Industrial Relations Commission New South Wales Medium Neutral Citation: Richard Plunkett and Silverbrook Research Pty Limited [2012] NSWIRComm 22 Hearing dates: 23 November and 6 December 2011 Decision date: 23 March 2012 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice President; Harrison DP; Tabbaa C Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Connor C is set aside. 4. The matter is referred to a Member of the Commission for retrial. Catchwords: APPEAL - leave to appeal - application for reinstatement of injured worker - Part 8 of Workers Compensation Act 1987 - appellant suffered physical workplace injury to forearms - issue as to whether appellant also suffered a psychological injury - whether appellant 'injured worker' under s 240(2) of the Workers Compensation Act 1987 re psychological injury - appellant dismissed by respondent for behavioural issues - question as to whether behavioural issues manifestation of psychological injury - question relevant to whether rebuttal provision of s 244(2) satisfied - issue as to whether appellant suffered compensable psychological injury critical to resolution of proceedings arising under that section - issue not resolved at first instance - appealable error - absence of reasons alternative ground of appealable error - questions of law raised by respondent for first time on appeal not determinative of issues raised re psychological injury - leave to appeal granted - appeal upheld - factors in favour of retrial - retrial ordered Legislation Cited: Industrial Relations Act 1996 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Commissioner of Police v Smith [2010] NSWIRComm 162 House v The King (1936) 55 CLR 499; 9 ABC 117; 10 ALJ 22 Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Richard Plunkett v Silverbrook Research Pty Limited [2011] NSWIRComm 1031 Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 Category: Principal judgment Parties: Richard Plunkett (appellant) Silverbrook Research Pty Limited (respondent) Representation: M J Kimber (SC) and K Edwards of counsel (appellant) K L Eastman of counsel (respondent) Slater & Gordon Lawyers (appellant) Truman Hoyle Solicitors (respondent) File Number(s): IRC 1326 of 2011 Decision under appeal Citation: Richard Plunkett v Silverbrook Research Pty Limited [2011] NSWIRComm 1031 Date of Decision: 2011-07-14 00:00:00 Before: Connor C File Number(s): IRC 915 of 2010 DECISION 1In this matter, Richard Plunkett ("the appellant") seeks leave to appeal and, if granted, appeal against the decision of Connor C in Richard Plunkett v Silverbrook Research Pty Limited [2011] NSWIRComm 1031 dismissing his application for reinstatement to the position of senior software engineer with Silverbrook Research Pty Limited ("Silverbrook" or "the respondent") lodged pursuant to s 242 of the Workers Compensation Act 1987 ("the Act"). 2The appellant had worked at Silverbrook since 2001, having commenced employment there on a labour hire contract and, in 2002 and thereafter, having subsequently attained full time employment as a senior software engineer. His employment was terminated with effect from 26 August 2008. 3The appellant was diagnosed around 2005 with bilateral epicondylitis (known commonly as "RSI" or "tennis elbow"), a condition he developed during his time working for the respondent as a result of his typing duties. Between 2005 and 2007, the appellant continued to work for the respondent performing limited duties subject to an injury management plan. During 2006 and 2007, the appellant underwent surgery on each of his forearms. The appellant claimed and received workers compensation benefits in respect of the injury to his forearms. It was the appellant's contention that he suffered a concurrent psychological injury, which developed both as a consequence of coping with his physical injury and from difficulties he had experienced with his work colleagues and supervisors. 4In light of concerns as to the appellant's emotional state and his behaviour at work, the respondent directed the appellant to undergo a psychiatric assessment - a direction with which the appellant refused to comply. In August 2007, following his refusal, the appellant was suspended from work on full pay and, in May 2008, Silverbrook lodged a notification of an industrial dispute before the Commission against the appellant under s 130 of the Industrial Relations Act 1996 ("IR Act"). The matter proceeded before Cambridge C and was resolved by agreement. The appellant then underwent a psychiatric assessment, following which he was ultimately dismissed by the respondent in August 2008. 5In July 2010, having obtained medical certification stating that he was fit to return to his pre-injury duties, the appellant applied to the respondent for reinstatement to his former position in accordance with s 241 of the Act. In August 2010, the respondent refused to reinstate the appellant on the ground that it did not have a position available for him. 6Following Silverbrook's refusal to reinstate, the appellant commenced proceedings before the Commission on 25 August 2010 under s 242 of the Act, which culminated in the impugned decision published by Connor C. 7We should note, at the outset, the relevance of the decision of the Court of Appeal in Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 to these proceedings. As it happened, that judgment, delivered on 29 July 2011, post-dated Connor C's decision in the present matter which was given on 14 July 2011. While we acknowledge that the judgment was not available for consideration by the Commissioner at first instance, it is nonetheless a decision which the Commission is now required to consider. The relevance of the Court of Appeal's decision in Speirs is as to the jurisdiction of the Commission in determining whether a worker, who has applied for a reinstatement order, fits within the definition of 'injured worker' set out in s 240(2) of the Act. That provision is in the following terms: 240Definitions (cf IR Act, s 91) (1)... (2)For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942. (3)... 