1. Leave to appeal the Member's Certificate of Determination of 12 May 2025 is granted.
2. Orders 1 and 2 of the Certificate of Determination dated 12 May 2025 are confirmed.
3. Orders 3 and 4 of the Certificate of Determination dated 12 May 2025 are revoked.
4. The matter is remitted to Member Burge to be heard and determined in accordance with the reasons in this decision.

WORKERS COMPENSATION - Section 11A of the Workers Compensation Act 1987 - Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 considered and applied - consideration of the term "transfer" - Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 discussed

Spicer v Tamworth Regional Council [2025] NSWPIC 198

1. Gregory Spicer, the respondent worker (the worker), was employed by Tamworth Regional Council (the appellant) from on or about 17 April 2012[1] in its Sports and Recreation Division. This division provides park maintenance services in and about Tamworth's main town area, including mowing, brush cutting and blowing off paths.
2. The worker filed an Application to Resolve a Dispute (ARD) claiming weekly payments and permanent impairment compensation under the Workers Compensation Act 1987 (the 1987 Act). The parties agree he has suffered a psychological injury in the course of his employment with a deemed date of injury of 25 March 2022 (the injury). However, the insurer has disputed these claims under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the grounds that the injury was wholly or predominantly caused by the appellant's reasonable actions with respect to either transfer and/or the provision of employment benefits, within the meaning of s 11A(1) of the 1987 Act.
3. The Member conducted an arbitration hearing on 28 April 2025 and issued a Certificate of Determination (COD) on 12 May 2025. He determined that the appellant did not discharge its onus of proving the injury was predominantly caused by reasonable action with respect to transfer or employment benefits. He then remitted the claim for lump sum compensation to the President for referral to a Medical Assessor to determine any whole person impairment arising from the injury and then listed the weekly payments claim for a further preliminary conference after the issue of a Medical Assessment Certificate. The appellant appeals from those determinations.

1. Section 52(3) of the Personal Injury Commission Act 2020 provides that if the Commission is satisfied that sufficient information has been supplied to it in connection with the proceedings, it may exercise functions under that Act without holding any conference or formal hearing.
2. Having regard to Procedural Directions PIC2 and WC3; the documents 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 I have sufficient material to so proceed without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

1. There is no dispute that the threshold requirements as to quantum and time pursuant to subss 352(3) and 352(4) of the 1998 Act have been met. The appellant says the appeal is not interlocutory because the Member made a finding about an injury for the purposes of s 4 of the 1987 Act which finally disposed of that issue. The respondent says the decision is interlocutory but nevertheless consents to leave to appeal being granted. Suffice to say, the circumstances are essentially the same as those arising in DGL (Aust) Pty Ltd v Martino[2] when Wood DP found the appeal decision was interlocutory after considering various authorities, including the analysis of McColl JA, with Tobias JA agreeing, in South Western Sydney Area Health Service v Edmonds,[3] when her Honour found that the relevant decision (also involving the same or similar circumstances) was interlocutory.
2. Determining the appeal is necessary or desirable for the proper and effective determination of this dispute. I thus grant leave to appeal pursuant to s 352(3A) of the 1998 Act.

1. The evidence before the Member comprised the ARD, Reply, and the worker's Application to Lodge Additional Documents dated 18 February 2025. There is no relevant complaint that the Member did otherwise than correctly record and summarise the evidence. There is also no challenge to or appeal from the Member's findings of fact. As such, it is appropriate to refer to the evidence in the context of a more detailed summary of his reasons.

1. The Member noted the "only question for determination [was] whether the [appellant] has a complete defence pursuant to s 11A of the 1987 Act." That section relevantly provides,

"(1) No compensation is payable ... in respect of a ... [psychological] injury ... if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by ... the employer with respect to transfer, ... or provision of employment benefits ...".

1. The Member said the effect of Hamad v Q Catering Ltd[4] is that "reliance on factual material alone will not always be sufficient to make out a s 11A defence", and in cases such as the present, "medical evidence ... is required which addresses the relative causal contributions of competing factors before a finding as to whether the reasonable actions [taken by an employer] wholly or predominantly caused the injury ...".[5] He added that while "prima facie" the appellant had "complied with this requirement" as it had expert medical opinion in relation to causation, it was a "separate question" as to whether that opinion was sufficient to assist the appellant in discharging its onus of proof.
2. The Member considered the decision in Manly Pacific International Hotel Pty Ltd v Doyle[6] and relevantly said, regarding the term "transfer" in s 11A:

"Importantly, if the psychological injury results from the working conditions subsequent to the transfer, as opposed to the transfer itself, s 11A does not apply (per Davies AJA)."[7]

