Issue 1: January 2012

Chhong Heng Taing t/as The Arcade Pharmacy v Gauci (No 2) [2011] NSWWCCPD 74

Personal injury; s 4(a) of the 1987 Act; whether worker suffered an aggravation of a disease in subsequent employment; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 367; 1 DDCR 648; refusal to grant adjournment; effect of misdescription of employer’s name on a validly issued MAC; amendment of employer’s name; Pt 18 r 4(4) of the 2011 Rules; application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11

Roche DP

22 December 2011

Facts:

Ms Gauci worked as a pharmacy assistant for Mr Chhong Heng Taing. She alleged she injured her right shoulder on 4 November 2004 while throwing boxes of stock from the ground floor of the appellant’s pharmacy to a co-worker standing on a landing.

Ms Gauci reported the accident to Mr Taing. She sought treatment in January 2005 and was certified fit for selected duties. She made a claim for compensation which was accepted by Guild Insurance. Her general practitioner, Dr Singh, noted in January 2005 that the insurer’s claim number was 110910.

Mr Taing sold the pharmacy at the end of March 2005 to a Ms Ta. Ms Gauci ceased to be employed by the appellant and worked for the new owner. Her hours were reduced and she obtained part-time work as a receptionist for a doctor at Wentworthville.

On 30 January 2007, Ms Gauci underwent surgery on her right shoulder and was unfit for work until 26 March 2007. Guild Insurance paid weekly compensation during this period.  Following surgery, Ms Gauci continued to have pain in her right shoulder, and favoured her right arm. In early 2007, she noticed the gradual onset of pain in her left shoulder.

On 18 August 2008, Ms Gauci claimed lump sum compensation in respect of a seven per cent whole person impairment resulting from the condition of her shoulders as a result of her injury on 4 November 2004. The letter identified her employer as Arcade Pharmacy Pty Ltd and noted the claim number 110910. The letter raised a query about the status of the worker’s employer and asked if Guild Insurance was prepared to accept service.

Guild Insurance arranged for Ms Gauci to be examined by Dr Faithfull, who assessed Ms Gauci to have a two per cent whole person impairment “based on the injury of 4 November 2004”. Guild Insurance made an offer to settle the lump sum claim for two per cent.

On 2 October 2008, Ms Gauci’s solicitors filed an Application in the Commission naming Arcade Pharmacy Pty Ltd as her employer. The Application claimed lump sum compensation in respect of a seven per cent whole person impairment. Part 1 stated that the dispute was “for referral for medical assessment by an approved medical specialist”.

On 28 October 2008, the appellant’s solicitor, Mr Macken, filed a Reply that stated the Application named an incorrect respondent and insurer. The Reply purported to rely on dispute notices attached to the Application. No such notices complying with the legislation were attached. The Reply attached a “Schedule of Issues in Dispute”. That Schedule did not comply with the insurer’s obligations to give notice of the dispute to the claimant under s 74 of the 1998 Act.

The Reply identified the employer’s “business/organisation” as “Arcade Pharmacy” and its address as 27 Dunmore Street, Wentworthville.  That was consistent with the worker’s evidence of her place of employment on 4 November 2004. It also recorded the insurer as “Guild Insurance Limited” and the claim number as 110910.

On 22 October 2008, the Commission referred the medical dispute to an AMS for assessment of whole person impairment. A MAC was issued on 10 December 2008 which assessed Ms Gauci to have a nine per cent whole person impairment.

Arcade Pharmacy Pty Ltd appealed the MAC. The Medical Appeal Panel confirmed the MAC on 20 March 2009. This appeal recorded the claim number as 110910. A Certificate of Determination was issued on 22 April 2009 ordering Arcade Pharmacy Pty Ltd to pay the worker $11,250 in respect of a nine per cent permanent impairment.

Arcade Pharmacy Pty Ltd appealed that determination. Deputy President O’Grady’s decision on 27 August 2009 revoked the determination of 22 April 2009 and remitted the matter to another arbitrator for determination (Arcade Pharmacy Pty Ltd v Gauci [2009] NSWWCCPD 107). The Deputy President noted the Commission had referred the matter to an AMS on the assumption there was no dispute as to liability. However, the existence of a dispute was raised in the Reply.

At a telephone conference on 29 September 2009 and at the conciliation and arbitration on 9 December 2009 before Arbitrator Duncombe, Mr Macken and his counsel Mr Saul advised that Arcade Pharmacy Pty Ltd was not the correct legal entity of the employer and that both worker and insurer were in issue.

On 10 December 2009, Ms Gauci’s solicitors lodged an amended application naming Chhong Heng Taing t/as The Arcade Pharmacy as the first respondent and the Taing Family Trust as the second respondent. On 14 December 2009, Arbitrator Duncombe issued a direction which included the amendment to the respondent and allowing Guild Insurance to issue a s 74 Notice. On 17 December 2009, Ms Gauci’s solicitors lodged a further amended application noting Chhong Heng Taing as the Trustee of the second respondent.

On 13 January 2010, Mr Macken filed a Reply on behalf of Chhong Heng Taing t/as The Arcade Pharmacy. The Reply identified the same insurer, Guild Insurance, and the same claim number (110910) as appeared in all previous documents filed in this matter. Attached to the Reply was a letter from Mr Macken that purported to be in accordance with s 74. It took no issue with employment.

The matter was listed for hearing on 19 February 2010 before Arbitrator Tanner. Counsel for the appellant confirmed that the employer at the time of her alleged injury was Chhong Heng Taing t/as The Arcade Pharmacy.

At the hearing, the appellant disputed injury and submitted that the MAC was made in respect of a dispute between Ms Gauci and a party (The Arcade Pharmacy Pty Ltd) that was not a legal entity and not her employer, and there should be another assessment by a different AMS. At the conclusion of submissions, counsel for the appellant sought an adjournment to call Dr Faithfull. That application was refused.

In his decision dated 9 April 2010, Arbitrator Tanner found in favour of Ms Gauci.

The appellant appealed the above decision. On 24 August 2010, Deputy President O’Grady confirmed the Arbitrator’s decision (Chhong Heng Taing t/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90).

The appellant appealed that decision to the Court of Appeal. On 5 August 2011, the Court of Appeal issued a consent order allowing the appeal, setting aside the Deputy President’s decision and remitting the matter to the Commission “for further hearing before a Presidential Member”. The matter was allocated to Deputy President Roche.

As the appeal before Deputy President O’Grady was a review under the then applicable terms of s 352 of the 1998 Act, the appeal before Deputy President Roche was a review.