8Relevantly, the Court of Appeal determined (at [95]) that "the Commission had jurisdiction to determine for itself whether the applicant was entitled to receive compensation for his injuries" in the context of an application made under s 242 of the Act. The Court held that the 'entitlement' of a worker to compensation arises by virtue of their having received an injury satisfying ss 4 and 9A of the Act, and subsists, even in the absence of a determination by the Workers Compensation Commission or the District Court, or a decision of the Workers Compensation (Dust Diseases) Board. The Court's decision in Speirs will be a factor in our determination of this matter. 9The legislative provisions upon which this case turns are found in Pt 8 of the Act. It is headed "Protection of injured workers from dismissal". Section 240(2), as noted, contains the critical definition of 'injured worker'. Section 241 provides that an 'injured worker' may apply for reinstatement from their employer if they have been dismissed as a result of their workplace injury. Section 241 is in the following terms: 241Application to employer for reinstatement of dismissed injured worker (cf IR Act, s 92) (1)If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application. (2)The kind of employment for which the worker applies for reinstatement cannot be more advantageous to the worker than that in which the worker was engaged when he or she first became unfit for employment because of the injury. (3)The worker must produce to the employer a certificate given by a medical practitioner to the effect that the worker is fit for employment of the kind for which the worker applies for reinstatement. 10If the employer rejects the injured worker's application for reinstatement, s 242 provides that the worker may apply to the Commission for a reinstatement order: 242Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (cf IR Act, s 93) (1)If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2)An industrial organisation of employees may make the application on behalf of the worker. (3)The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 11Section 243 sets out the scope of the reinstatement order the Commission is empowered to make: 243Order by Industrial Relations Commission for reinstatement (cf IR Act, s 94) (1)The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2)The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3)If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a)employment of a kind that is available but that is less advantageous to the worker, or (b)employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4)If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 12Section 244 provides that the Commission, in considering whether to make a reinstatement order, will presume, in favour of the injured worker, that the worker was dismissed as a result of their injury, unless the employer can satisfy the Commission that the injury was not a substantial and operative cause of the dismissal of the worker. That section provides: 244Presumption as to reason for dismissal (cf IR Act, s 95) (1)In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2)That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker. 13There were multifarious issues raised in the appeal but, ultimately, we need only resolve one cluster of the issues in order to dispose of the appeal. For completeness, however, the issues raised, in short summary, included: (1)The meaning to be given to the term 'injury' under s 242 of the Act, particularly in light of the Court of Appeal decision in Speirs; (2)The meaning to be given to the presumption under s 244(1) of the Act that, in s 242 proceedings, an injured worker is presumed to have been dismissed because he/she is not fit for employment as a result of the injury, and the effect of the meaning of that section on the evidence required to be lead by the parties in relation to a rebuttal of the presumption under s 244(2); (3)The relevance of proceedings commenced by the appellant, other than the application under s 242 of the Act, to a determination of the issues under the Act; (4)What is meant by the term "a substantial reason" contained in s 244(2) of the Act; (5)Whether factors other than those given at or about the time of the appellant's termination are relevant to the Commission's exercise of its discretion under s 243 of the Act. 14In defining what we say is the essential issue that is determinative of the appeal, it is necessary to first set out the conclusion that was reached by the Commissioner at first instance. 