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[2025] NSWCA 257
respondent. Appeal dismissed with costs.
Townsend argued that the ADP had focused too much on why he resigned in September 2023, rather than whether his hip condition made him unable to work from 3 November 2023. The Court of Appeal rejected that argument. The circumstances at resignation mattered because the claim concerned whether his capacity changed after he left work. The ADP had considered the evidence and explained why it did not establish that change. The Court also found that the appellant misunderstood the Member’s reference to full-time ordinary duties. The appeal was dismissed with costs.
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Troy Townsend appealed to the NSW Court of Appeal against an Acting Deputy President’s dismissal of his appeal within the Personal Injury Commission (PIC). The underlying dispute concerned weekly compensation under s 33 of the Workers Compensation Act 1987 (NSW) for alleged incapacity from 3 November 2023. The Court dismissed the appeal with costs (at [43]).
8 cited instruments linked from this judgment.
Townsend injured his right hip at work on 21 January 2020 when he slipped on wet ground that gave way ([5]). An MRI later showed advanced osteoarthritis and an associated complex labral tear ([6]). He returned to work as an occupational first aid officer and was later certified fit for pre-injury duties, including as tolerated ([7]). He subsequently worked at the Pitt Street Metro Project in health and safety and union-related roles ([7]).
On 26 September 2023, CPB issued a show cause notice about an allegation of serious and wilful misconduct relating to a discrepancy in hours worked and hours claimed. Townsend said he resigned to avoid an adverse finding, while also experiencing increasing hip pain and mental stress. He said he then tried to withdraw his resignation, but CPB accepted it before the withdrawal took effect ([8]). The Member found that he resigned for reasons unconnected to an injury and had been doing full-time ordinary duties up to then ([18]).
Townsend claimed compensation from about 3 November 2023. The insurer disputed liability, and an internal review maintained the decision ([11]–[15]). The PIC Member accepted that he had sustained a right hip injury but found that he did not have present incapacity for work resulting from it. The Member was not persuaded that he was incapacitated from 3 November 2023 due to deterioration in his hip injury ([2]–[3], [18]).
The ADP rejected Townsend’s internal appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ([25]). Townsend then appealed to the Court of Appeal on a point of law under s 353, arguing that the ADP had focused on the wrong time period and failed to address submissions and evidence ([32]–[33]). The Court rejected those grounds.
The Court treated the central question as whether the ADP had legally failed to consider Townsend’s claim for incapacity from 3 November 2023. It did not treat the appeal as an opportunity to rehear the compensation dispute. Section 352(5), governing the earlier appeal to the ADP, confines that appeal to identifying and correcting error and expressly states that it is not a review or new hearing ([19]). The Court’s appeal under s 353 was itself confined to a point of law ([32]).
The Court rejected the argument that considering the circumstances of Townsend’s resignation necessarily meant the Member and ADP had asked the wrong question. That event was relevant because the claim required a comparison between his capacity before leaving work and his capacity from the claimed start date. As Ball JA put it, the issue was whether Townsend “developed an incapacity as a result of his hip injury between the time he resigned and 3 November 2023 (and continuing)” ([35]).
The Court considered the evidence identified by Townsend. It included a certificate from his GP, an orthopaedic report and his supplementary witness statement describing pain and difficulties performing work tasks ([35]–[38]). The Member had specifically said she was not persuaded by the GP’s certificate. Although she did not give specific reasons, the Court noted that the certificate was one line and did not suggest that Townsend’s condition had changed ([36]). The Court also found that the Member had referred to material from the orthopaedic report, including the insurer’s reasons for rejecting its conclusions, and that the Member’s treatment of the evidence could be inferred from her reasons ([36]).
The ADP considered whether the Member had taken account of both medical sources. The ADP concluded that she had, and that the orthopaedic report was general rather than specifically directed to the period between 26 September and 3 November 2023 ([38]). The Court considered that analysis sufficient to show the ADP had engaged with the relevant issue, rather than simply overlooking the later claimed period.
