Townsend v CPB Contractors Pty Limited [2025] NSWPICPD 27

1. The appeal is rejected.
2. The Amended Certificate of Determination dated 21 June 2024 is confirmed.

WORKERS COMPENSATION - whether worker suffered incapacity from injury - section 294 of the Workplace Injury Management and Workers Compensation Act 1998 - rule 78 of the Personal Injury Commission Rules 2021 - adequacy of reasons

Townsend v CPB Contractors Pty Ltd [2024] NSWPIC 283

1. The appeal is from an Amended Certificate of Determination dated 21 June 2024.
2. The Commission determined:

"1. The [appellant] sustained an injury to his right hip on 21 January 2020 whilst in the respondent's employment.

1. The [appellant] does not suffer from any present incapacity for work resulting from his right hip injury sustained on 21 January 2020.

1. Award for the [appellant] in relation to medical expenses for treatment of the [appellant's] right hip pursuant to s 60 of the Workers Compensation Act 1987.
2. Award for the respondent in respect of the claim for weekly compensation pursuant to s 33 of the Workers Compensation Act 1987."
3. The appellant seeks to agitate four grounds of appeal. Those grounds of appeal are not explicitly articulated in the Form 9 document. I assume the initial sentence of the submissions for each enumerated ground of appeal is intended to identify the challenge.
4. The essential challenge is to the Commission's determination no. 2 of the Certificate and the consequent award in favour of the respondent with respect to weekly compensation.
5. For the reasons that follow, the appeal is dismissed and the Amended Certificate of Determination is confirmed.

BACKGROUND FACTS AND MEMBER'S STATEMENT OF REASONS

1. The following summary is taken from the Member's Statement of Reasons.[1]
2. The appellant was employed by CPB Contractors Pty Limited (the respondent) as a construction worker from 3 July 2019. He injured his right hip on 21 January 2020. He resigned his employment on 6 October 2023 following the commencement of disciplinary proceedings by the respondent. He endeavoured to withdraw the resignation but the respondent declined to act on the withdrawal.
3. He claimed weekly compensation from 3 November 2023.
4. An application for the admission of late documents by the respondent was refused.[2]
5. The Member noted the circumstances of the appellant's injury on 21 January 2020. The appellant felt sharp pain in his hip when the ground on which he was walking subsided. Prior to that time the appellant had been symptom free.
6. The appellant was treated by Dr Glezos, an orthopaedic surgeon. Dr Glezos expected the appellant to experience pain from time to time. He recommended analgesia as required.
7. The Member accepted that the appellant was aware of general aches and pains after heavy work such as shovelling concrete from a steel skip bin. The appellant was appointed an occupational first aid officer. He worked at Campbelltown Hospital and then at the Pitt Street Metro project. At the latter project he was appointed health and safety representative and chairman of the safety committee. He was also the union delegate.
8. The appellant identified symptoms arising from the injury to his hip, namely:

"pain in the right hip; difficulty walking; difficulty walking on uneven surfaces; difficulty walking stairs; difficulty putting on shoes and socks; hips locking up putting shoes and socks on; difficulty bending at certain angles; locking up of the right hip; extreme pain and difficulty unlocking; overwhelming pain when unlocking the right hip; instability; risk of injury; loss of confidence in walking; injury to the face/nose when falling onto coffee table due to the instability and locking up of the right hip; sleep disturbance due to pain and inability to lay on the right side."[3]

1. The Member noted the opinion of the appellant's independent medical examiner, Dr Herald, that the appellant had advanced osteoarthritis in the right hip and an associated labral tear of the right hip. Dr Herald said:

"Given the fact that he was asymptomatic 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.

... [I] suspect he will require a total hip replacement.

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."[4]

1. The Member noted the Certificate of Capacity prepared by the general practitioner Dr Mechreky, dated 3 November 2023, which provided that the appellant had "exacerbation of right hip pain - MRI - airing [sic, tearing] of the labral complex again/anxiety depression". It certified the appellant as having no current capacity for work from 24 November 2023.[5]
2. In relation to the disciplinary proceedings, the Member quoted from the appellant's statement.[6] Relevantly:

"36. I was issued with a show cause notice on 26 September 2023. The show cause notice was regarding an allegation of serious and wilful misconduct.