15The ultimate determination made by Connor C was to dismiss the appellant's application for reinstatement vis-a-vis s 242 of the Act. He reached that conclusion on the basis of his satisfaction that, while it was accepted that the appellant suffered a compensable physical injury to his forearms, the requirements of the s 244(2) rebuttal provision had been met, meaning that injury had not been a substantial and operative cause of the appellant's dismissal. 16In coming to that view, the Commissioner reasoned that it was the appellant's behaviour and conduct at work which was the substantial and operative cause of his dismissal. The following passages from the first instance decision reflect this reasoning: 39This hearing turns on the wording of s.241(1), ie whether or not Dr Plunkett's dismissal was "...because he...is not fit for employment as a result of the injury received...". The evidence before me clearly indicates to my satisfaction that Dr Plunkett's dismissal did not actually flow from the injury he received but essentially from his relationship with other Silverbrook staff members and the issues raised in the letter terminating his services. ... 43... I note that Mr Kharti speaks in his letter of Dr Plunkett's "...fitness to return to work..." but it appears to me that the question of Dr Plunkett's fitness to return to work has to do with his behavioural issues and conduct at work and not the workers compensation injury to his forearms. 47... But in any event it seems to me that Silverbrook had genuine concerns on occupational health and safety grounds, both on behalf of Dr Plunkett and the other staff with whom he would come into contact were he to resume work with it and that was the substantial reason for his dismissal (and its refusal for him to return to employment). 17The reference to 'injury' in the extracts above was, in our view, a reference to the appellant's physiological injury. There was, however, a further workplace injury the Commissioner was, in our view, required to consider in this context, namely: an alleged psychological injury. The Commissioner mentioned the psychological injury issue in his decision, but, as we will find, failed to resolve whether the appellant had a compensable workplace injury in that respect, and what relevance any such determination may have had to his conclusion that it was the appellant's behaviour, conduct and attitude at work that was the cause of the respondent's decision to dismiss him. 18Having regard to the issues framed by the parties at first instance, it was necessary, in our view, for the Commissioner, in so determining the application before him, to reach a conclusion as to whether the appellant had sustained a psychological injury (being an injury which fell within the meaning of 'injured worker' under s 240(2) of the Act), and, if so, what bearing such a conclusion may have in determining whether the respondent had rebutted the presumption in s 244(1) by recourse to the provisions of s 244(2) of the Act. (It was also necessary to decide whether the worker, for the purposes of s 240(2) of the Act, was, for the purposes of his psychological complaint, able to bring an action in that respect under s 242 of the Act). 19If the appellant was an injured worker in this respect (and, we think, there was an arguable case that he was), then, in our view, on a review of proceedings at first instance and the submissions on appeal, the psychological injury must have been a matter which the Commissioner was required to consider (if answered affirmatively) in determining whether the respondent had displaced the presumption under s 244(1) (by demonstrating that the injury was not the substantial and operative cause of the dismissal under s 244(2)). That is, the Commissioner was required to determine whether the psychological injury was or was not a substantial and operative cause of the decision to dismiss (in contrast to the behavioural or attitudinal factors that the Commissioner found constituted the requisite cause). He failed to determine whether the appellant was an injured worker having regard to his claimed psychological condition and, therefore, failed to take into account the significance of that factor in his reasoning under s 244(2). 20There is plainly a potential overlap and coincidence in the appellant's behavioural and attitudinal issues (about which his employer complained), and the psychological issues he raised. If the appellant's behavioural issues were, in truth, a manifestation of his psychological injury, this may have had a bearing on the adjudication of the issues under s 244 of the Act (see Commissioner of Police v Smith [2010] NSWIRComm 162). 21Ms Eastman challenged, for the first time on appeal, that a finding could be made as a matter of law in terms of the psychological injury complained of by the appellant (vis-a-vis his status as an injured worker). However, while we consider those as matters about which attention may be given, we do not apprehend, on the present factual substratum before us and the arguments advanced, how they may be fatal to the appellant's claims based upon psychological injury at this juncture. 