1. The Member said the worker "set out a number of issues in the course of his employment ... including ... meetings which might broadly be classified as ... discipline after an interaction with a member of the public ... and also some issues as to the quality of his work [in about April 2021]". He observed that such conduct was not relied on by the appellant as part of its s 11A defence, but that the worker "indicates they were matters of concern to him".
2. From [21] of the reasons, the Member noted in 2015 the worker had begun to experience breathlessness in the course of his employment and was referred by his GP, Dr Matthew Chan, to a respiratory specialist who diagnosed him with Chronic Obstructive Pulmonary Disease (COPD). The Member noted the worker nevertheless continued working for about seven years, with his condition being "manageable" in this period, given, as the worker stated:

"I was working with the South crew and was able to navigate my work in such a way as to not overdo the physical aspects of it ... I was able to avoid my COPD to become aggravated ... If I ever had to take a break of approximately five minutes or so, ... there was never any issue with the South crew allowing me to take these breaks. I got on well with the crew and was also comfortable with my duties. As such, the COPD never became an issue for me in my work at that stage and I was able to continue with my work relatively unimpeded."

1. The Member noted the worker stated he was required to move to the CBD crew from in or about June 2021, and that the South crew were being broken up "because the attitudes within it were less than ideal". He also noted the worker said he told his supervisor he had health issues, referring to his COPD, but did not expand on that.[8]
2. The Member noted the worker stated the CBD crew was required to start earlier, work at a faster and pressured pace, and do more manual tasks than he had been doing with the South crew. The Member noted the worker said the overall supervisor of the CBD crew was Adam Jones, and that his direct supervisor was "Travis", and for about the first two months of the CBD work, he kept up as best as he could with that crew, but was having difficulties. Also, between September and October 2021, the worker said he experienced fatigue and breathing difficulties when doing his work, under time pressures, and involving picking up rubbish, weeding and gardening about the main street of Tamworth. The Member noted the worker stated that he asked Travis for a break when he was experiencing such symptoms, and that Travis was very accommodating and gave responses to the effect of "Alright. Just take your time", and he did take short breaks as required before continuing with his duties, with Travis remaining accommodating and supportive.
3. The Member also noted the worker stated in about late October 2021 his "difficulties and symptoms had almost doubled in effect", including chest pains "and becoming emotional as a result, breaking down and crying ...". The Member noted the worker stated that Travis, "was again supportive ... telling me to take the rest of the day off and to book an appointment with my doctor [and] that he would arrange for someone to cover the rest of the shift for me. I was appreciative of this and did then take the rest of the day off".
4. The Member then said, at [27] of the reasons, that around this time, the worker consulted with Dr Chan, and commenced three weeks' annual leave from 15 November 2021, thereafter taking carer's leave to look after his wife. The Member noted the worker consulted Dr Chan again on 31 December 2021 and was issued with medical certificates regarding his COPD and to allow him to continue on carer's leave until the end of January 2022.
5. The Member noted that on 24 January 2022 the worker submitted a medical certificate for his COPD condition and "was planning to return to work in or about late January 2022" but on 27 January 2022, Paul Kelly and Anton Logan, officers of the appellant, told him that "given the contents of the ... certificate, [he] needed to delay returning to work until he underwent a respiratory test organised by the [appellant]".
6. The Member noted the worker undertook a respiratory test, organised by the appellant, on 25 February 2022, but on 14 March 2022, before he received the results of that test, he consulted with Dr Chan who issued a certificate placing him on stress leave for a month; and that around this time he contacted the appellant to enquire about the status of the test and was told "his employer could not talk to him about the results".[9]
7. The Member noted the worker attended a meeting at the appellant's premises on 27 April 2022 when Mr Kelly advised him that "given his COPD, the [appellant] needed more medical information ... to assess and decide how he could safely return to work"; and he attended a medical appointment with a respiratory specialist, arranged by the appellant, on 6 May 2022.
8. The Member noted the worker asserted that his "former supervisors, Messrs Grant and Lillicrap were aware of his condition informally, however, until late 2021 and early 2022, the condition had not impacted [his] ability to carry out his duties."
9. The Member then referred to Northern NSW Local Health Network v Heggie[10] as authority for the proposition that whether an employer's conduct said to ground a defence under s 11A is the whole or predominant cause of a worker's injury is a question of fact and degree; and that "a broad approach should be taken to the phrase 'action with respect to discipline'", finding this was relevant also to the concept of "transfer" for the purposes of the present case.[11] He then said:

