Issue 10: October 2012

Court of Appeal

3 September 2012

Facts:

Mr Butler worked for Energy Australia for 38 years, retiring in 2004. On 30 June 1995, he received an award in the former Compensation Court for 15% permanent loss of use of his left leg at or above the knee and $10,000 under s 67.

In 2008, Mr Butler made a claim for further loss of use of his left leg. The claim was accompanied by a medical report assessing a 35% impairment to the left leg at or above the knee. Energy Australia rejected the claim but did not serve Mr Butler with a s 74 notice.

Proceedings in the Commission included a teleconference with an arbitrator on 21 May 2009, which failed to resolve the dispute. Some agreement was reached at that meeting about the terms of the claim and the application. The matter was referred to an AMS, Dr Bye, on 15 June 2009. The date of injury was said to be 30 June 1995 as a deemed date from the earlier award.  Dr Bye issued a medical certificate on 16 July 2009 certifying 30% permanent loss of efficient use of the left leg.

Energy Australia appealed to a medical appeal panel under s 327. In October 2009, the panel made some corrections but in substance found no error in Dr Bye’s conclusions. Energy Australia sought a judicial review in the Supreme Court against the medical appeal panel’s decision under s 69 of the Supreme Court Act 1970. That application was successful and the decision was set aside because of a failure by the panel to afford procedural fairness to Energy Australia.

Meanwhile, the Arbitrator had continued to deal with the matter on the basis of the validity of the panel’s certificate. After the Supreme Court decision, the Arbitrator’s decision was set aside. That decision was for almost $14,500 under s 66 and $16,360 under s 67.

Another medical appeal panel was constituted in November 2010. It confirmed Dr Bye’s view, but it too denied Energy Australia an opportunity to put submissions. When confronted with the Supreme Court decision, the panel rescinded its decision. A third medical appeal panel was constituted and an oral hearing was conducted in March 2011. In April 2011, this panel confirmed Dr Bye’s certificate.  The matter then came before the Arbitrator from whom the appeal to the Deputy President was taken. After a hearing, the Arbitrator made an award in favour of the worker.

One of the issues before the Arbitrator was the operation of the transitional provisions in Sch 6 of the 1987 Act. Mr Butler argued that Energy Australia could not raise the transitional provisions in the context that there was a deemed injury on 30 June 1995.

The Arbitrator gave extensive reasons in relation to ss 74 and 289A having identified that those sections related to all the issues sought to be raised before him.

On Appeal, the Deputy President confirmed the Arbitrator’s decision.

Energy Australia argued on appeal that the only issue before the Deputy President concerning ss 74 and 289A was the question of injury and not the question of the operation of the transitional provisions.  Energy Australia also argued that further submissions should have been called for.

Held: Application for leave to appeal dismissed; applicant to pay respondent’s costs on the indemnity basis

Allsop P

1. The substantive matter upon which any appeal would be fought in this matter was whether or not the submission as to the operation of Sch 6 of the 1987 Act, Pt 6 cl 6, could be seen to be covered by s 74 of the 1998 Act. Counsel appearing for Energy Australia accepted, as he must have, that the question as to whether leave should be granted on this hypothesis depended in significant part upon whether he could show it was strongly arguable that the operation of the transitional provision was not covered by the terms of s 74.  The Court of Appeal held that not only was it not strongly arguable, it was barely arguable [17].

2. Section 74 refers to “an insurer disput[ing] liability in respect of a claim or any aspect of a claim”. The operation of Pt 6 of Sch 6 was for the purpose of supporting an argument that no compensation was payable in a certain respect. That was within s 74, although it was unnecessary to draw a final conclusion about that for the purpose of any precedent.  The prospects of success of any such appeal were low at best. Therefore, even if contrary to the President’s view there was any possible denial of procedural fairness, the prospect of success on appeal did not warrant leave to appeal [18].

3. The submissions also raised the question whether the nature of the appeal to the Deputy President was such as to be limited in jurisdictional terms by reference to submissions or particulars put by the parties to the appeal. In the President’s view, there was no substance in that argument. The nature of the appeal to the Deputy President had recently changed with the word “review” being removed from s 352(5) [19].

Bathurst CJ

4. The written submissions of Energy Australia failed to identify any reason why the invocation of sub-cl 2 of cl 6 of the schedule was not a dispute as to liability within the meaning of s 74 and counsel for Energy Australia in oral submissions was unable to point to any reason why the contrary proposition was correct. In those circumstances, it was difficult to see how it could possibly be said that the proposed appeal was strongly arguable [22].

5. It should be noted that this was a matter involving something less than $30,000. The estimate given at the oral hearing was $20,000. It has occupied the time of three medical panels, two arbitrators, two presidential members and one Supreme Court judge as well as this misconceived application. There was no justification for any litigant, whether insurance company or otherwise, conducting proceedings in this fashion [23].

6. Counsel for Mr Butler sought an order that costs in this matter be paid on an indemnity basis. The power of the Court to make such an order is found in s 98 if the Civil Procedure Act. In the circumstances of the case, where the application for leave was without merit and having regard to the past history of the proceedings oppressive to Mr Butler, the order was made [27].

[special leave application filed in the High Court]

Court of Appeal

26 September 2012

Facts:

Ms Hills commenced employment with Pioneer Studios Pty Ltd about two weeks before her accident.  She was to take the position of Ms Jennifer Martel, who was planning to go overseas.  Pioneer’s managing director, Richard Ludbrook, gave permission for Pioneer’s premises to be used for a function. The function had been organised by Alistair Buchanan, a photographer with Pioneer, and his two flatmates, Peter Fleming and Jordan Cvetanovski, neither of whom worked with Pioneer. The party was to celebrate the three men’s birthdays and to farewell Mr Buchanan, who was leaving Pioneer.

The party commended on the evening of 13 March 2004.  Sometime after 2.00 am on 14 March, Ms Hills was walking from level five to level four when she lost her balance and fell over the balustrade and suffered serious head and brain injuries.

The issue before the Commission was whether her injuries fell within the meaning of ss 4, 9 and 9A of the 1987 Act and whether the injury “arose out of” the worker’s employment. The worker did not rely on “in the course of”.

On the evidence, the Senior Arbitrator answered these questions unfavourably to Ms Hills. On appeal by way of review, the Deputy President revoked the determination of the Senior Arbitrator, concluding that the injuries arose out of Ms Hill’s employment and that her employment was a substantial contributing factor to her injuries.