The issues identified in the notice of appeal were whether the Arbitrator erred in:

(a) reversing the onus of proof relevant to the dispute as to injury and his consideration as to whether the appellant was entitled to put Ms Gauci to proof in respect of such issues as injury, causation and substantial contributing factor (onus of proof);

(b) drawing inferences adverse to the appellant by reason of a failure to call evidence from Mr Taing in circumstances where such an inference was not properly drawn nor available and in taking account of the absence of cross-examination of Ms Gauci in the determination of the disputed issues. Further, the Arbitrator reversed the onus of proof in respect of certain issues in making findings as to certain issues based on the absence of evidence in rebuttal rather than on the basis of the requirement of positive proof by the worker (adverse inferences);

(c) categorising the worker’s injury as an “injury simpliciter” rather than as a disease process and consequently erring in the consideration and application of the disease provisions (categorisation of the injury);

(d) considering an absence of complaints of symptoms by Ms Gauci prior to 20 January 2005 as “co-relating with the absence of an underlying degenerative disease” (absence of complaints prior to 20 January 2005);

(e) his consideration of both the requirements for evidence and the evidence itself so far as the aggravation of Ms Gauci’s condition in her subsequent employment was concerned (categorisation of the injury);

(f) making findings and determinations adverse to the appellant by reference to the medical evidence of Dr Faithfull (including by reference to the absence of a further report from Dr Faithfull), particularly where the Arbitrator has refused the appellant the opportunity of calling Dr Faithfull to give evidence and the opportunity of adjourning the proceedings to obtain a further report from Dr Faithfull (Dr Faithfull’s evidence), and

(g) failing to refer the matter for assessment by an AMS and in determining the matter based on the previous assessment made in respect of different parties and different evidence (failure to refer for a second assessment by an AMS).

Held:  Arbitrator’s determination confirmed

Onus of proof

1. Mr Macken submitted that, to the extent that Ms Gauci sought to draw an inference (from the lack of evidence from Mr Taing), it was an inference more properly drawn against her because it was open to either party to call Mr Taing and, in this instance, it was more natural for her to call him where injury was disputed [111].

2. The Arbitrator did not reverse the onus of proof. After considering all the evidence, he found that Ms Gauci’s evidence had satisfactorily recorded the mechanism of her injury and her instant experience of pain. Having accepted her evidence, it was open to him to find that she received an injury on 4 November 2004 in the circumstances she alleged. He then said that that finding cast an evidentiary onus upon the appellant to tender evidence in rebuttal. That statement was consistent with long established authority (Watts v Rake [1960] HCA 58; 108 CRL 158 at [8]; Purkess v Crittenden [1965] HCA 34; 114 CLR 164 at [4] and Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 (Lyons)) [115].

3. The Arbitrator then correctly recorded that there was no evidence from Mr Taing, the appellant, and the person to whom Ms Gauci reported her injury and gave her WorkCover medical certificates. As there was no explanation for the absence of any evidence from Mr Taing, the Arbitrator was entitled to draw an inference that his evidence would not have advanced the insurer’s case [116].

Adverse inference

4. This ground alleged that the Arbitrator erred in taking into account the absence of cross-examination of Ms Gauci in determining the issue in dispute. The appellant submitted that injury was not established because of the late complaint to Dr Singh and the failure to mention a work incident to Dr Singh on 20 January 2005 [119].

5. The Arbitrator stated that he did not propose to determine the issue of injury by looking at Dr Singh’s notes in isolation because they required evaluation in the context of the rest of the evidence. That was appropriate. He further noted that the appellant had “elected not to seek leave to cross-examine the Applicant” and consequently did not elicit further evidence that would lend weight to its argument that the history provided of the work injury on 27 January 2005 was false [121].

6. These statements were based on his evaluation of the evidence overall. The appellant’s failure to elicit evidence (other than Dr Singh’s notes) that would have either added weight to its position, or undermined the worker’s position, was a matter the Arbitrator was entitled to take into account in his assessment of the case [122].

7. The Arbitrator noted that the clear impression was that Ms Gauci reported her injury to Mr Taing on the day it happened. That finding was open to him and the Deputy President agreed with it [123].

Categorisation of the injury

8. The submission raised two main issues. First, the nature of the injury on 4 November 2004 and, second, whether Ms Gauci suffered an aggravation of a disease as a result of her subsequent employment [128].

9. As to the nature of the injury question, there was no persuasive evidence that Ms Gauci was suffering from a disease in her right shoulder on or before 4 November 2004. She had no symptoms before the incident on 4 November 2004 and the appellant did not refer to any investigations in support of its position. The appellant relied on Dr Deveridge’s evidence to support its position that the injury on 4 November 2004 was an aggravation of a disease. Dr Deveridge did not express his opinion in those terms and the Deputy President did not accept that the doctor supported the appellant’s argument [129].

10.More importantly, the appellant’s submissions ignored the distinction between a “personal injury” in s 4(a) of the 1987 Act and a disease injury in s 4(b). The existence of a disease does not prevent a worker from relying on a s 4(a) injury (Zickar v MGH Plastic Industries Pty Ltd (1996) HCA 31; 187 CLR 310).

11. The Arbitrator found that Ms Gauci suffered a “personal injury” on 4 November 2004 when she threw a box and felt immediate pain in her right shoulder. He relied on the diagnosis by Dr Deveridge that, because of her injury on 4 November 2004, Ms Gauci suffered chronic bursitis and rotator cuff tendonitis with partial thickness tears. Dr Deveridge’s evidence, coupled with the worker’s evidence that she was asymptomatic in her right shoulder before the injury, and her evidence as to the circumstances of the injury and the continuation of her symptoms since, provided a sound basis for the Arbitrator’s conclusion [131] .

12. The principles discussed in Lyons were relevant, and were discussed and correctly applied by the Arbitrator. They applied to both the nature of the injury question and the aggravation question [132]. In Lyons, Neilson CCJ held that it did not matter whether there had been subsequent aggravation by a work or non-work event. That did not alter the fact that the initial injury was compensable. An employer who sought to establish that, in the wake of a compensable injury received in the course of employment with the initial employer, there was an aggravation of a disease with a subsequent employer, bore the evidentiary onus on that issue, though the legal onus remained with the worker [135].

13 Ms Gauci suffered an injury on 4 November 2004 that satisfied s 4(a), that is, she suffered a personal injury. Even if that injury also aggravated a disease under s 4(b)(ii) (which was not accepted), it did not mean that it was an injury that “consists in” the aggravation of a disease. The submission that the Arbitrator incorrectly categorised the injury as an injury simpliciter was rejected [137].

14. The Arbitrator also rightly rejected the appellant’s argument that Ms Gauci suffered an aggravation of a disease in her subsequent employment. The question of whether an aggravation injury occurred in the subsequent employment was one of fact. The appellant’s argument relied on entries in Dr Singh’s notes on 2 April 2007, which recorded that Ms Gauci was “unable to cope with 4 hours a day, 5 days a week”, and that she got fairly severe right shoulder pain after about 3–3.5 hours [139].

15. The Arbitrator said the mere fact that Ms Gauci experienced shoulder pain after 3–3.5 hours of work in 2007 did not establish that her underlying condition, as caused by the November 2004 injury, had been made worse by work for any subsequent employer. There was no medical evidence that diagnosed Ms Gauci’s condition as being caused by her employment after she ceased working for the appellant. The Arbitrator also referred to the entry in Dr Singh’s notes on 26 September 2007, which referred to a complaint of right shoulder pain and problems with heavy files and drawers that “made her shoulder pain worse”. He said that entry only demonstrated she had additional pain when undertaking these tasks and it was relevant to differentiate between manifestation and causation. That approach was open to him [141]–[142].