22It is clear from the foregoing that the resolution of the question as to whether the appellant had sustained a compensable psychological injury and what bearing that had on the resolution of issues under s 244(2) of the Act, were essential issues to be determined at first instance. The failure to resolve them constituted an appealable error of the kind contemplated in House v The King (1936) 55 CLR 499; 9 ABC 117; 10 ALJ 22. If, as the respondent contended, the Commissioner did, contrary to our view, in fact deal with these issues, there was plainly an absence of reasons which would, in any event, attract appealable review. These conclusions should result in leave to appeal being granted for the proper administration of justice, and the appeal being upheld. 23We will return to remedy later, but we shall now elaborate upon those reasons for our decision. Was the Psychological Injury Issue Advanced in Proceedings before Connor C? 24It is our view that the appellant was correct in his assertion that the issue of his psychological injury was raised before the Commissioner at first instance. The appellant submitted that, from the first day of the hearing at first instance, the Commissioner was aware that there was a psychological component to the injury suffered by the appellant forming the basis for his claim under s 242 of the Act. It was a first instance submission of the appellant that "his injuries were both physical and psychiatric/psychological and he received compensation for both." This submission, it was contended, had been supported by both the uncontested evidence given by the appellant reporting incidents where his psychological issues were raised with him by various supervisors at work, along with, more significantly, the medical evidence of Dr Gambrill, the appellant's treating general practitioner. 25The appellant submitted that the medical evidence of Dr Gambrill taken together with his own uncontested evidence provided a sound evidentiary basis upon which the Commissioner could have made a finding in relation to the appellant's psychological injury. 26In argument, the respondent appeared to accept that the Commissioner, at first instance, was aware of the appellant's desire to advance his case on the basis of his psychological injury. Notwithstanding, the respondent maintained its position that there was insufficient evidence advanced by the appellant upon which the Commissioner could have made a finding as to the appellant's psychological injury. We do not agree. 27We are of the view that the issue vis-a-vis psychological injury was sufficiently raised at first instance in submissions (even if it was not raised as clearly as the importance of the issue demanded) and evidence so as to have required the Commissioner to properly resolve it. Did Connor C Identify and Resolve the Question in Any Way? 28From a reading of his decision, it is clear that the Commissioner had identified the psychological injury issue as being one which the appellant had raised for consideration vis-a-vis his application for a reinstatement order under s 242 of the Act. At [3], [39] and [42] of his decision, set out below, the Commissioner appears to have both flagged the psychological injury as an issue, and expressly acknowledged it as being a basis upon which the appellant had sought to advance his case: 3Dr Plunkett suffered a work related injury firstly to his right forearm and subsequently to both his forearms. ... He also apparently had some difficulties which he has claimed caused him stress and affected his mental state flowing partly, he alleged, out of his injury but also difficulties he had experienced with his work colleagues and supervisors. Those difficulties culminated in allegations he made against other staff members (Mr Mike Webb, Mr Simon Walmsley and Mr John Mackay - particularly, it would appear Mr Webb who generally supervised his work). ... 39... There is still the question of the alleged stress Dr Plunkett claimed to have suffered in his working relationship with Mr Webb, Mr Warmsley and Mr Mackay, who remain in employment with Silverbrook and, particularly in the case of Mr Webb, under whose supervision Dr Plunkett will return should be reinstated in employment. The psychiatric evaluation of Dr Plunkett does not conclusively support Dr Plunkett's return to work with Silverbrook, to my mind. ... ... 42Ms Edwards argues in her submissions that the "injury" on which Dr Plunkett relies for his application before me is not only the injuries to his forearms but the emotional issues and psychiatric condition he suffered - partly, she suggested, as a result of the injury to his forearms. ... 29It was the appellant's position that, while the issue was raised and acknowledged by the Commissioner at several points throughout his decision, he failed to definitively rule on what was a central tenet of the appellant's case. 30During argument on appeal, counsel for the respondent contended that the Commissioner had made a clear finding (albeit, she acknowledged, without a lot of reasoning), that the emotional problems of the appellant were not compensable injuries. The strongest paragraphs of the Commissioner's decision to which the respondent pointed in this regard were the following: 46... As Ms Eastman argued in the hearing, it is only the injury to Dr Plunkett's forearms which was referred for workers compensation and not the emotional problems which Dr Plunkett suffered whilst he worked with Silverbrook. The s.242 application is confined to the injury to his forearms alone. 