The issue before the Deputy President focused on the circumstances of the organisation of the party and Ms Hills’ invitation to it. The exact circumstances of her invitation were disputed. Ms Hills’ case was that either Mr Ludbrook and/or Ms Martel had invited her to the party because clients would be present and it was a good chance to meet them and get to know other members of staff. Mr Ludbrook denied having told Ms Hills that it was in her interests to go to the party and denied that Pioneer played any role in the organisation or promotion of the party. Ms Martel agreed that she urged Ms Hills to attend the function, but the exact circumstances in which she did so, and whether she said that photographers would be present, were contentious.

The Deputy President accepted Ms Hills’ evidence that both Mr Ludbrook and Ms Martel told her that a work colleague, Mr Alistair Buchanan, was having a party to celebrate his leaving and that the employees and also clients were coming and that they encouraged her to attend. He also accepted that Ms Hills did not know until after her injuries that it was also to celebrate the birthdays of Mr Buchanan and two of his friends.

He found that the function had two main purposes: a birthday party for Mr Buchanan and his friends and a farewell party for Mr Buchanan. It was not, he said, appropriate to ascertain the primary purpose of the party (Hook v Rolfe (1986) 7 NSWLR 40).  He found that the “employment purpose” of the party actuated or motivated Ms Hills to attend.

The Deputy President accepted that the organisation of the party by Mr Buchanan was not by or on behalf of Pioneer. However, Mr Ludbrook gave permission for Pioneer’s premises to be used. That was, in the Deputy President’s view, “a significant factor in assessing the work connection with the injury”. Mr Ludbrook also exercised some control over the party by directing Ms Martel to tell the guests to leave at 2.00 am.

Pioneer did not retain the security guard, who was retained by Mr Buchanan and his two friends to police the door. No alcohol or other amenity was provided by Pioneer. The Deputy President accepted that those considerations supported the submission that this was not a work function. However he concluded that “the other evidence of a work connection … outweighs these matters”.

Although he found that the usual characteristics of a “company function” were not present, that was not the worker’s case. Her case was that she decided to attend a work function because of work purposes, namely, to meet clients, make a good impression and join in with the team.

Pioneer appealed the decision on a question of law. The issues on appeal were:

(a) There was no evidence supporting the following critical findings:

(i) that the appellant encouraged or induced the respondent to attend the party;

(ii) that the respondent’s injury arose out of the course of her employment with the appellant; or

(iii) that the respondent’s employment with the appellant was a material contributing factor to her injury.

(b) The Deputy President misdirected himself by failing to properly formulate the extended course of employment permitted in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 (Hatzimanolis).

(c) The Deputy President misdirected himself in consideration of whether s 9A of the 1987 Act applied by failing to place due emphasis upon the concept of substantial contributing factor.

Held: Appeal allowed; decision on 1 June 2011 set aside; remitted to Commission

Allsop P

1. In Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi), the Court was concerned with the correctness of the expression of views of Mason P (Meagher and Beazley JJA agreeing) in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740. In one respect, the majority in Badawi (Allsop P, Beazley JA and McColl JA) was of the view that Mercer was wrong: the relationship between "arise out of" and "a substantial contributing factor", and Mason P's view that the former was more stringent than the latter (see generally Badawi at 516-520 [49]-[71]). In other respects, Mercer read with Badawi remains binding authority. In particular, the following propositions are relevant [25].

2. First, the phrase "the employment" in s 9A(1) bears the same meaning as "employment" in the phrase "arising out of or in the course of employment" in s 4: Badawi at 516 [48(7)]; and Mercer at 745 [13]. [26]

3. Secondly, the meaning of "employment" was discussed in Badawi at 518-519 [61]-[67]. In that discussion at 519 [67], what Mason P said in Mercer at 745 [13] was approved:

It is common ground between the parties and well established by earlier authority that, when s 9A(1) speaks of 'the employment concerned' being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment: see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632-3, 641. In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the 'injury' as defined in s 4. See also Stanton-Cook v TAFE Commission (NSW) [1999] NSWCC 5; 17 NSWCCR 632].[27]

4. The discussion of "arising out of ... employment" in Badawi at 520-522 [72]-[79] did not qualify that. Indeed, the discussion of the judgment of Starke J in Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504 reinforced it: see Badawi at 521-522 [71]-[78]; and see also Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at 125 [22]-[25]. [28]

5. In circumstances where it was not expressly concluded that the injury arose in the course of employment and thus where, on this hypothesis, the injured worker was not at work, it was not apparent how the Deputy President could draw any conclusion about the injury arising out of employment or employment being a substantial contributing factor without considering the kinds of matters to which Mason P referred in Mercer at 745 [13]. This was not to confine "arising out of" to what was required of an employee but rather what she in fact did in the employment. This would require focus upon what was the employment, not what Ms Hills thought was the employment [29].

6. On this basis, the Deputy President failed to direct himself according to law [30].

7. Many of the considerations of the function being a "work function" may go to support an argument that the injury occurred in the course of employment in the extended sense discussed in Hatzimanolis. Though, it should be said, some of the passages in Hatzimanolis (see, for example, at 482) may tend to the conclusion that Ms Hills' injuries did not occur in the course of her employment. That, however, was not how the matter was in terms approached by the Deputy President expressly [31].

8. On the other hand, if implicit in some of the findings (such as the reference to "by her employment") and in the whole approach of the Deputy President was a conclusion that at the time of the injury Ms Hills was in the course of employment, that conclusion was reached without reference to the principles in Hatzimanolis. Further, that conclusion was reached significantly by reference to Ms Hills' understanding of what happened, rather than by reference to the facts of what the employer actually did on and in respect of the evening in question by reference to the employment relationship [32].

Basten JA

9. The core element of a worker's course of employment will be attendance at a workplace or carrying out work functions, during usual business hours. The nature of the core will vary depending on the nature of the work. Over the years, the boundaries have tended to erode. Thus it is now well accepted that social events (such as the office Christmas party) and recreational activities (such as trips on days off work for employees required to remain at remote locations) can well form part of the course of employment. Such events and activities tend to be marked by the employer's commitment of time and resources to organising the events and encouraging staff to attend. The fact that clear boundaries have been eroded does not mean that there are no boundaries; rather, the further from the core one moves the closer scrutiny of the circumstances involved [38].

10. In Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, the Court was satisfied that "whether an event arises in the course of an activity, or as here, out of 'an activity', depends upon such circumstances as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties": at [23] (McHugh, Gummow, Callinan and Heydon JJ). [38]

11. Where there was no necessary criterion to be satisfied beyond the causal connection, the case was assessed by reference to a “requirement” (of an informal kind) and an “expectation” to attend a social function. No lesser connection should be accepted where the employment must be a “substantial contributing factor”: s. 9A.