Absence of complaints prior to 20 January 2005

16. An absence of symptoms does not necessarily equate to an absence of relevant pathology. However, there was no persuasive evidence that Ms Gauci suffered from a disease process prior to her injury on 4 November 2004 or that she suffered anything other than a personal injury on 4 November 2004.  Even if it were accepted that Ms Gauci suffered an underlying disease process on 4 November 2004, that did not prevent a finding that the worker suffered a personal injury on that day.  The evidence and authorities overwhelmingly supported the conclusion that Ms Gauci suffered a personal injury to her right shoulder when she threw a box in the course of her employment on 4 November 2004 [152].

Dr Faithfull’s evidence

17. Dr Faithfull diagnosed a soft tissue injury to the right rotator cuff with bursitis, and assessed her to have a two per cent whole person impairment. He did not expressly say that the condition had been caused by the work incident on 4 November 2004, but that was a reasonable inference from his report.  Guild Insurance made an offer of settlement on the basis of Dr Faithfull’s report [153].

18. Mr Macken submitted that the Arbitrator erred in making findings and determinations adverse to the appellant by reference to Dr Faithfull’s evidence, particularly as the Arbitrator refused the appellant the opportunity of calling the doctor to give evidence and an adjournment of the proceedings to obtain a further report from him [155].

19. The Arbitrator was entitled to consider Dr Faithfull’s evidence in his assessment. The doctor took a full history of the incident and its aftermath. He specifically recorded that Ms Gauci improved when at rest, but her pain recurred on return to work [158].

20. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, an expert’s report made no reference to several significant subsequent non-work related incidents. The Court of Appeal held (at [88]) (Beazley JA, Giles and Tobias JJA agreeing) that the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 do not require that there be an exact correspondence between assumed facts upon which an expert opinion is based and the facts proved in the case. The absence of any express reference by the expert to the subsequent non-work incidents did not mean that the facts upon which he based his opinion did not form a proper foundation for his assessment. The same can be said in the present matter. Dr Faithfull’s history provided a fair climate for the acceptance of his opinion and the Arbitrator was entitled to consider it (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) [159].

21. Even if Dr Faithfull’s evidence was neutral, that would not affect the outcome, because neither the Arbitrator’s decision nor the Deputy President’s decision turned on Dr Faithfull’s evidence. There was abundant other evidence that supported the finding that Ms Gauci suffered a personal injury on 4 November 2004 [160].

22. The application for adjournment arose at the end of the case.  The Arbitrator refused the adjournment on the ground that the matter had gone on long enough and it was not appropriate for a party, at the eleventh hour, in the course of argument, to have second thoughts about the evidence it chose to place before the Commission [165].

23. The Commission has clear rules and guidelines (set out in its Practice Directions) for the calling of witnesses (Pt 14 r 2 of the 2011 Rules and Practice Direction 3). Oral evidence is only allowed by leave. The relevant Rules and Practice Directions have been discussed in several recent authorities (Manpower Pty Ltd v Harris [2011] NSWWCCPD 10; Rinker Group Ltd v Mackell [2008] NSWWCCPD 100; Rinker Group Ltd v Mackell (No 2) [2009] NSWWCCPD 97). The Arbitrator’s decision to refuse the adjournment was consistent with those authorities [169].

Failure to refer for a second assessment by an AMS

24. The Arbitrator said that Mr Saul’s submission that the worker had “sued the wrong entity completely” sought to “elevate form over substance”. He added that the appellant and its insurer had been aware from as early as 2005 that the worker had been complaining of a shoulder injury which she claimed to have suffered while employed by the respondent. He added that Guild Insurance accepted her claim, paid weekly compensation and the cost of her treatment and that Mr Taing considered himself to be liable [176]. The claim for lump sum compensation in 2008 would have come as no surprise to either Guild Insurance or the respondent [176].

25. Part 4 r 4.2 of the 2011 Rules allows the Commission to amend any document on the application of the parties. Part 18 r 18.4 deals with the continuation of proceedings in the case of death or bankruptcy and substitution of parties. Part 18 is not restricted to the continuation of proceedings in the case of death or bankruptcy, but also extends to the “substitution of parties” generally. It has long been accepted that provisions of this kind should be given a broad interpretation (Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231 (Bridge Shipping) [188].

26. The incorrect identification of the employer was no more than a misdescription or misnomer. The amendment to name Chhong Heng Taing t/as The Arcade Pharmacy did not involve the substitution of a party, but merely the correction of the earlier misnomer. What was done was consistent with the approach endorsed by the High Court in Bridge Shipping (see also Bainbridge-Hawker v The Minister of State for Trade and Customs [1958] HCA 60; 99 CLR 521 and LexisNexis Butterworths, Halsbury’s Laws of Australia, vol 20 (at 21/12/2011), 325 Practice and Procedure, “Interlocutory Proceedings and Amendment” [325–3060]). The misdescription of the employer did not invalidate the proceedings. In any event, as noted above, if the amendment amounted to the substitution of a new party, Pt 18 r 18.4(4) applied, and all things done in the proceedings before the making of the order had effect in relation to the new party as if that party were the old party [194].

27. Where the employer is insured, the insurer conducts the proceedings in the Commission. It is the insurer that has the statutory obligation to accept or reject a claim. The insurer was always Guild Insurance. It was aware of the identity of its insured and never raised an objection when the claim was first made [196].

Cowley v Urunga Bowling Club [2011] NSWWCCPD 69

Weighing credit findings with objective facts; adequacy of reasons

Keating P

6 December 2011

Facts:

Mrs Cowley, the appellant, worked as a casual bar attendant with Urunga Bowling Club (the Club) from 4 July 2002 and was made permanent relief supervisor on 12 September 2005.

Mrs Cowley claimed that she injured her back carrying out a range of duties, including lifting trays of glasses, lifting packs of beer, moving gas cylinders, and moving and tapping kegs of beer.

On 19 February 2007, Mrs Cowley sought advice from her general practitioner and his treatment notes recorded “[m]uscle strain” while “lifting at home doing renovations”.

In late 2007, Mrs Cowley began to experience pain in her back after working. On 15 November 2007, she awoke in severe pain in her lower back. She continued working. However, on 4 November 2008, she resigned her position as relief supervisor, which required her to undertake heavier duties, and she continued working as a permanent part-time bar attendant.

On 14 January 2009, a CT scan revealed a disc protrusion at the L4/5 level. On 5 June 2009, she underwent a laminectomy and discectomy procedure.

On 7 June 2010, a claim for s 66 and s 67 benefits and weekly payments from 16 June 2009 to date and continuing was made on behalf of Mrs Cowley by her solicitors. The Club’s insurer failed to issue a s 74 notice.

Mrs Cowley lodged an application in the Commission seeking benefits in accordance with her solicitor’s letter of demand. The Club’s Reply noted that it denied liability for several reasons including:

(a)  it had not received proper notification of the claim;

(b)  s 261 of the 1998 Act had not been complied with, and

(c)   the injury did not arise out of or in the course of her employment, as required by s 4 of the 1987 Act, and her employment was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act.