47I am certainly sympathetic to Dr Plunkett as he seeks to overcome the emotional difficulties which he has experienced and which, in my opinion, remain the central issue standing in the way of constructive work for him with Silverbrook. But, notwithstanding Ms Edwards submissions to the contrary, it would appear that those emotional difficulties are not workers compensation issues and not covered by the protection afforded by the WC Act. ... (This last paragraph appeared in the decision as more or less a postscript lamenting the result for the appellant). 31In contrast, the appellant contended that the above passages represented a conscious decision by the Commissioner to identify the issue then put it to one side, rather than a clear finding as the respondent had contended. There, the appellant contended, the Commissioner fell into error, by favouring the respondent's argument that the appellant's physical injury, being the injury for which he had claimed and received compensation, was the only injury before him in relation to the resolution of the appellant's reinstatement claim. 32We accept that the issue was referred to by the Commissioner. However, even when the decision is read as a whole, we do not think that the Commissioner finally passed upon (that, is determined) the question he identified as to whether the appellant had a psychological injury (and then, as a consequence, did not factor that consideration into the question arising under s 244(2)). 33We are satisfied that the appellant's psychological injury was an issue raised before Connor C, and one that was clearly identified and flagged by him as an issue for consideration vis-a-vis the reinstatement application. We accept the appellant's argument that Connor C, at [46] and [47] of his decision, did not deal with the issue (and expressly so). Other Issues 34Before we come to remedy, we must deal with one final issue being an argument that was raised by counsel for the respondent on appeal (which argument, she conceded, was not one advanced before Connor C). In essence, the respondent contends, the appellant could not meet the threshold criteria of s 240(2) of the Act, because of certain other provisions which bar him from being classified as an injured worker vis-a-vis his psychological injury. 35Ms Eastman outlined a number of legislative provisions, both entitling and disentitling, which, she contended, bear, generally, upon the definition of 'injured worker' in s 240(2) of the Act in that they are factors at play in determining whether a certain workplace injury may be one for which a worker is entitled to receive compensation. Fitting within the s 240(2) definition of 'injured worker' is significant, as it the gateway for any worker who seeks to access the protective provisions of Pt 8. Due to the significance of s 240(2), it was argued, the Commission must have regard to other provisions within the Act (and within other Acts) which may operate to entitle or disentitle a worker from being classed as an injured worker under that section. 36Ms Eastman particularised those general submissions with respect to the present matter when she contended that, notwithstanding the debate above, the appellant would be barred from being classified as an injured worker vis-a-vis his psychological injury by the Commission in any event. 37Ms Eastman first referred to s 4 of the Act (which provides a definition of 'injury') and s 9 of the Act (which sets out the general provision that employers will be liable to pay compensation to a worker who has received a workplace injury), which sections, she contended, are "just the starting point" in determining whether an injury is compensable. Those sections are as follows: 4Definition 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: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, 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. 9Liability of employers for injuries received by workers-general (cf former s 7 (1) (a)) (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment. 38Ms Eastman argued that s 9A, which is set out below, is coincident with the requirements of the definition of 'injured worker' found in s 240(2) of the Act, and may operate to disentitle a worker who has suffered a workplace injury from receiving compensation. Section 9A provides, relevantly: 9ANo compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. 39It was Ms Eastman's submission that, if a worker is not entitled to receive compensation for their workplace injury under s 9A(1), then they would be barred from pursuing a order for reinstatement under Pt 8 of the Act (in particular s 242). This is rather a general statement, and it was not grounded in terms of how or whether s 9A would apply to, or bear upon, the present matter. 40In relation to the circumstances of the appellant, Ms Eastman argued that he faced a further hurdle in accessing the protective provisions in Pt 8, because of the way psychological injuries are treated in the Act. In particular, she referred to s 11A of the Act, which is in the following terms, relevantly: 11ANo compensation for psychological injury caused by reasonable actions of employer (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. 41Ms Eastman contended that to meet the requirements of s 11A the appellant would had to have undertaken a psychological consultation and provided evidence of a defined psychiatric or psychological disorder. Since the appellant never pinpointed such a disorder, but rather framed his psychological injury vaguely as 'emotional problems', he had not identified an injury for which he was entitled to receive compensation and thus was blocked by the section from being an 'injured worker' under s 240(2). 