12. As explained by Murphy J in Telstra Corporation Ltd v Bowden [2012] FCA 576 at [91] the High Court, in Hatzimanolis v ANI Corporations Ltd [1992] HCA 21; 173 CLR 473, provided an expansive view of the concept of "employment": however, that proposition should be understood by reference to the circumstances of the case. In Hatzimanolis the Court was dealing with an injury arising during an interval between periods of work; it rejected authority that the activity giving rise to the injury must have been undertaken "in order to carry out [the worker's] duties": at 482. [40].

13. Hatzimanolis was not referred to by the Deputy President, perhaps because it is understood to deal with the second limb of the definition of injury, namely an injury "in the course of" employment. As counsel noted, in Tarry v Warringah Shire Council [1974] WCR 1 at 8, Samuels JA stated that, "it cannot be right to determine matters which arise under the first leg of the definition by debating questions of the scope of employment". In the context, the reference to "the scope of employment" was a reference to the second limb, namely "the course of employment". However, Samuels JA continued:

The question which we have to determine is to be answered by inquiring whether there was a causal connection between the employment and the injury.

14. It followed that whatever may have been meant in this context by the scope of the employment, there was an essential requirement to identify the employment in order to determine the relationship between the injury and the employment [42].

15. The Deputy President did not address the evidence in these terms. Although the Deputy President referred to the party being a "work function", because one of its purposes was to farewell a departing employee, and because it provided an occasion for the respondent to mix with other staff and possibly with clients, that did not necessarily result in the injury arising in the course of the worker's employment. While, it could not be said that such a finding was not open, the question was whether the correct criterion was addressed [43].

16. In finding that her attendance was in the course of her employment, if that were the finding to be inferred, the Deputy President focused squarely on the worker's subjective "impression" and that she "felt" she should attend for "work purposes"; her being "actuated to attend", and by reference to her response to encouragement. None of these findings was sufficient to engage the conclusion that her attendance was in the course of her employment. Her motives and beliefs may provide some evidential support for a conclusion that she was in fact attending in the course of her employment, but they do not form the relevant test. The course of employment is determined by the employer. The view of Mr Ludbrook would be more significant than that of a new probationary member of staff. However, even his views would not be decisive: the characterisation of the occasion will depend upon an objective assessment of the conduct of persons in authority with the employer, where such authority extends to determining the work hours and conditions of employment of staff. Although there was no express finding as to the relevant persons, it may be inferred that Mr Ludbrook was the primary person in authority; whether Ms Martel had such authority is at best doubtful on the evidence [45].

17. Accordingly, there could be no implicit finding that the worker's attendance was in the course of her employment for the necessary assessment of the causal connection because the issues critical to such a finding were not addressed. It was not necessary that the temporal element be satisfied; however, the nature of the link with her employment, objectively determined, was critical [46].

Hoeben JA

18. Agreed with the President and the additional remarks of Basten JA.

Roche DP

19 September 2012

Facts:

The respondent, Mr Devine, worked as an ironworker for Broken Hill Pty Co Ltd from 1968 until 1983. From 1983 until he retired in July 2010, he worked as a crane driver and saw operator for Commonwealth Steel Company Ltd and its successors in title, Comsteel and OneSteel Ltd, the appellant.

It was not disputed that Mr Devine’s employment from 1968 to July 2010 was noisy or that such employment was employment to the nature of which a loss of hearing, as to be caused by a gradual process, was due.

It was also agreed that Mr Devine had received the following compensation:

(a)  In 1983 he received compensation for monaural hearing loss of 6.2 per cent in the left ear and 11.1 per cent in the right ear with a deemed date of injury of 20 October 1983;

(b)  In 1989 he received compensation for 3.4 per cent further monaural hearing loss in his left ear, and

(c) In 1999 he received compensation for 1.38 percent further binaural hearing loss.

In November 2010, Mr Devine claimed further lump sum compensation. In a MAC dated 28 November 2011 Dr Fernandes,  AMS, assessed Mr Devine to have a whole person impairment of six per cent in respect of 11 per cent further binaural loss of hearing with a notional date of injury of 28 July 2010.

On 3 April 2012, the Registrar issued a Certificate of Determination (COD) ordering the appellant to pay Mr Devine $8,250 under s 66 of the 1987 Act, in respect of six per cent permanent impairment. By letter dated 5 April 2012, Mr Devine’s solicitors submitted that Mr Devine was entitled to compensation for pain and suffering under s 67 of the 1987 Act on the basis that his various hearing losses could be combined, so that his whole person impairment was 11 per cent and met the threshold for compensation for pain and suffering.

Arbitrator Peacock applied Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91 (Akkanen) and held that Mr Devine’s assessments could be combined. In a COD dated 22 June 2012, Mr Devine was awarded $10,000 for pain and suffering compensation under s 67.

The issues on appeal were:

(a) whether the Arbitrator erred in applying Akkanen and Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 (Edmed) because:

(i) those decisions were wrongly decided because they gave no consideration to the meaning of s 322 of the 1998 Act when read with s 323 of that Act;

(ii) they had no regard to the plural form of “impairments” in s 322(2);

(iii) the interpretation in Akkanen that injury means pathology cannot sit with s 17 of the 1987 Act;

(iv) section 68B(4) of the 1987 Act had to be construed;

(v) even if Edmed was correct, it was wrongly applied in Akkanen because  Roche DP neglected to comment on the pathological causes of sensorineural hearing loss;

(vi) Akkanen was distinguishable because it involved only one employer, and

(vii) Akkanen was wrong because it allowed accumulation of losses under different statutory schemes.

(b) A direction was issued requesting submissions from the parties on the relevance of Sch 6 Pt 6 Cl 2 and Sch 6 Pt 18C.

Held: Paragraph 3 of the Arbitrator’s determination revoked, other orders confirmed

Sections 322 and 323 of the 1998 Act

1. The appellant submitted that s 323(1) cannot be read properly on the interpretation that injury equates to a pathological condition, the sub-section refers to more than one injury causing permanent impairment.

2. Roche DP held, citing Edmed, Holdlen Pty Ltd v Walsh [2000] NSWCA 87 and Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179, that it could not be seriously disputed that “injury” can have different meanings depending on context [20]–[23].

3. In a claim for lump sum compensation, compensation is not paid for the receipt of an injury, but is paid for the impairment or loss that results from the pathology caused by the injury (Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120 and Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431) [24].

4. There was no difficultly giving the term “injury” the same meaning in s 323(1) and s 323(2) because a deduction can be made under s 323 where impairment results partly from the pathology occasioned by the work incident and partly from a pre-existing pathology (or condition or abnormality) [27].

5. There is nothing in s 323(1) that changes the interpretation of s 322 relied on in Edmed and Akkanen. There is no reason why an impairment cannot result from multiple pathologies and s 323 deductions are regularly made on that basis [29].

