarking that: "During the meeting [the respondent] went over the incident circumstances, but he was quite vague."[79]
11. Whether the respondent suffered injury to his right shoulder in the subject incident was a well-known aspect of the dispute. The Member specifically identified this as one of the three questions that the parties agreed requiring determination.[80]
12. For the following reasons, I do not accept that the Member has failed to afford the appellant procedural fairness.
13. I have set out (above) the salient aspects of the three lay witnesses' evidence relied on by the appellant. I would observe that at reasons [95], the Member made no adverse findings as to their credit. None of these witnesses gave evidence that was trenchantly contrary to that of the respondent on the issue in question. Mr Skinner had no recollection on this issue, Ms Ward was silent on the issue, apart from noting the injuries that were recorded on 10 May 2021. Mr Kooyman's evidence is limited to what the respondent had mentioned to him. In light of this, the Member was required to perform an evaluative assessment of the evidence before the Commission on this point - which involved a consideration of the lay evidence led by both parties. This is of course a matter of fact and degree upon which minds might differ.[81]
14. In my opinion, if one reviews how the evidence was presented and the issue identified by the Member for decision at reasons [6], the evaluative process to be undertaken was obvious to all parties.[82] As I read the Member's reasons, the Member made a positive finding at reasons [95] which was to accept the respondent's evidence. The remarks about the three appellant's witnesses' recollection being affected by the passage of time was an available evaluation of that evidence. In any event, I would note that the word used was 'may', so it was not a positive, adverse finding contrary to the witnesses' credit. Rather the Member was opining about the witnesses' qualified evidence on this issue. As I have set out above, the evidence from the appellant's three witnesses was vague and somewhat qualified on the issue in question. I do not accept that the Member was under any obligation to disclose the thought processes being undertaken in the evaluation of the appellant's lay evidence.[83]
15. I now turn to the assertions made at paragraph [16] of the appellant's submissions, which are the submissions the appellant would have made had the Member exposed her thinking on the issue in question. As I said above, there was no finding adverse to these witnesses' credit, rather the Member was undertaking an evaluative judgment of the evidence.[84] The Member was undertaking this process to determine the respective weight to be accorded to the evidence. That this issue had to be determined in this matter was obvious to the parties,[85] and thus could not have taken them by surprise.
16. The allegation of a lack of procedural fairness has not been established.
17. Ground A is dismissed.

1. In this ground the appellant says that the Member failed to engage with or consider the following submissions that were put:

"(a) The respondent worker provided evidence in statement that he did his full preinjury duties up till termination. (SF111.20)

(b) The respondent worker was terminated due to circumstances completely unrelated to the alleged injury. (SF111.36)

(c) Given the respondent worker performed his pre-injury role prior to termination, why could he not do his pre injury role with another employer? (SF111.39)

(d) His alleged incapacity is not supported by the lack of any treatment (or only one physiotherapy treatment) for a year post the alleged injury. (SF111.48)

(e) The respondent worker concedes his preinjury job with the respondent was a desk job (SF112.07)

(f) There is nothing in the respondent worker's history to suggest that he could not do a desk job. (SF112.25)

(g) The respondent worker conceded in cross examination that he was performing forklift driving when he was terminated. (SF112.35)

(h) The respondent worker's alleged incapacity is not supported by the fact he conceded in cross examination he never underwent a pre-employment medical post his termination with the appellant employer. (SF112.41)

(i) The respondent work conceded in cross examination that he could do many other jobs. (SF112.45)

(j) The respondent worker conceded that he never requested suitable duties or was placed on suitable duties with the appellant employer after the alleged injury. (SF112.54)

(k) The respondent worker had a demonstrated capacity for full pre-injury duties for a year after the alleged injury. (SF113.25)

(l) Dr Pillemer's report dated 1 November 2022 contained an opinion that the respondent worker was fit for 'Mr Hayes would be fit for work at bench top level, but certainly would not be fit for work above shoulder level or involved rapid or repetitive use of his arm, or heavy lifting on the right side. ('our emphasis') (ARD, page 63)