1. 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.
2. 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."[7]
3. The Member quoted from the review decision by the respondent of 5 March 2023.
4. After summarising the parties' submissions, under the heading "Consideration" the Member made the following dispositive findings:

"35. The [appellant] 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 [appellant] had been engaged [in] full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury.

1. The [appellant] subsequently sought to withdraw his resignation and return to work, but his resignation was accepted and the withdrawal refused. If the [appellant] 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.
2. I am not persuaded that the [appellant] was unfit for work as a result of his injury when he resigned his employment.
3. I am not persuaded by the Certificates of Capacity provided by the [appellant's] general practitioner regarding incapacity for work in November 2023. There is insufficient evidence before the Commission to establish that the [appellant] was incapacitated for work from 3 November 2023 as a result of the deterioration of his hip injury."

1. The Amended Certificate of Determination is dated 21 June 2024. The date of determination was 28 May 2024. The appeal was registered on 25 June 2024.
2. The respondent accepts the appeal was filed within 28 days of the Amended Certificate of Determination and that compliance with the time limits is not in issue.

1. The appellant submits that the application was a claim for weekly benefits in which, in the event of the appellant's success, the monetary threshold stipulated in s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) will be satisfied. That does not appear to be disputed by the respondent.

1. The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:

"(5) 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."

1. Neither party has made submissions with respect to whether the appeal can be determined on the papers.
2. Having regard to s 52(3) of the Personal Injury Commission Act 2020, together with Procedural Directions PIC2 and WC3, I am satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing.

1. The appellant makes submissions under the heading of "Background" which it is convenient to summarise at this time.
2. He submits that having sustained injury to the hip on 21 January 2020, he returned to work about a week later when he became an occupational first aid officer. He submits that this was lighter work. He did this work until a job at Campbelltown Hospital was complete.
3. After the Campbelltown Hospital job, the appellant transferred to the Pitt Street Metro project as the health and safety representative. He performed that work until he left work on 6 October 2023. The appellant submits: "At no time did the Appellant resume his pre-injury duties." I take that to be a reference to the pre-21 January 2020 duties.
4. The appellant sets out his continuing disabilities as a result of the hip injury, which appear to me to accord with the recitation of disabilities contained in the Member's reasons at [22] and need not be repeated at this time.
5. The appellant submits:

"7. The Appellant's disabilities are inconsistent with the ability to perform work as a construction worker.

1. In his supplementary statement which was not referred to by the Member he says that as the health and safety officer he was required to walk every day. He says he continued to work despite the pain and disability. His hip would be in agony, especially when he would walk flights of stairs and walk on steel.
2. Significantly he said that he deteriorated quickly within the two years between being certified fit to work and being certified unfit to work in 2023."
3. The appellant submits that when Dr Herald examined him on 31 January 2024, the doctor found a positive Trendelenburg sign and a positive Trendelenburg gait. There was irritability in the hip joint together with limited movements. Dr Herald diagnosed advanced osteoarthritis of the right hip and an associated labral tear. Significantly he found the condition will continue to deteriorate.
4. The appellant submitted that Dr Herald's comment "necessarily implies that the condition has deteriorated over time". The appellant notes that Dr Herald thought the appellant will require a hip replacement.
5. Dr Mechreky certified the appellant as having no current capacity from 6 October 2023. In answer to the question "How is the injury related to work", he said, "exacerbation of right hip pain from 06/10/2023".
6. The appellant submits that there was no other medical evidence that considered the condition of the appellant's hip on or after 6 October 2023.