Impairments

6. The appellant submitted that Edmed and Akkanen had no regard to the fact that the word “impairments”, a term used in s 322(2), is plural and requires that there be more than one impairment. Impairments are simply an increase in one impairment, not additional impairments [30].

7. Edmed referred to “impairments” in s 322(2) and held that the reference in that sub-section to “the same injury” could not be a reference to the “same incident” because that situation was expressly dealt with in s 322(3) [31].

8. Section 8 of the Interpretation Act 1987 makes clear that “the plural ‘impairments’ includes the singular … and s 322(3) applies whenever there is an impairment or multiple impairments resulting from the same pathology” [32].

9. The reference to the “condition” of boilermaker’s deafness in s 17(2) of the 1987 Act is a clear reference to the pathology that caused the loss of hearing and is consistent with “injury” meaning pathology in s 322 (Edmed cited) [42].

10. There is no conflict between s 17 and s 322(2). Section 322(2) allows for the aggregation of impairments resulting from incidents that have occurred at different times, provided they are the same pathology. Section 17 does no more that fix a date to determine when hearing loss is deemed to have occurred [43].

11. The appellant submitted that the statutory scheme requires an employer to pay compensation for those injuries suffered by the worker in its employment. Compensation to which a worker is entitled under s 66 is permanent impairment that results from the “injury” in the employ of the particular employer [45].

12. This submission was rejected. The provisions for an award of compensation for boilermaker’s deafness proceed on assumptions or fictions and are not designed to determine liability on the basis of true causation (citing Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679 and Blayney Shire Council v Lobley (1995) 12 NSWCCR 52). The submission that the statutory scheme requires an employer to pay compensation for only those injuries suffered while the employee worked for the particular employer was incorrect [46]–[48].

Section 68B(4) of the 1987 Act

13. The appellant submitted that s 68B(4) provided a formula to determine compensation payable by an employer for hearing loss [51].

14. Section 68B(4) did not advance the matter. The sub-section is concerned with the calculation of s 323 deductions and merely provides that there is no deduction for any portion of impairment resulting from previous relevant employment, except for any proportion for which compensation is paid or payable under this Division or s 16 of the former Act [52].

Pathological causes of sensorineural hearing loss

15. The appellant relied on evidence from Dr Niall, consultant occupational physician and audiological physician, and submitted that there is increased cell damage and death to the hearing receptors in the ear at higher hearing losses so that there was a change in pathology as compared to lower frequency losses. Applying Edmed, impairments could not be aggregated because the pathological conditions were not identical [55]–[58].

16. These submissions were rejected. Dr Niall’s evidence was essentially that in noise induced hearing loss, “the primary pathology is largely due to outer hair cell loss due to direct trauma to stereocilia and/or intracellular metabolic free radical damage followed by apoptosis.” Dr Niall explained that with increased exposure to noise, damage becomes more widespread, not that the pathologies were different [60].

17. Dr Finlay-Jones in his report stated that the “result of the excessive noise exposure is total cell death which is the pathology affecting all frequencies” (emphasis in original). Similarly, Dr Williams stated that “the pathological process of occupational noise induced hearing loss of gradual process is the same for the first deemed date of injury and for the further loss” [61]–[62].

18. The evidence established that the pathology for the sensorineural hearing loss Mr Devine suffered in 1983 was the same pathology he experienced in later years that led to his subsequent claims [63].

One employer

19. Mr Edwards submitted that Akkanen and other cases that applied Edmed were distinguishable because those cases all involved a single employer. In Glebe Rowing Club Pty Ltd v Pride (unreported Court of Appeal, 6 December 1995, BC9501895) (Pride), a case involving two employers, the Court of Appeal upheld that there were separate losses and each loss, on its own, did not pass the s 67 threshold [64].

20. It was held that Pride did not apply and that it made no difference that Mr Devine received injuries with more than one employer. Pride was decided before the introduction of s 322 of the 1998 Act and this section was critical to the outcome in Edmed and Akkanen.

Schedule 6 Pt 18C

21. Mr Edwards argued Roche DP erred in Akkanen because he aggregated a pre-2002 assessment under the old Table of Maims with a post-2002 assessment of whole person impairment. He argued that you cannot aggregate “unlike” compensation [74].

22. This submission ignored the effect of s 322 which was part of Ch 7 of the 1998 Act and applied to “new claims.” As Mr Devine’s current claim was made on 29 November 2010 it was a “new claim” and s 322 applied [76].

23. Injurious events occurring between 30 June 1987 and 1 January 2002 and after 1 January 2002 are subject to s 322 and can be aggregated where they result in one pathology [78].

Schedule 6 Pt 6 cl 2

24. Roche DP held that clause 2 is in unambiguous terms and was introduced to prevent losses from pre-1987 and post-1987 injuries being aggregated to meet the s 67 threshold [93].

25. If Mr Devine’s losses are aggregated, his total loss has resulted from pre-1987 and post-1987 injuries. Sub-clause (3) of clause 2 applied and the part of the loss that resulted from the injury received before that commencement (30 June 1987) was not to be taken into account for the purpose of determining whether the s 67 threshold was satisfied [94].

26. The Arbitrator erred in combining Mr Devine’s pre-1987 and post-1987 losses. Without those losses being combined Mr Devine does not meet the s 67 threshold and had no entitled to compensation for pain and suffering [104].

O’Grady DP

20 September 2012

Facts:

The respondent, Mrs Reddin, held the position of general manager with Blue Apple Catering (NSW) Pty Ltd, the appellant. Her work required her to attend various facilities owned and operated by clients of the respondent.

It was not disputed that Mrs Reddin received an injury in the course of her employment on 9 October 2008 when she fell down some steps on the premises of a prospective client. Mrs Reddin had been receiving weekly payments of compensation from the respondent since the fall.

In May 2011 Mrs Reddin made a claim for lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. A dispute arose as to Mrs Reddin’s entitlement to compensation and in November 2011 Mrs Reddin lodged an Application to Resolve a Dispute with the Commission.

In a Certificate of Determination dated 8 June 2012 Arbitrator D’Souza made findings of fact to the effect that Mrs Reddin received injury to her lumbar spine, both knees and right shoulder, in addition to the right elbow and left ankle injuries which had been admitted by the appellant. Arbitrator D’Souza made orders remitting the matter to the Registrar for referral of the injured body parts to an AMS for assessment.

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

(a)  in finding as a fact that Mrs Reddin injured her right shoulder and right knee in the subject fall, and

(b)  in failing to give adequate reasons for her finding of injury to the right shoulder.

Held: Arbitrator’s determination confirmed

The Finding of Right Knee Injury

1. The Arbitrator found that pre-existing osteoarthritic changes in Mrs Reddin’s knees were “exacerbated or accelerated by the effect of her fall.” Reliance was placed on the evidence of Drs Matalani, Shatwell and Fraser in so concluding [52].