(m) If Dr Pillemer considered the respondent worker fit to work up on desk top level he should be found fit for pre-injury duties as this certification is consistent with his pre-injury role with the appellant and the position description. (SF251.40)

(n) If Dr Pillemer does not consider he has suffered a significant injury and the demonstrated capacity as above, any aggravation injury is not the cause of the alleged incapacity. (SF255.27)"[86]

1. In response, the respondent disputes that the appellant's submissions on capacity were not considered by the Member.[87] The respondent also submits that the Member is not obliged to consider every argument put by the appellant.[88]

Some principles about a Member's duty to consider submissions

1. The appellant says that the Member failed to consider the submissions put on its behalf and that this constitutes jurisdictional error.
2. The appellant has cited my decision in Sarheed v C1 Formwork Group Pty Limited.[89] The relevant extract relied upon by the appellant is Sarheed at [149], which is a paragraph in which I am examining the decided cases relating to a failure by a decision maker to engage with a clearly articulated argument.
3. The relevant principles in the consideration of such an argument can be found in Dranichnikov v Minister for Immigration and Multicultural Affairs[90] and in Wang v State of New South Wales.[91] Indeed at Sarheed [149], I was reviewing a Dranichnikov submission. Dranichnikov was an immigration case. Mr Dranichnikov was a Russian citizen who sought a protection visa on behalf of himself, his wife and child. The basis on which he sought such a visa was twofold. Firstly, that as a Russian businessman he is at risk from criminal organisations who operate in Russia who have links to the authorities. Secondly, he asserted that he was part of a more limited group consisting of businessmen who had publicly criticised law enforcement authorities for failing to take action against criminals.

1. In dealing with Mr Dranichnikov's case, the Refugee Review Tribunal at first instance accepted that Mr Dranichnikov was a witness of credit and therefore accepted the correctness of his account of the situation in Russia.
2. But the Refugee Review Tribunal dismissed his case and failed to deal with the argument that he was in a more limited class of businessman who had taken a public stance against law enforcement authorities for failing to take action against criminals. It is failure to deal with this latter argument which gave rise to the error of law. The decision of the Refugee Review Tribunal was quashed by the High Court, and it was directed to review the delegate's decision in accordance with law.
3. In Wang, the Court of Appeal was called upon to deal with a Dranichnikov submission in that it was asserted that the primary judge had failed to address written submissions advanced by the appellant. The Court of Appeal said as follows:

"The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs  [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.

The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd  (1987) 10 NSWLR 247 at 271.

As noted in the State's written submissions, Mr Wang's written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang's capacity in the English language ... and the submissions in relation to wrongful arrest ... Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge's findings. Nor does it establish a constructive failure to exercise jurisdiction."153 (emphasis added)

1. The appellant's argument in this appeal ground is of the same nature as that described in Wang as being "... a wrong approach."[92] Namely, the appellant has listed every submission put on its behalf which the Member has not referred to on the question of incapacity and asserts that error has resulted. This is the effect of paragraph [21] of the appellant's appeal submissions.
2. Consistent with Wang, the Member was not in error by not referring to every submission made by the appellant on the incapacity question. I therefore do not accept the assertion at paragraph [22] of the appellant's submissions that it was necessary for the Member to respond to every submission described in paragraph [21] of those submissions.
3. Rather, the correct question to be posed and answered is this - did the Member engage with the nature and materiality of the argument about the respondent's claimed incapacity for work? This was clearly an issue in the proceedings, indeed the Member noted at reasons [6] (c) that this was an agreed issue in dispute.
4. Needless to say, in undertaking this assessment, the decision must be read as a whole.[93]
5. The Member's approach was to identify the issues requiring decision,[94] and then to conduct a review of the evidence.[95]
6. I would remark that the Member at reasons [85] specifically states; "Mr Moffatt and Mr Grimes made oral submissions, which I have carefully considered. As a recording of counsel's submissions is available to the parties on request, I have not reproduced them here."
7. The dispositive reasoning of the Member's decision then commences at reasons [90]. From reasons [90] the Member divided the decision into three distinct subject areas, being the three issues to be decided that had been identified at reasons [6].
8. The Member's reasons regarding incapacity appear at reasons [109]-[120]. I should state that prior to embarking on deciding this question, the Member had already made a positive finding that the respondent had suffered injury to his right shoulder on 8 May 2021.[96]
9. This section of the Member's reasons addresses the respondent's evidence on incapacity and construes the medical evidence on the same question. I would note that no issue is taken with the factual findings that appear in this section of the reasons, which are to the effect that the respondent had no current capacity for work.[97]
10. It is apparent from a review of this section of the decision, that the Member did indeed deal with the nature and materiality of the incapacity issue, which was the Member's duty in accordance with Wang. The fact that each and every submission made by the appellant was not specifically raised and referred to in the decision was not the Member's task.
11. No error has been established.
12. Ground B is dismissed.

