DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Magliano v Workers Compensation Nominal Insurer [2023] NSWPICPD 51	
		
APPELLANT:	Antonio Magliano	
		
First RESPONDENT:	Workers Compensation Nominal Insurer	
		
SECOND RESPONDENT: 
	Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph’s Smash Repairs	
		
INSURER:	Uninsured	
		
THIRD RESPONDENT	Employers Mutual Limited	
		
FILE NUMBER:	A1-W4690/21	
		
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood	
		
DATE OF APPEAL DECISION:	28 August 2023	
		
ORDERS MADE ON APPEAL:	1.	The monetary threshold to appeal required by s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is satisfied. 
2.	The Member’s Certificate of Determination dated 30 June 2022 is confirmed.	
		
CATCHWORDS:	WORKERS COMPENSATION – Whether the monetary threshold pursuant to s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied – Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7; Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCP 3 applied; Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd [2022] NSWPICPD 47 distinguished – s 145 of the Workers Compensation Act 1987 – whether the Commission has the power pursuant to s 145 to determine whether the injured worker suffered a different injury not previously claimed in matters involving reimbursement to the Workers Compensation Nominal Insurer – ss 65, 105 and 260 of the 1998 Act and the Workers Compensation Guidelines 2021 – applicable principles in disturbing a primary decision-maker’s exercise of discretion – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied – adequacy of reasons – s 294(2) of the 1998 Act; rule 78 of the Personal Injury Commission Rules 2021 – Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied – corroboration of evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied	
		