2. O’Grady DP noted that Mrs Reddin’s evidence was “to a considerable extent, wanting in detail concerning history of injury to her right knee and right shoulder.” However, he found that it was reasonably clear from the findings that Arbitrator D’Souza based her acceptance of the evidence of Drs Matalani, Shatwell and Fraser not only on the opinions they expressed, but also on the histories they recorded in their reports [54].

3. In drawing an inference that injury had occurred to the right knee, Arbitrator D’Souza treated the history of injury recorded by the doctors in their reports as some evidence of the fact of injury. O’Grady DP noted that the Commission is not bound by the rules of evidence, citing s 354 of the 1998 Act and Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282, and found such approach to be permissible [55]–[56].

4. O’Grady DP cited Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and stated that factual findings made by an Arbitrator may be disturbed on appeal in circumstances where it is shown that the Arbitrator was wrong [49], [56].

5. A whole body bone scan which found arthritic changes in both of Mrs Reddin’s knees, more marked on the right side, was objective evidence of osteoarthritis in the right knee. It was significant that the report accompanying the scan concluded that “there [was] some increased tracer uptake in the right patella which may represent bone contusion from recent injury” [57] – [58].

6. The appellant placed much reliance on the absence of contemporaneous complaint made by Mrs Reddin concerning the right knee and right shoulder injury. O’Grady DP found that Mrs Reddin had been very focused on her severe left ankle injury and was convalescing after right elbow surgery. In those circumstances it may not have been surprising that no express complaint of right knee pain had been recorded by those treating her [57].

7. The injury to the knee was found by the Arbitrator to be one of aggravation of a pre-existing disease. The presence of such a disease in Mrs Reddin’s right knee was plainly established. The arguments made by the appellant did not establish that the inference that no injury to the right knee occurred in the fall was “so preponderant” that the Arbitrator’s decision must be found wrong. The Arbitrator’s finding concerning injury to the right knee was confirmed [62] and [64].

The Finding of Right Shoulder Injury

8. In finding injury occurred to the right shoulder the Arbitrator referred to the fact that the shoulder had been asymptomatic prior to the fall and noted the existence of longstanding degenerative disease in the lumbar spine, shoulders and knees. She also took into account the fact that there was evidence concerning payment of all medical expenses as a “factor [which] adds weight to [Mrs Reddin’s] position” [66].

9. Pursuant to s 294(2) of the 1998 Act and Rule 15.6 of the 2011 Rules an Arbitrator has an obligation to provide reasons for the decision made. O’Grady DP found that Arbitrator D’Souza failed to provide sufficient reasons concerning injury to the right shoulder [68].

10. Considering the following matters, O’Grady DP found that Arbitrator D’Souza’s conclusion that injury to the right shoulder had occurred in the fall was correct:

(a) the evidence of Mrs Reddin’s complaint of right shoulder pain at Nepean hospital on 7 November 2008;

(b) Mrs Reddin’s complaint of right shoulder pain to the insurance investigator in November 2008;

(c) an MRI of the right shoulder on 17 February 2010 that showed a tear of the supraspinatus tendon, and

(d) the history Mrs Reddin gave to Dr Shatwell in February 2011 concerning right shoulder pain persisting following her treatment in February 2009 [69].

Roche DP

7 September 2012

Facts:

The respondent worker, Mr Nanda, suffered ligament damage to his right knee in workplace injuries on 26 October 2005 and 31 October 2005. He had surgery on 28 November 2005. He recovered from that surgery but continued to have restricted movement in his right knee.

On 21 December 2008, Mr Nanda fell from a ladder in the course of his employment with the appellant employer, Precision Valve Australia Pty Ltd, and injured his back. As a result of this injury he developed pain and numbness in the left leg.

Mr Nanda claimed lump sum compensation in respect of a 12 per cent whole person impairment (WPI) of the back and 20 per cent WPI of the right lower extremity.  Mr Nanda’s case was that he placed additional strain on his right leg due to symptoms experienced in the left leg and this exacerbated the pre-existing disease process in his right knee.

The appellant accepted liability for the claim in relation to the back and the issue before the Arbitrator was whether the condition in Mr Nanda’s knee resulted from his back injury.

The Arbitrator found Mr Nanda had suffered an injury to his right knee as a result of the undisputed injury to his back on 21 December 2008 and remitted the claim for lump sum compensation to the Registrar for referral to an AMS for assessment.

The issues on appeal were whether the Arbitrator erred in:

(a) finding the right knee symptoms commenced in 2009;

(b) finding the injury to the back accelerated and exacerbated pre-existing degenerative changes in the right knee;

(c) failing to give adequate reasons including:

(i) failing to adequately consider the report of Dr Dave in relation to the issue of causation;

(ii) failing to consider any of the reports of Dr Smith;

(iii)  failing to consider the totality of evidence, which contradicted Mr Nanda’s assertion that his “left leg lost all sensation”;

(iv)  failing to consider the evidence of Dr Abraszko that Mr Nanda’s sciatica in his right leg was worse than the referred symptoms in the left leg, and

(v) failing to adequately consider the medical evidence relating to pre-existing pathology and symptoms in the right knee.

(d) interpreting the clinical notes of the general practitioner and Dr Dave’s conclusion;

(e) applying the decision in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 and Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, and

(f) finding that the accepted injury to the lumbar spine caused right knee symptoms.

Held: Paragraph 1 of the Certificate of Determination was revoked, all other orders were confirmed

Commencement of right knee symptoms

1. The appellant argued that the record of right knee pain in 2009 was not in the context of compensating for the left leg dysfunction and that Mr Nanda’s evidence that he used his right leg to compensate for loss of sensation in the left leg was inconsistent with evidence showing sciatic problems in both legs.

2. Roche DP rejected the appellant’s submission. Notes of Dr Houston dated 11 May 2009 recorded Mr Nanda complained that his right knee ached and the physiotherapist’s report of 4 December 2009 referred to Mr Nanda having right knee pain in the context of having difficulty maintaining pressure on his left leg [80]–[81].

Exacerbation

3. The appellant submitted there was no medical evidence to justify the Arbitrator’s finding that injury to the lumbar spine “exacerbated or accelerated the pre-existing arthritic condition of the right knee”.

4. The appellant had taken the quote out of context. The full quote read “I find it plausible that he would, because of the numbness and symptoms in his left leg, put more weight or more use on his right leg and that would have exacerbated or accelerated the pre-existing arthritic condition in his right knee” [85]–[86].

5. The Arbitrator’s reference to it being plausible that Mr Nanda put more weight on his right leg because of his left leg symptoms, and that this would have exacerbated the pre-existing right knee condition, was not critical to the Arbitrator’s conclusion and was of no relevance in a consequential loss claim [90].