The supplementary statement also did not establish the alleged legal error. The Court observed that the Member regarded Townsend’s attempt to return to work as more compelling evidence about his perception of his capacity at that time than his account of difficulties performing work tasks ([36]). The ADP addressed the same issue, explaining that the attempted withdrawal of the resignation indicated that Townsend’s physical condition, in his perception, was the same as before resignation ([29], [38]).
Finally, the Court rejected the argument that the ADP failed to deal with a challenge to the Member’s statement that Townsend was doing “full-time ordinary duties”. Read in context, the finding concerned the work he was doing immediately before resigning, not whether he had resumed pre-injury duties. The Court also said that the nature of his pre-injury duties was irrelevant to the point raised ([41]).
The judgment does not purport to change the statutory framework. It applies the appeal provisions in ss 352 and 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), and the requirement under s 33 of the Workers Compensation Act 1987 (NSW) for incapacity resulting from injury.
The judgment recounts that an appeal under s 352(5) is confined to whether the decision contains an error of fact, law or discretion, and is not a review or new hearing ([19]). It also notes that a point of law under s 353 can include an error involving a constructive failure to exercise or properly exercise jurisdiction, citing Fisher v Nonconformist Pty Ltd ([32]). The Court applied those principles to the particular grounds rather than setting out a broader new test.
On the substantive compensation issue, the judgment records that incapacity means incapacity resulting in economic loss, citing Inghams Enterprises Pty Ltd v Thoroughgood and Haddad v The GEO Group Australia Pty Ltd ([9]). It does not reconsider or expand that definition. Instead, its focus is on whether the ADP legally addressed the issue and evidence concerning the claimed period.
Accordingly, the decision’s contribution, on the supplied text, is an application of existing appeal and reasons principles to overlapping grounds of appeal. It confirms that the timing of an earlier event, here resignation, may be relevant to assessing a later claimed period when the issue is whether incapacity developed in the intervening period. The judgment does not state that resignation is always decisive, or that evidence of incapacity after resignation is immaterial.
At [19], the judgment sets out the statutory character of the PIC appeal: “The appeal is not a review or new hearing.” In plain English, the ADP’s task was to determine whether the Member made a specified kind of error, not to decide the compensation claim afresh.
At [35], the Court says the criticism about focusing on resignation was “misconceived”. The Court explains that the resignation mattered because Townsend was working up to that date and claimed incapacity from a later date. The question was whether his hip injury caused a change in capacity between those dates. This does not make the resignation date the only relevant date; it explains why it formed part of the comparison.
At [36], the Court addresses the medical certificate and report. It notes that the Member did not give specific reasons for rejecting the GP’s certificate, but observes that the certificate was one line and did not suggest that Townsend’s condition had changed. In plain English, the Court considered both the Member’s treatment of the certificate and its limited content when deciding whether the ADP had identified an error.
At [37], Ball JA says the ADP’s reasons “must be read as a whole”. This explains why the Court assessed the ADP’s treatment of the grounds together, rather than requiring each submission to be addressed in isolation or by repeating every point under a separate heading.
At [41], the Court rejects Townsend’s interpretation of the phrase “full-time ordinary duties”. It reads the Member as describing his duties immediately before resignation. The passage illustrates the importance of reading a finding in the context of the reasons as a whole, and of distinguishing ordinary duties at a particular time from pre-injury duties.
The judgment is most directly relevant to an appeal alleging that a PIC presidential member failed to exercise jurisdiction by not addressing a particular submission or evidence. In this case, the Court examined whether the ADP’s reasons, read as a whole, showed engagement with the substance of the arguments and the evidence relied upon ([35]–[39]).
It may also be relevant where a claimant alleges incapacity from a date after leaving employment, and the decision-maker compares the claimant’s capacity immediately before leaving with the alleged later incapacity. The Court regarded that comparison as relevant to determining whether incapacity developed in the intervening period ([35]).
The decision also addresses appeals based on a disputed interpretation of a Member’s finding. Where a ground depends on reading a statement to mean something the reasons do not support, the Court may reject the asserted failure to address that ground on the basis that the interpretation is incorrect or immaterial ([41]).
The judgment should not be read as deciding that a person who was working at the time of resignation cannot later become incapacitated, or that an attempted return to work conclusively establishes capacity for a later period. Its conclusion concerned the evidence and reasoning in this particular record.