HEARING:	On the papers	

REPRESENTATION:	Appellant:	
	Mr T Hickey, counsel	
	Ayoub Lawyers 	
		
	First Respondent:	
	Ms S Warren, counsel	
	Hall & Wilcox	
		
	Second Respondent	
	Mr G Guest, solicitor	
	Sparke Helmore Lawyers	
		
	Third Respondent	
	Mr J Beran, counsel	
	Hall & Willcox 	
		
DECISION UNDER APPEAL		
		
MEMBER:	Ms R Homan	
		
DATE OF Member’s DECISION:	30 June 2022	

INTRODUCTION AND BACKGROUND
1.	Mr Antonio Magliano (the appellant) was employed by Rockdale Prestige Smash Repairs Pty Ltd t/as Ralph’s Smash Repairs (the employer) as a spray painter. The appellant alleged that he was spray painting a car in the course of his employment and suffered an injury to his back on 12 February 2019 when he fell from a plank that was suspended on two plastic creates. The employer did not hold a workers compensation policy at the time of the alleged injury. The appellant did not cease work until February 2020, by which time the employer had obtained workers compensation insurance cover.
2.	Although the appellant asserted that he advised the employer of his injury at the time it occurred, the employer, through its sole owner, Mr Konstantinos (Con) Terkalas, denied that assertion. Mr Terkalas stated that he was unaware of the allegation of injury until February or March 2020. In any event, because the employer was not insured as at 12 February 2019, the appellant lodged a claim for weekly compensation and treatment expenses with the Workers Compensation Nominal Insurer (the Nominal Insurer). The employer disputed the veracity of the claim. 
3.	The Nominal Insurer accepted the claim and paid weekly compensation and the appellant’s treatment expenses. 
4.	On 8 September 2021, the Nominal Insurer (through icare Workers Insurance) issued a Notice to Reimburse pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) and a Certificate pursuant to s 145(5) of the 1987 Act, requiring the employer to reimburse the Nominal Insurer the sum of $173,257.71 in respect of the compensation paid to or for the appellant in relation to the appellant’s alleged injury on 12 February 2019.
5.	The employer commenced proceedings in the Personal Injury Commission (the Commission) by way of a miscellaneous application (application), seeking a determination of its liability in respect of the amount sought to be recovered, in accordance with s 145(3) of the 1987 Act. It became apparent from the evidence placed before the Commission that the appellant’s back condition could be defined as a “disease” which possibly could have been aggravated by the nature of the work performed by the worker over the course of his employment in accordance with s 4(b) of the 1987 Act. If that was the case, then s 16 of the 1987 Act provided that the appellant’s deemed date of injury was the date of his incapacity, that is February 2020, and the workers compensation insurer at that time, Employers Mutual Limited (EML), could be either partly or wholly liable for compensation to the worker.
6.	Consequently, the Member ordered that EML be joined to the proceedings as an “interested party.” As noted in the Member’s Certificate of Determination, the issue was raised for the first time by the employer at the first arbitration date (1 February 2022), the appellant had not yet made that claim and EML had not had the opportunity to investigate and determine that claim. As a consequence, EML did not file a Reply to the miscellaneous application (reply). The matter proceeded to a second arbitration date on 5 April 2022 and the employer made oral submissions. Due to time constraints, the parties were directed to file written submissions, following which the Member issued a Certificate of Determination on 30 June 2022. She determined that the appellant did not suffer a personal injury pursuant to s 4(a) of the 1987 Act on 12 February 2019, and that the employer was not liable to reimburse the Nominal Insurer. 
7.	The appellant appeals the Member’s decision. In the appeal, the appellant sought a stay of proceedings pending the outcome of a claim made by the appellant in respect of an allegation of injury as a result of the ‘nature and conditions’ of his employment with the employer. A stay of proceedings was not granted.
ON THE PAPERS
8.	Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
9.	In a rather confused submission, the appellant says that:
“It is the Appellant’s submission that this appeal cannot be decided on the basis of the written application and any notice of opposition. The Appellant submits that an oral hearing is not required and the matter can be dealt with on the papers with the substantive matter being be [sic] remitted for determination by another Member in the event the appeal is successful.”
10.	The employer, the Nominal Insurer and EML indicate that they are content for the appeal to be determined on the basis of the documents and the written submissions of the parties and an oral hearing is not required. 
11.	I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers’ and WC3 – Presidential appeals and questions of law, the documents and submissions that are before me, and the submissions by the parties as to whether the appeal can proceed to be determined on the basis of those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
12.	Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides for an appeal against a decision of the Commission constituted by a non-presidential member. 
13.	There is no dispute between the parties that the threshold requirement as to the time for filing the appeal pursuant to s 352(4) of the 1998 Act has been met. The employer submits, however, that the appeal cannot proceed because there is no “amount of compensation at issue” as required by s 352(3) of the 1998 Act. 
14.	Section 352(3) provides that:
“(3) 	There is no appeal under this section unless the amount of compensation at issue on the appeal is both—
(a) 	at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) 	at least 20% of the amount awarded in the decision appealed against.”
The Nominal Insurer’s threshold submissions
15.	The Nominal Insurer submits that the appellant is required to show that the appeal satisfies that both the amount of compensation in issue on the appeal is at least $5,000 and at least 20% of the amount awarded in the decision appealed against. The Nominal Insurer submits that the appellant has not demonstrated that the threshold is satisfied.
EML’s threshold submissions 
16.	EML adopts the submissions made by the employer.
The employer’s threshold submissions
17.	The employer submits that the proceedings did not arise from a claim for compensation but instead were recovery proceedings involving a claim for reimbursement from the employer to the Nominal Insurer. The employer points out that the appellant was only joined to the proceedings because he was an interested party in the recovery proceedings, which did not directly relate to a claim for compensation.
18.	The employer observes that s 352(3)(a) requires that there must be compensation of at least $5,000 in issue. The employer submits that, in this case, the compensation has already been paid to the appellant, so that in the appellant’s circumstances, there is no compensation in issue at all in the proceedings. The employer asserts that the proceedings are limited to a claim for reimbursement sought by the Nominal Insurer from the employer and will have no effect on the compensation already received by the appellant, so that the actual compensation paid is not in issue.
19.	The employer refers to Fletchers International Exports Pty Ltd v Regan, in which Fleming DP observed that “the decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim … in issue in the appeal.” The employer submits that the appeal does not put the amount of compensation, which has already been paid to the appellant, in issue in the appeal, and the impact on any future rights the appellant has to compensation are irrelevant to the determination.
The appellant’s threshold submissions
20.	In his appeal application, the appellant “acknowledged” the threshold provisions and observed that the Certificate of Determination issued by the Member “considers a miscellaneous application by the [Nominal Insurer] seeking the reimbursement of $173,237.71 from the [employer] under s 145 of the Workers Compensation Act 1987 paid to the Appellant.”
21.	Following the lodgment of the Notice of Opposition by the employer, which included submissions that the monetary threshold to appeal had not been satisfied, the appellant had the opportunity to reply to those submissions and the submissions made by the Nominal Insurer and the employer. The appellant did not take the opportunity to do so.
22.	I formed the view that the appellant should be given a further opportunity to address the threshold issue and I issued a direction accordingly. The appellant was unable to meet the deadline for making those submissions and applied for an extension of the time, which was granted. The appellant lodged submissions dated 14 August 2023.
23.	The appellant submits that the employer concedes that the appellant was joined to these proceedings as an “interested party” because the appellant may have been affected by the outcome of the proceedings. The appellant says that the Nominal Insurer had paid the appellant compensation in the amount of $173,000 and the employer sought to avoid having to reimburse the Nominal Insurer that amount. 
24.	The appellant refers to the employer’s assertion that the appeal will not affect the compensation that has already been paid and submits that the submission “ignores the terms of s 352 and the impact of the determination.” The appellant refers to s 352(1) of the 1998 Act and says that, consistent with that subsection, he was a party to a dispute in connection with a claim for compensation, a fact which, the appellant says, the employer conceded.
25.	The appellant submits that there is nothing in s 352(2)(a) (presumably intended to be a reference to s 352(3)(a)) that requires that compensation already paid is affected and nothing in the subsection that provides that s 145 of the 1987 Act does not put “compensation at issue.” The appellant contends that the operative words of s 352(3) are “the amount of compensation at issue,” citing authority for that proposition.
26.	The appellant asserts that the employer is not assisted by drawing the distinction that it makes. The appellant refers to the decision of Fleming DP in Sheridan v Coles Supermarkets Australia Pty Ltd and her observation that “[t]he amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the [Member] at first instance.”
27.	The appellant submits that it is conceded by the employer that the amount of compensation at issue in the proceedings at first instance was the amount of $173,000 which was paid to the appellant in weekly compensation. The appellant points out that he was a party to the proceedings before the Member and the amount of compensation at issue exceeded the $5,000 threshold to appeal. The appellant described the distinction drawn by the employer as “artificial”, and asserts that such an interpretation is not available and incorrect. The appellant contends that the authorities referred to by the employer do not assist its proposition. 
28.	The appellant points to the employer’s submission that the proceedings do not affect the appellant’s position in respect of the compensation paid to him. The appellant submits that that assertion does not recognise the fact that the Member’s determination that the compensation was not paid in respect of the injury claimed does have an effect on the appellant’s compensation.
29.	The appellant submits that the employer’s challenge to the monetary threshold having been met should be rejected.
Additional submissions made by the employer
30.	On 15 August 2023, the employer forwarded an email to the Commission and the parties, drawing attention to a decision of Snell DP in Transport Contract Services (NSW) Pty Ltd v Employers Mutual NSW Ltd and making further submissions that the decision applied to this matter.
31.	The timetable for filing submissions in this matter set by a delegate of the President expired on 26 September 2022. I note that the decision in Transport Contract Services was issued to the parties on 6 December 2022, after the timetable had expired. The appeal was allocated to me on 31 July 2023. I directed the appellant to reply to the employer’s threshold submissions. I did not direct the other parties to make further submissions as the Nominal Insurer and EML had already addressed the issue and the appellant’s submissions were to be in reply to the employer’s submissions. The employer made no application for leave to file further submissions. While the decision referred to post-dated the timetable, there was no explanation from the employer as to why its further submissions could not have been made during the period from 6 December 2022 to 31 July 2023, when the appeal was allocated to me for determination. I further note that the solicitor on the record in this matter was also the solicitor on record for the respondent in Transport Contract Services and would have been well aware of the decision when it was issued.
32.	The filing of further submissions beyond the allowed time frame is not acceptable and, in the absence of leave being granted following an appropriate application being made, are not properly before the Commission and are not required be taken into account.
33.	However, I am of the view that it is appropriate to consider the potential application of that decision to the circumstances of this case. The decision was published and readily available to all parties and decision-makers from seven days after its issue. For the reasons set out below, I do not consider that the other parties to these proceedings will be disadvantaged by me considering the application of that decision. 
Consideration
34.	The application lodged by the employer was commenced in accordance with s 145(3) of the 1987 Act. Section 145 is reproduced at [127] below. Relevantly, subs (1) provides that the Nominal Insurer may serve on an employer a notice to reimburse “an amount … specified in the notice” in respect of payment made to an injured worker in respect of a claim under the Division (Div 6 of Pt 4 of the 1987 Act). Subsection (3) provides that the employer can apply to the Commission in order to have determined its liability in respect of payments made to an injured worker and subs (4) permits the Commission to “make such awards or orders as to the payment of compensation under this Act or in respect of the injured worker …”. 
35.	Subsection (5) provides that a certificate issued by the Nominal Insurer certifying that the payments specified in the certificate were paid to or in respect of an injured worker and that, in the opinion of the Nominal Insurer, the employer was liable to pay an injured worker compensation under the Act, is admissible in the proceedings. 
36.	Section 4 of the 1998 Act defines compensation as:
“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.”
37.	The appellant relies upon Sheridan to say that, where there has been no amount awarded, the amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Member at first instance. The employer relies on Regan as authority to say that the decision must have a real capacity to put the amount of compensation, determined by reference (in this case) to the claim in issue in the appeal. Both authorities have been accepted as correct and applied consistently in the Commission.
38.	I do not accept that Transport Contract Services is authority to say that the reimbursement sought by the Nominal Insurer in this case was not “compensation” in issue. Transport Contract Services involved an application brought by an employer seeking a determination that the injured worker’s pre-injury average weekly earnings figure was less than that calculated by the insurer. Deputy President Snell determined that there was no amount of compensation in issue in the circumstances where:
(a)	the weekly payments were made by the insurer;
(b)	the employer was not seeking reimbursement of what it alleged to be overpayments;
(c)	the power to seek any repayment rested with the insurer, and
(d)	the benefit sought by the employer was the effect the payments had on his workers compensation insurance premium.
39.	The present matter is factually at odds with the facts in Transport Contract Services and turns on the question of whether the reimbursement of $173,257.71 can be classed as “an amount of compensation”. It is not contested that the amount certified by the Nominal Insurer was the total of the amount the Nominal Insurer paid to the appellant in the form of compensation.
40.	I do not accept that the amount of compensation paid to the appellant loses its character as compensation once the compensation has been paid and the Nominal Insurer seeks “reimbursement” of that amount. Section 145(1) provides that the amount specified in the notice is the payment made to an injured worker in respect of a claim for compensation. In accordance with s 145(3), the employer applied to the Commission for a determination of its liability in respect of compensation payments made to the appellant. The employer was found not liable for the alleged injury for which the appellant’s compensation was paid and the appellant appeals that decision. If he is successful, the employer would be liable to reimburse the Nominal Insurer for the compensation paid to the appellant.
41.	I am of the view that the amount of $173,257.71 retains the character of “compensation”, which was in issue in the proceedings before the Member and is in issue in this appeal.
42.	I am satisfied that the amount of compensation in issue exceeds $5,000 and the threshold required by s 352(3)(a) is satisfied and the appeal can proceed.
THE RELEVANT EVIDENCE
The appellant’s evidence
43.	The appellant provided a statement dated 5 November 2021. He gave a detailed account of his past history and employment as a vehicle spray painter. He advised that he commenced employment with the employer in about February 2018. He described the circumstances in which he was offered employment as a spray painter with the employer.
44.	The appellant said that on 12 February 2021 (sic, 2019), he was working with Mr Andrew Tiliakos, preparing a white van for spray painting. He indicated that they were applying solvent to the van’s roof, which was quite high, in order to strip the existing paint. He described how they were using a timber plank to stand on, which was suspended on two plastic milk crates at each end. The appellant stated that as he stood on the plank, it began to wobble and the milk crates slipped, causing him to fall, landing heavily on his back. He said that he felt immediate pain in his lower back and required assistance from Mr Tiliakos in order to stand up.
45.	The appellant advised that Mr Terkalas was not at the workshop at the time, so he could not report the injury. He said that he sat down for a short period then continued to work on the van but at a slower pace. He said that when Mr Terkalas returned to the garage that day, he advised Mr Terkalas about the injury and complained that there was no scaffolding, and Mr Terkalas responded: “You’ll be fine, we’ll get it, we’ll get it.” 
46.	The appellant said that he returned to work the next day but was in pain. He said he continued to work but his back pain worsened so he ceased performing any strenuous activities, heavy lifting or anything requiring squatting, lifting or bending and standing or sitting for any length of time. He asserted that he was effectively supervising the other workers and handing them the tools they required, and Mr Tiliakos was doing most of the painting.
47.	The appellant complained that he experienced constant back pain during the day with no relief at night, so spoke to Mr Terkalas the following day and was given time off work to attend his general practitioner, Dr Nguyen Van Vinh. The appellant stated that he told Dr Vinh that he had been injured at work. He described the treatment provided by Dr Vinh, which included referral for an x-ray investigation and physiotherapy. 
48.	The appellant stated that he returned to work and discussed lodging a claim for workers compensation with Mr Terkalas so that the cost of his treatment could be paid. The appellant asserted that, in the conversation with Mr Terkalas, Mr Terkalas advised that he was not insured. The appellant reproduced his recollection of the dialogue that took place.
49.	The appellant advised that over the next few months, he met the cost of his treatment himself because he was unaware of any mechanism for claiming compensation when the employer was uninsured. He said the pain in his back got worse and he was struggling at work.
50.	The appellant said that he returned to consult Dr Vinh in about December 2019, by which time he was having difficulty walking because of the pain in his back. He said that Dr Vinh arranged for a CT scan of his back and referred him as an urgent patient to Dr Ali Ghahreman, neurosurgeon, who he saw on 21 December 2019.
51.	The appellant advised that he discussed his difficulties with a friend of his in February 2020, who referred him to a firm of solicitors. He said that the solicitors advised him that he could lodge a claim with icare, who would pay his medical expenses if the claim was accepted. The appellant said that his claim was accepted. He added that, had he known that he could make a claim, he would have done so in the days after his injury, rather than meet the costs himself.
52.	The appellant said that after his claim was made, he consulted Dr Vinh who provided him with a Certificate of Capacity certifying him fit for suitable duties, with restrictions, for eight hours per day, five days per week. He said that he gave the Certificate of Capacity to Mr Terkalas, who said that there was no work for him, he should leave, and Mr Terkalas would deny that the injury ever happened.
53.	The appellant advised that the pain in his lower back worsened, Dr Vinh reduced the hours he was certified fit to work and increased his restrictions. He said that Dr Ghahreman told him that he required surgery. The appellant said that he was certified as being unfit for any work from 27 November 2020.
54.	The appellant referred to the wages he earned with the employer. He said that he had a verbal agreement with Mr Terkalas as to the amount he would be paid. The appellant asserted that he had previously earned approximately $1,400 after taxation when he worked for a former employer and that he communicated to Mr Terkalas that he would not be prepared to work for less than that amount. The appellant noted that Mr Terkalas asserted to the Nominal Insurer that he was paid $820 per week and had produced some documents to support that assertion. The appellant contended that he would not have left his former employment to work for the employer for that amount, which reflected the wage that an apprentice spray painter would earn. The appellant advised that he had a signed letter from Mr Terkalas confirming that in December 2018, he was earning $1,902 per week. The appellant added that the employer had never provided him with a payslip, and the payslips provided to the Nominal Insurer by the employer were fake. The appellant said that at one stage he had asked Mr Terkalas to provide him with payslips because he was applying for a financial loan and eventually Mr Terkalas’ secretary wrote several payslips by hand on paper verifying his correct earnings, which he gave to his bank. He said that he had requested copies of those documents from the bank so that he could produce them to the Commission. 
55.	The appellant referred to his financial commitments and said that, had he only been earning the amount suggested by Mr Terkalas, he would have been unable to pay his financial obligations. He asserted that every week he was paid $1,902 gross, which amounted to approximately $1,400 net per week. He asserted, however, that the employer would record $820 per week in the wage book, a fact which he discovered when the wage book was left open on the desk, some months after he commenced work with the employer. The appellant said that he had a conversation with Mr Terkalas about this, but Mr Terkalas refused to amend the books. 
56.	The appellant advised that each time he was paid, he deposited the full amount of cash received into his bank account, less approximately $200 which he kept for cash expenses. He said his rent, loan repayments and money to his wife (who was overseas) were all paid by electronic funds transfer. 
57.	The appellant accepted that he had not disclosed his full income from working with the employer to the Australian Taxation Office. He said that he simply declared what appeared on the PAYG summary because he did not want the employer to get into trouble. 
58.	The appellant referred to the statement of Mr Terkalas dated 30 March 2020. He disputed the description of his duties provided by Mr Terkalas and expanded on that list. He said he worked from 7.30 am to 4 pm. He disputed that he was paid $820 per week. The appellant asserted that he did not experience sciatica prior to his employment with the employer, and said he never discussed his health with Mr Terkalas prior to 12 February 2019.
59.	The appellant stated that he initially worked for the employer on a part time basis for several months, which was not constant work. The appellant asserted that he reported the injury on the day that it occurred and his co-worker, Mr Tiliakos, had witnessed him lying on the ground after the incident. 
60.	The appellant said that it was common practice to have aluminium scaffolds for the spray painters to stand on, and in some workshops the scaffolding had a hydraulic lift system.
61.	The appellant confirmed that his wife, who lived in Thailand, was in Sydney from 1 February 2019 until 18 February 2019 for the purpose of attending the wedding of Mr Terkalas’ daughter and on 5 February 2019, he, his wife and Mr and Mrs Terkalas had dinner at Brighton-Le-Sands. The appellant said the dinner did not occur on 12 February 2019, as Mr Terkalas had alleged. 
62.	The appellant disputed the contents of Mr Tiliakos’ statements made after the statement of 2 March 2020 (discussed at [71]–[73] below) and expressed the belief that the employer had pressured Mr Tiliakos into making those false allegations.
63.	The appellant completed a claim form dated 28 February 2020. The appellant nominated a date of injury of 12 February 2019. He described the work he was performing that day, which involved working on a large van while standing on wooden planks suspended on milk crates stacked two crates high so that he could reach the roof of the van. He said the planks began to wobble and he fell onto the concrete floor, landing on his back. The appellant said that he injured his back and both legs, the incident occurred at approximately 2.30 pm on that day and it was witnessed by Mr Andrew Tiliakos, a co-worker. The appellant said that he reported the incident to Mr Terkalas, and first noticed his symptoms on 18 February 2019. The appellant advised that his gross pre-injury earnings were $1,902 and attached a letter which he said was from the employer. He disputed the veracity of pay records provided by the employer to the Nominal Insurer. The appellant said that he was paid weekly and would retain approximately $200 and deposit the balance of his pay into his bank account. 
64.	In a further unsigned questionnaire, the appellant advised that he had reported the injury to “Con” (Mr Terkalas) on the day of injury.
65.	The appellant provided bank statements covering the period 1 March 2018 to 31 December 2019. Those documents disclosed that there were cash deposits made into the appellant’s bank account at various intervals and for various amounts. Some of the deposited amounts were colour highlighted.
66.	The appellant produced a copy of a letter dated 10 December 2018, bearing the name of the business “Ralph Smash Repairs”, the street address of the business, its phone number, Australian Business Number and email address. The letter was addressed to “To Whom it may concern.” It read:
“Antonio Magliano is employed on a full time basis By Ralph Smash Repairs. Antonio holds the position of Head Spray Painter.
I find Antonio to be honest, trustworthy and of good character. He shows good work ethics and is a very valuable employee.
Antonio[’s] gross weekly wage is $1902.00 with a net weekly income of $1400.00.
Please do not hesitate to contact me should you require more information.” 
67.	The letter bore a signature and was said to be from:
“Con Terkalas
Company Director
Ralph Smash Repairs”.
Mr Andrew Tiliakos
68.	Mr Tiliakos made a statement dated 2 March 2020. He advised that he had worked for the employer for approximately two years. He recalled that, on 12 February 2019, he and the appellant were working on each side of a white van applying solvent. He described how they were given a timber plank, which they had to suspend on two milk crates, in order to be able to work on the areas of the van that they could not otherwise reach.
69.	Mr Tiliakos stated that as they were working, he saw the appellant fall off the timber plank, landing on his back. Mr Tiliakos said that the appellant appeared to be in a lot of pain. He advised that the appellant slowly continued his duties, and when Mr Terkalas returned to the workshop, Mr Tiliakos went with the appellant to see Mr Terkalas, and the appellant advised Mr Terkalas of his injury.
70.	Mr Tiliakos said that since the date of the injury, the appellant had continued to complain about the pain in his lower back and had been restricted in his ability to do the work, “particularly tasks that require lifting, squatting, bending, and standing and sitting for long periods. As a result, I, and the other employees, have tried as best as possible to relieve him of some of these duties.”
71.	Mr Tiliakos made a further statement dated 8 April 2020, stating that he first met the appellant when the appellant commenced work with the employer. He said that he and the appellant did not get along well. Mr Tiliakos advised that the investigator who interviewed him for the purpose of this statement had told him about the appellant’s allegation of injury. Mr Tiliakos said that he never saw or heard the appellant fall off a plank suspended by milk crates and never saw the appellant have an accident of any type in the workplace.
72.	Mr Tiliakos said he could not recall the appellant telling him anything about such an injury. Further, he was not aware of the appellant experiencing back symptoms prior to 12 February 2019 and the appellant appeared to be able to perform his duties without problem. 
73.	Mr Tiliakos made a subsequent statement dated 28 April 2020. He referred to his earlier statement dated 8 April 2020. He stated that he could not recall setting up the milk crates on 12 February 2019 as that date was a long time ago. He said that the appellant did, from time to time, set up crates and a plank to work on.
74.	Mr Tiliakos subsequently made a further statement dated 16 November 2021. He denied witnessing the incident described by the appellant. He said that on 2 March 2020, he was approached by the appellant who pressured him to make a statement saying that he had witnessed the appellant falling and injuring himself. He said the appellant took him to the appellant’s solicitor’s office, where the solicitor drew up a statement comprising of mainly matters that the appellant had told the solicitor in that meeting. Mr Tiliakos said that he signed the statement just to get it over and done with. He reiterated that he had not seen the appellant suffer a fall or sustain an injury in any circumstance. 
Statement of Mr Konstantinos (Con) Terkalas 