Reasons

6. Though a judge is not obliged to spell out every detail of the process of reasoning or refer to every piece of evidence, they do need to expose their reasons for resolving a point critical to the contest between the parties and refer to any evidence that is critical to the proper determination of the matter (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (Pollard) and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430) [95]–[96].

7. It is not appropriate for a judge to merely set out competing evidence and then assert that having seen and heard the witnesses they prefer the evidence of one witness over the other, without analysing the evidence or giving an explanation as to why the evidence of one witness was preferred over another (Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 and Pollard) [97]–[98].

8. Having regard to s 294 of the 1998 Act and Pt 15 r 15.6 of the 2011 Rules, the above principles apply equally to the Commission’s Arbitrators [99].

9. At the arbitration it was submitted that it was uncertain whether Dr Dave made a diagnosis.  It was “really not a very good diagnosis of whether this is a consequential injury.” The Arbitrator did not address this submission [100]–[101].

10. The Arbitrator did not engage with Dr Smith’s evidence, which was evidence on which submissions had been made. This was a clear failure to lawfully determine the issues in dispute [102].

11. The Arbitrator also failed to deal with the submission that in 2010 Mr Nanda was complaining of significant right leg problems and this was inconsistent with the way he presented his case. This was an issue that the Arbitrator had to consider [103].

12. The Arbitrator erred by failing to examine relevant evidence and failing to deal with submissions relating to that evidence [105].

Remaining grounds of appeal

13. As the appeal was upheld due to the Arbitrator’s failure to deal with relevant evidence and submissions it was not necessary to consider the remaining grounds of appeal [106].

Re-determination

14. The appellant submitted the medical evidence did not support a finding that the right knee condition resulted from the undisputed back injury and that the Commission would not be satisfied with Mr Nanda’s explanation that he over-used the right leg due to loss of sensation in his left leg [107].

15. Roche DP rejected those submissions. Mr Nanda did not allege that he injured his right knee in the 2008 incident and it was therefore not necessary for him to establish that he suffered an “injury” to the right knee, within the meaning of s 4 of the 1987 Act. Rather, as he claimed compensation for a consequential loss, he had to establish that the symptoms and resections in his right knee resulted from the effects of the 2008 incident [109] – [110].

16. Mr Nanda’s evidence that he made a good recovery from his surgery in 2005 was consistent with the absence of evidence of complaints of knee pain until 11 May 2011 and was not challenged [114].

17. Mr Nanda consistently complained of left leg symptoms from the time he attended Campbelltown hospital on 21 December 2008 up to and including his statement of 18 January 2012, and there was objective evidence of weak or absent left ankle jerk and decreased power in the left foot plantar flexion. There was also medical evidence that he was favouring his left leg [115] – [118].

18. While Dr Dave had taken an incorrect history that Mr Nanda had suffered a blow to the right knee, this was not critical. When his evidence was read as a whole, he clearly accepted a link between the back injury and the increase in right knee symptoms because Mr Nanda was favouring the left leg [122].

19. The Commission is entitled to rely on commonsense in evaluating questions of causation (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720). Commonsense strongly suggested that if Mr Nanda was putting more weight on his right leg because he was favouring his left leg, the symptoms in his right knee resulted, at least in part, from the injury to the back [123].

20. The appellant’s submission that Dr Houston’s record of complaint of knee pain on 11 May 2009 was not made in the context of compensating for the left leg was correct but that record had to be read with Dr Nguyen’s notes of 18 May 2010 which referred to right knee pain and leg compensatory pain [124]–[125].

21. It was apparent from a full reading of the notes of 18 May 2010 that Dr Nguyen had taken a history of the earlier knee injury, the back injury and the left leg symptoms, and that the reference to the right knee and leg compensatory pain was a reference to symptoms that resulted from placing extra weight on the right leg because of the left leg symptoms [126].

22. Roche DP did not accept the submission that Mr Nanda’s right leg symptoms were inconsistent with his claim that his right leg was supporting the left leg. Dr Fearnside’s examination revealed normal tone and power in the right leg which strongly suggested the right leg symptoms were not as troublesome as the left leg symptoms of radiculopathy [128].

23. The appellant’s submission that Dr Abraszko’s report contradicted Mr Nanda’s assertion that his right leg supported his left leg was also rejected. Dr Abraszko took a history of pain radiating into the right leg but found power, tone and reflexes were normal in the right leg [129]–[130].

24. Dr Smith reported that Mr Nanda’s knee arthritis was a constitutional genetic abnormality. Roche DP did not find Dr Smith’s evidence persuasive. The doctor did not deal with Mr Nanda’s case, namely, that his knee symptoms developed gradually over time (and not in the 2008 injury), and merely asserted that Mr Nanda had bilateral osteoarthritis that was not work related and was not affected by the 2008 injury [136].

Other matters

25. The Arbitrator correctly acknowledged that it would be an error to find that Mr Nanda suffered a s 4 injury to his right knee but then went on to make that finding at paragraph 1 of the Certificate of Determination. That order was revoked [145].

Conclusion

26. Applying a commonsense evaluation to the causal chain Roche DP found that, as a result of his left leg symptoms caused by his undisputed back injury in 2008, Mr Nanda suffered increasing symptoms in his arthritic right knee.  Whether those symptoms caused a whole person impairment was a matter for an AMS [146].

Keating P

4 September 2012

Facts:

The respondent worker, Mr Van Hai Le, was employed by the appellant as a supervisor.

Mr Le suffered two injuries in the course of his employment. On 17 July 2008, he fell off a ladder, injuring his neck and back. On 28 August 2008, he fell while descending stairs, injuring his shoulder, neck and back. The employer accepted liability for injuries sustained.

The worker’s treating specialist, Dr Ashish Diwan, recommended he undergo spinal surgery in the form of a posterior translumbar interbody fusion at L4/5 and L5/S1, with top-up dynamic stabilisation. A dispute arose as to whether the treatment was reasonably necessary (s 60 of the 1987 Act).

On 31 August 2010, Xchanging issued a notice under s 74 of the 1998 Act. It declined liability for the recommended treatment based on the opinion of an independent medical examiner, Dr Robert Breit, that the proposed surgery was not reasonably necessary.

On 18 October 2011, Mr Le lodged an Application in the Commission. He claimed the cost of medical, hospital and rehabilitation expenses in an unspecified amount with respect to the recommended surgery. He relied only on the injury he sustained on 17 July 2008. He alleged cervical and lumbar disc prolapse, and a left rotator cuff injury.

Initially the dispute was referred an AMS, Dr William Bye, to assess whether the proposed treatment was reasonably necessary as a result of the injury.  Dr Bye concluded that the proposed surgery was “doomed to failure on several accounts”, and issued a MAC to that effect.