The supplied judgment contains no references to later decisions treating Townsend as precedent. It was decided on 3 December 2025, and the text provided does not identify any subsequent cases applying, distinguishing, approving or criticising it. No account of later judicial treatment can therefore be given from this source alone.
The judgment does refer to three earlier authorities. It cites Inghams Enterprises Pty Ltd v Thoroughgood and Haddad v The GEO Group Australia Pty Ltd for the meaning of incapacity as incapacity resulting in economic loss ([9]). It cites Fisher v Nonconformist Pty Ltd for the proposition that a point of law under s 353 can include constructive failure to exercise or properly exercise jurisdiction ([32]). The supplied text does not analyse those cases in detail or describe the later treatment of Townsend itself.
The judgment does not set out a general test for when medical evidence must be considered sufficient to establish a change in capacity over a short period. It explains why the particular evidence did not establish legal error here, including that the GP’s certificate was brief and that the orthopaedic report was not specifically directed to the period in question ([36], [38]). It does not define what level of detail or temporal focus would be required in another case.
Nor does the judgment decide how a decision-maker should assess a claim where detailed medical evidence expressly identifies a deterioration after an employee leaves work. The Court found that the evidence before it did not establish that the ADP had overlooked the issue; it did not determine a different evidentiary record ([35]–[39]).
The decision also does not develop the law about the adequacy of reasons under s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021 (NSW). The ADP had considered the Member’s reasons adequate, and the Court’s analysis focused on the alleged failure to consider the relevant evidence and submissions ([31], [36]–[39]).
Finally, the judgment does not address the underlying allegation of misconduct, whether Townsend’s resignation was legally effective, or the merits of any employment dispute. Those matters formed background to the compensation claim, but the appeal concerned alleged legal errors by the ADP.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Townsend v CPB Contractors Pty Limited [2025] NSWCA 257
Hearing dates: 20 November 2025
Date of orders: 3 December 2025
Decision date: 03 December 2025
Before: Adamson JA at [1]
Ball JA at [2]
Price AJA at [44]
Decision: Appeal dismissed with costs.
Catchwords: WORKERS COMPENSATION – claim for compensation following injury – alleged constructive failure to exercise jurisdiction – alleged failure to properly consider submissions – no error established
Legislation Cited: Personal Injury Commission Rules 2021 (NSW), r 78
Workers Compensation Act 1987 (NSW), s 33
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 78, 287A, 288, 294, 352, 353
Cases Cited: Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Haddad v The GEO Group Australia Pty Ltd (2024) 114 NSWLR 407; [2024] NSWCA 135
Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166
Category: Principal judgment
Parties: Troy Townsend (Appellant)
CPB Contractors Pty Limited (Respondent)
Representation: Counsel:
BG McManamey (Appellant)
D Priestley SC (Respondent)
Solicitors:
Turner Freeman (Appellant)
Hall & Wilcox (Respondent)
File Number(s): 2025/150256
Publication restriction: None
[This headnote is not to be read as part of the judgment]
The appellant, Mr Troy Townsend, was a construction worker employed by CPB Contractors Pty Limited (CPB) between 3 July 2019 and 26 September 2023. On 21 January 2020, he injured his right hip at work when he slipped after stepping onto wet ground that gave way. A subsequent MRI revealed advanced osteoarthritis of his hip joint with associated complex labral tear. Mr Townsend returned to work as an occupational first aid officer shortly after the accident. On 6 April 2021, he was certified fit for pre-injury duties and on 4 May 2021 he was certified as fit for pre-injury duties, as tolerated.
On 26 September 2023, Mr Townsend was issued with a show cause notice regarding an allegation of serious and wilful misconduct arising from a discrepancy in hours worked and hours claimed. He resigned later that day.
On or about 3 November 2023, Mr Townsend made a claim for workers compensation. On 30 November 2023, CPB’s workers compensation insurer issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act) disputing liability.
Mr Townsend applied for an internal review of that decision under s 287A of the 1998 Act on 21 December 2023, and again on 20 February 2024. The review panel maintained the original decision.