75.	Mr Terkalas provided a statement dated 30 March 2020. He advised that he was the sole owner of the employer. He confirmed that the appellant commenced work with the employer on 12 February 2018 as a full-time spray painter mainly performing the work of rubbing down cars, applying masking and spray painting. He said that there was no formal agreement and the appellant reported directly to him. Mr Terkalas mentioned that, prior to commencing full time work with the employer, the appellant did do some casual evening spray painting work for the employer for about eight months.
76.	Mr Terkalas asserted that the appellant worked from 7.45 am to 4 pm from Monday to Friday and was paid $820 per week, in accordance with payslips he had already provided to the Nominal Insurer. He said that the appellant had complained to him of sciatic pain in his legs from the commencement of his employment and had been receiving physiotherapy in the past. Mr Terkalas stated that the appellant would attend physiotherapy from time to time during the period that he worked for the employer. Mr Terkalas asserted that he would sometimes assist the appellant to stretch his legs and back while on the floor, but the appellant never mentioned the cause of the symptoms.
77.	Mr Terkalas stated that the appellant first reported his back injury to him on 2 March 2020 and he subsequently found out from the Nominal Insurer that the appellant was asserting that the injury occurred on 12 February 2019. Mr Terkalas denied that the appellant had ever reported the injury to him or to his office employee. He said that on the day the appellant told him about the injury, the appellant advised him that the injury had occurred at some time during the previous year. Mr Terkalas described a somewhat unpleasant verbal interaction between him and the appellant that followed and said that the appellant picked up his box of tools and left, quitting his employment.
78.	Mr Terkalas denied any knowledge of the circumstances of the injury other than as recounted to him by the Nominal Insurer’s investigator, but he conceded that the spray painters used a plank suspended on milk crates to do the work. He said it was common practice in the industry but said he did also have ladders available.
79.	Mr Terkalas advised that the appellant’s wife came to Australia for a visit in early 2019 and spent some time socialising with Mr Terkalas’ partner. He said that the appellant’s wife did not mention any injury suffered by the appellant and, even though they had dinner together on 12 February 2019 (the day of the alleged injury), there was no mention of an injury during that evening. Mr Terkalas also mentioned that the appellant had recounted to him that, during his holiday in Thailand from 22 December 2019 to about 10 January 2020, he had renovated and painted his wife’s house. Mr Terkalas also spoke of a claim the appellant had previously made in respect of what Mr Terkalas considered was a “bogus” claim for industrial deafness, and of the appellant’s alleged affinity to gambling.
80.	Mr Terkalas said that two days after the appellant had quit his employment, he returned with an employment separation certificate for Mr Terkalas to sign, which Mr Terkalas did not sign because they could not agree as to the reason for and circumstances surrounding the appellant ceasing work.
81.	Mr Terkalas provided a further statement dated 16 November 2021. He explained the history of how he came to meet and employ the appellant, initially to work casually after work hours but then to work on a full-time basis from 2018.
82.	Mr Terkalas stated that the appellant would sometimes complain of back pain, so Mr Terkalas paid for four sessions with a physiotherapist, Mr Arthur Kazas. Mr Terkalas thought that this occurred prior to February 2019. Mr Terkalas suggested that the appellant had financial problems, liked to gamble, and had made a claim for industrial deafness, which was later withdrawn. Mr Terkalas corrected his earlier statement in respect of the appellant having taken leave from 22 December 2019 to 10 January 2020 and said he had checked his records and the leave was taken in December 2017 until January 2018. He reiterated that he and his wife had dinner with the appellant and his wife on 12 February 2019 and not on 5 February 2019. Mr Terkalas added that the four of them also spent the day at Bondi Beach on 17 February 2019 and on both occasions, the appellant did not mention anything about having fallen at work and did not appear to be in any discomfort.
83.	Mr Terkalas denied having instructed the appellant to work on 2.5 to 3 metre planks suspended by milk crates and said he had never observed the appellant working in that fashion. He conceded that at times the appellant worked on a one metre plank on milk crates, but a step ladder was also available. 
84.	Mr Terkalas denied that the appellant, Mr Tiliakos or his secretary ever informed him of the appellant suffering an injury and asserted that the appellant first reported the injury to him on 2 March 2020. He said that, up until that time, the appellant performed his full duties. He added that the appellant did not have frequent days off work.
85.	Mr Terkalas confirmed his earlier evidence about the circumstances in which the appellant reported the injury and about the appellant’s wages, details of which were hand-written by his office secretary in the wages book. He denied that he had ever pressured Mr Tiliakos into making a statement that was beneficial to the employer. 
The employer’s payroll activity statement
86.	The employer’s payroll activity details for the periods from 12 February 2018 to 20 June 2018 and 1 July 2018 to 30 June 2019 were annexed to the employer’s Application to Admit Late Documents (AALD) dated 29 November 2021. The documents disclosed that the appellant received $820 per week gross for 38 hours worked, leaving a net amount of $700 per week after taxation and contributions to the appellant’s superannuation fund. 
Mr Ali Elmiski
87.	In a highly unusual step in the proceedings, Mr Ali Elmiski, the appellant’s solicitor, provided a statement dated 4 April 2022. The statement was made available to the Member but was not annexed to any AALD. He stated that, at the conference with Mr Tiliakos, Mr Tiliakos was not pressured into making the statement and willingly provided details of the appellant’s injury, as well as made allegations about the employer’s unsatisfactory business and workplace conduct. Mr Elmiski denied that the appellant had provided the answers to the questions Mr Elmiski asked. He stated that the only reason he could think of as to why Mr Tiliakos changed his story was that the employer had pressured him to do so.
The medical evidence
Dr Nguyen Van Vinh, general practitioner
88.	The clinical notes of Dr Vinh were in evidence. The appellant attended that practice from 2012 to 9 June 2021. Relevantly, the appellant consulted Dr Vinh on 14 February 2019, complaining of lower back pain and sciatica and was referred for a lumbar spine x-ray. There were no references to back pain recorded in the notes prior to that date and no reference to the cause of the appellant’s symptoms on presentation that day. The appellant attended again on 16 February 2019 for review of the x-ray and Dr Vinh recommended physiotherapy. On 2 September 2019, the appellant consulted Dr Vinh, advising the doctor that he had undergone chiropractic treatment rather than physiotherapy, which he found beneficial.
89.	On 12 December 2019, Dr Vinh recorded:
“Surgery Consultation
lower back pain, for many months, work: heavy lifting
also sometimes painting on a high level and has to jump down due to not convenience with the ladder
Examination:
tender over the L5/S1 area.
for CT SCAN OF THE LUMBAR SPINE.” 
90.	That entry was the first entry made by Dr Vinh as to the cause of the symptoms.
91.	On 16 December 2019, Dr Vinh took the following history:
“Pt had a fall 7 months ago at work, and the pain continue since
CT SCAN: LUMBAR SPINE:
1- Spinal canal stenosis at L4/5, compression the proximal L5 nerve roots
2- Right sided L4 pars defect but no ss of spondylolisthesis
3- Minor disc bulge at L5/S1.” 
92.	At a further consultation on 29 January 2020, Dr Vinh noted that the appellant’s low back pain was “severe” and “chronic” and on 28 February 2020, Dr Vinh recorded that the appellant continued to complain of back pain, he was seeking compensation and had been experiencing back pain since February 2019. On 7 July 2020, Dr Vinh recorded that the appellant had attended Dr Ali Ghahreman, neurosurgeon. Dr Vinh noted:
“Had a fall in Mid 2019>LBP and radiate to the buttocks from the back. pain severe on both side. related to work.” 
93.	Dr Vinh completed a Chronic Disease Management Plan on 18 February 2019. He described the appellant’s lower back pain as “chronic.” 
94.	In the letter of referral to Dr Ghahreman, Dr Vinh provided the following history:
“Thank you for seeing Antonio who presented with 6 months history of lower back pain and radiate to the upper parts of the buttock bilaterally. He has been working as a panel beater & spray painter where he had to do heavy lifting. He reported that the pain first [occurred] after he jump of [sic] a ladder at work.”
95.	Dr Ghahreman reported to Dr Vinh on 21 December 2019. He noted the history that the appellant had suffered a fall at work in mid-2019. He opined that:
“the pain has been generated as a result of work related activities and since fall at work. As such work is a significant contributor to pain. Please note that he had no pain prior to his work related fall.” 
96.	Dr Vinh provided a Certificate of Capacity dated 2 March 2020. He recorded a date of injury of 12 February 2019 and noted that the cause of the injury was “[h]eavy lifting” and “[h]ad a fall at work.”
Dr Ali Ghahreman, neurosurgeon
97.	The appellant attended Dr Ghahreman on 21 December 2019. In a report of the same date, Dr Ghahreman noted that the appellant “had a fall at work in mid-2019,” following which he developed lower back pain and radiating pain into the buttocks. He discussed the pathology evident on a CT scan and opined that the pain had been generated by work related activities as well as the fall, and the work was a significant contributing factor to the symptoms. Dr Ghahreman noted that the appellant had no symptoms prior to the fall.
98.	Dr Ghahreman reported to Dr Vinh again on a number of occasions between 1 May 2020 and 14 September 2020. In a report dated 3 August 2020, Dr Ghahreman mentioned the fall at work and noted that it had occurred on 12 February 2019.
Dr Rob Kuru, spinal surgeon 
99.	Dr Rob Kuru was qualified by the employer to provide an opinion in respect of the appellant’s claim. Relevantly, in his report dated 6 November 2021, Dr Kuru expressed the view that the appellant’s diagnosis was:
“non specific back pain (presumably due to underlying degenerative disease in the lumbar spine) and spinal claudication consequent to degenerative spinal stenosis”.
100.	Dr Kuru opined that, if there had been a specific injury causing aggravation of the pathology, he would have expected that the appellant would not have been able to continue to work following the injury.
Dr Peter Bentivoglio, neurosurgeon
101.	Dr Bentivoglio was asked by the Nominal Insurer to provide an opinion on liability. He provided a report dated 30 June 2021. Relevantly, Dr Bentivoglio took a history of the alleged fall at work on 12 February 2019 and its aftermath, which was consistent with the history provided by the appellant to the Nominal Insurer. Dr Bentivoglio diagnosed back pain caused by multilevel disc disease with canal stenosis and lateral recess narrowing. He considered that the reason for the ongoing symptoms was the progression of the degenerative disease. Dr Bentivoglio reviewed the need for proposed lumbar surgery and concluded that the surgery was “probably reasonable” and “associated with the work injury of 12 February 2019 and with exacerbation of the previous degenerative disease.” 
Dr Balsam Darwish, neurosurgeon 
102.	Dr Darwish provided a report dated 8 March 2022 at the request of the appellant’s solicitors. The report was not annexed to an AALD but was accepted into evidence by the Member. Dr Darwish took a history of the injury on 12 February 2019 which was also consistent with the history asserted by the appellant in his claim for compensation. Dr Darwish diagnosed lumbar canal stenosis. He opined that the changes evident on the radiological investigations were most likely degenerative in nature and caused or aggravated by the appellant’s employment, which required lifting and bending and working in awkward positions. He considered that “[t]he accident on 12 February 2019 was a major aggravating factor to a pre-existing condition and the main cause of [the appellant’s] symptoms.” 
THE MEMBER’S REASONS
103.	The Member briefly recorded the nature of the claim before the Commission and the protracted procedural history. The Member identified the issues raised that required determination, namely: 
(a)	“the [employer’s] liability in respect of the notice to reimburse issued pursuant to s 145(1) of the 1987 Act on 8 September 2021, including: 
(i)	the Commission’s jurisdiction to make findings and determinations in respect of whether any incapacity and/or need for treatment suffered by the [appellant] resulted from an injury due to the nature and conditions of employment pursuant to s 4(b) of 1987 Act and what those findings / determinations should be;
(ii)	whether the [appellant] sustained an injury pursuant to ss 4(a) and 9A of the 1987 Act on 12 February 2019; 
(iii)	the extent and quantification of any entitlement to weekly compensation pursuant to s 33 of the 1987 Act in respect of the alleged injury on 12 February 2019 (including the calculation of pre-injury average weekly earnings); 
(iv)	whether there was an entitlement to medical and related treatment expenses pursuant to s 60 of the 1987 Act in respect of the alleged injury on 12 February 2019, and whether the [appellant] was barred from recovering compensation pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in respect of the alleged injury on 12 February 2019.”
104.	The Member provided a detailed summary of the evidence and noted the submissions of the parties. She said that the submissions, where relevant, were addressed in her findings and reasons that followed.
105.	The Member reproduced s 145 of the 1987 Act and noted that the validity of the notice issue pursuant to s 145(1) was not challenged and the employer’s right to bring the proceedings in accordance with s 145(4) was also not challenged. The Member noted that the parties were not in agreement as to the whether the Commission’s powers in matters arising under s 145 extended to a consideration of whether the appellant’s incapacity and need for treatment were attributable to some other compensable injury. The Member considered that it was inappropriate and in fact unnecessary to determine other causes of the appellant’s complaints in order to determine whether the employer had a liability to repay to the Nominal Insurer the amount of compensation paid to the appellant. She noted that the payments made by the Nominal Insurer were those in respect of an asserted injury to the back and legs that resulted from an incident on or about 12 February 2019, as described in the claim form submitted to the Nominal Insurer by the appellant. The Member observed that the first issue for determination was whether the appellant in fact suffered the alleged injury for which he was paid the compensation.
106.	The Member referred to the decision of Keating P in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer, in which his Honour:
(a)	confirmed that the legal onus of proof in matters involving s 145 of the 1987 Act rests with the Nominal Insurer;
(b)	observed that the certificate issued pursuant to s 145(5) was prima facie evidence that the appellant was liable for the payments made, and
(c)	said that it was open to the employer to prove that it was not liable to pay compensation to the appellant.