Ground 1 - The Member erred by asking the wrong question to determine the appellant's entitlement to workers compensation

1. The appellant submits that the claim before the Member was for weekly payments from 3 November 2023 to date of hearing and continuing and that this required consideration of the condition in the hip from 3 November 2023 to 28 May 2024.
2. He submits:

"Instead, the Member addressed the matter by only considering why the Appellant ceased work in September 2023."[8]

1. The appellant submits that the Member's reasoning was that she was not persuaded that the appellant was unfit for work when he resigned his employment and "[b]y reasoning in this way, the Member failed to address the issue before her which was whether there was incapacity from 3 November 2023 a period starting two months after the resignation."
2. The appellant submits that the Member was required to consider the evidence about the appellant's condition from November 2023 which required a consideration of the appellant's evidence about his restrictions from that time, remembering that the appellant's statements were made in December 2023 and January 2024 and described his condition after the point in time when the claim commences. The Member was also required to consider the restrictions found by Dr Herald when he examined the appellant in January 2024.
3. He submits:

"If a consideration of that material established an incapacity at either of those times then the Appellant was entitled to weekly compensation from that time."[9]

1. The respondent submits that the Member did not ask the wrong question and that she appropriately dealt with the issue in dispute, namely, whether the appellant suffered any incapacity for work from 3 November 2023 as a result of his right hip injury. The respondent quotes the appellant's statement of 7 December 2023 at paragraphs [36]-[37] and [51].
2. The respondent quotes from Dr Herald's report that "[f]rom January 2021 until 6 October 2023, he was back to normal duties. He has, however, since then, left due to a secondary problem in regard to bullying and harassment which are not dealt with in my report."
3. The Certificates of Capacity recorded an exacerbation of right hip pain from 6 October 2023.
4. The respondent submits that:

"the date of 6 October 2023 was a critical date as it was alleged to be the date of the recurrence of right hip symptoms and the date appears to be the last day that he received income after resigning his employment. It was therefore appropriate for the Member to consider the events leading up to that date when determining the issue of the Appellant's incapacity."[10]

1. The Member dealt with the issue of incapacity at paragraph [38] of the reasons.
2. She referred to the evidence in the appellant's supplementary statement, Dr Herald's report and Dr Mechreky, at pages 3 and 4 of the reasons.

1. The appellant does not challenge the finding of fact made by the Member at reasons [35], namely:

"The [appellant] did not cease work in September 2023 because his hip injury incapacitated him for work ... The [appellant] had been engaged [in] full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury."

1. The Member's finding of fact is that the hip disability did not result in any "incapacity" as that term operates in the context of s 33 of the Workers Compensation Act 1987.
2. "Incapacity" for the purpose of s 33 requires an economic loss.[11] Here the Member's unchallenged finding is that the economic loss consequent on the appellant leaving the employ of the respondent was unconnected to the hip or any psychological injury. The appellant had no entitlement to weekly compensation because the loss was not the result of incapacity caused by the injury.
3. Dr Herald's history notes under the heading of "Work History":

"He worked as a construction worker for CPB Contractors for about three years. From 21 January 2020 or his injury, he was working on essentially light duties as a first aid officer until January 2021. From January 2021 until 6 October 2023, he was back to his normal duties. He has, however, since then, left due to a secondary problem in regard to bullying and harassment which are not dealt with in my report."[12]

1. The passage from Dr Herald's report shows that the appellant ceased work for reasons not connected with his hip injury. The Member reached the same conclusion without error.
2. So far as the Certificate of Capacity from Dr Mechreky is concerned, the diagnosis of exacerbation of right hip pain takes the matter no further. 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.
3. The appeal in relation to ground 1 is rejected.

Ground 2 - The Member erred by failing to properly consider all the evidence before her

1. The appellant submits that the Member treated the withdrawal of the resignation as determinative of the appellant's capacity for work.
2. The appellant submits that the Member failed to refer to and consider important evidence, namely:

(a) the supplementary statement about the appellant's increasing restrictions at work as a result of the injury to the right hip;

(b) the critical evidence of Dr Herald that the hip was continuing to deteriorate, and

(c) the opinion of Dr Mechreky that the incapacity was a result of the exacerbation of the right hip pain.

1. The appellant submits that this evidence was not contradicted by other evidence. The appellant submits that a consideration of the evidence would involve considering the increasing problems performing at work (which was lighter than the pre-injury work) and the considerable restrictions found by Dr Herald. The Member should have considered whether the disabilities therein described would have meant that the appellant was unable to perform his pre-injury duties as a construction worker.
2. The appellant submits:

"32. It is not difficult to conclude that a worker who is on the verge of requiring a hip replacement would not be able to perform what is described as strenuous work.