Following an arbitration hearing, the Arbitrator found in favour of the worker.

Held: Arbitrator’s award confirmed

The issues on appeal:

Failure to properly consider the opinions of Dr Robert Breit and Dr William Bye

1. The Arbitrator considered Dr Breit’s opinion that the worker’s presentation was unreasonable and that surgical intervention was doomed to fail, particularly due to the “non-mainstream” nature of the procedure [86].

2. The Arbitrator noted that, in his report of 15 April 2011, Dr Breit was more circumspect in his opinion. He said that, in order to provide a more thorough opinion, he would need to reassess the worker and that his opinion would depend on the provision of appropriate further information as to whether the worker had received physiotherapy, by whom, the extent, and the effect, as well as an opinion regarding his current psychological status. Dr Breit did not reassess the worker which resulted in uncertainty as to his ultimate conclusion. [87].

3. The Arbitrator analysed Dr Bye’s evidence carefully and in detail. The Arbitrator noted Dr Bye’s diagnosis of multi-level disc and facet joint degeneration. She noted that Dr Bye considered the worker had overstated his symptoms and exaggerated his pain. Despite that, he accepted that the worker suffered a significant degree of pain. She noted the doctor’s views as to the possibility of the worker’s pain emanating from one of several levels of the lumbar spine [88], and that the fusion, together with the dynamic stabilisation, was unlikely to adequately resolve the sources of low back pain [89].

4. The Arbitrator’s analysis included an evaluation of Dr Diwan’s critique of Dr Bye’s opinion and the comparison opinions of Drs Teychenné and Etherington. It can be seen from the Arbitrator’s decision as a whole that she carefully weighed all of the medical evidence. The Arbitrator’s approach did not suggest any error [90].

Failure to give sufficient weight to the likelihood of the proposed treatment failing

5. To test the appropriateness of the proposed surgery, the Arbitrator applied the test articulated in Bartolo v Western Sydney Area Health Service [1997] NSWCC 1; 14 NSWCCR 233.  It was not suggested that she erred in doing so [99].

6. The Arbitrator acknowledged that the outcome may not mean that all of the symptoms would be relieved, mainly due to the fact that Mr Le has degenerative changes at various levels throughout the spine. The Arbitrator concluded that the intention of the surgery was to alleviate some of the symptoms, decrease some of the pain and, hopefully, decrease Mr Le’s level of disability, perhaps returning him to a situation where he could return to some form of alternative work [100].

7. She properly weighed the fact that the worker had undergone decompressive surgery and other treatments which had not been successful. She concluded, on balance, that there was a reasonable chance of a successful outcome from the proposed surgery. That conclusion was open on the evidence and disclosed no error [101].

The treatment was not mainstream

8. The appellant failed to identify the manner in which the Arbitrator was alleged to have erred. The submission that she failed to give due weight to the surgery being unusual and abnormal was, in reality, a thinly-veiled attempt to re-argue the case on its merits. The Arbitrator accepted that the surgery was somewhat unusual and expressly acknowledged that the proposed surgery was not usual in this country and was more commonly performed overseas. She considered the research materials that had been presented and acknowledged that the outcome of the proposed surgery was uncertain. The Arbitrator acknowledged that the treatment was unlikely to cure the worker’s symptoms, but considered that, if its effect was to alleviate the worker’s pain then it was reasonable that he be allowed to have it [107].

The alleged discretionary error

9. The medical evidence failed to reveal any particular risks associated with the surgery, other than the fact that it may be unsuccessful in relieving the worker’s pain [113].

10. The Arbitrator acknowledged that the particular surgical approach recommended was concerned with managing, in the most effective way, any instability in Mr Le’s spine that might arise from decompression of the spine at two levels in the absence of dynamic stabilisation to the level above [114].

11. The Arbitrator’s reasons included a consideration that Dr Diwan discussed the “pros and cons” of the surgery and the various risks involved with Mr Le, his family and an interpreter. The Arbitrator then took into account the various other surgical options that might be available [115].

The alleged error of fact

12. The Arbitrator accepted that the worker suffered from widespread degenerative changes and proceeded to analyse the cause of the divergence of medical opinion as to the effectiveness of the proposed treatment [124].

13. The Arbitrator observed that the different clinical findings as to the presence (or absence) of radiculopathy were at the core of the differences of medical opinion. Whereas, on one view of the medical evidence, the worker’s pain could be coming from any one of a number of levels in his lumbar spine, Dr Etherington and Dr Diwan were satisfied that it emanated from the L4/5 and L5/S1 levels, due to the prolapsed discs at that level and the compressed S1 nerve root. Their view of the radiology was confirmed by the presence of the clinical finding of radiculopathy. Those findings were significant factors relevant to their opinions on the need for surgery [125].

Alternative treatment

14. The submission that the Arbitrator failed to give weight to alternatives was rejected. In analysing the reasonableness of the proposed treatment, she referred to the alternative of continuing with pain management and rehabilitation techniques [134].

15. The Arbitrator also weighed the fact that the worker was taking significant levels of prescription medication, which was having side effects [135]. The Arbitrator also acknowledged that other forms of decompressive surgery were not viable options and that, although the worker had received extensive physiotherapy, it had not been successful in relieving his discomfort [136].

Abnormal illness behaviour

16. She acknowledged that Dr Diwan seemed to be the only practitioner who had not found abnormal illness behaviour to be significant. The Arbitrator again referred to Dr Bye’s remarks, noting his views that the worker overstated his symptoms. The Arbitrator also commented that Dr Breit was concerned about the same issue. Having weighed those opinions with the balance of the medical evidence, the Arbitrator concluded that, accepting that there was some evidence of exaggeration, in her view, looking at the evidence overall, she accepted that Mr Le suffered from a significant degree of pain [141].

17. The Arbitrator’s reasons demonstrated that she accepted that there was some evidence of exaggeration or abnormal illness behaviour, but that evidence did not abrogate the weight she attached to the clear evidence of the worker’s ongoing significant symptomatology in terms of the pain he experienced in his back and leg. Her conclusion, on balance, was that, notwithstanding the evidence of exaggeration or illness behaviour, the proposed treatment was reasonably necessary [142].

O’Grady DP

10 September 2012

Facts:

In 1999 the appellant, Ms Webb, was found by Bishop CCJ of the former Compensation Court of NSW to be totally incapacitated for work as a result of injuries received while in the course of her employment with Western NSW Local Health Network, the respondent. Bishop CCJ made an award for weekly payments of compensation pursuant to s 37 of the 1987 Act at the rate of $198.90 per week from 2 June 1997 to date and continuing.