107.	The Member turned to the question of whether the appellant suffered the injury alleged. She referred to the definition of “injury”, as defined by s 4 of the 1987 Act and noted that the statement evidence disclosed a clear factual dispute in respect of what, if anything, occurred on 12 February 2019. The Member observed that the statements of Mr Tiliakos dated 8 April 2020, 28 April 2020 and 16 November 2021 were substantially supportive of the evidence of Mr Terkalas, but that those statements contradicted his earlier statement dated 2 March 2020. She noted that Mr Tiliakos asserted that he had been coerced into making the earlier inconsistent statement. She further noted that the appellant’s solicitor gave evidence that Mr Tiliakos freely and voluntarily provided the statement dated 2 March 2020.
108.	The Member observed that there was tension between the evidence of the appellant and Mr Terkalas, with each attacking the other’s credibility, each accusing the other of document fraud (particularly in relation to the payment of wages) and each contradicting the other on “multiple issues.” She noted that none of the witnesses were tested under cross-examination but that was not a bar to a finding of credibility. She indicated that she had taken a most cautious approach to the witness evidence and found the evidence on both sides to be largely unreliable. She said that the contemporaneous medical evidence was of greater assistance as to what may or may not have occurred.
109.	The Member said that the appellant denied any back symptoms or sciatica prior to 12 February 2019, both in his statement evidence and to the treating and medico-legal experts. The Member observed that there was no complaint of back or sciatic symptoms recorded in the clinical notes of Dr Vinh prior to 12 February 2019. She referred to Mr Terkalas’ assertion that he paid for the appellant to undergo physiotherapy for his back before 12 February 2019, and said that there was no evidence placed before the Commission to support the assertion.
110.	The Member noted that the first reference to back pain and sciatica was recorded in the clinical notes of Dr Vinh on 14 February 2019, but the entry did not provide any details of what precipitated the symptoms or the date of onset. The Member considered that it was very relevant that there was no complaint that the symptoms were referrable to a traumatic incident two days prior to the consultation that involved a fall from a height at work. The Member noted that, while the appellant was referred for x-ray investigations and prescribed medication, there was no record of such an incident when the appellant was reviewed by Dr Vinh on 16 February 2019 and again no reference to a work injury was made in the consultation on 2 September 2019.
111.	The Member observed however, that in the Chronic Disease Management Plan completed by Dr Vinh on 18 February 2019, Dr Vinh described the appellant’s back pain as “chronic” and noted that certain activities including lifting precipitated the pain. The Member considered that that evidence was inconsistent with the appellant having reported to Dr Vinh that he had a sudden onset of back pain following a fall at work and was more consistent with the appellant having experienced back pain for some time which may have been precipitated by lifting and other activities. The Member noted that such a possibility was consistent with the employer’s assertion that the appellant had suffered from back pain prior to his commencement with the employer and obtained treatment for those symptoms while employed by the employer.
112.	The Member referred to the appellant’s attendance on the physiotherapist on 13 April 2019, who diagnosed sciatica and prepared a detailed treatment plan, but did not record a complaint from the appellant that he had suffered a recent traumatic fall that precipitated an acute onset of symptoms. The Member commented that the treatment plan proposed by the physiotherapist was consistent with treatment for a chronic condition of the lumbar spine.
113.	The Member observed that the first reference to a work related injury was in Dr Vinh’s clinical note recorded on 12 December 2019. She noted that Dr Vinh described heavy lifting at work and on occasion having to jump down from a height because there was no ladder but did not record a fall on 12 February 2019 in which the appellant landed on his back. The Member further noted that, at the consultation four days later, the appellant did provide a history of a fall at work but placed it as having occurred in or around May 2019.
114.	The Member referred to the letter of referral to Dr Ghahreman dated 18 December 2019 that also recorded the onset of pain as occurring six months earlier and precipitated by jumping off a ladder at work and to the report of Dr Ghahreman that referred to a fall at work in mid-2019.
115.	The Member concluded that the medical evidence disclosed that while the appellant reported lumbar symptoms in February 2019, the symptoms were not initially recorded as being attributable to a work injury. She referred to the requirement to treat the clinical notes of a general practitioner with caution but considered it most unusual that the medical records did not include a history of the traumatic event subsequently complained of by the appellant. The Member accepted that the records of Dr Vinh were “brief and unilluminating” but thought that it was significant that the more contemporaneous records suggested that the appellant’s condition was “chronic” or longstanding, and potentially related to heavy and inappropriate lifting or poor posture. The Member reasoned that it was not until eight months after the alleged injury that the symptoms were recorded as being work related. She said that, even then, the history was not consistent with the appellant having fallen onto his back and recorded that the event occurred in mid-2019, rather than in February 2019. The Member considered that the extensive delay and the disparity in the evidence were significant matters.
116.	The Member referred to legal authority dealing with the difficulty in assessing the credibility of a witness. She further referred to the decision of Keating P in Department of Education and Training v Ireland that the task of the decision-maker was to weigh the evidence of the worker against the other objective evidence, or the absence of evidence in support of the allegation of injury. The Member said that she had given weight to the fact that the alleged injury was described consistently in the claim form completed by the appellant, his statement evidence and in the histories provided to the treating doctors and the medico-legal experts. The Member said that she also gave weight to the employer’s concession that it was not unusual for spray painters to work on a plank suspended on milk crates, even though the employer denied seeing the particular set-up portrayed in the photograph in his workshop.
117.	The Member said that the employer’s assertion that an injury did not occur on 12 February 2019 was to some extent supported by the radiological evidence disclosing degenerative disc disease and the medical opinions of Dr Bentivoglio, Dr Kuru and Dr Darwish, wherein:
(a)	Dr Bentivoglio diagnosed multilevel disc disease with moderate canal stenosis;
(b)	Dr Kuru was of the view that the findings were degenerative and indicated a progressive constitutional condition, and
(c)	Dr Darwish described the effects of the fall as an aggravation or exacerbation of degenerative disease in the lumbar spine.
118.	The Member referred to Dr Kuru’s opinion that, had the appellant suffered a significant injury, he would have ceased work well before February 2020. The Member acknowledged that Dr Bentivoglio and Dr Darwish were of the opinion that the injury as described to them caused an aggravation or exacerbation of the degenerative disease in the lumbar spine. The Member reasoned, however, that those opinions were dependent upon an assumed history provided to them by the appellant of a fall on 12 February 2019.
119.	The Member also acknowledged that, in his clinical notes, certificates of capacity and referrals to other treatment providers, it was apparent that Dr Vinh had accepted that there was a fall at work. The Member pointed out, however, that there was no evidence from Dr Vinh to corroborate the appellant’s evidence that he complained to Dr Vinh in February 2019 that his symptoms related to a fall at work. Further, the Member noted that Dr Vinh had not explained the absence of a contemporaneous record of the injury, the description of the back pain as “chronic”, the reference to heavy lifting and the inconsistencies in the description of the mechanism of injury, as well as the inconsistent dates of injury.
120.	The Member referred to the fact that the appellant continued to work beyond February 2019, but he asserted that he avoided performing tasks that would aggravate his condition and was mostly performing the work of a supervisor. The Member pointed out that the employer denied that there were any changes to the appellant’s duties and asserted that the appellant continued to perform spray painting duties while Mr Tiliakos was mainly preparing the vehicles.
121.	The Member noted that the employer submitted that the appellant’s evidence in his statement dated 5 November 2021 as to the description of events on 12 February 2019 was unusually specific. The Member said that almost three years had passed since the alleged injury. She pointed to the details contained therein and said that she accepted that the level of detail was quite surprising. The Member observed that the employer’s account was consistent with that of Mr Tiliakos’ statement in March 2020 but noted that the statement was provided a year after the event and Mr Tiliakos had resiled from that version of events.
122.	The Member concluded that, after weighing all of the evidence and on the balance of probabilities, she was satisfied that the employer had discharged its evidentiary onus of disproving that the appellant suffered a personal injury to his lumbar spine and legs as claimed on 12 February 2019. The Member added that she accepted that the appellant complained of lumbar pain and radiculopathy in and after February 2019. She referred to the employer’s submissions and those of the appellant in relation to making a determination of the cause of the appellant’s symptoms and their relationship to the appellant’s employment and said that she was not satisfied that it would be appropriate for her to do so. The Member reasoned that an injury pursuant to the ‘nature and conditions’ of the appellant’s employment has not been claimed and EML had not disputed the claim and had not had the opportunity to investigate or arrive at a response to the claim.
123.	The Member considered that her determination that the appellant had not suffered an injury on 12 February 2019 was a sufficient basis upon which to find that the employer was not liable to reimburse the Nominal Insurer the amount specified in the reimbursement notice dated 8 September 2021. She further considered that it was unnecessary to determine the remaining matters in dispute.
124.	The Certificate of Determination issued on 30 June 2022 records:
“The Commission determines:
1.	The Commission is satisfied on the balance of probabilities that the [appellant] did not sustain a personal injury to his lumbar spine on 12 February 2019 pursuant to s 4 of the Workers Compensation Act 1987.
2.	The [employer] is not liable to reimburse the Insurance Fund the amount specified in the notice pursuant to s 145(1) of the Workers Compensation Act 1987 dated 8 September 2021.” 
GROUNDS OF APPEAL
125.	The appellant brings four grounds of appeal, asserting the Member erred as follows:
(a)	Ground A: failing to determine the threshold dispute as to the power of the Commission pursuant to section 145 of the 1987 Act;
(b)	Ground B: failing to provide adequate reasons addressing the rejection of the lay evidence in the claim;
(c)	Ground C: determining the issue of injury on the basis of a purported lack of contemporaneous treating evidence and/or approaching contemporaneous treating evidence as determinative of the question of causation, and
(d)	Ground D: failing to determine the issue of whether the appellant’s injury arose as a result of the ‘nature and conditions’.
LEGISLATION
126.	“Injury” is defined in s 4 of the 1987 Act as follows:
“Definition of ‘injury’ (cf former s 6 (1)) 
In this Act: 
injury
(a) 	means personal injury arising out of or in the course of employment, 
(b) 	includes a disease injury, which means: 
(i) 	a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and 
(ii) 	the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and 
(c) 	does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
127.	Section 145 of the 1987 Act relevantly provides:
“145 	Employer or insurer to reimburse Insurance Fund
(1) 	The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was:
(a) 	in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) 	an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) 	The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that:
…
(3) 	A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person’s liability in respect of the payment concerned.
(4) 	The Commission may hear any such application and may:
(a) 	make such determination in relation to the application, and
(b) 	make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.
(4A)	The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5) 	In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that:
(a) 	the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) 	a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages, is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6) 	The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) 	An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 362 of the 1998 Act.”
128.	Section 260 of the 1987 Act provides:
“260 	How a claim is made
(1) 	A claim must be made in accordance with the applicable requirements of the Workers Compensation Guidelines.
(2) 	The Workers Compensation Guidelines may make provision for or with respect to the following matters in connection with the making of a claim—
(a) 	the form in which a claim is to be made,
(b) 	the manner in which a claim is to be made,
(c) 	the means by which a claim may be made,
(d) 	the information that a claim is to contain,
(e) 	requiring specified documents and other material to accompany or form part of a claim,
(f) 	such other matters as may be prescribed by the regulations.
(3) 	Without limiting this section, the Workers Compensation Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation services to the claimant in connection with the injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4) 	The Workers Compensation Guidelines can also provide for any of the following matters in connection with the making of a claim—
(a) 	waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) 	providing for the time at which a claim is taken to have been made in any case in which the requirement for the making of a claim has been waived,
(c) 	providing for the time when a claim is taken to have been made in a case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5) 	The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6) 	Except to the extent that the Workers Compensation Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7) 	The Workers Compensation Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification.”
SUBMISSIONS
As to Ground A
The appellant’s submissions
129.	The appellant submits that the Member acknowledged that the issues in dispute included:
(a)	whether the Commission had the power to make findings, determinations and orders with respect to reimbursement under s 145, and
(b)	whether that power extended to making findings as to incapacity and the need for treatment being attributable to an alternate injury, in this case an aggravation injury pursuant to s 4(b) of the 1987 Act resulting from the ‘nature and conditions’ of the appellant’s employment.