1. In this ground, the appellant makes a broad assertion that the Member has failed to provide adequate reasons, as required by Rule 78 of the Personal Injury Commission Rules 2021. The appellant also complains that the Member failed to provide reasons with respect to the submissions outlined in paragraph [21] of the appellant's submissions, which I dealt with in respect of Ground B.
2. In reply the respondent, contends that "The appellant does not identify any 'specific' conclusion made by the Member that was unsupported or not preceded by adequate reasoning."[98] Further, the respondent says that the appellant (a) "... does not state what the 'case' was that the Member failed to give her view on or how that would have altered the careful reasoning undertaken",[99] (b) "... does not identify what evidence was not consider by the Member"[100] and (c) " ...does not identify the conflicting medical evidence that the Member supposedly failed to 'engage with'...".[101]

1. In Kowalski v Repatriation Commission,[102] the Full Federal Court said this about the formulation of appeal grounds; "A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgement of the Court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgement paragraph number what the error might be."[103]
2. Unfortunately, this appeal ground suffers from the precise vice identified in Kowalski. The appellant makes broad, unspecific assertions that the Member's reasons were inadequate. Paragraphs [25] and [26] of the appellant's submissions of 10 October 2024 are particularly egregious examples of this problem. The alleged inconsistencies in evidence are not specified nor is the "conflicting medical evidence"[104] identified.
3. This ground as presented invites speculation about the error the appellant asserts has been made.
4. Under s 352(5) of the 1998 Act, intervention on appeal requires the establishment of error of fact, law or discretion. This ground fails to identify error with any precision and as a result, this ground must fail.
5. Ground C is dismissed.

1. The Member's Certificate of Determination dated 12 September 2024 is confirmed.

[1] Application to Resolve a Dispute (ARD), p 6.

[6] Hayes v CSR Ltd [2024] NSWPIC 507 (reasons).

[18] Transcript (T) of proceedings 28 May 2024, T 13.29-14.25.

[22] Reply to Application to Resolve a Dispute (Reply), pp 32-39.

[31] Application to Admit Late Documents (AALD) 12 June 2024, p 4.

[49] [2014] NSWWCCPD 55.

[56] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 (Aluminium Louvres), [37].

[57] New South Wales Police Force v Winter [2011] NSWCA 330, from [81].

[58] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, [91].

[60] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (SZBEL), [48].

[61] [1994] FCA 1074; 49 FCR 576 (Alphaone).

[62] See SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129, [21].

[63] Habib v Director General of Security [2009] FCAFC 48, [64].

[67] See for example ARD, p 9, [35]; ARD, p 13; ARD, p 15, [9]; ARD, p 19, [3].

[81] Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 (Langford), [15] per McColl JA.

[87] Respondent's submissions dated 7 November 2024, [21]-[23].

[88] Respondent's submissions dated 7 November 2024, [24].

[89] [2021] NSWPICPD 7 (Sarheed).

[90] [2003] HCA 26 (Dranichnikov) per Gummow and Callinan JJ, [24].

[91] [2019] NSWCA 263 (Wang) per McCallum JA (Macfarlan and Meagher JJA agreeing).

[93] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, [444].

[98] Respondent's submissions dated 7 November 2024, [28].

[100] Respondent's submissions, [30].

[101] Respondent's submissions, [31].

[104] Appellant's submissions, [28].