The Arbitrator permitted cross-examination of Mrs Cowley on the basis that the Club’s submissions were based in part on her credit.

The Arbitrator was not satisfied that Mrs Cowley had discharged the onus of proving that her work duties caused or aggravated her back condition or that her work duties were a substantial contributing factor to the alleged back injury.

Mrs Cowley appealed and submitted that the Arbitrator erred:

(a) in failing to give reasons as to why he:

1. found employment was not a substantial contributing factor;
2. preferred the evidence of the Club’s witnesses over Mrs Cowley’s evidence, and
3. considered that the history of “heavy work tasks” was “not established”;

(b) in admitting Dr Powell’s supplementary report into evidence over objection and giving it undue weight;

(c) in failing to accept the opinion of Dr Hopcroft when it was open on the evidence to accept it;

(d) in permitting cross-examination of Mrs Cowley on an irrelevant issue and taking that evidence into consideration with respect to credit, and

(e) in considering whether the work was “heavy” instead of considering whether or not the work performed was capable of causing an injury within the meaning of s 4 of the 1987 Act.

Held: Arbitrator’s decision revoked. Matter referred to another Arbitrator for re-determination.

Dr Powell’s report

1. Objection was taken to the admission of Dr Powell’s supplementary report at the arbitration on the basis that the doctor failed to expressly state which part of the additional histories convinced him that Mrs Cowley’s duties were not sufficient to substantially contribute to her injury. The Arbitrator’s admission of the report, subject to weight, was not an error [141]–[144]. “A deficiency in one part of an expert’s evidence may be made good by other material either in another report or in oral evidence” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 at [92]).

2. The Arbitrator erred in accepting Dr Powell’s revised opinion for the following reasons:

(a) Dr Powell’s first report, based on the acceptance of the history provided by Mrs Cowley regarding her duties, stated that the nature and conditions of her work involved a lot of heavy lifting and that this work rendered the degenerative changes in her lumbar spine symptomatic. The Club’s insurer wrote to Dr Powell seeking his further opinion on a number of issues and provided further clinical records, witness statements and an investigator’s factual report for his consideration. The letter to Dr Powell highlighted that the statements and clinical notes alleged that Mrs Cowley had provided a history that she injured her back at home during renovations [126]–[129]. As a result of being provided with this further evidence, Dr Powell’s second report was completely the reverse of his earlier opinion [148]–[150].

(b) Dr Powell’s summary of the supervisors’ evidence that there was little manual lifting is inconsistent with the evidence [153]. The work described in the evidence could not have been done without a degree of bending and lifting [155].

(c) Dr Powell failed to explain the significance of the episode of back pain during the home renovations but relied on it to alter his opinion. The uncontested evidence regarding this incident was that she did not take any time off work and did not undergo any further investigation or treatment. Mrs Cowley’s treating doctor diagnosed the injury as a lumbar back strain.

(d) It was inferred that Dr Powell was influenced by a misleading summary of the evidence contained in a letter sent to him by the Club’s insurer [158].

(e) In relation to Mrs Cowley changing or moving kegs, Dr Powell was influenced by the evidence of Ms Brown, Mrs Cowley’s immediate manager, who stated that Mrs Cowley was never required to lift or move beer kegs, which was inconsistent with evidence from various other employees as well as Mrs Cowley’s own evidence [159]–[160].

Reasons/credit findings

3. Arbitrators have a statutory and common law obligation to provide adequate reasons for their decisions (s 294(2) of the 1998 Act; Pt 15 r 6 of the Workers Compensation Rules 2011 (the Rules); Absolon v NSW TAFE [1999] NSWCA 311) and failure to do so constitutes an error of law [164]. For an Arbitrator’s decision to be set aside, the inadequacy of reasons must disclose that the Arbitrator failed to exercise his or her statutory duty to fairly and lawfully determine the matter [165].

4. In instances where there was a conflict in the evidence, the Arbitrator’s reasons for preferring the evidence of the Club’s witnesses over Mrs Cowley’s evidence were partly based on an adverse view of her credit. The advantage that the Arbitrator had of seeing and hearing her give evidence was of little significance given that he misapprehended the evidence in a number of critical respects (see Devries v Australian National Railways Commission [1993] HCA 78;177 CLR 472 at 479) [167]–[170]. The Arbitrator:

(a)  failed to consider whether the evidence that Mrs Cowley did not make an “official complaint” was consistent with her version of events;

(b) failed to accept that she was influenced not to pursue reporting of the injury in November 2007 because she was being reassured by her doctor that she had not suffered a serious injury;

(c) preferred Ms Brown’s evidence without resolving the inconsistencies in her initial evidence, namely, that she received “no official complaint”, with her later evidence that there had been no complaint of injury;

(d) preferred Ms Brown’s evidence when it was unreliable in so far as it related to Mrs Cowley’s duties, including moving kegs in the coolroom;

(e) did not take into consideration a colleague’s motivation for discouraging a report of injury, namely, that it may result in her being required to work on weekends;

(f) concluded that a history of bending and lifting was not asserted by Mrs Cowley when, in fact, that was the substance of her allegations. The conclusion was also inconsistent with the Arbitrator’s findings regarding the nature and extent of her duties;

(g) wrongly concluded that her fears of having her working hours cut down if she reported her injury were not genuinely held when the evidence was to the contrary;

(h) found that Mrs Cowley had suffered from continuous complaints of back pain “for years”, which was contrary to the evidence;

(i) accepted Dr Powell’s conclusion that there was little manual lifting, which was inconsistent with the evidence and the Arbitrator’s findings as to her duties;

(j) accepted Dr Powell’s revised history, although Dr Powell failed to explain the significance he placed on the history of prior injury during the home renovations, when the evidence was that it was nothing more than a minor back strain from which she fully recovered, and

(k) accepted Dr Powell’s reliance on an assessment by Mrs Cowley’s colleagues of her duties as a “bar attendant” when, in fact, it was the duties required of her as a “relief supervisor” that she claimed caused her injury [187].

5. The Arbitrator’s decision was affected by several significant errors that greatly diminished the weight to be attached to the Arbitrator’s credit finding [188]–[189].

Allens Arthur Robinson Corp Advisory Pty Ltd v Weavers[2011] NSWWCCPD 71

Worker residing overseas; failure to produce medical certificates; effect of failure to produce medical certificates; whether dispute exists; whether the Commission has jurisdiction to make orders under s 53 of the Workers Compensation Act 1987

Keating P

13 December 2011

Facts:

On 3 November 2006, Mr Weavers suffered an injury to his back when he slipped down stairs at Martin Place in Sydney when he was employed as a manager with the appellant. He has not worked since. Allens accepted liability for the injury and commenced weekly payments.

In September 2010, Mr Weavers moved to China, where his wife had obtained employment, to live permanently. Mr Weavers’s unchallenged evidence was that he found it virtually impossible to source a doctor in China who was prepared to issue medical certificates. He maintained that doctors in China were prohibited from doing so.

In a letter dated 12 January 2011, CGU said that it would continue to make voluntary payments “upon receipt of the medical certificates”. CGU advised Mr Weavers that, in order to continue to receive weekly compensation, he was required to provide WorkCover medical certificates or medical certificates that included the information normally provided on a WorkCover medical certificate from his doctor in China.