"... whilst the [worker] had trepidation surrounding his transfer to the CBD crew, he nevertheless carried out his duties with them, which were substantially the same as those carried out in his previous role, albeit with additional time pressures placed on him. The difference was largely in terms of the pace of the work ... in his new role. [He] stated that as he continued in his role with the CBD crew, he found himself unable to keep up and, notwithstanding the supportive nature of his supervisor once he began to experience difficulties, it was the onset of his problems which led to what he described as his initial breakdown and anxiety".[12]

1. The Member then said, "Notwithstanding the broad context given to the notion of transfer, I am not of the view the whole or predominant cause of the [worker's] psychological issues was the transfer itself. Rather, in my view, the evidence discloses the [worker's] difficulties arose owing to the nature of the duties which he was required to perform after the act of transfer itself".[13] The Member then returned to Doyle, stating:

"As Fitzgerald JA noted in Doyle, when examining the question of transfer, one needs to look at the decision or proposal or the manner in which the decision or proposal is communicated to the worker, and if the injury results from the working conditions subsequent to the transfer, as opposed to the transfer itself, s 11A(1) does not apply (per Davies AJA)".[14]

1. He then stated, "this is a case where the working conditions subsequent to the transfer were the whole or predominant cause of the [worker's] difficulties rather than the act of transfer itself."[15]
2. The Member said the opinion of Dr Aman Suman (expert psychiatrist engaged by the appellant) "referred to incidents since approximately April 2021 being partly causative of the [worker's] issues, including the meetings and the nature of discipline to which he was called around that time". The Member said while that may be true, there was no suggestion such meetings related to transfer or the provision of employment benefits, and that this was not conduct which was relied on by the appellant, and even if this "opinion is accepted, it only reinforces the finding that the cause of the [worker's] injury was multi-factorial".
3. The Member noted Dr Chan reported on 4 May 2022, stating the worker's role had changed to a more physically demanding role with lawn mowing, and that this exacerbated the COPD with the worker then reporting chest pains, breathlessness, anxiety and panic attacks.[16] He then noted Dr Chan saying that the worker reported his attempts to discuss this with the appellant with a view to being moved back to his previous role, and it,

"was reinforced by a ... medical certificate by myself. Greg reported ... they did not facilitate ... this and [he] continued to have deteriorating physical symptoms. This exacerbated to the point that Greg felt psychologically he was unable to work any further until his concerns were addressed".

1. The Member also considered the report (12 August 2024) from Mr Moore, the worker's treating psychologist, finding that his opinion "was consistent with the work post-transfer being a substantial cause of the [worker's] condition rather than the act of transfer itself. This view is supportive of the [worker's] own evidence, which is uncontested, that it was his duties over several months after he [was] transferred which led to the injury ..., not the act or manner of the transfer itself." The Member then said that the appellant could not rely on the onset of the injury post-transfer as having been wholly or predominantly caused by the transfer itself.[17]
2. The Member acknowledged that Dr Suman opined that "transfer was the whole or predominant cause", but then said:

"... however, he does not set out the specific actions in the nature of transfer which he says are causative of the condition. Rather, Dr Suman gives a narrative of the [worker's] issues and then notes, broadly, that it was predominantly the action of management to transfer him in the CBD crew which caused the psychological condition".[18]

1. The Member rejected this "reasoning" as insufficient to satisfy the appellant's onus of proving whole or predominant cause, also saying it was inconsistent with the worker's evidence "that it was his duties over several months while working with the CBD crew which ultimately led to his injury, rather than the act of being transferred".
2. The Member also rejected the appellant's case with respect to the "employment benefits" category of s 11A, saying he was not satisfied that these benefits were the whole or predominant cause of the injury, and that "[r]ather, the evidence discloses, as noted, the cause of the injury was multi-factorial and that the [worker's] duties with the CBD crew played a large part I [sic] the onset of his condition". The Member said in these circumstances it was unnecessary for him to make findings in relation to the question of reasonableness. He issued the COD on 12 May 2025, which relevantly determined that:

(a) the worker suffered a psychological injury in the course of his employment, with a deemed date of injury of 25 March 2022;

(b) the injury was not wholly or predominantly caused by the reasonable actions of the appellant with regards to transfer and/or the provision of employment benefits, and

(c) the claim for lump sum compensation was to be remitted to the President for referral to a Medical Assessor.

