Townsend v CPB Contractors Pty Limited

1. [1]

   ADAMSON JA: I agree with Ball JA.

2. [2]

   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:

3. [3]

   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.

4. [4]

   For the reasons that follow, in my opinion the appeal to this Court must be dismissed with costs.

Background

1. [5]

   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.

2. [6]

   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.

3. [7]

   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.

4. [8]

   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 gave the following evidence concerning these matters in a witness statement dated 7 December 2023, which was extracted at M[26] of the Member’s statement of reasons (in this judgment references to paragraphs of the Member’s statement of reasons are preceded by an “M”):

5. [9]

   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).

6. [10]

   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:

7. [11]

   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.

8. [12]

   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.

9. [13]

   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.

10. [14]

    In that report, Dr Herald expressed the following opinions in relation to questions specifically asked of him:

11. [15]

    The review panel maintained the original decision. In its reasons for decision dated 5 March 2024, which were quoted by the Member at M[27], the review panel said:

12. [16]

    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.

13. [17]

    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:

14. [18]

    After setting out a brief summary of the parties’ submissions, the Member gave the following reasons for her decision:

15. [19]

    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”.

16. [20]

    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.

17. [21]

    Ground 1 was summarised in these terms:

18. [22]

    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”.

19. [23]

    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:

20. [24]

    The fourth ground of appeal was stated in these terms:

21. [25]

    On 31 March 2025, the ADP rejected the appeal and confirmed the amended Certificate of Determination dated 21 June 2024.

22. [26]

    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.

23. [27]

    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”).

24. [28]

    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:

25. [29]

    In relation to the supplementary evidence of Mr Townsend, the ADP (at ADP[52] and ADP[53]) accurately summarised Mr Townsend’s submission as a submission that the Member “treated the withdrawal of the resignation as determinative of the appellant’s capacity for work” and failed to consider Mr Townsend’s evidence in his supplementary statement of “increasing restrictions at work as a result of the injury to his right hip”. The ADP rejected those submissions and said (at ADP[66]):

26. [30]

    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).

27. [31]

    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 appeal to this Court

1. [32]

   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.

2. [33]

   The grounds of appeal before this Court in part repeat the grounds of appeal advanced before the ADP. They are in these terms:

3. [34]

   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.

4. [35]

   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.

5. [36]

   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.

6. [37]

   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.

7. [38]

   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.

8. [39]

   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.

9. [40]

   There is no merit in this ground.

10. [41]

    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.

11. [42]

    This ground has already been dealt with in what has been said in relation to grounds 1 and 2. As explained in [29] above, the ADP specifically dealt with the alleged failure of the Member to consider Mr Townsend’s supplementary statement.

Conclusion

1. [43]

   In my opinion, the appeal should be dismissed with costs.

2. [44]

   PRICE AJA: I agree with Ball JA.