In the absence of medical certificates, CGU stopped making payments of weekly compensation, but failed to issue a s 74 notice.

Mr Weavers commenced proceedings in the Commission seeking an order for weekly payments of compensation from 23 September 2010 and a determination/declaration that his incapacity, as a result of the injury, was of a permanent nature.

CGU submitted it did not dispute Mr Weavers’s entitlement to weekly compensation and that payments would be made upon receipt of the ongoing medical certificates required in accordance with the WorkCover Operational Instructions and s 270 of the 1998 Act.

The Arbitrator held that CGU’s withholding of weekly payments constituted a dispute with respect to a claim for compensation, giving the Commission jurisdiction to determine the claim. He determined that Mr Weavers’s back injury was of a permanent nature. In making this determination, he relied partly on a concession made by counsel for Allens to that effect.

The appeal concerned whether the Commission had jurisdiction to determine a claim for weekly compensation where the insurer conceded injury and incapacity but refused to pay weekly compensation because the worker lived overseas and had been unable (through no fault of his own) to produce the requested medical certificates.

CGU submitted that the Arbitrator erred in:

(a) determining that it disputed liability in part to pay weekly payments of compensation to Mr Weavers;

(b) misdirecting himself when he determined the Commission had jurisdiction to determine Mr Weavers’s claim under s 53 of the 1987 Act, and

(c) determining that Mr Weavers was entitled to weekly compensation despite a failure to provide medical certificates in regard to his work capacity.

Held: Arbitrator’s decision confirmed

1. The Arbitrator correctly concluded that there was, at the time Mr Weavers commenced proceedings in the Commission, a dispute between the parties in connection with a claim for compensation. CGU’s letter to Mr Weavers on 23 December 2010 evidenced a dispute in relation to liability because its acceptance of liability for weekly compensation was made conditional upon Mr Weavers obtaining and providing medical certificates to CGU quarterly, as required by the Operational Instruction, while residing in China [80].

2. An Operational Instruction does not have statutory force and is no more than an administrative direction. CGU imposed a condition on the acceptance of liability that it did not have the statutory power to impose [82]–[83].

3. CGU admitted liability and therefore was required to commence weekly payments (s 74A of the 1998 Act). CGU’s failure to commence weekly payments without having disputed liability constituted a failure to determine the claim (s 289(1) of the 1998 Act). The letter from CGU to Mr Weavers dated 23 December 2010 amounted to a dispute [84]–[85]. As it was determined that a dispute existed, the submission by CGU that the Commission did not have jurisdiction was unsustainable [86]. It then followed that the Arbitrator was able to determine Mr Weavers’s entitlement to an award and the nature of his incapacity [87].

4. Section 270 of the 1998 Act only applies to provisional payments. The section gives an insurer the power to request a medical certificate where provisional liability has been accepted. CGU’s acceptance of Mr Weavers’s claim was not an acceptance of provisional liability and therefore s 270 had no application. There is no equivalent power in a case where liability is unconditionally accepted [88]–[93].

5. An insurer is entitled to stop voluntary payments of weekly compensation if a worker has failed to comply with a request under cl 11 of the WorkCover Guidelines for Claiming Compensation Benefits to provide a medical certificate, but the failure to provide a certificate does not deprive the Commission of jurisdiction to determine the dispute (Tan v National Australia Bank [2008] NSWCA 198). Clause 11 has no effect once the dispute has been determined [96].

6. In the case of a worker who has ceased to live in Australia and who is receiving or is entitled to receive weekly compensation under an award, s 53(2) of the 1987 Act provides that, if the incapacity is certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, “in such manner and at such intervals as the Authority may require, [emphasis added] the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable” [97].

7. Once Mr Weavers failed to provide medical certificates, CGU was entitled to discontinue payments of weekly compensation and this triggered the dispute which was determined by the Arbitrator in accordance with s 53 of the 1987 Act [98].

8. Under s 53(2) of the 1987 Act, which will now apply to Mr Weavers as his compensation will be payable, WorkCover is entitled to require Mr Weavers to show “continuance of the incapacity in respect of which the weekly payment is payable”. His Honour noted that, in exceptional cases such as this, some flexibility is required in the application of s 53 if the objectives of the legislation are to be met [99].

9. The Arbitrator did not err in making a finding of permanent incapacity where CGU conceded that Mr Weavers’s incapacity was of a permanent nature.

Pacific National Pty Ltd v Schattler [2011] NSWWCCPD 73

Notice of claim; factual error as to time worker first becomes aware that he has received injury; ss 261(1) and 261(6) of Workplace Injury Management and Workers Compensation Act 1998; adequacy of reasons.

O’Grady DP

20 December 2011

Facts:

Ingo Schattler was employed by Pacific National Pty Ltd (Pacific National) between 1979 and February 1999, first as a boilermaker’s assistant and later as a car wagon assembler. During this employ he was exposed to loud noise on a daily basis, eight hours a day, five days per week.

Mr Schattler was subsequently employed part-time by Sweetha International Pty Ltd (Sweetha) as a flagman between 1999 and a date in April 2004. This role required that he lay detonators on train tracks which would alert passing trains that staff were working on the tracks ahead. Mr Schattler reported that he worked at some distance from the track workers and was 500 yards from where the detonators set off (which happened infrequently).  He also stated that his work conditions with Sweetha were not noisy.

During Mr Schattler’s employ with Pacific National he underwent a hearing test organised by his union.  He was advised that his hearing loss was insufficient to make a claim, but that the union had sent in the form on his behalf. Subsequently, Mr Schattler received a workers compensation payout from Pacific National, which Mr Schattler assumed at first was payment for hearing loss received whilst in Pacific National’s employ.

In July 2010, Mr Schattler attended National Hearing Care, Wollongong and underwent a hearing test. He was advised that he suffered “significant hearing loss”. On 16 July 2010, he was contacted by Hanna Lawyers, who provided advice regarding a potential workers compensation claim. Mr Schattler noted in his statement that this was the first time he had been advised that he might have a claim for compensation for hearing loss.

On 18 November 2010, Mr Schattler was referred by Hanna Lawyers to Dr Stylis, ear, nose and throat surgeon, who determined that he had a binaural hearing loss of 11.86 per cent.  Dr Stylis also confirmed that the previous workers compensation payout Mr Schattler had received was in respect of a torn ligament to his knee, not compensable hearing loss.

On 8 December 2010, Mr Schattler provided a notice of claim to Pacific National.  The notice was provided, it was argued, within six months of Mr Schattler first becoming aware that he had received a compensable injury (that being July 2010 following advice from Hanna Lawyers).

On 31 January 2011, Mr Schattler attended Dr Seymour, ear, nose and throat medicolegal consultant, on behalf of Pacific National, who gave a diagnosis of binaural hearing loss of 3.2 per cent.

The reports of Dr Seymour and Dr Stylis recorded a history that Mr Schattler was exposed to loud noise in the course of his employ with Pacific National and that Pacific National was the last noisy employer.