Mr Townsend then lodged an Application to Resolve a Dispute to the Personal Injury Commission (PIC) pursuant to s 288 of the 1998 Act, which was heard by a member of the PIC. The Member was not persuaded that Mr Townsend was unfit for work from 3 November 2023 as a result of the deterioration of his hip injury. In particular, the Member noted that Mr Townsend resigned to avoid an adverse finding arising from his personal conduct, not because of his injury, and that prior to resigning he was engaged “on full-time ordinary duties”.
On 21 June 2024, Mr Townsend filed an appeal against the decision of the Member under s 352 of the 1998 Act. Mr Townsend contended that the Member erred by, among other things, only considering why the appellant ceased work in September 2023 instead of from 3 November 2023; by failing to properly consider all of the evidence before her; and by failing to give reasons for rejecting the Certificates of Capacity relied on by the appellant. On 31 March 2025, the Acting Deputy President (ADP) of the PIC rejected the appeal and confirmed the amended Certificate of Determination issued by the Member.
By his notice of appeal filed 26 June 2025, Mr Townsend sought to appeal the decision of the ADP. The grounds of appeal before this Court in part repeated the grounds of appeal advanced before the ADP. In essence, Mr Townsend contended that the ADP erred by focusing on the wrong question, that is, on the position of Mr Townsend’s capacity at the time he resigned rather than from the position from 3 November 2023, and by failing to address submissions squarely put.
The Court (Ball JA, Adamson JA and Price AJA agreeing) held, dismissing the appeal:
Regarding the contention that the ADP asked the wrong question:
(1) That criticism was misconceived. Both the Member and the ADP focussed on what happened when Mr Townsend resigned because that was critical to each of their analyses. As stated by the ADP, Mr Townsend failed before the Member because he failed to persuade the Member that there was any difference between his physical condition before and after his resignation. It was plain that Mr Townsend did not suffer from an incapacity at the time he resigned because he was working fulltime up until that time, he did not resign because of his injury and he sought to withdraw his resignation (and return to work). The question was whether Mr Townsend developed an incapacity as a result of his hip injury between the time he resigned and 3 November 2023 (and continuing). The only evidence relating to that period was Mr Townsend’s witness statement, a medical certificate and medical report, each of which the Member plainly took account of: [35]-[39].
Regarding an alleged failure to deal with a submission squarely put:
(2) The appellant’s submission that the ADP erred in interpreting the Member’s statement as meaning that Mr Townsend was performing his ordinary pre-injury duties prior to his injury, misinterpreted the Member’s statement. Additionally, contrary to the appellant’s submission, the ADP specifically dealt with the alleged failure of the Member to consider Mr Townsend’s supplementary statement. Accordingly, there was no error of law by the ADP: [40]-[42].
ADAMSON JA: I agree with Ball JA.
BALL JA: The appellant, Mr Tony Townsend, appeals against a decision dated 31 March 2025 of an Acting Deputy President (ADP) of the Personal Injury Commission of NSW (PIC) rejecting an appeal by Mr Townsend from a decision of a member of the PIC (the Member) dated 28 May 2024 and amended on 21 June 2024 in which the Member made the following determination:
“1. The applicant sustained an injury to his right hip on 21 January 2020 whilst in the respondent’s employment.
- The applicant does not suffer from any present incapacity for work resulting from his right hip injury sustained on 21 January 2020.”
It followed from that determination that the Member rejected Mr Townsend’s claim for weekly compensation pursuant to s 33 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) from 3 November 2023 (the date from which the appellant maintained he was incapacitated as a result of his injury) arising from the injury he sustained to his right hip on 21 January 2020.
For the reasons that follow, in my opinion the appeal to this Court must be dismissed with costs.
Mr Townsend commenced employment with the respondent, CPB Contractors Pty Limited (CPB), on 3 July 2019 as a construction worker. On 21 January 2020, he injured his right hip at work when he slipped after stepping onto wet ground that gave way.
Mr Townsend was seen by his general practitioner, Dr Hosny Mechreky, who recommended light duties. A subsequent MRI revealed advanced osteoarthritis of his hip joint with associated complex labral tear.