42Both matters raised under ss 9A and 11A are replete with factual issues not appropriately raised for resolution in the context of argument on appeal (nor were the contentions and evidence led below). This is a matter for evidence and further adjudication. 43Ms Eastman contended that the appellant would be further blocked by s 65A of the Act, which says that no compensation will be payable in respect of an impairment that results from a secondary psychological injury, because he had categorised his psychological injury as one which had arisen partly as a result of his physical injury. Section 65A(5) defines 'secondary psychological injury' as a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. Section 65A is in the following terms, relevantly: 65ASpecial provisions for psychological and psychiatric injury (1) No compensation is payable under this Division (either as permanent impairment compensation or pain and suffering compensation) in respect of permanent impairment that results from a secondary psychological injury. Note. This does not prevent a secondary psychological injury from being compensated under section 67 as pain and suffering resulting from permanent impairment (but only if that permanent impairment results from a physical injury or a primary psychological injury). (2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury. (3)... (4)... (5) In this section: primary psychological injury means a psychological injury that is not a secondary psychological injury. psychological injury includes psychiatric injury. secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 44It should be noted here that s 65A falls within Pt 3 (entitled 'Compensation benefits'), Div 4 (entitled 'Compensation for non-economic loss') and all references throughout the section to 'compensation payable under this Division' are references to that Division. It is questionable whether this Division is relevant for the purposes of determining the meaning of 'entitled to receive compensation' under s 240(2) and the balance of Pt 8 of the Act. This is not a matter which requires determination, however, in this appeal. Even if it did apply, the resolution of questions under the provision will involve questions of fact which have not been addressed because the issue was not raised below. 45Finally, Ms Eastman referred to sections of the Workplace Injury Management and Workers Compensation Act 1998 ("WIMWC Act"). In doing so she argued that a worker must not simply have received an injury to be entitled to compensation, but must have made a workers compensation claim or, at the least, have notified their employer of their injury. Section 61, she submitted, provides that compensation may not be recoverable unless notice of the injury had been given to the employer as soon as possible after the injury occurred but before the worker voluntarily left the employment in which the worker was at the time of the injury. It was contended, s 65 then sets out how a claim for compensation must be made; the respondent contended this was a step that would have to be taken before a person can be said to be entitled to receive compensation. In this case, she contended, the appellant only ever made a workers compensation claim in respect of the physical injury to his arms. The only reference to any emotional problem was a reference to 'concomitant anxiety depression' on one such claim, and this, it was argued, was not enough to satisfy the requirements of ss 61 and 62. Those provisions are as follows: 61Notice of injury to be given to employer (cf former s 88) (1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury. 62Provisions relating to giving of notice of injury (cf former s 89) (1) A notice of injury must state: (a) the name and address of the person injured, and (b) the cause of the injury (in ordinary language), and (c) the date on which the injury happened. (2) A notice of injury may be given orally or in writing. (3) If there is more than one employer, a notice of injury may be given to any one of those employers. (4) A notice of injury is taken to have been given to an employer: (a) if it is given to any person designated for the purpose by the employer, or (b) if it is given to any person under whose supervision the worker is employed. (5) A written notice of injury may be served by delivering it, or by sending it by post to, the residence or any place of business of the person on whom it is to be served. (6) If the regulations so require (and notwithstanding anything to the contrary in this section), a notice of injury must be given in the manner, and contain the particulars, prescribed by the regulations. 46Counsel for the appellant contended, in reply, that the judgment in Speirs established, to the contrary, that a worker does not need to lodge a 'claim' for workers compensation payments, let alone have any claim accepted, before any 'injured worker' claim for reinstatement crystallises and can be processed before the Commission. It should also be noted that s 61 of the WIMWC Act refers to a worker, who has voluntarily left the employment in which the worker was at the time of the injury, being disentitled to compensation. Clearly, this does not reflect the situation in the present case where the appellant was dismissed from his employment by the respondent. 