130.	The appellant asserts that he made lengthy submissions to the Member that the power conferred on the Commission in respect of matters relating to s 145 of the 1987 Act was a broad power. The appellant says that it enabled the Member to “step behind” the claim in order to determine whether compensation was in fact payable. The appellant says that the power to do so was sufficiently wide to enable the Member to re-visit the issue of injury and to determine whether an alternative injury had occurred.
131.	The appellant refers to the submission made before the Member by EML that Raniere Holdings Pty Ltd v Daley was not authority to say that s 145 empowered the Commission to go behind the question of injury and that the Commission’s power was restricted to a determination in relation to a “claim made.” The appellant says that he responded to that submission by submitting that the power under s 145 was a broad power requiring determination of liability in the broader sense. The appellant asserts that Raniere Holdings was authority to say that the Commission is required to make findings about all of the elements of the employer’s liability before it could make orders for reimbursement.
132.	The appellant submits that he made a claim in respect of a frank injury but in the alternative made a case that he suffered a disease injury as a consequence of the nature and conditions of his employment, which included a fall on 12 February 2019. The appellant refers to the contention that no claim had been made in respect of the appellant’s alternate allegation of injury and submits that it was not necessary because the appellant had made a claim for compensation for a frank injury that was accepted.
133.	The appellant asserts that the Member “proceeded to determine the matter without determining the primary issue of jurisdiction under s 145 of the 1987 Act”. The appellant submits that, instead, the Member formed the view that it was “unnecessary” and “inappropriate” to determine the appellant’s alternate case and did not provide reasons for reaching that view, other than to cite Kula Systems, without explaining the relevance of that case.
134.	The appellant asserts error on the part of the Member by failing to:
(a)	address or determine the threshold jurisdictional argument; 
(b)	provide adequate reasons which would enable the reader to understand the basis of her decision in relation to the power conferred under s 145 of the 1987 Act, and
(c)	engage with and give proper consideration to his clearly articulated submission.
The Nominal Insurer’s submissions 
135.	The Nominal Insurer submits that the Member correctly noted the dispute before the Commission as “the [employer’s] liability in respect of the notice to reimburse issued pursuant to s145(1) of the 1987 Act on 8 September 2021.” The Nominal Insurer says that there were five “subcomponents” to that issue, the first of which was identified by the Member as:
“the Commission’s jurisdiction to make findings and determinations in respect of whether any incapacity and/or need for treatment suffered by the [appellant] resulted from an injury due to the nature and conditions of employment pursuant to s 4(b) of 1987 Act and what those findings /determinations should be”. 
136.	The Nominal Insurer says that, in accordance with its position before the Member, it neither supports nor contests the appellant’s argument that the Commission has a broad discretion in respect of s 145 so that it was open to the Member determine, in the alternative, that the appellant had suffered a disease injury. The Nominal Insurer submits that the Member addressed and determined the issue in relation to her jurisdiction at [114]–[115] and [153]–[154] of her reasons. The Nominal Insurer asserts that the Member’s explanation of the powers of the Commission to make orders and determinations about “some other injury that was not a claim on foot or in dispute before the Commission” was adequate.
The employer’s submissions
137.	The employer submits that the basis for the claim for reimbursement was the compensation paid to the appellant by the Nominal Insurer in respect of an alleged injury on 12 February 2019, which injury was disputed by the employer. The employer contends that, in the alternative, and consistent with the broad powers vested in the Commission pursuant to s 145, it was open for the Member to determine that the appellant had suffered a disease injury with a deemed date of injury in or about March 2020. The employer submits that in those circumstances, the payments properly related to that disease injury and as a consequence, the employer says it would not be liable to reimburse the Nominal Insurer.
138.	The employer asserts that the disease injury with a deemed date in about March 2020 was not a “threshold” issue but was an alternative potential explanation for the incapacity, although it disputed any injury occurred at all. The employer says that the primary issue for determination was that identified by the Member at [13(a)(ii)] of her reasons. That is, whether the appellant sustained an injury pursuant to ss 4(a) and 9A of the 1987 Act on 12 February 2019.
139.	The employer submits that the Member dealt with the primary issue, following which it was not necessary to determine the remaining issues, including whether the appellant had suffered a disease injury deemed to have occurred on another date. The employer asserts that the Member was correct in so determining and provided reasons for not exercising her discretion to determine the disease injury. The employer submits that there was no error on the part of the Member, citing the principles enunciated in House v The King in respect of an appeal court disturbing a primary decision-maker’s discretionary determination. The employer contends that EML should be given the opportunity to properly investigate such a claim if the appellant brings such a claim in the future. The employer points out that a determination of the issue of a disease injury was not necessary for the disposition of the proceedings, as confirmed by the Member at [115] and [155] of her reasons.
140.	The employer reiterates that the Member was not in error by failing to determine the issue of a disease injury.
EML’s submissions
141.	EML contends that the appellant has failed to give regard to the nature of the dispute requiring determination pursuant to s 145, particularly the discretionary power in s 145(4) of the 1987 Act. EML submits that the Member was required to determine whether the employer was liable to reimburse the Nominal Insurer pursuant to s 145(3) of the 1987 Act in respect of the Notice issued by the Nominal Insurer under s 145(1). EML asserts that the Member was correct to exercise her discretion provided for within s 145(4) in the manner that she did. EML describes the Member’s reasons at [115] and [152]–[154] as “simple” and “correct.” It submits that her conclusion reached disposed of the matter requiring determination. 
142.	EML also refers to House v The King and submits that the Member did not act upon a wrong principle, take into account extraneous or irrelevant matters, mistake the facts or fail to take into account a material consideration, and her determination should not be disturbed.
143.	EML adds that there was no “threshold issue” and no need to engage with submissions relevant to an alternative injury. EML refers to Ground D of this appeal and submits that the Member was precluded from making an order that compensation was payable because of the operation of s 147(6) of the 1987 Act. EML explains that any such claim was not caught by Part 4, Division 6 of the 1987 Act. EML contends that by declining to determine the disease injury, the Member avoided a clear error of law.
As to Ground B
The appellant’s submissions 
144.	The appellant points out that extensive competing lay evidence was lodged in the proceedings and that there was an added complexity in that Mr Tiliakos:
(a)	made a number of statements asserting that he did not witness the appellant’s injury;
(b)	did not refer at all to his first statement that he did witness the injury, and 
(c)	only very late in the day asserted that he was pressured into making the first statement. 
145.	The appellant says that the employer submitted to the Member that no weight should be afforded to the totality of the evidence of Mr Tiliakos and that where a conflict existed in respect of the evidence of Mr Terkalas, the contemporary medical evidence ought to prevail. The appellant submits that, conversely, he made extensive submissions as to the inconsistencies in Mr Terkalas’ evidence, which the appellant asserts seriously undermined the value of Mr Terkalas’ evidence. The appellant contends that a most significant discrepancy was the repeated assertion by Mr Terkalas as to the appellant’s earnings, which was inconsistent with the appellant’s documentary evidence. 
146.	The appellant submits that the factual dispute was central to the competing arguments made by the employer and the Nominal Insurer and, by implication, the appellant. The appellant asserts that the Member dealt with the competing evidence in four short paragraphs “without any meaningful analysis or attempt to reconcile the competing evidentiary positions.” The appellant contends that the Member referred to that evidence without providing reasons as to why the evidence was rejected or explaining the extent to which the witnesses were or were not accepted and/or how that evidence was to be used in her final determination.
147.	The appellant adds that these issues infected the Member’s findings in relation to the contemporaneous medical evidence and the Member either disregarded or ignored the appellant’s evidence as to what he reported to the doctors. The appellant contends that the Member’s findings as to credit and the weight to be afforded to the evidence are not immune from challenge on appeal. The appellant submits that the Member had an obligation to provide sufficient reasons to show that she had engaged with the evidence. In addition, the appellant asserts that there are numerous aspects of the evidence of Mr Terkalas that “clearly demonstrate significant issues which represented incontrovertible facts.” 
148.	The appellant further asserts that the Member’s failure to properly engage with the evidence and make findings about that evidence constitutes a wrongful rejection of that evidence. The appellant contends that the fact that there are inconsistencies in the evidence does not alleviate the Member’s obligation to engage with and make a determination about that evidence. The appellant says that the Member was not required to either entirely accept, or entirely reject, the appellant’s evidence and she had an obligation to say why she accepted some facts and not others. The appellant asserts that the Member was required to consider what the evidence did show, putting aside any inconsistencies, which she did not do.
149.	The appellant submits that the Member erred by rejecting the lay evidence without providing adequate reasons for doing so, thus failing to provide procedural fairness. The appellant says that more detailed reasons are required where there is conflicting evidence, and the decision maker must provide an actual path of reasoning showing the steps taken to arrive at the conclusion.
150.	The appellant concludes that it is unclear from the Member’s reasons as to precisely what findings she made, what evidence was rejected, and what evidence was accepted. He describes the Member’s approach to the lay evidence as “cursory” and asserts that the Member accordingly erred in law.
The employer’s submissions
151.	The employer submits that the appellant’s allegation that the Member’s reasons were limited to four short paragraphs fails to take into account the Member’s detailed discussion of the evidence from [16] to [108] of her reasons. The employer says that the Member clearly pointed out the inconsistencies in the evidence, which was sufficient to support her conclusion that it was preferrable to have regard to the contemporaneous clinical records in evidence. 
152.	The employer points out that it was fundamental to the appellant’s claim that his injury was witnessed by another employee. The employer submits that the difficulty the Member had in relation to the evidence of Mr Tiliakos was that he had contradicted his own earlier statement, which he said had been made under duress, and Mr Terkalas also denied the alleged injury occurred. The employer indicates that the Member noted at [95] of her reasons that Mr Tiliakos confirmed in his final statement that he did not witness the injury. The employer submits that the Member’s discussion of the evidence discloses the factual dispute in the matter and the reasons why the witnesses were not considered reliable. 
153.	The employer submits that, in her summation of the evidence the Member discussed the inconsistencies and the disputes raised in the witness statements and the difficulties those matters presented. It says that those matters formed part of her reasoning process and led to her conclusion that she found that evidence unreliable.
154.	The employer submits that the Member clearly noted the conflict in the evidence between the appellant’s allegation of injury and the different history recorded by Dr Vinh, such as the description of the appellant’s back condition as “chronic.” The employer observes that such a description was not consistent with a frank incident causing injury two days earlier. The employer indicates that the history recorded by Dr Vinh in December 2019 was also inconsistent with the allegations made by the appellant in his own statement. The employer asserts that the Member considered that the delay in reporting the injury was relevant in terms of the reliability of the appellant’s evidence, but it was also relevant that the history reported to the doctors by the appellant was inconsistent. The employer says that it is clear that the Member considered the lack of reporting of the injury as not of itself determinative but was one of the factors the Member considered relevant.
155.	The employer submits that upon reading the Member’s reasons as a whole, her finding that the witness evidence was unreliable is supported by the other evidence discussed and discloses no error. The employer refers to Beale v Government Insurance Office of NSW and Minister for Immigration and Ethnic Affairs v Liang as authority to say that the reasons should be read as a whole, and it is not up to a Presidential member to comb through the reasons in search of error. 
156.	The employer submits that the parties made extensive submissions as to the inconsistency of the lay evidence and says that the Member is not required to refer to every piece of evidence. The employer contends that on a fair reading of the decision as a whole, the Member provided sufficient reasons for her conclusion that the witness evidence should be treated with caution and proceeded to review in detail the contemporaneous records and other medical evidence, which informed her reasoning process and support her conclusion. 
The responses from the Nominal Insurer and EML
157.	The Nominal Insurer indicates that it neither consents to, nor opposes this ground of appeal. EML advises that it does not wish to make submissions about this ground of appeal.
As to Ground C
The appellant’s submissions 
158.	The appellant submits that it is accepted that it is an error for a decision maker to treat the absence of contemporaneous evidence as determinative of the question of causation. The appellant maintains that the Member was required to undertake an evaluation of the evidence as a whole and make her findings on the basis of that evidence. The appellant asserts that the Member’s assessment of the lay evidence constituted “a bare rejection” of that evidence, following which the Member proceeded to assess the clinical notes of Dr Vinh, which the appellant says were of limited value. 