Mr Townsend returned to work as an occupational first aid officer shortly after the accident. On 6 April 2021, he was certified fit for pre-injury duties by Dr Raafat Ghaly and on 4 May 2021 he was certified as fit for pre-injury duties, as tolerated, by Dr Con Glezos. From the time he returned to work until approximately April 2022, Mr Townsend worked at the Campbelltown Hospital site. He then transferred to the Pitt Street Metro Project, where he was appointed health and safety representative and chairman of the safety committee and union delegate.
“37. Following that notice, I made a decision to resign from my employment on advice from the Union, to avoid any finding against me and due [to] increasing pain and disability in the right hip and mental stress and difficulty sleeping I have been suffering with.
- Immediately after sending my resignation I made the decision to withdraw it and deal with the unfounded allegations against me. However in response to the withdrawal of my resignation 30 minutes later, I received an email notifying me that my resignation was accepted.”
On or about 3 November 2023, Mr Townsend made a claim for workers compensation. It was common ground that, for Mr Townsend’s claim to succeed, it was necessary for him to establish that he suffered from total or partial incapacity for work resulting from an injury: s 33 1987 Act. Although not defined in the 1987 Act, “incapacity” means incapacity resulting in economic loss: see Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166 at [46] per Basten JA (with whom McColl and Meagher JJA agreed); Haddad v The GEO Group Australia Pty Ltd (2024) 114 NSWLR 407; [2024] NSWCA 135 at [124] per Griffith AJA (with whom Kirk and Stern JJA agreed).
Mr Townsend’s claim was supported by a certificate of capacity issued by Dr Mechreky, which gave the following diagnosis of a work-related injury:
“Exacerbation of right hip pain — MRI — TEARING OF THE LABRAL COM[P]LEX AGAIN”
On 21 December 2023, Mr Townsend applied for an internal review of that decision under s 287A of the 1998 Act. That application was supported by, among other things, a statement dated 7 December 2023 signed by him and the clinical notes of Dr Mechreky. In his witness statement, Mr Townsend described the work that he was required to do and the difficulties he had in doing that work. On 4 January 2024, Mr Townsend was advised that the insurer maintained its original decision.
On 20 February 2024, Mr Townsend applied for a further review under s 287A of the 1998 Act. In support of that application, he provided a supplementary witness statement dated 10 January 2024 together with a report dated 31 January 2024 from an orthopaedic surgeon, Dr Jonathan Herald.
In that report, Dr Herald expressed the following opinions in relation to questions specifically asked of him:
“5. On the balance of probabilities, what is the connection between our client's employment and the injury or pathology you have diagnosed?
From what I can gather, he has had a significant aggravation of his underlying osteoarthritis of his right hip.
6. Do you consider our client's employment to be a substantial and/or main contributing factor to the injury?
Given the fact that he was symptomatic with no pain in his right hip, I would suggest that his employment is a significant aggravation to his underlying osteoarthritis of his right hip and most likely in the form of the labral tear.
7. Do you consider our client requires any medical treatment to treat this injury? If so, please confirm what treatment you would recommend.
Yes, I suspect he will require a total hip replacement.
8. If so, do you consider our client's employment has materially contributed to the need for the medical treatment?
Yes, I do. His employment has contributed significantly to the need for the treatment. Prior to this, he was symptom-free in his right hip with no details of underlying osteoarthritis.” (emphasis in original)
“Dr Herald provided an IME [Independent Medical Examination] report dated 31/01/2024 wherein he noted that after the subject injury, you were working on essentially light duties as a first aid officer until January 2021. From January 2021 until 06/10/2023, you were back to your normal duties. Since then, you have been dealing with a secondary problem in relation to bullying and harassment, but the doctor noted this was not dealt with in his report. The doctor diagnosed you with advanced osteoarthritis in your right hip and associated labral tear on your right hip, for which you will require a total hip replacement. The doctor noted that he is uncertain as to whether Dr Glezos is appropriately qualified to provide an opinion on the causation of the injury, and the insurer has not sent you to see an IME.