1. The appellant raises one ground, in two overlapping parts; firstly, the Member "erred in his interpretation and application of the principle in Doyle" in that he "should not have limited his consideration of 'transfer' to the act of transfer itself", and secondly, his approach is contrary to Canterbury Bankstown Council v Gazi.[19]

1. The appellant says it is clear from both Doyle and Gazi that in considering whether a transfer was a whole or predominant cause of a psychological injury, all factors producing the injury are to be taken into account, which "may include the circumstances in which a worker was required to work because of the transfer from one position to another, or ... the circumstances in which [the worker] was required to work following the physical transfer... This is ... the broad approach taken in Heggie".[20]
2. The appellant notes the Member stated (at [36] of the reasons) that the worker's "difficulties" arose from the duties he was required to perform "after the act of transfer itself" and was not of the view that the whole or predominant cause of the "psychological issues was the transfer itself". The appellant says it follows the Member found that the whole or predominant cause of the injury was "his transfer" and "[t]hat finding must stand unless successfully challenged by the [worker]". The appellant says, "the work which the [worker] was required to perform is ... part of the transfer in this instance" and it is "not possible to divorce that aspect of the transfer ... given the tasks were contemporaneous to transfer and to the development of the claimed ... injury".[21] Thus, the submission continues, "the only outstanding issue is whether the transfer was reasonable" given "the current findings of the Member".
3. The appellant also says the Member noted (at [38] of the reasons) that Dr Suman's opinion "only reinforces the finding that the cause of the ... injury was multi-factorial" yet ultimately dismissed that opinion because he did not "set out the specific actions in the nature of transfer which he says are causative of the condition".
4. The appellant then summarises[22] the "relevant evidence showing the reasonableness of the transfer", comprising statements from officers of the appellant which were before the Member, namely Paul Kelly, Anton Logan, Adam Jones and Robert Lillicrap. It then provides submissions, based on the above factual material and the law, to support its position that the appellant's relevant conduct was reasonable action.[23]
5. The appellant submits there should be an award in its favour, or, if further submissions are needed, a timetable should be set for the filing of submissions, or as a further alternative, the matter should be remitted for rehearing by a different member.

1. The respondent worker firstly puts that he "ran the case on the basis that his injury was caused by multiple factors, only some of which could arguably be considered to fall within the [section] 11A categories [of] employment benefits and transfer" (worker's emphasis). He says the Member correctly identified that the effect of Hamad was that an employer's reliance on factual material alone will not always be sufficient to make out a s 11A defence, and that medical evidence addressing the relative causal contributions of competing factors is required in a case such as the present one, before a finding can be made as to whether the reasonable actions of an employer wholly or predominantly caused the injury.
2. The worker says that the appellant "conceded the injury was multifactorial" (pointing to the transcript[24] at T 30, sic, read as T 4.30-5.4). It is appropriate this passage be set out here as the appellant says in its submissions in reply that the worker has taken that passage out of context. It reads:

"As is always the case with a psychological injury there are a range of issues that have occurred and to which reference is made in the [worker's] statement. There are [competing] statements put on by the [appellant] but ... there is a general consensus about what actually happened ... the first event is some performance issues which arise in April 2021".

1. The worker says the appellant abandoned a "disciplinary defence" it had "attempted to run" and "ran the case solely on transfer and employment benefits for events after April 2021 (around July)", and "[t]hat is critical ... regardless of the way the employer now seeks to run the case, means that any error alleged is immaterial ...".
2. The worker says the appellant has run a relevantly different case on appeal to that run before the Member, for example the appellant's submission at [23] (see [33] above) "was not put at first instance", and it is "not an error to not deal with the submission not made". Rather, the worker puts, the appellant ran the case before the Member "by attempting to undermine the histories of the worker's doctors ... and then delineating the events as being causative or not causative", and it is bound by the way it ran its case at first instance, citing Metwally v University of Wollongong.[25]
3. The worker also refers to the appellant's reliance on Dr Suman's evidence who "said that the worker 'experienced mixed anxiety and depressive symptoms in the context of workplace changes since April 2021'", and that "Mr Spicer had started feeling anxious and agitated in the context of being moved to the Tamworth CBD team in April 2021. His mental health gradually worsened as he struggled to keep up with his job secondary to his physical health limitations since July 2021" (worker's emphasis). The worker says s 11A "cannot be satisfied if the onset of the condition occurred prior to the transfer itself".
4. The worker submits Doyle only establishes that in some cases the work following a transfer may be considered to be part of the transfer itself, and neither Doyle nor Gazi establish that all events following a transfer must be considered part of the transfer itself. The worker also says the Member correctly identified (at [43] of the reasons) that if the appellant could "rely on the onset of a psychological injury over a period of several months post-transfer as having been wholly or predominantly caused by the transfer itself", it would follow that "an employer would logically be able to assert any psychological injury in the workplace after a change of role or location was caused by the transfer, rather than other matters which took place in the workplace after the worker was placed in their new role". The worker says even accepting that the duties following the transfer could be considered, some temporal connection must be established.
5. The worker also submits that the appellant could not satisfy the s 11A "reasonableness" test anyway as the transfer, "because of performance issues, cultural issues within the team", was unreasonable.
6. The worker says the Member's approach to the statutory task and interpretation of the case law was appropriate given the way the case was run by the appellant, and there was no attempt by the appellant to argue that every event after the transfer was both causative and reasonable - rather, it specifically ran the case by trying to distinguish various things that happened as being either non-causative or falling within a different category of s 11A.
7. As to the appellant's submissions regarding redetermination, the worker "denies that error has been established" and "that the matter can be determined on the limited basis now put forward". He says the appellant "simply launches into submissions about why the actions taken were reasonable. However, such consideration can only come after the relevant actions have been identified", citing Hamad. The worker adds that there was no evidence to delineate and support the relevant s 11A events then relied on.