159.	The appellant refers to the principle that caution should be exercised when relying on extracts from clinical records in resolving inconsistencies in the evidence, noting the reasons put forward by Basten JA in Mason v Demasi.
160.	The appellant reiterates that the Member was required to consider whether she accepted some facts over other facts and, after “putting aside” the inconsistencies in the evidence, reach a conclusion about what the evidence did show. The appellant asserts that the evidence shows that the appellant reported the fall on the day of the injury and informed Dr Vinh, and the Member accepted at [50] of her reasons that the injury was reported in February 2019, yet the Member determined the matter on the basis of the limited clinical material that was “devoid of content.” 
161.	The appellant submits that it is an accepted principle that it is open to a tribunal of fact to accept the evidence of a witness in the absence of corroborative evidence. The appellant refers to Woolworths Ltd v Warfe as authority to say that the Member was required to assess the evidence of a witness, as well as the other evidence, in order to determine the witness’s reliability. The appellant contends that he made extensive submissions as to the evidence produced by Dr Vinh, particularly that in the nine years prior to the consultation on 14 February 2019 there was an absence of any complaint of lower back pain and that the clinical notes disclosed that Dr Vinh recorded little detail of the appellant’s complaints. The appellant says he also submitted that Dr Vinh subsequently recorded that the lumbar condition resulted from the fall, without any indication that this was inconsistent with what he had earlier been told. The appellant provides a long list of authorities identifying reasons why there was a difficulty in determining causation on the basis of the clinical material.
The employer’s submissions
162.	The employer disputes the assertion by the appellant that the Member determined causation on the basis of lack of contemporaneous complaint or on the basis that the contemporaneous treating evidence was determinative. The employer maintains that the Member provided a detailed summary of all the evidence, including the contemporaneous medical evidence and she thoroughly discussed that evidence. 
163.	The employer submits that the Member was well aware of the caution required in interpreting the clinical records, which she noted at [137] of her decision. The employer contends that it is clear from the Member’s reasons that she did not determine the matter solely on the basis of an absence of history of the fall. The employer submits that, at [139] of her reasons, the Member took into account the substantial delay in reporting the incident and that the appellant initially provided a history of a different mechanism of injury and a different date of occurrence. The employer further submits that the Member took into account:
(a)	the evidence of Dr Kuru that the appellant’s condition was degenerative and not attributable to a fall, and 
(b)	that Dr Kuru’s identification of the pathology was supported by other medical experts, despite the fact that those experts expressed their views on causation on the basis of an acceptance of the injury having occurred. 
164.	The employer concludes that the Member clearly approached the analysis of the clinical records with great care and reached her decision on the basis of the whole of the evidence, with no particular piece of evidence being determinative.
The responses from the Nominal Insurer and EML
165.	The Nominal Insurer indicates that it neither consents to, nor opposes this ground of appeal. EML advises that it does not wish to make submissions about this ground of appeal.
As to Ground D
The appellant’s submissions
166.	The appellant asserts that the Member’s failure to determine the argument about the power of the Commission vested in it pursuant to s 145 of the 1987 Act (described by the appellant as a “threshold” issue) infected her determination that it was unnecessary and inappropriate to determine other possible explanations for the appellant’s incapacity. The appellant asserts that the Member did not provide any reasons as to why that was so, “by reference to”:
(a)	the proceedings involving s 145 of the 1987 Act;
(b)	the claim made by the appellant, and/or
(c)	the appellant’s “alternative claim.” 
167.	The appellant contends that the Member’s error was compounded by her observation that an injury resulting from the ‘nature and conditions’ of the appellant’s employment had not been made or disputed, as was required by the legislation. The appellant submits that the Nominal Insurer’s position was that the power conferred by s 145 was sufficient to enable a re-examination of the cause of the incapacity.
168.	The appellant says that he made a claim against his employer for an injury which was accepted by the Nominal Insurer. The appellant contends that there was no pathway for him to make a further claim, because he had already made a claim that was accepted. The appellant asserts that he was merely an interested party to the proceedings, and when an issue arose in the proceedings in respect of a ‘nature and conditions claim,’ he claimed a disease injury “in accordance with the submissions of the Second Defendant” (presumably a reference to his own submissions).
169.	The appellant asserts that EML was well aware of the allegation of a disease injury claim and it was on this basis that EML was joined to the proceedings, given the opportunity to lodge a reply, to obtain evidence and to apply for an adjournment if necessary. The appellant submits that it is difficult to reconcile those matters with the Member’s conclusion that EML had not been provided with the opportunity to investigate and respond to that claim. The appellant asserts that EML simply chose not to respond to the claim. 
170.	The appellant maintains that the Member fell into error when she failed to determine the issue of whether a ‘nature and conditions’ injury was sustained and failed to provide sufficient reasons for the parties to understand how the determination was made.
The Nominal Insurer’s submissions
171.	The Nominal Insurer submits that the main issue for determination was whether the employer was liable to reimburse the Nominal Insurer pursuant to s 145(1) of the 1987 Act in respect of the payments made to the appellant, which primarily required a determination of whether the appellant suffered an injury on 12 February 2019. The Nominal Insurer says that if that question was determined in favour of the appellant, then the Member was required to determine the weekly payment entitlements and treatment expenses payable to the appellant in accordance with the workers compensation scheme. The Nominal Insurer adds that there was a further dispute as to whether the appellant was prevented from being compensated because of the statutory bar imposed by ss 254 and 261 of the 1998 Act where there was a late claim made.
172.	The Nominal Insurer maintains that it neither supports nor contests whether the Member had the power to determine the issue of whether the appellant suffered a disease injury but submits that once the Member had determined that there was no injury on 12 February 2019, there was no issue remaining between the Nominal Insurer and the employer.
The employer’s submissions
173.	The employer relies upon its submissions made in respect of Ground A of the appeal. The employer reiterates that the primary issue for determination was whether the appellant suffered an injury on 12 February 2019 and the claim for reimbursement was based upon an acceptance of that injury. The employer submits that it disputed that the injury occurred and disputed that it was liable to reimburse the Nominal Insurer.
174.	The employer submits that by determining that the injury did not occur as alleged, the Member dealt with that issue, and so there was no requirement for the Member to determine the alternative arguments raised by the employer or the alternative proposition put by the appellant. The employer points out that EML objected to the Member proceeding to determine the issue in relation to an alleged disease injury in the absence of a formal claim being made and the Member took into account EML’s objection in her reasons. 
175.	The employer submits that the Member’s finding disposed of the proceedings so that there was no requirement to make findings in relation to the remaining issues raised.
EML’s submissions
176.	EML adopts its submissions already made in respect of Ground A of the appeal.
177.	In addition, EML submits that the appellant’s claim for weekly benefits and treatment expenses was made in accordance with ss 140 and 141 of the 1987 Act because it was a claim against the employer who was uninsured as at 12 February 2019. EML says that the payments were made in respect of that alleged injury and this was the basis upon which the Nominal Insurer sought reimbursement. 
178.	EML submits that no such claim was made in accordance with s 260 of the 1998 Act in respect of the ‘nature and conditions’ of the appellant’s employment. EML refers to the appellant’s submission that a claim had been made in the proceedings. EML says that s 260 is clear in respect of how a claim may be made. EML asserts that a claim cannot be made by simply making submissions to the Commission in proceedings which were already on foot. EML describes such a notion as a “bridge too far.”
179.	EML maintains that there is no evidence of a ‘nature and conditions’ claim being made and asserts that leave was not sought to raise a new issue in the proceedings in accordance with s 289A of the 1998 Act. EML points to the Member’s observation that there had been no such claim made in accordance with the 1987 and 1998 Acts that required EML to assess and either accept or decline the claim.
180.	EML further refers to the appellant’s submission made on appeal that a stay of these proceedings be put in place to allow the appellant to make such a claim which the appellant asserts should have been determined by the Member. EML asserts that the appellant’s request is a clear admission on the part of the appellant that the Commission did not have jurisdiction to determine the allegation of a disease injury.
181.	EML contends that, in any event, the appellant’s submissions fail to take into account a “fundamental impediment” to the determination of liability in respect of that claim. EML explains that the application before the Member was made pursuant to s 145 of the 1987 Act, under Div 6 of Pt 4 of the 1987 Act, and s 145(4) applies. EML submits that a determination of liability in respect of a different injury is expressly excluded by s 147(6), which provides that:
“Any award of compensation or work injury damages made pursuant to an application authorised by this section has effect only for the purposes of this Division and not otherwise.” 
182.	EML asserts that, given these proceedings were commenced by the employer seeking a determination in respect of its liability to the Nominal Insurer, any orders made by the Commission would only be applicable to those proceedings and the claim made by the appellant under Div 6 of Pt 4 of the 1987 Act.
183.	 EML contends that the Member was correct in declining to determine liability for the alleged ‘nature and condition’ claim, as the Member’s determination could only be in respect of the injury on 19 February 2019 and not in respect of an injury that did not fall within Div 6 of pt 4. EML observes that if the Member had determined the alternate injury, she would have fallen into error.
THE RELIEF SOUGHT
184.	The appellant seeks to have the Member’s Certificate of Determination revoked and the matter remitted to another member for re-determination. 
185.	The employer and the Nominal Insurer submit that the Member’s Certificate of Determination should be confirmed. EML submits that the appeal should be dismissed.
CONSIDERATION
Ground A: failing to determine the threshold dispute as to the power of the Commission pursuant to section 145 of the 1987 Act, and 
Ground D: failing to determine the issue of whether the appellant’s injury arose as a result of the ‘nature and conditions’
186.	It is convenient to deal with these two grounds of appeal together. 
187.	The first ground is a complaint that the Member did not determine whether, by virtue of s 145 of the 1987 Act, the Commission had the jurisdictional power to consider the appellant’s alternate allegation of injury as a consequence of the ‘nature and conditions’ of his employment. In the context of this case, the answer to that question must be that the Commission did not have that power.
188.	The appellant asserts that he raised the claim for the “alternate” injury, and EML were joined to the proceedings because of that claim, so were well aware of the allegation. 
189.	The Commission’s jurisdiction is vested in s 105 of the 1998 Act. Thus, the Commission does not possess an inherent jurisdiction, but only those powers which are incidental and necessary to the exercise of its statutory jurisdiction. Section 105 provides that the Commission has exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts, but the jurisdiction is subject to the provisions of the 1998 Act. That is, the “exclusive jurisdiction” is qualified by express prohibitions and restrictions within the Act.
190.	Section 65 of the 1998 Act provides that a claim must be made in writing and s 260 of the 1998 Act (reproduced at [128] above) requires that a claim must be made in accordance with the Workers Compensation Guidelines. 
191.	The Workers Compensation Guidelines, Part 3, prescribe what is required in order to make a claim. Part 3.1 provides for the minimum requirements for making a claim as follows:
“As a minimum, a claim for compensation must provide the insurer with the following information:
•	name and contact details of the worker
•	name and contact details of the employer (individual or organisation)
•	name and contact details of the worker’s medical practitioner
•	if applicable, the name and contact details of any witnesses or witness statements, including details to identify any witnesses known to the worker if the incident was witnessed
•	description of the injury and how it happened
•	information to support the medical expenses and other losses the worker is claiming.”
192.	Division 3 of Part 4 of the 1998 Act deals with determinations of disputes by the Commission. Section 289 of the 1998 Act provides that a dispute about a weekly payments claim or a claim for medical treatment cannot be referred to the Commission unless the person on whom the claim is made disputes the claim or fails to determine it.
193.	There is no evidence of the appellant having provided the necessary information to EML at the time of the Member’s decision, particularly in relation to the provision of a description of the injury and how it happened. There is no statement from the appellant or any other person who may have witnessed the nature of the work the appellant performed that might constitute work of a heavy nature. In rejecting the invitation by the appellant for the Member to determine the “alternate” claim of injury, the Member correctly reasoned:
“An injury due to the nature and conditions of employment with the [employer] has not been claimed or disputed in accordance with the legislation. [EML], despite participating in these proceedings as an interested party, has not had the opportunity to investigate or fully respond to such a claim.”
194.	In the absence of a claim made in accordance with the legislative requirements, there was no “dispute” capable of being referred to the Commission for determination by the Member. EML rightfully complained that they had not had the opportunity to assess the allegation, which also would have raised an issue of procedural fairness had the Member proceeded to determine the allegation. 