While we acknowledge the opinion of Dr Herald, we note that he did not comment on or provide an explanation as to the absence of any complaints in relation to your right hip in your clinical records, and the cause for ongoing symptoms following the certification of pre-injury duties from 06/04/2021. We reiterate that it is unclear as to whether your symptoms are related to your workplace injury, noting the significant lapse of time between 06/04/2021 and the downgrade in your capacity from 03/11/2023.” (emphasis added by the Member)
Mr Townsend then lodged an Application to Resolve a Dispute to the PIC pursuant to s 288 of the 1998 Act, which was heard by the Member. In support of that application, Mr Townsend relied, among other material, on the medical certificate from Dr Mechreky, the report from Dr Herald and his two witness statements.
In her statement of reasons, the Member set out a brief history of the matter and the effect of Dr Herald’s report and of the certificate provided by Dr Mechreky. She also accurately summarised at M[20] the effect of the evidence given by Mr Townsend in his two statements in relation to his duties while working and the pain he experienced in the following terms:
“In the course of his work the applicant walked the site to make sure everything was safe. He walked on uneven ground. He walked on the steel on the top floors before concrete was poured and up flights of stairs. He experienced pain. Every Wednesday he would have to walk down 32 flights of stairs. It was very painful. Sometimes his hip would lock up which was also very painful.”
“35. The applicant did not cease work in September 2023 because his hip injury incapacitated him for work. He resigned as a result of a considered decision to avoid an adverse finding arising out of an investigation into his personal conduct. The applicant had been engaged on full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury.
- The applicant subsequently sought to withdraw his resignation and return to work, but his resignation was accepted and the withdrawal refused. If the applicant had not considered he was fit for work at the time he made the application to withdraw his resignation it is reasonable to presume he would not have done so.
- I am not persuaded that the applicant was unfit for work as a result of his injury when he resigned his employment.
- I am not persuaded by the Certificates of Capacity provided by the applicant’s general practitioner regarding incapacity for work in November 2023. There is insufficient evidence before the Commission to establish that the applicant was incapacitated for work from 3 November 2023 as a result of the deterioration of his hip injury.”
Under s 352(1) of the 1998 Act, a party to a dispute in connection with a claim for compensation under the 1987 Act may appeal to the PIC constituted by a presidential member against the decision of a non-presidential member. Under s 352(5), such an appeal “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”.
On 21 June 2024, Mr Townsend filed an appeal against the decision of the Member under s 352. The grounds of appeal were set out in the appellant’s written submissions which were appended to the appeal notice.
Ground 1 was summarised in these terms:
“17. The Member erred by asking the wrong question to determine the Appellant’s entitlement to weekly compensation.
- The claim before the Member was for weekly compensation from 3 November 2023 to the date of hearing and continuing. This required a consideration of the condition in the hip from 3 November 2023 to 28 May 2024.
- Instead, the Member addressed the matter by only considering why the Appellant ceased work in September 2023.” (footnote omitted)
Ground 2 was that the member “erred by failing to properly consider all evidence before her”. The evidence that the Member failed to consider is said to have been the evidence in Mr Townsend’s supplementary statement “about his increasing restrictions at work as a result of the injury to the right hip”, the “critical evidence” of Dr Herald and the opinion of Dr Mechreky that “the incapacity was the result of exacerbation of right hip pain”.
Two grounds appear to be identified under the heading “Ground 3”. One was that the member erred “by considering the fact that the Appellant withdrew his resignation determined the question of whether he had an incapacity”. The other, found in the last two paragraphs of the submissions appearing under the heading “Ground 3”, was described in these terms:
“43. The Member also failed to recognise that the Appellant was not performing his pre-injury duties at the time of the resignation but the lighter duties of Health and Safety Representative.
44. The statement that he was engaged on full time ordinary duties is incorrect if it is meant to mean he was performing his ordinary pre-injury duties.”
“45. The Member failed to give reasons for rejecting the Certificates of Capacity.
- The Member only said she was not persuaded by the Certificates of Capacity. She did not give any reason for that conclusion.”
On 31 March 2025, the ADP rejected the appeal and confirmed the amended Certificate of Determination dated 21 June 2024.
Although Mr Townsend identified separate grounds of appeal and although the ADP dealt with them separately, there is considerable overlap between the grounds. That is important because in considering the way the ADP dealt with them, it is necessary to read his reasons as a whole.