1. The appellant in reply firstly noted the appeal was filed before the decision in State of New South Wales v Culhana[26] was delivered but submitted that Culhana "does not impact the appeal as the ... grounds are directed towards an error of law rather than anything associated with the facts found or the fact-finding process".
2. The appellant says the passage quoted by the worker at T 4.30-5.4 (see [38] above) is taken out of context, and that it should be understood in the following context:

"The case turns on two key issues ... first ... a factual exercise. What actually occurred in the course of the ... employment ... secondly, did those events cause the injury as classified. On the [appellant's] case the events which occurred and gave rise to the injury fall within one of [the] categories within 11A".

1. The appellant says the point being made was that it referred to numerous events during the course of the employment and it was incumbent on the Member to determine which of those were 'real events' and which of those real events caused the injury, and the appellant's case was that such events fell within the s 11A criteria (transfer/employment benefits) relied on.
2. While acknowledging that "the language used to frame the appeal [does] not precisely mirror what was submitted at first instance", the appellant says, "the essence of the case mounted is the same". The appellant also refers to T6.10 and T7.19, and the reference to the s 78 Notice (at T4.3) to further support the appellant's position that "the point was plainly raised".

1. After preliminarily considering the papers, I issued a direction to the parties on 8 October 2025, with the substance of it in the following terms:

"In relation to the particular issue ... about whether the appeal ground raises a point for the first time on appeal (about which the Commission has not yet formed a preliminary view) ... The respondent worker [is] to provide submissions as to whether he can point to any prejudice he may suffer as a result of (his position that) the appellant (is) raising the appeal point for the first time on appeal ...".

1. The worker firstly repeated his earlier submissions that "there were a range of different causes to his injury", pointing to parts of the evidence and submissions, then puts that:

(a) Allowing the appellant's argument on appeal would deprive him of the opportunity of obtaining medical evidence to address other causes in terms of "their overall contribution ... to the 'whole or predominant' test".

(b) A major aspect of his case was that the transfer occurred after several other events whereas the transfer itself was limited to a single action.

(c) The worker thus had no need to further explore competing causes of his injury, being "confident he would succeed based on the narrow way the case was run".

(d) Before the Member, counsel for the worker "laboriously went through the incidents post transfer, addressing why they did not fall within the s 11A categories", and had he known every post-transfer event would be argued to be part of the transfer itself, he could have adjourned or discontinued the case to obtain further medical and/or lay evidence. This was a forensic decision based on the way the case was run by the appellant at first instance.

1. The worker also sought leave to acknowledge the applicability of the principles in Culhana (particularly at [91]), which had not been done in his earlier submissions, but agreed with the appellant's position that this case did not alter the approach to take on the present appeal.

1. The appellant also "reiterates its previous submissions that no new point is raised", and that prejudice cannot arise as the appeal concerns a legal point ("whether the notion of 'transfer' is broader in concept that the Member found"). As such, the appellant says any prejudice would only arise if the matter was determined on appeal rather than remitted.

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

1. This appeal is brought pursuant to s 352(5) of the 1998 Act. This section provides:

"An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing".

The issue of whether the appellant's submission on appeal was raised with the Member

1. The issue of whether the appellant's submission on appeal was raised with the Member should be dealt with firstly. This refers to its following submission at [23]:

"... the work [the worker] was required to perform is ... part of the transfer ... It is not possible to divorce that aspect of the transfer ... given the tasks were contemporaneous to transfer and to the development of the claimed ... injury. To adopt the language in Gazi, the circumstances of the work [the worker] was required to perform was because of the transfer".