195.	The appellant submits that the Nominal Insurer’s position was that the power conferred by s 145 was sufficient to enable a re-examination of the cause of the incapacity. That is not an accurate assertion. The Nominal Insurer indicated that in the proceedings below and on appeal, it neither supported nor contested whether the Member had the requisite power to determine the ‘nature and conditions’ claim. In any event, jurisdiction cannot be conferred by the consent of the parties. 
196.	Secondly, the broad power conferred on the Commission in s 145(4) of the 1987 Act to make such awards and orders as it sees fit is limited to the application made. I do not accept that the provision enables the Commission to determine another unrelated claim and make orders in respect of that unrelated claim, which claim had not yet been made. 
197.	The appellant describes the issue about whether the Commission had jurisdiction to determine his alternate ‘nature and conditions’ injury as a “primary” issue and complains that the Member did not determine that alternate allegation, thus falling into error. The appellant relies on the Court of Appeal authority of Raniere Holdings.
198.	The appellant is not assisted by that decision. Raniere Holdings involved an application by an injured worker (the applicant) for determination of liability in respect of her work-related injury, where the employer was uninsured. The employer and the Workcover Authority (the predecessor to the Nominal Insurer) were nominated as respondents to the application. The applicant and the Workcover Authority reached an agreement to resolve the claim for a lump sum and the terms of settlement were reduced to writing. The uninsured employer refused to sign the terms of settlement, maintaining that it disputed liability in respect of the applicant’s alleged injury. The terms of settlement included an order that the employer reimburse the Workcover Authority in respect of the funds paid to the applicant. The primary judge concluded that he would exercise his discretion conferred upon him by s 145(4) of the 1987 Act in favour of the Workcover Authority and ordered that the employer reimburse the Workcover Authority for the compensation paid. 
199.	On appeal, Tobias JA (with whom Hodgson and Stein JJA agreed) considered the power of the Compensation Court to:
(a)	hear and determine an application by an injured worker as to the liability for compensation (the former s 144(3) of the 1987 Act);
(b)	make any orders in respect of the application that it considers appropriate (the former s 144(3) of the 1987 Act), and
(c)	make orders under s 145 providing for reimbursement of compensation paid by the Workcover Authority (the former s 144(5) of the 1987 Act).
200.	His Honour concluded that, absent an agreement as to liability between the employer and the Workcover Authority, the Court was required to hear and determine whether the employer was liable to pay the compensation. 
201.	The application before the Court in Raniere Holdings was not brought pursuant to a notice to reimburse under s 145 and was in relation to a claim for compensation which had been disputed. Raniere Holdings is readily distinguishable from this case.
202.	In the present matter, while the Commission has a broad discretion to make such orders as it considers appropriate, those orders are limited to the application before it. The subject matter of the application was a claim for reimbursement from the employer to the Nominal Insurer in respect of compensation paid for an injury alleged to have occurred on 12 February 2019. It was this injury that was the subject of the dispute as to liability raised by the employer and it was incumbent upon the Member to determine that liability. The power to make orders under s 145(3) is a discretionary power. The Member was clearly not required to determine whether the appellant suffered a different injury. As observed by Heydon JA (with Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd, in order to disturb the Member’s refusal to determine whether the appellant suffered an alternate injury, the appellant is required to establish that the Member:
“(a)	made an error of legal principle,
(b)	made a material error of fact,
(c)	took into account some irrelevant matter,
(d)	failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)	arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
203.	For the reasons set out above, and applying the principles in Micallef, the Member:
(a)	made no error of fact or of legal principle;
(b)	did not take into account an irrelevant matter or fail to take into account a relevant matter, and 
(c)	did not arrive at a decision that was not unreasonable or unjust. 
204.	The Member did not err by declining to determine whether the Commission had the power to make orders or awards in respect of a different assertion of injury and did not err by failing to determine that “alternate” injury. It follows that both Ground A and Ground D of this appeal fail. 
Ground B: failing to provide adequate reasons addressing the rejection of the lay evidence in the claim
205.	The minimum standard that a decision of a member of the Commission must reach in providing adequate reasons is defined by the duty imposed in the Commission’s statutory framework. Section 294(2) of the 1998 Act provides that a Member is to provide a brief statement setting out the Commission’s reasons for the determination. Rule 78(2) of the Personal Injury Commission Rules 2021 requires the Member’s reasons to set out:
(a)	his or her findings on material questions of fact, referring to the evidence or other material on which those findings were based;
(b)	the Member’s understanding of the applicable law, and
(c)	the reasoning processes that led to the Member’s conclusions. 
206.	Further, in accordance with r 78(3), the Member’s reasons must be sufficient to make the parties aware of the Member’s view of their case. 
207.	The obligations of a primary decision maker to provide reasons are also spelt out in various authorities. The above statutory obligations are consistent with those authorities. The principles were summarised by McColl JA (with Ipp JA and Bryson AJA agreeing) in Pollard v RRR Corporation Pty Ltd. McColl JA also observed (citations omitted):
“The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them. However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’.”
208.	Where there are credit issues to be dealt with (as is clearly apparent in this case), it is necessary to explain why one party’s evidence is to be accepted over the other. Put simply, the reasons provided must establish the steps taken in arriving at the primary decision maker’s ultimate conclusion.
209.	The appellant asserts that the Member failed to properly analyse and reconcile the competing evidence between Mr Terkalas and the appellant and only briefly “dealt with” that evidence. The appellant further asserts that the Member failed to provide an explanation for either accepting or rejecting that evidence. 
210.	The employer points to the Member’s reasons at [16] to [108] of the decision and asserts that the Member’s discussion and explanations were sufficient. 
211.	The Member provided a detailed summary of the contents of the injury claim form, the evidence from Mr Tiliakos and Mr Terkalas, the entries in the clinical notes recorded by Dr Vinh, and the histories and opinions provided by Dr Bentivoglio, Dr Kuru and Dr Darwish. The summary of that evidence was meticulously accurate and the inconsistencies between the evidence of Mr Terkalas and the appellant were plainly and significantly evident, as was the inconsistency between the appellant’s version of events and the entries in the clinical records.
212.	The Member was unable to resolve the issue of the conflict in the statements made by Mr Tiliakos. The appellant appears to assert that, because the appellant’s solicitor, Mr Elmiski, provided a statement that Mr Tiliakos freely offered the information contained in his first statement dated 2 March 2020, the evidence contained in that first statement should be accepted as the correct version of events. Putting aside the question of whether it was appropriate for Mr Elmiski to enter into the arena of providing evidence other than evidence of purely procedural matters, the evidence from him far from resolved the internal conflict in Mr Tiliakos’ evidence. The Member was correct to consider that evidence unhelpful and to put it aside.
213.	The appellant says that he made lengthy submissions as to why the evidence of Mr Terkalas should not be accepted. The Member found that evidence to be unreliable so it is difficult to see how the fact those submissions were made is relevant to the appeal. 
214.	The appellant complains that the Member had an obligation to engage with and make a determination about the lay evidence. At [119] and following, the Member gave consideration to the question of whether the appellant suffered the alleged injury on 12 February 2019. The Member referred to the relevant legislation, namely s 4 (definition of injury) and s 9A (substantial contributing factor) of the 1987 Act. She identified the undeniable factual dispute in the lay evidence and observed:
“There is a clear factual dispute in the witness evidence in this case as to what, if anything, occurred on 12 February 2019. Mr Terkalas has given statement evidence denying any knowledge of an injury sustained by the [appellant] on that date, or in the manner described by him.
Mr Terkalas’ evidence is to a large degree, supported by the witness evidence of Mr Tiliakos as set out in statements made by him on 8 April 2020, 28 April 2020 and 16 November 2021. Mr Tiliakos has, however, given contrary evidence in a written statement made on 2 March 2020. Although Mr Tiliakos has subsequently resiled from the evidence set out in his statement dated 2 March 2020, the [appellant’s] solicitor who took the statement has provided evidence suggesting that the evidence set out in Mr Tiliakos’ first statement was voluntarily and freely given by him.
The [appellant] and Mr Terkalas have cast aspersions on each other’s credibility. Allegations of document fraud have been made by each, particularly in relation to the issue of the quantum of the wages paid to the [appellant]. Their evidence differs on a multitude of issues.
None of the witnesses has been cross-examined. Whilst it is not necessary for cross-examination to occur before a finding on credibility can be made, I have approached the witness evidence with great caution and to a large extent find it unreliable on both sides.
The contemporaneous medical evidence provides a more useful guide as to what may or may not have occurred.”
215.	The Member gave clear reasons as to why she considered that the lay evidence was unreliable. In doing so, the Member also referred to those parts of the evidence that pointed to the common facts in favour of the appellant having suffered the injury alleged. The Member explained why she did not accept the ex post facto evidence of Dr Vinh that the symptoms were attributable to an injury on 12 February 2019. She identified further conflict in the lay evidence as to whether the appellant continued to perform his full duties for the year that followed the alleged injury, or whether he was performing selected duties. The Member recorded surprise at the level of detail recalled by the appellant in his statement, which was a recollection made more than three years after the event.
216.	After referring to relevant authorities about the weight to be afforded to inconsistent evidence, the Member turned to the contemporaneous medical evidence for assistance in resolving those inconsistencies. She determined that the medical records were more reliable than the recollections recorded some 12 months after the alleged event. Such a conclusion was open to her. 
217.	It is abundantly clear that the Member appropriately engaged with the evidence and reached conclusions that were open to her after weighing the inconsistencies in the lay evidence. The Member did not take a “cursory” approach to the lay evidence or any other evidence and her analysis of the evidence extended well beyond the four paragraphs of her reasons, contrary to the assertion made by the appellant.
218.	The Member patently discharged her obligation to give adequate reasons. It follows that Ground B of the appeal fails.
Ground C: determining the issue of injury on the basis of a purported lack of contemporaneous treating evidence and/or approaching contemporaneous treating evidence as determinative of the question of causation
219.	The appellant asserts that the Member determined the question of causation on the basis of the contemporaneous medical evidence alone. The assertion is rejected. The Member’s extensive reasons, summarised and discussed by me above, disclose that she took into account all of the evidence and determined the matter in favour of the employer on the basis of numerous aspects of the case. She noted the facts that formed the basis of her conclusion such as the delay in lodging a claim, the inconsistent description of the mechanism of injury, for example that the injury may have resulted from heavy lifting, the inconsistent histories of the date of injury and the chronicity of complaints. As the employer points out, the Member also took into account the opinion and diagnosis provided by Dr Kuru and the diagnoses given by Dr Bentivoglio and Dr Darwish.
220.	The appellant refers to the submissions made by him to the Member, in particular that Dr Vinh’s notes disclosed that there was no reference to back pain recorded in the nine years prior to the alleged injury. Dr Vinh’s notes were sparse in detail and Dr Vinh subsequently attributed the appellant’s symptoms to the fall. The Member took those facts into account at [126], [137] and [147], and provided explanations as to why those submissions were not persuasive.
221.	The Member was also cognisant of the need to treat clinical notes of a busy practitioner with caution. She described the contemporaneous material as “a more useful guide” and gave reasons as to why she considered that evidence more useful and of some weight. 
222.	The appellant submits that the evidence discloses that he reported his fall on the day of the injury and informed Dr Vinh. The appellant’s evidence was to that effect, but having reported the injury on the day was not ever recorded by Dr Vinh, and thus not proved. While the appellant said he informed Dr Vinh, there was no record noted by Dr Vinh of a fall until months after the alleged injury and in the meantime, the symptoms were attributed to other causes. Further, the appellant’s evidence was unreliable. 
223.	The appellant asserts that the Member accepted that the injury was reported in February 2019. That was not the case. The Member merely accepted that the appellant “reported and in fact experienced lumbar pain and radiculopathy from February 2019 onwards.”
224.	The appellant further submits that it is open to a tribunal to accept the evidence of a witness in the absence of corroboration. That is undoubtedly true. However, given the inconsistencies in the appellant’s evidence noted by the Member, it was open to the Member to find his evidence unreliable and look to other evidence to assist her in her determination of whether the appellant was injured as alleged. 
225.	The summary and discussion of the Member’s reasons above discloses that she determined the matter on the basis of the whole of the evidence before her and provided sufficient reasons for accepting or rejecting that evidence. 
226.	The appellant makes no persuasive submissions to support this ground of appeal and the ground fails.
CONCLUSION
227.	The appellant has failed to establish error of fact, law or discretion on the part of the Member as required by s 352(5) of the 1998 Act and the appeal fails. The Member’s Certificate of Determination dated 30 June 2022 is confirmed. 
DECISION
228.	The threshold to appeal the decision of the Member pursuant to s 352(3) of the 1998 Act is satisfied.
229.	The Member’s Certificate of Determination dated 30 June 2022 is confirmed.

Elizabeth Wood
Deputy President
28 August 2023