Pacific National argued before the Arbitrator that Mr Schattler had failed to provide notice of injury and notice of claim as required by ss 254 and 261 of the 1998 Act. It was also argued that the histories provided to Dr Seymour and Dr Stylis were inaccurate in respect of the work performed for Sweetha, and therefore the evidence did not prove that Pacific National was the last “noisy employer”.

The Arbitrator found that Mr Schattler was unaware of his injury until July 2010, and that it was therefore impossible for him to provide notice of injury or claim before this date. The relevant provisions were determined to be s 61(1) of the 1987 Act and s 261 of the 1998 Act. The Arbitrator determined that notice was provided as soon as possible, and within six months of the worker becoming aware of injury pursuant to s 261(1) and (6) of the 1998 Act. The Arbitrator also rejected the submission that the reports of Dr Seymour and Dr Stylis were based on a false history and found that Pacific National was the last noisy employer.

The Arbitrator made a finding for Mr Schattler and remitted the matter to the registrar for referral to an AMS for assessment of the degree of hearing loss suffered.

Held: Arbitrator’s decision revoked

1. Pacific National appealed on three grounds, arguing that the Arbitrator had erred:

(a)  in determining that Mr Schattler had first become aware that he had received relevant injury in July 2010;

(b)  in determining that Pacific National was the last noisy employer; and

(c)   in failing to give adequate reasons for these determinations.

2. Mr Schattler’s belief that he had previously received a workers’ compensation payout for hearing loss, although mistaken, necessarily inferred awareness of relevant injury before July 2010 and for a period greater than the six months allowed by s 261(1) of the 1998 Act. [55] and [58]

3. O’Grady DP found that this inference was “so preponderant”, as discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, that it was evident that the Arbitrator had made an error of fact [56].  The Arbitrator’s decision was revoked and new orders made in favour of the appellant [57].

4. No relevant error was demonstrated by the Arbitrator’s reliance upon the evidence of Dr Seymour and Dr Stylis in determining that Pacific National was the last noisy employer. This finding was open to the Arbitrator and disclosed no error [63]–[64].

5. The appellant’s submission regarding the “adequacy” of the Arbitrator’s reasons concerning her finding as to “awareness of injury” was accepted, given the Arbitrator’s failure to properly address the relevance of the evidence concerning Mr Schattler’s mistaken belief as to payment [62].

Parsons Brinckerhoff Australia Pty Ltd v Vanceva [2011] NSWWCCPD 72

Section 11 of the 1987 Act; meaning of “place of employment”; whether worker was temporarily absent from her place of employment while buying coffee; personal injury

Roche DP

14 December 2011

Facts:

Ms Vanceva was an engineer who normally worked for the appellant in the CBD. At the time of her accident, she was working on assignment with Glenfield Junction Alliance who conducted its business at level 4 of Tower A at 821 Pacific Highway, Chatswood.

On 11 October 2010, Ms Vanceva left level 4 and caught the lift to a lower level, walked down some stairs and left the building through a rotating door on the ground floor. She then walked down some more stairs to a cafe in the ground floor of Tower B, also at 821 Pacific Highway. Though the towers are on the same block of land, they are separate buildings. They share a common foyer, courtyards and ground level.

After paying for her coffee, Ms Vanceva had a seizure and fell to the ground, injuring her head. She suffered a subdural and extradural haematoma and a fracture of the zygomatic arch. Ms Vanceva claimed that she received a personal injury while temporarily absent from her place of employment during an ordinary recess under s 11. She claimed compensation from 11 October 2010 to 15 March 2011.

The appellant disputed liability on the ground that Ms Vanceva was not temporarily absent from her place of employment “because she had not left the building because the cafe where she suffered the seizure is located in the same building and the same block of land as her workplace”. It also argued that Ms Vanceva became sick when she suffered the seizure, which caused her to fall and caused her to hit her head. Therefore, the seizure was due to a medical condition and Ms Venceva had not received a personal injury.

The Senior Arbitrator held, applying commonsense, that once Ms Vanceva crossed the boundary between the cafe and the rest of the tower complex and entered the cafe with the intention of obtaining refreshment, she was on an ordinary recess from her work, and it could not be said that her employer had any control over, or management of, the interior of the cafe. The Senior Arbitrator also held that Ms Vanceva’s injuries constituted a “sudden or identifiable pathological change in the body” and she had received a personal injury.

The issues in dispute in the appeal were whether the Senior Arbitrator erred in:

(a)  finding that the worker was on an ordinary recess or authorised absence at the time of the incident on 11 October 2010,

and

(b)  finding the worker received a “personal injury” during that absence.

Held: Senior Arbitrator’s determination confirmed

Ordinary recess

1. The appellant’s reliance on Calvert v Soden (1994) 10 NSWCCR 139 (Calvert) and Musumeci v GEM Engines Pty Ltd (2002) 23 NSWCCR 138 (Musumeci) was misplaced. Both cases concerned the journey provisions in s 10 [18].

2. The appellant’s argument that Ms Vanceva had not left her place of employment at the time of her fall rested on the assumption that the start and end point of a journey in relation to a place of abode in s 10(4) should apply to “place of employment” in s 11. There was no basis for that assumption [24].

3. The term “place of abode” is defined in s 10(6) to include the place where the worker has spent the night preceding a journey and from which the worker is journeying, and the place to which the worker is journeying with the intention of there spending the night following a journey. There is no definition of “place of employment” in s 10 or any other part of either the 1987 Act or the 1998 Act, and no equivalent of s 10(4) dealing with the start or finish of a journey in relation to the place of employment [26].

4. Section 10(4) expressly stated that it applied “for the purposes of this section”. There is no justification for transposing the words that define the commencement and completion of a s 10 journey, with respect to a “place of abode”, to s 11. Section 11 is concerned with a completely different question to that raised in s 10. It is concerned with whether a worker is temporarily absent from his or her place of employment during an ordinary recess or authorised absence. Section 10 is concerned with the commencement and completion of a specified journey [27].

5.The term “place of employment” was defined (for all purposes of the Act) in the 1926 Act. The definition was generally interpreted to mean that a worker had not commenced a journey until he or she was “subjected to the risks common to the whole community in the use of public highways (Young v Albury & Border Pastoral, Agricultural, Horticultural and Industrial Society [1932] 6 WCR 201), or until he or she had “emerged onto the public street” (Russell v Sydney County Council [1967] 41 WCR 68) or had left the area under the control or management of the employer [33].

6. However, the legislature chose to omit this definition of place of employment from the 1987 Act and has not replaced it with any other definition. The meaning of the phrase “place of employment” must be determined by reference to the ordinary principles of statutory construction. The question of the meaning to be given to words and expressions within an Act with no special or technical meaning is a question of fact (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; Comcare Australia (Defence) v O’Dea [1997] FCA 1409; (1997) 150 ALR 318) [34].

7. Courts must interpret words in the context of the legislation in which they appear (OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155). The Commission must read s 11 in the context of the legislation as a whole, having regard to the purpose of all the provisions in the statute (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198). The purpose of the legislation is to provide compensation to workers injured in certain defined circumstances [35].