The ADP dealt with ground 1 by focussing on the relevance of what happened in September 2024. As he pointed out, Mr Townsend worked fulltime up until the date of his resignation. He did not resign because of his hip. Consequently, at the time he ceased work, he did not suffer from an incapacity. Dr Herald’s report did not suggest otherwise. Moreover, the certificate from Dr Mechreky did not take the matter further because “It is undisputed that the appellant has right hip pain but that did not incapacitate him for the work he was undertaking prior to his resignation on 26 September 2023”: ADP[50] (in this judgment references to paragraphs of the ADP’s statement of reasons are preceded by the letters “ADP”).
In relation to ground 2, after pointing out that Dr Herald’s evidence of deterioration “was general and not specifically directed to the period between 26 September 2023 and 3 November 2023” (at ADP[60]), the ADP said in relation to Dr Herald and Dr Mechreky:
“62 The member plainly had regard to the evidence of Dr Herald and Dr Mechreky.
63 The issue before the Member was whether the appellant’s hip disability resulted in an incapacity entitling the appellant to weekly compensation. The evidence was entirely against that. Up until the appellant’s resignation, the appellant was performing his work for the respondent without economic loss and was thus not entitled to weekly compensation.”
“The attempt to withdraw his resignation and return to work was taken by the Member to indicate that the resignation was not motivated by the disability. As I read the Member’s reasons at [36], she was saying that the attempt to withdraw the resignation indicated that the appellant’s physical condition at that time was the same (in his perception) as it was before the resignation and that he was not incapacitated for the work he was performing without economic loss at the time of the resignation.”
In relation to ground 3, the ADP rejected that ground largely for the reasons given in respect of grounds 1 and 2. He summarised those reasons by saying “Here the unchallenged finding is that Mr Townsend did not cease work because his hip injury incapacitated him for work” (ADP[77]). The ADP did not specifically deal with the second aspect of the ground (that Mr Townsend was performing lighter duties following his injury).
In relation to ground 4, the ADP expressed the view that the Member’s reasons were adequate to satisfy the requirements of s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021 (NSW) (which requires a determination to be accompanied by “a brief statement of the appropriate decision-maker’s reasons for the determination” that includes findings on material questions of fact, which refers to the evidence on which those findings are based and the reasoning processes that led to the relevant conclusions). The ADP also said (at ADP[88]):
“The appellant failed to persuade the Member because she was not persuaded that there was any difference in the appellant’s physical condition before and after the resignation. That conclusion was open to her on the evidence and no error in providing reasons is demonstrated.”
Under s 353 of the 1998 Act, an appeal lies to this Court from a decision of a presidential member on a point of law. A point of law includes a point of law going to the exercise of the presidential member’s jurisdiction. Consequently, it includes an error of law involving a constructive failure to exercise or properly exercise jurisdiction: see Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32.
The grounds of appeal before this Court in part repeat the grounds of appeal advanced before the ADP. They are in these terms:
“1. The Acting Deputy President erred in point of law when he failed to properly consider the submission that the Member had erred by only considering the Appellant's incapacity as at September 2023 and not the period relevant to the claim which was 3 November 2023 to 28 May 2024 and continuing.
2 The Acting Deputy President erred in point of law when he only considered the evidence about the Appellant's ability to work as at September 2023 and did not consider the evidence of restrictions occurring after that date and in particular in the period from 3 November 2023 to 28 May 2024 and continuing.
3 The Acting Deputy President erred in point of law when he said that the Appellant did not challenge the finding that the appellant had been engaged in full time ordinary duties when it had been expressly put by the Appellant that at no time had he resumed his pre-injury duties.
4 The Acting Deputy President erred in point of law when he failed to consider the submission squarely put that the Member had failed to consider relevant evidence being the Appellant's supplementary statement.”
Grounds 1 and 2 can be taken together. They are said to be at the heart of Mr Townsend’s appeal. Ground 1 attacks what the ADP said about the Member’s analysis. Ground 2 attacks the ADP’s own analysis. Both the Member and the ADP are said to have focussed on the wrong question because both focussed on the position at the time Mr Townsend resigned rather than the position from 3 November 2023.