1. But the appellant's primary submission ([22]) and sole ground of appeal is what matters for the purpose of identifying whether a new issue or point has been raised on appeal. The submission at [23] should not be read in isolation as [22] gives context to it. [22] reads: "By limiting his consideration of 'transfer' to the act of the transfer itself, as described at paragraphs [36], [37] and [38] of the Reasons, the Member fell into error. The authorities ... establish it is a wider concept". For the following reasons, I find the appellant did put this matter to the Member.
2. The appellant's submission at [23] is not directly part of the ground of appeal. It deals with what follows if the submission at [22] is accepted and error is found. In that case, [23] would be dealt with by me making a new decision or determination after remitter. For reasons which also follow, I do find error, but it is neither necessary or appropriate to deal with [23] as it is appropriate that I adopt the course taken by Phillips P in Gazi (which relevantly involved substantially the same factual scenario and circumstances to this case) and remit the matter to the Member pursuant to s 352(7).
3. In Whisprun Pty Ltd v Dixon,[27] the majority (Gleeson CJ, McHugh and Gummow JJ) considered a similar issue and relevantly stated (at [50]) that "[t]he reasons of the trial judge are usually the best indication of what matters were in issue at the trial ...". In the present case, the Member stated (at [43]):

"In my view, the facts of this matter are such that [the appellant] cannot rely on the onset of a psychological injury over a period of several months post-transfer as having been wholly or predominantly caused by the transfer itself. Were that the case, an employer would logically be able to assert any psychological injury in the workplace after a change of role or location was caused by the transfer, rather than other matters which took place in the workplace after the worker was placed in their new role." (emphasis added)

1. This statement and finding immediately follows his consideration of the facts in relation to causation of injury for the purpose of addressing the injury being the "wholly or predominantly caused by" issue,[28] including parts of the opinions of Drs Suman[29] and Chan[30] and Mr Moore.[31] In this context, the passage at [43] of the reasons points to him being aware of, and needing to deal with, an issue of whether the appellant could "rely on the onset of a psychological injury over a period of several months post-transfer as having been wholly or predominantly caused by the transfer itself". The context of his use of the last emphasised term is influential in this regard. All this similarly points to him likely being so aware because it had been the subject of a submission to him.
2. It is also contextually important that the final sentence of [43] contains reasoning to support the finding that the appellant was not able to "rely on the onset of a[n] ... injury ... several months post-transfer ...", otherwise an employer would assert any psychological injury after a change of role or location was caused by the transfer rather than "other matters which took place" post-transfer. With much respect to the Member, this statement is at least partially incorrect as a matter of law. This is relevant to the task of identifying whether the ground of appeal and supporting argument has been raised for the first time.
3. The worker says the appellant "made no attempt to argue that every event after the transfer was both causative and reasonable. It specifically ran the case by trying to distinguish various things that happened as being either non-causative or falling within a different category of s 11A" and refers to transcript passages at T 30 and T 39. It can be accepted that there is no clear reference in those passages to the argument the appellant now makes on appeal. But this does not show it was not clearly enough made otherwise. For example, Mr Jones put to the Member that Dr Suman's evidence "should be accepted",[32] particularly with respect to the "wholly or predominantly caused by" question.
4. Then, after going through the detailed history in Dr Suman's report, Mr Jones submitted the following, including by summarising parts of Dr Suman's first report:

"... [Dr Suman] deals with the ... wholly or predominant factor in terms of the s 11A criteria ... [at p 225 of the ARD]

'Had suffered a psychological injury which was predominantly caused by the management action to transfer him to work with the crew located at Tamworth CBD in June 2021. There were concerns about the [worker's] job performance in his new job with Tamworth CBD from July '21 onwards. However, as per the clinical notes and discussions with the [worker] he does not remember being placed on a performance management plan before June '21. His psychological injury is not attributable to performance management so it is the transfer. Started feeling anxious and agitated in the context of being moved. Mental health gradually worsened. Struggled to keep up with his job secondary to his physical health since '21. Ceased work in November '21 due to coping - ongoing mental health problems and physical health stresses'." (all emphasis added).[33]

1. Mr Jones then immediately referred the Member to the "summary and opinion [at p 237 of the ARD], second paragraph under the Workplace Interactions" in Dr Suman's second report as follows:

"Since April '21 led to his psychological injury. Whilst he made various allegations most of the allegations had been refuted by the senior management. Had concerns about his functioning and toxic workplace environment. Provided details, reason why he was moved to his new job working on the CBD team. Was terminated from his job around August '22."