8. Section 33 of the Interpretation Act 1987 requires that, in the interpretation of an Act, a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object. The Workers Compensation Acts provide for the compensation or rehabilitation of workers in respect of work-related injuries. It is socially beneficial legislation and should be interpreted in a way that promotes its purpose [36].

9. The history of the legislation is also relevant. The history of the legislation suggests that Parliament introduced the recess provisions to broaden the circumstances in which compensation could be recovered. However, since 1951, Parliament has added s 9A to the 1987 Act, which states that no compensation is payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury [39].

10 Section 9A clearly narrows the circumstances in which a worker will be entitled to compensation. However, it does not apply in respect of an injury to which ss 10, 11 or 12 apply (s 9A(4)). That is because, with respect to recesses taken away from the worker’s place of employment, the worker may not be in the course of his or her employment and it will be difficult to satisfy s 9A. It is reasonable to conclude that, by expressly excluding s 11 from the operation of s 9A, the legislature did not intend to narrow the circumstances in which the recess provisions apply [40].

11. It is neither necessary nor appropriate to attempt to define a place of employment. Each case will depend on its own facts. In the present case, treating Glenfield as the employer, as the parties appear to have done, it was relevant that that company only occupied one level in one of the two towers at 821 Pacific Highway, Chatswood. Its premises (level 4 in Tower A) were not open to the public. On the other hand, the foyer and courtyards of both Tower A and Tower B at 821 Pacific Highway were open to the public. The café, which is situated on the ground floor of Tower B, was also open to the public. It is therefore difficult to describe the whole of Tower A as Ms Vanceva’s place of employment, let alone the whole of the block of land at 821 Pacific Highway, Chatswood [44].

12. Ms Vanceva performed her work at Glenfield’s premises, which were restricted to level 4 of Tower A. In the absence of any arbitrary statutory formula to delineate the boundary of the worker’s place of employment for the purpose of s 11, considering the words used, the context in which they are used in the section, the context of the section in the legislation overall, the history of the legislation, and the purpose of the section, the worker’s place of employment was either level 4 of Tower A at 821 Pacific Highway, Chatswood, or, perhaps, the whole of Tower A. In all the circumstances, level 4 of Tower A was the correct place of employment in this case. On either definition, she was temporarily absent from her place of employment when she suffered a seizure in the café on the ground floor of Tower B [45].

Personal injury

13. A personal injury is a “sudden identifiable change in the body (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310). When Ms Vanceva fell, she hit her head and suffered a brain injury, a subdural and extradural haematoma, and a fracture of the zygomatic arch. The Senior Arbitrator correctly held that those changes constituted a personal injury [49].

14. The appellant submitted that Ms Vanceva suffered a medical condition and there was no evidence of a pathological change due to that medical condition. She suffered a seizure that caused her to fall, not the other way round. Accordingly, so it was argued, Ms Vanceva did not receive a personal injury on 11 October 2010 [51].

15 The appellant’s submission was misconceived. Section 11 is not concerned with causation. If a worker receives a “personal injury” in the circumstances to which s 11 applies, he or she is entitled to the benefits of the Act because the injury is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment and compensation is payable accordingly. The Senior Arbitrator correctly found that Ms Vanceva had received a personal injury in circumstances to which s 11 applies [52].

16. A worker is entitled to the benefits of s 11 if the personal injury is received during a temporary absence from the worker’s place of employment during any ordinary recess or authorised absence, provided that, during that absence, the worker has not subjected himself or herself to any abnormal risk of injury. Subject to the issue of “place of employment”, it was not disputed that Ms Vanceva’s injuries were received during such an absence and that she did not subject herself to any abnormal risk of injury. It was not necessary for her to prove that she suffered a pathological change as a result of the seizure. The seizure was irrelevant to her entitlement under s 11 [54].

Plateau Tree Services Pty Ltd v Shannon [2011] NSWWCCPD 75

Incapacity; application to rely on fresh evidence on appeal; s 352(6) of the 1998 Act; reasons for preferring one medical specialist over another; alleged failure to consider all evidence

Roche DP

22 December 2011

Facts:

Mr Shannon worked for the Plateau Tree Services as a truck driver/aborist. His duties required him to drive trucks, manipulate heavy pieces of equipment, climb trees, lift and carry branches, and walk over uneven ground. He injured his right knee while operating a friction drum on 28 January 2010.

Following surgery on 24 March 2010, Mr Shannon was off work for four or five weeks.  He returned to work on suitable duties in April 2010, though he said there were really no suitable duties with the appellant.

Mr Shannon asked his general practitioner, Dr Artinian, to certify that he could go back to work normally as Mr Shannon wanted to go back to his normal duties and to go off workers compensation. Following the request, Dr Artinian certified Mr Shannon fit for work on 25 October 2010. At the time, Mr Shannon was leaving the appellant and starting lighter work that only required him to drive a truck and use a “palfinger”, a crane attached to the back of a truck.

The parties agreed that the wage difference between Mr Shannon’s new job and his pre-injury employment was $223.76 per week. The only issue in dispute before the Arbitrator was whether Mr Shannon was incapacitated as a result of his injury and whether his economic loss had resulted from his injury.

The Arbitrator made an award in favour of Mr Shannon.

The issues in dispute in the appeal were whether the Arbitrator erred in:

(a) preferring the evidence of Dr Garvan over that of Professor Cumming, and

(b) failing to consider or address the medical certificate of Dr Artinian dated 25 October 2010.

Held:  Arbitrator’s determination confirmed

Preferring Dr Garvan’s evidence

1. The appellant submitted that the Arbitrator’s reason for preferring Dr Garvan’s evidence was not supported by the evidence. The appellant made no submission to support this challenge and did not refer to any of the evidence [26].

2. The Deputy President found that it was open to the Arbitrator to prefer Dr Garvan’s evidence. The Arbitrator gave two reasons for preferring Dr Garvan to Professor Cumming. First, he rightly concluded that Professor Cumming took no history of Mr Shannon’s pre-injury duties or the demands associated with those duties. Dr Garvan recorded that Mr Shannon worked as a truck driver/labourer for a company involved in tree lopping. He took a detailed note of the physical nature of the activity Mr Shannon was doing at the time of his injury, that is, he took a detailed note of Mr Shannon’s pre-injury duties and noted that they included repetitive squatting. This was a valid ground for preferring Dr Garvan’s evidence to Professor Cumming’s evidence [27]–[28].

3. Second, the Arbitrator rightly noted that Mr Shannon’s condition had not stabilised at the time of Professor Cumming’s assessment [29].

Dr Artinian’s medical certificate of 25 October 2010

4. The Arbitrator’s only reference to Dr Artinian’s certificate was that Mr Shannon had asked his local doctor for a certificate to return to full duties. The evidence was that Mr Shannon asked Dr Artinian for the certificate as he wanted to go off workers compensation and go back to his normal job [34].