47Further, Mr Kimber questioned whether the above provisions would have any relevance to, or bearing upon, the protective provisions found in Pt 8 of the Act. Mr Kimber argued that ss 9A, 11A(1) and 65A(1) have no application to an 'injured worker' claim for reinstatement brought before the Commission; the relevance of those sections (and, as well, the sections of the WIMWC Act) being confined to claims for compensation taken to the Workers Compensation Commission or the District Court. The appellant contended that there is a critical difference between a work related 'injury' which may or may not result in a claim for, or payment of, workers compensation and a work related 'injury' causing unfitness for work and resulting in dismissal (as founding a claim for reinstatement). 48Our real difficulty with the line of argument raised by Ms Eastman is that it is replete with elements which require factual resolution or further consideration of fact and law. The factual substratum for these issues was not properly before us, and we fail to see how it is appropriate to resolve these issues on appeal (although plainly the issues will require resolution). This is particularly so given that these were issues which were first raised by Ms Eastman during the course of argument on appeal, and, if raised below, may not only have been met with full argument, but additional evidence called on behalf of the appellant (or the respondent). Disposition of the Appeal 49We consider that the only appropriate course in the disposition of this appeal is a referral to a Member of the Commission for a retrial of the proceedings. In Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120, in the context of an appeal from the decision of Bishop C to admit new evidence in proceedings remitted to her by the Full Bench allowing an earlier appeal, the Full Bench said the following in relation to the distinction between a remission order and an order for retrial (at [12] - [13]): 12In the earlier proceedings before the Commissioner, the respondent had the opportunity of adducing all evidence that it considered relevant to the claim being advanced by the appellant including the reasons for its actions against the appellant. It had also been given the opportunity to make such submissions it considered relevant in relation to the claim. There was nothing in the reasons of the Full Bench decision to suggest that the Full Bench expected that additional evidence would be received. The Full Bench's conclusion was simply that the reverse onus issue had not been addressed by the Commissioner. The granting of leave to adduce that further evidence was not a formality. It was incumbent upon the party now seeking to adduce further evidence to explain how the omission at first instance occurred. 13Although no directions were given by the Full Bench about the admission of further evidence, the remission order was not an order for a retrial. There had already been a full trial before the appeal. In those circumstances, leave is required before a party will be permitted to re-open its case and lead further evidence. In Murphy v Overton Investments Pty Limited (2004) 216 CLR 388 at [75], the High Court (in a joint judgment) observed: The order for remitter is not an order for retrial. Nothing we have said, however, should be understood as indicating any view about whether, on remitter, an application by either side for leave to reopen its case to lead further evidence should be granted. The question has not yet arisen. We do not have the full record of the evidence led at trial that may bear upon the assessment which must occur. We do not know whether, or to what extent, either side may contend that the evidence already led is deficient. We do not know how, or any deficiency of proof or answer at trial may have come about. 50It is the case that, if a remitter of proceedings was ordered, the question as to whether further evidence would be admitted would be left open. Further, we are cognisant of the position of the Full Bench in Lee, that, following an appeal, the Commission Member to whom the proceedings are remitted must act with circumspection vis-a-vis the receipt of evidence. 51Many of the issues raised in this appeal arose as fresh issues. They are matters which must be further addressed, but may, given their nature, require the parties to call further evidence. We do not think it would be just in this matter to remit proceedings, thus leaving open the question as to whether the parties would be granted leave to call further evidence. A retrial (allowing for material in the original hearing to be re-admitted) is, in our view, the only fair means to permit the calling of further evidence, should it be necessary, to occur. Plainly the appeal is not an appropriate vehicle for this purpose. (We note, in this respect, counsel accepted that this course may be necessary). Orders 52We make the following orders: 1.Leave to appeal is granted. 2.The appeal is upheld. 3.The decision of Connor C is set aside. 4.The matter is referred to a Member of the Commission for retrial. ********** Amendments 26 March 2012 - Updating counsel Amended paragraphs: Representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2012