1. Mr Jones then put, "Over the page talks about applying for jobs ... maintains that it's an injury but ... referable to the management action to transfer to a new crew", and then read this, "Reviewed the letter of instruction, summarised his interactions. Tried to get a clarification regarding the [worker's] physical health stresses before making a decision let him work [sic]".[34] Mr Jones then submitted:

"So pausing there. That is a complete history of everything that transpired. Dr Suman has taken a reasonable view and says, well, no, it's related to work but properly understood when one looks at the history it is all stemming from this transfer to the other role."[35] (emphasis added)

1. I do not accept the worker's submissions in this respect. It is clear enough from these passages that the appellant did rely on an argument that the injury was wholly or predominantly caused by (or stemming from) the transfer, including post-transfer factors which have been caused by the transfer itself. This is also consistent with the Member's statement at [43] of the reasons. I also accept the appellant's submission in reply to the extent that "while the language ... [does] not precisely mirror [the submission] at first instance, the essence of the case ..." was part of its case put to the Member.

**66. This makes it unnecessary to deal with the prejudice claimed by the worker. That claim came after I invited further submissions because he earlier said the appellant's argument on appeal was not put to the Member - and I had not formed a preliminary view on that matter.

The terms of and argument in support of the appeal ground**

1. The Member's statement at [43] of the reasons discloses error. This is because the reasoning for his view that the appellant could not rely on the "onset of ... injury ... months post-transfer as having been ... caused by the transfer itself" is based on reasoning that otherwise "an employer would logically be able to assert any psychological injury in the workplace after a change of role or location was caused by the transfer, rather than other matters which took place in the workplace after the worker was placed in their new role".
2. This reasoning is incorrect. It is inconsistent with the relevant majority reasoning in Doyle. It is clear from the Member's reasons (at [37] and [43]) that he has applied the minority reasoning of Davies AJA. In Doyle, Fitzgerald JA, with Mason P agreeing, stated:

"Davies AJA has stated (at [28]) that the Compensation Court 'held that the circumstances under which Mr Doyle worked [after his transfer] were the predominant cause of his breakdown' and expressed the opinion (at [7]) that, for the purposes of s 11A(1), the consequences of actions 'taken or proposed to be taken by or on behalf of the employer with respect to transfer' do not include 'the worker's response to employment conditions encountered after a transfer ...' In my opinion, that proposition is too broadly stated.

It was an action taken by the appellant with respect to the transfer of Mr Doyle, namely, the transfer of him from one position to another, which caused him to work in 'the circumstances ... which ... were the predominant cause of his breakdown'. That being so, the appellant's material action, the transfer of Mr Doyle, cannot be automatically excluded as the whole or predominant cause of ... [the] injury. Whether or not the ... transfer ... was the whole or predominant cause of his psychological injury ... is a question of fact and degree, which involves consideration of all the factors which produced [his] condition."[36] (emphasis added)

1. This is a similar situation to that in Gazi, when Phillips P noted that after incorrectly applying the above-mentioned minority opinion of Davies AJA, the Arbitrator "found that the injury sustained by the worker was as a response to employment conditions after the transfer. He identified those conditions to be: (a) increase in intensity of work from the end of the 2017 financial year; (b) difficulties with the SAP system, and (c) temporary reduction of staff in Ms Gazi's section".[37] I also find his Honour's following statement relevant to the present case:

"The task that the [Member] ought to have undertaken was to consider whether Ms Gazi's transfer was the whole or predominant cause of her ... injury, which is a question of fact and degree involving a consideration of all ... factors which produced the condition in accordance with the majority decision ... in Doyle. Those factors may include the circumstances in which a worker was required to work because of the transfer from one position to another, or in the present case the circumstances in which Ms Gazi was required to work following the physical transfer to the amalgamated premises ...".[38]

1. In the present case I find the Member has erred in law, particularly at [37] and [43] of the reasons, by not applying the majority decision in Doyle, particularly at [7]-[8]. This is in circumstances where his findings of fact remain undisturbed. Neither party has challenged them. Again, these were largely the same circumstances ultimately presented to Phillips P in Gazi, with the question of reasonableness under s 11A not having been considered by the Arbitrator because he found the injury was not wholly or predominantly caused by the transfer.
2. Accordingly, I revoke orders 3 (that the injury was not wholly or predominantly caused by the reasonable actions of the appellant with respect to transfer and/or provision of employment benefits) and 4 (remitting the lump sum claim for referral to a Medical Assessor) of the Certificate of Determination.

1. Section 352(6A) of the 1998 Act provides a discretion for me to make a new decision or, by s 352(7), alternatively remit the matter back to the Member or a different member. While a remitter should be avoided if reasonably possible, I find the following ultimate disposition by Phillips P in Gazi is also fitting in the present case:

"It follows that the question of the establishment (or not) of the s 11A defence must be re-determined ...