5. An arbitrator is required to deal with the issues presented by the parties (Brambles Industries Limited v Bell [2010] NSWCA 162 at [22] and [30]) and decisions must be read in context (Sarian v Elton [2011] NSWCA 123) [35]. Given that counsel for the appellant placed little or no emphasis on Dr Artinian’s certificate in his submissions at the arbitration, it was not surprising the Arbitrator did not focus on it in his decision. The Arbitrator dealt with the work Mr Shannon did after the operation and accepted his evidence that he had continuing problems with his right knee and a concern that, given the heavy nature of his duties with the appellant, he might re-injure his knee. This evidence, combined with Dr Garvan’s evidence, provided a sound basis for the Arbitrator’s conclusion that Mr Shannon suffered an incapacity because of his injury and that his economic loss resulted from that incapacity [38].

6. Since the Arbitrator rejected Professor Cumming’s evidence on fitness, by implication, he also rejected the opinion in Dr Artinian’s certificate of 25 October 2010. As Dr Artinian provided no report in which he explained the opinion expressed in his certificate, that opinion was no more than a bare ipse dixit and of little, if any, weight [39].

7. The Arbitrator made no error in not expressly referring to Dr Artinian’s medical certificate. He dealt with the issues presented by the appellant’s counsel and that included the issue raised in the medical certificate, namely, Mr Shannon’s fitness for work. It is not an error to omit to state expressly a finding that is clear on a fair reading of the whole of the decision (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [56]) [40].

Tuggerah Lakes Memorial Club Ltd v Borg [2011] NSWWCCPD 70

Challenge on appeal to factual findings made by Arbitrator; injury; s 4(b)(ii) of the Workers Compensation Act 1987

O’Grady DP

8 December 2011

Facts:

Maryrose Borg commenced employment with Tuggerah Lakes Memorial Club Limited (the appellant) in 1999. On 27 October 2003, she received injury as she was moving produce in the appellant’s cool room. After an initial absence of several weeks, she returned to work on light duties. Mrs Borg maintained that she continued to suffer from back and neck pain since the injury, and ceased work on 30 July 2004. Subsequent efforts to retrain and resume work were unsuccessful.

The appellant initially accepted liability in respect of a claim for compensation benefits, and Mrs Borg was paid weekly compensation and medical expenses by consent.

In 2006, a dispute arose concerning Mrs Borg’s entitlement to lump sum compensation pursuant to s 66 of the 1987 Act and her entitlement to reimbursement of treatment expenses pursuant to s 60 of the 1987 Act. The matter was listed for conciliation and arbitration following the issue of a MAC by AMS, Dr Pillemer.  At the hearing, agreement was reached with respect to the lump sum payment and the Arbitrator made an award in Mrs Borg’s favour concerning the expenses claimed by her.  The Arbitrator’s Statement of Reasons dated 28 August 2006 did not express any finding as to the nature of the injury suffered by Mrs Borg.

On 25 November 2009, the appellant terminated Mrs Borg’s weekly payments, following issue of a s 74 notice which disputed ongoing liability in respect of weekly payments and treatment expenses.

An Application to Resolve a Dispute was filed on behalf of Mrs Borg in February 2011. Mrs Borg sought orders in respect of weekly payments and medical expenses (including, in part, future medical treatment for proposed cervical spine surgery). The future medical expenses dispute was referred by the Registrar to Dr Roger Pillemer. On 16 June 2011, Dr Pillemer issued a MAC endorsing the proposed surgery, but did not resolve the dispute as to causation of Mrs Borg’s neck condition.

At conciliation, before Arbitrator Bell on 30 August 2011, agreement was reached concerning Mrs Borg’s entitlement to weekly compensation. The issues which proceeded to arbitration were whether the condition of Mrs Borg’s neck, which required treatment, had been caused by the injury received by her in 2003, and whether such treatment was reasonably necessary.

The appellant submitted that Mrs Borg had not received an injury to her neck in 2003 and that the weight of evidence did not prove that there was a causal nexus between the injury in 2003 and the degenerative changes demonstrated at the C6/7 level of Mrs Borg’s cervical spine. The respondent relied on the evidence of Dr Bodel and Dr Finch to argue that the injury in 2003 had initiated a degenerative disc disease which had progressed between 2003 and 2009.

The Arbitrator issued extempore orders in favour of Mrs Borg in respect of future expenses to be incurred for the proposed surgery.

Held: Arbitrator’s decision confirmed

1. The grounds of appeal were that the Arbitrator had erred:

(a) in finding that Mrs Borg suffered a C6/7 injury as a result of the October 2003 injury;

(b) in determining that it was “misleading to be too specific” concerning the nature of the injury;

(c) in finding that injury to the C6/7 level of the cervical spine was an aggravation of a pre-existing condition, and

(d) in accepting the evidence of Dr Bodel when making his finding on causation.

Causal nexus

2. The Arbitrator relied on the opinions of Dr Finch and Dr Bodel and the evidence of Mrs Borg in determining that there was a causal nexus between the 2003 injury and the C6/7 injury.

3. The appellant argued that the failings demonstrated within Dr Bodel’s 29 October 2010 report were such that the Arbitrator’s reliance upon that opinion amounted to an error of fact.  The failings referred to were:

(a) a lack of certainty as to whether Dr Bodel had assessed the 2005 MRI scan before concluding that the 2003 injury was causally related to the C6/7 injury;

(b) that Dr Bodel’s use of the term “disc injury” was “too vague and imprecise a diagnosis”, and

(c) that he had failed to adequately explain his reasons (in accordance with the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita)) for finding that the “disc injury” was causally related to the 2003 injury.

4. These arguments were rejected.  Dr Bodel’s report demonstrated that he had considered the pathology demonstrated by each investigation [47]. His use of the phrase “disc injury” and his conclusion were made having regard to the history obtained, the findings on physical examination and the various investigations to which he had access.  Dr Bodel’s reasons therefore satisfied the principles in Makita (as subsequently considered in Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [19]–[20]). It was open to the Arbitrator to accept the evidence of Dr Bodel and no relevant factual error was demonstrated [49].

“[I]t could be misleading to be too specific about the nature of the injury”

5. It was found that the Arbitrator had erred in making this comment given the nature of the dispute, but that this did not constitute a relevant error which affected his decision.

Aggravation of a pre-existing condition

6. Dr Bodel observed that the cervical spine at C6/7 demonstrates a progression of pathology present “since the original injury”. A finding that the injury to the C6/7 level of the cervical spine was an aggravation of a pre-existing condition was open to the Arbitrator to accept and demonstrated no relevant error [55].

The Arbitrator erred in the weight given to the evidence of Dr Bodel

7. The appellant argued that the acceptance of Dr Bodel’s opinion as to causation was, having regard to the evidence of Dr Korber, Dr Watson, Dr Little and Dr Pillemer, against the weight of the evidence [56].

8. O’Grady DP made reference to Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, which outlined a summary of relevant considerations for determining whether a factual error has been made by an Arbitrator [57].

9. Following review of the medical evidence and consideration of the weight to be accorded to each, O’Grady DP found that there was persuasive material before the Arbitrator concerning the existence of a causal nexus between the injury and the findings of disc lesion at C6/7 (Dr Finch and Dr Bodel) [66] and the countervailing evidence was not of such weight as to permit a conclusion that the Arbitrator was wrong [67].