1. The evidence is also consistent with an inability to perform the health and safety representative role with its requirement to climb up and down the stairs of a 42 floor building.
2. The Member did not consider the totality of the evidence and did not attempt to consider the restrictions. The Member failed to ask the essential question which is whether those restrictions equated to an inability to perform his pre-injury duties."

1. The respondent submits that it was not necessary for the Member to refer to every piece of evidence.[13]
2. It submits that the appellant's qualified specialist, Dr Herald, did not comment on the issue of incapacity and the treating clinical records of Dr Mechreky did not refer to an incapacity resulting from the alleged recurrence of the right hip injury at or around 6 October 2023.
3. The respondent submits that Dr Herald recorded the history of the appellant working his "normal duties" from January 2021 until 6 October 2023, after which he left due to his allegations of bullying and harassment. The respondent further notes that Dr Herald did not provide an opinion as to the appellant's incapacity for work, including any restrictions that the appellant alleges were in place.
4. The respondent submits that it was open to the Member to find that there was insufficient evidence to establish that the appellant suffered incapacity for work from 3 November 2023 as a result of his injury.

1. Dr Herald's evidence of deterioration was general and not specifically directed to the period between 26 September 2023 and 3 November 2023. Dr Herald offered a general prognosis:

His condition will continue to deteriorate. He will most likely require a total hip replacement."[14]

1. Furthermore and contrary to the appellant's submission, Dr Herald did not say the appellant was "on the verge of requiring a hip replacement" he said:

"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."[15] (My emphasis).

1. The Member plainly had regard to the evidence of Dr Herald and Dr Mechreky.[16]
2. 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.
3. The appellant's submission that his self-assessment of his capacity to work at the time he made the attempt to withdraw his resignation was irrelevant is correct, but that does not address the conclusion plainly available to the Member that the economic loss was not the result of the hip injury of 21 January 2020.
4. Furthermore, the Member did not treat the withdrawal of the resignation as determinative of the appellant's capacity for work. The dispositive finding is in paragraph [35]:

"The [appellant] had been engaged [in] full-time ordinary duties until he resigned for reasons unconnected to any injury either to his hip or to a psychological injury."

1. 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.
2. Ground 2 of the appeal is rejected.

Ground 3 - The Member erred by considering the fact that the appellant withdrew his resignation determined the question of whether he had an incapacity

1. The Member said, "If the [appellant] 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."[17] This was the only reason given for not accepting the Certificates of Capacity.
2. The appellant submits the Member failed to consider the appellant's evidence that the withdrawal of the resignation was to allow him to contest what he saw as an injustice to him. In any event, even if the appellant had considered himself fit to continue work that is not determinative of his capacity. The position is the same as saying the worker must have a capacity if he applies for work.
3. The appellant submits that determination of incapacity is an objective test that requires consideration of all the evidence. The fact that a worker performs his normal work until resignation does not mean he does not have an incapacity. The appellant quotes Albury City Council v Gunton.[18] The Member failed to recognise that the appellant was not performing his pre-injury duties at the time of the resignation but the lighter duties of a health and safety representative. The statement that he was engaged in full-time ordinary duties is incorrect if it was meant to mean that he was performing his ordinary pre-injury duties.

1. The respondent submits that the Member did not err in making the comment that the appellant was working in his full-time ordinary duties, as Dr Herald has recorded the appellant working his normal duties from January 2021 to 6 October 2023 after which he left due to his allegations of "bullying and harassment".
2. The respondent reiterates it was open to the Member to conclude there was insufficient evidence to establish that the appellant was incapacitated for work from 3 November 2023 as a result of the right hip injury.

1. Largely for the reasons given in relation to Grounds 1 and 2, this ground of appeal is likewise rejected.
2. The Member did not determine the appellant's incapacity on the basis of the attempted withdrawal of the resignation. The Member inferred from the attempted withdrawal that the appellant's capacity for work so far as the appellant perceived it was the same as it was before he submitted his resignation.
3. Dr Herald seems to have drawn the same inference when he said the appellant was performing his normal duties from January 2021 until 6 October 2023. Dr Herald's report, with respect to the appellant's submission to the contrary, is against the appellant. He says:

"From January 2021 until 6 October 2023, he was back to his normal duties. He has, however, since then, left due to a secondary problem in regard to bullying and harassment which are not dealt with in my report."