While it is desirable that the matter be re-determined on appeal, in the circumstances, to enable the parties an opportunity to ventilate the issues in accordance with the correct approach to s 11A of the 1987 Act it is necessary that the matter be remitted ... to the same Arbitrator for re-determination. This will enable the appellant to properly articulate the actions it said it took with respect to transfer and how they relate to psychological injury as found by the Arbitrator. Whether the employment conditions after the physical transfer were relevant to the s 11A inquiry and whether the psychological injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant with respect to transfer will be a matter considered in the redetermination. This is, as was held in Doyle, a question of fact and degree involving a consideration of all the factors which produced Ms Gazi's psychological injury."[39]

1. The same or similar situation exists here including because, as in Gazi, the facts relating to the "wholly or predominantly caused" limb have been found - but have not been dealt with so as to "properly articulate the actions (the appellant says) it took with respect to transfer and how they relate to psychological injury as found by the arbitrator". The submissions by both parties in this respect do not adequately deal with this.
2. The appellant says the post-transfer duties were "part of the transfer" and "[i]t is not possible to divorce that aspect of the transfer ... given the tasks were contemporaneous to transfer and to the development of the claimed ... injury", and the relevant post-transfer work "had not yet become his usual duties given it was temporal to the transfer". This was put on the basis of the Member's statement (at [36]) that he was "not of the view the whole or predominant cause of the [worker's] psychological issues was the transfer itself. Rather ... the evidence discloses the [worker's] difficulties arose owing to the nature of the duties which he was required to perform after the act of transfer itself" (appellant's emphasis, "noting it tends to show the close link between the transfer in the work being performed, as contemplated in Gazi").
3. This submission falls far short of properly articulating the actions the appellant said it took with respect to transfer and how they relate to psychological injury as found by the Member, and whether those findings were relevant to the s 11A inquiry. There is also no attempt to describe what duties are being referred to as being relevant to the action(s) relied on, nor when they were performed. There is no, or at least no adequate, engagement with the Member's fact-finding in this respect.
4. Just as Doyle says the transfer cannot be automatically excluded as the whole or predominant cause, it does not necessarily follow that all post-transfer factors can, at least necessarily, be included. As the Member correctly stated, the causation test is that set out in cases such as Kooragang Cement Pty Ltd v Bates[40] (and see also Hamad at [44]-[46]).
5. In my view, taking the same course as in Gazi will enable the appellant to properly articulate, including for the purpose of allowing the worker to respond, the actions it says it took with respect to transfer and how they relate to the facts as found by the Member. While I have disagreed with the worker's argument that the appellant's case on appeal was not put to the Member, I accept there may have been communication misunderstandings in this respect. In conceding that "the language used to frame the appeal [does] not precisely mirror what was submitted at first instance, the essence of the case mounted is the same", it may be that the appellant accepts that, at least to some extent. In this regard, the worker's submission that there is "no evidence to delineate and support the relevant s 11A events relied on" also points to the need, like in Gazi, for the parties to have an "opportunity to ventilate the issues".
6. The appellant says the appeal should be upheld and the COD set aside with an award in its favour, alternatively submitting a timetable should be agreed for further submissions, or the matter should be remitted for rehearing by a different member. I disagree with the submission that there should be an award in favour of the appellant for the reasons given above. Also, the Member's findings of fact have not been challenged or criticised at all by either party (reasonable apprehension of bias for example) for a different member being required to take up the case at this stage.

1. Leave is granted to appeal the Certificate of Determination dated 12 May 2025.
2. Orders 1 and 2 of the Certificate of Determination dated 12 May 2025 are confirmed.
3. Orders 3 and 4 of the Certificate of Determination dated 12 May 2025 are revoked.
4. The matter is remitted to Member Burge to be heard and determined in accordance with these reasons.

[1] Application to Resolve a Dispute (ARD), p 2.

[2] [2023] NSWPICPD 30, [24]-[34].

[3] [2007] NSWCA 16.

[4] [2017] NSWWCCPD 6 (Hamad).

[5] Spicer v Tamworth Regional Council [2025] NSWPIC 198 (reasons), [16]-[17].

[6] [1999] NSWCA 465 (Doyle).

[10] [2013] NSWCA 255 (Heggie).

[19] [2019] NSWWCCPD 14 (Gazi).

[22] Appellant's submissions commencing at [28].

[23] Appellant's submissions, [33]-[41].

[24] Transcript of proceedings before the Member on 28 April 2025 (T).

[25] [1985] HCA 28; 60 ALR 68; 59 ALJR 481.

[26] [2025] NSWCA 157 (Culhana).

[27] [2003] HCA 48; 200 ALR 447; 77 ALJR 1598 (Whisprun).

[40] (1994) 35 NSWLR 452.