That criticism is misconceived. Both the Member and the ADP focussed on what happened when Mr Townsend resigned because that was critical to each of their analyses. As the ADP said when addressing Ground 4, Mr Townsend failed before the Member because he failed to persuade the Member that there was any difference between his physical condition before and after his resignation. It was plain that Mr Townsend did not suffer from an incapacity at the time he resigned because he was working fulltime up until that time, he did not resign because of his injury and he sought to withdraw his resignation (and return to work). The question was whether Mr Townsend developed an incapacity as a result of his hip injury between the time he resigned and 3 November 2023 (and continuing). The only evidence relied on by Mr Townsend that he had was the certificate of Dr Mechreky, the report of Dr Herald and his supplementary witness statement setting out the pain he experienced at work. The Member plainly took account of all three pieces of evidence.
In relation to Dr Mechreky, the Member specifically said that she was not persuaded by the Certificate of Capacity provided by him. She did not give specific reasons. But the certificate was one line and did not suggest that things had changed. The Member did not specifically refer to Dr Herald’s report in the summary of her conclusions. However, she had quoted from parts of the report earlier in her reasons and, significantly, she had quoted and emphasised the insurer’s reasons for rejecting the conclusions of that report in its review decision. It is to be inferred that in doing that she accepted what the insurer said. Similarly, the Member did not specifically refer to Mr Townsend’s supplementary statement. But that supplementary statement merely set out the difficulties Mr Townsend said he was having in carrying out the tasks of his employment. The Member clearly regarded as more compelling evidence the fact that, notwithstanding the difficulties he had, Mr Townsend sought to return to work. She referred to that evidence.
As I have said, the ADP’s reasons, must be read as a whole. The ADP recognised that the essential question raised by several of the grounds of appeal was whether things had changed between 26 September 2023 and 3 November 2023 so that it could be said that Mr Townsend was not incapacitated before 26 September 2023 but was incapacitated from the later date. The ADP also recognised that the only evidence relied on by Mr Townsend were the three matters I have referred to.
The ADP specifically dealt with each of those matters. He considered whether the Member had had regard to Dr Mechreky’s certificate and concluded that she had. He pointed out that that certificate did not take the matter any further because it was undisputed that Mr Townsend “has right hip pain but that did not incapacitate him for the work he was undertaking prior to his resignation” (see [27] above). In relation to Dr Herald, again the ADP considered whether the Member had had regard to that report and concluded that she had. The ADP concluded that Dr Herald’s report was general and not specifically directed to the period from 26 September 2023 to 3 November 2023. It followed from that point that the report did not support the conclusion that Mr Townsend’s capacity deteriorated during that period. In relation to Mr Townsend’s supplementary statement, the ADP specifically dealt with that issue in ADP[66], which is quoted in [29] above.
There is no merit in this ground.
When dealing with Ground 1, the ADP said that the appellant did not challenge the finding of fact made by the Member at M[35] (that “The applicant had been engaged on full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury”). Mr Townsend contends that, contrary to what the ADP said, that finding was challenged as part of ground 3 by the statement in para 44 of Mr Townsend’s submissions before the ADP that “The statement that he was engaged on full time ordinary duties is incorrect if it is meant to mean he was performing his ordinary pre-injury duties”. However, there is no reason to interpret the Member’s statement in that way. The Member’s statement should be understood as saying that Mr Townsend was engaged in fulltime ordinary duties immediately before he resigned. That was correct. Moreover, what Mr Townsend was doing before his injury was irrelevant. The ADP did not make an error of law in failing to deal with a submission that on an incorrect interpretation of what the Member said, the Member had made an irrelevant error; and, if he did, the error itself was immaterial.
In my opinion, the appeal should be dismissed with costs.
PRICE AJA: I agree with Ball JA.
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Townsend
CPB Contractors Pty Limited [2025] NSWCA 257
(2024) 114 NSWLR 1
(2024) 114 NSWLR 407
Appeal dismissed with costs.
It is apparent from this analysis that the ADP both dealt with the question whether the Member had considered the position as at 3 November 2023 and explained his own reasons for agreeing with the Member’s conclusions.