1. The inference from Dr Herald's report in this regard is that after 6 October 2023, the appellant's ability to engage in employment was the same as it was between January 2021 until 6 October 2023 and that he could perform his normal duties but for the "secondary problem in regard to bullying and harassment".
2. The circumstances in Gunton were different. Mr Gunton resigned his employment with the Council for multiple reasons, one of which was that he was unable to perform the work he was then doing because of his back condition.[19] Furthermore, the Deputy President accepted that the aggravation in the course of employment caused Mr Gunton to cease work and resign.[20] Here the unchallenged finding is that Mr Townsend did not cease work because his hip injury incapacitated him for work.[21]
3. Ground 3 of the appeal is rejected.

Ground 4 - The Member failed to give reasons for rejecting the Certificate of Capacity

1. The appellant submits that the Member said she was not persuaded by the Certificate of Capacity, but she did not give any reason for that conclusion. The appellant submits that the only reason for the Member's conclusion seems to be her view that the withdrawal of the resignation meant that the appellant thought he had a capacity to continue working.
2. The appellant submits that the Member had to consider all of the evidence. There is nothing in the reasons to suggest that such an analysis took place.
3. In circumstances where the certificates are the only direct expert evidence of incapacity and they are not contradicted by any expert evidence, clear and unequivocal reasons are required to show that they have been properly considered and that the rejection of the evidence is based on proper and sound reasoning. In this case the reader is left guessing why the evidence has been found not to be persuasive. The reasons failed to meet the standard required by s 294 of the 1998 Act.

1. The respondent quotes from the decision of President Phillips in Zgouras v Australian Associated Motor Insurers Limited[22] to the following effect:

"In most respects, r 78 of the Rules in short form provides guidance to members' decision making consistent with these authorities. Reasons can be brief, they must expose the member's path of reasoning in reaching certain conclusions and should not be subject overly close scrutiny in search of error."

1. The respondent further submits that the Member is not required to provide lengthy or elaborate reasons,[23] and that the path of reasoning is adequately exemplified in paragraphs [35]-[38] the reasons.
2. The respondent submits that the Member has provided her reasons for rejection of the Certificate of Capacity, being:

"There is insufficient evidence before the Commission to establish that the [appellant] was incapacitated for work from 3 November 2023 as a result of the deterioration of his hip injury."[24]

1. The respondent submits further that the finding was open to the Member on the evidence, noting that Dr Herald did not comment on the issue of incapacity and there was a lack of recorded right hip symptoms in the clinical records of Dr Mechreky around the period of the alleged recurrence.

1. I accept the respondent's submission that paragraphs [35]-[38] of the Member's reasons are adequate to satisfy s 294(2) of the 1998 Act and r 78 of the Personal Injury Commission Rules 2021.
2. I reject the appellant's submission that the only reason for the Member's conclusion was her view that the withdrawal of the resignation meant the appellant thought he had a capacity to continue working. For the reasons given above in response to Grounds 2 and 3, that is not a correct reading of the Member's reasons.
3. 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.
4. Ground 4 of the appeal is rejected.

1. The appellant has failed to demonstrate error on the part of the Member. The appeal is rejected. The Amended Certificate of Determination dated 21 June 2024 is confirmed.

[1] Townsend v CPB Contractors Pty Ltd [2024] NSWPIC 283 (reasons).

[7] Appellant's statement dated 7 December 2023, Application to Resolve a Dispute (ARD), p 5.

[11] P & O Berkeley Challenge Pty Ltd v Alfonso [2000] NSWCA 214; 49 NSWLR 481, [24]-[28], per Priestley JA, Clarke AJA agreeing.

[13] Citing Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.

[18] [2011] NSWWCCPD 68 (Gunton).

[22] [2022] NSWPICPD 17, [71].

[23] Citing Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247.