That award was varied by consent on two occasions. On 20 August 2004 the weekly rate payable was varied to “$283.75 gross per week from 18 August 2004 until the next date of indexation and indexed thereafter in accordance with [the 1987 Act].” On 15 August 2005 the award was varied to include an additional weekly payment for Ms Webb’s dependant spouse. That variation commenced on 26 July 2004 and provided that such payments were to continue “as indexed thereafter under [the 1987 Act].”

It was agreed between the parties that Ms Webb remained totally incapacitated to the present time, that she had been employed as a part-time Cook (Grade B) as defined by the Health Employees (State) Award, that she worked 18 hours per week (this was made up of three six hour shifts, one performed on a week day, one on a Saturday and one on a Sunday) and that she received shift penalties in respect of Saturday and Sunday work.

A dispute arose between the parties as to the computation of Ms Webb’s entitlement to weekly compensation from 1 January 2005. In a Certificate of Determination dated 22 May 2012 Arbitrator Scott made orders that the respondent pay Ms Webb “weekly compensation based on the Health Employees State Award for a Cook Grade B at 18 hours per week, being the current weekly wage rate, from 1 January 2005 to date and continuing under s 37 of [the 1987 Act].” The Arbitrator then reproduced and adopted weekly amounts set out in a table in the respondent’s submissions.

The issue in dispute on appeal was:

(a)  whether Arbitrator Scott erred in her manner of interpreting and applying s 42 of the 1987 Act.

Held: Determination of Arbitrator revoked and a new order made in its place

Findings

1. Ms Webb submitted before the Arbitrator that her average weekly earnings were to be calculated at the Award rate, according to the 18 hours per week that she worked, and were to include shift penalties. The Arbitrator misapprehended Ms Webb’s submission when stated “[Ms Webb] claims that [average weekly earnings] should be based on a 38-hour week rather than the 18 hours for which [she] was employed” [28]–[30].

2. Ms Webb’s primary argument on appeal was that the Arbitrator erred in accepting the respondent’s argument concerning the relevance of s 42(6) of the 1987 Act to the calculation of her weekly compensation entitlement. That submission was that where, as in the present case, the current weekly wage rate exceeded the average weekly earnings, pursuant to s 42(4) of the 1987 Act, those average weekly earnings were treated as the current weekly wage rate and s 42(6) required that such calculations did not include shift penalties [32].

3. The current weekly wage rate and average weekly earnings must be determined as a preliminary step. Pursuant to s 42(6) the current weekly wage rate is to be determined disregarding shift and other allowances. The rate is to be fixed according to the relevant Award for a 38 hour week. The words “in respect of the work being performed by the worker immediately before being incapacitated” in s 42(1)(a) refer to the worker’s classification and not the hours performed [33].

4. Having regard to s 43 and the definition of “average weekly earnings” in s 42(8) of the 1987 Act, O’Grady DP found that shift and other allowances may be properly taken into account when a part-time worker’s average weekly earnings are being determined. In arriving at this conclusion O’Grady DP noted that s 43(1)(d) stipulates that payments to “cover any special expenses incurred by the worker because of the nature of the employment … shall not be reckoned as part of the earnings” and that the section was silent as to other emoluments received by workers [34].

5. In the present case, adopting the approach outlined above, Ms Webb’s current weekly wage rate exceeded her average weekly earnings [35].

6. The work to be done by s 42(6) is to ensure that shift and other allowances are disregarded in the preliminary step of determining whether the current weekly wage rate exceeds the average weekly earnings. Pursuant to s 42(4), once it is established that the current weekly wage rate exceeds the average weekly earnings, those average weekly earnings, as calculated, are to be treated as the relevant current weekly wage rate and nothing in the legalisation requires any further deduction from those earnings [45]-[46].

7. O’Grady DP noted that he was fortified in his views having regard to observations made by the majority of the High Court in Rizzi v Grazcos Co-operative Ltd [1981] HCA 37; 153 CLR 669 when considering the proper assessment to be made under s 9 of the former Workers’ Compensation Act 1926 which contained a provision in similar terms to s 42(6), being s 9(11) [47]–[48].

8. The facts of Woolworths Ltd v Sterrett [2012] NSWWCCPD 24 (Sterrett) could be distinguished from the current case because the worker in Sterrett acquiesced to the Arbitrator’s approach to determining the current weekly wage rate and that question was not agitated on appeal. Further, the average weekly earnings of the worker in Sterrett exceeded the current weekly wage rate and therefore the issue raised in this case was not addressed [50]–[58].

9. The Arbitrator erred in her acceptance of the approach suggested in the respondent’s submissions and as reflected in her determination as to weekly entitlement. Such error constituted an error of law. The Arbitrator’s decision was revoked. A new order was made in its place in the following terms:

an award in favour of [Ms Webb] from 1 January 2005 in the sum of $415.60 per week being the maximum statutory entitlement in respect of a totally incapacitated worker with a dependent spouse, pursuant to s 37 as adjusted to date and continuing.

Keating P

13 September 2012

Facts:

Mr Halil Oztop commenced employment with the appellant at the Prince of Wales Hospital in approximately 1995 as a kitchen hand.

Mr Oztop claimed that in the course of his employment he was exposed to loud noise emanating from large industrial dishwashing machines and from the noise emanating from the cleaning of metal cooking appliances, porcelain crockery and metal cutlery within the hospital kitchen and scullery.

On 1 December 2010, Mr Oztop’s solicitors made a claim for lump sum compensation in the sum of $5,005 in respect of a 7.7 per cent binaural hearing loss.

The appellant’s insurer denied the claim and issued a s 74 notice stating the hospital was not “the last noisy employer”.

On 2 November 2011, Mr Oztop lodged an application in the Commission.

The Arbitrator found Mr Oztop’s employment with the appellant was of the nature to which his hearing loss was due.

The issues on appeal were that the Arbitrator erred in:

(a)      failing to correctly apply Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35(Dawson);

(b)      failing to provide adequate reasons to explain his decision with respect to the conclusions he reached regarding the expert evidence relied upon by both parties, and

(c)      failing to give adequate weight to the appellant’s expert evidence as to the degree of noise exposure to which the applicant worker was likely to be exposed in the course of his employment.

Held: Arbitrator’s award revoked

Adequacy of reasons

1. The Arbitrator referred to the leading authorities, including Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), Dawson and Callaby v State Transit Authority (NSW) [2000] NSWCC 30; 21 NSWCCR 216 (Callaby), concerning the evidentiary requirements of establishing an entitlement to compensation under s 17 of the 1987 Act [61].

2. The Arbitrator correctly identified that it was not necessary for a worker to call an acoustics engineer in every case, but it was always essential that he or she present detailed evidence (if no acoustics expert is to be relied on) of the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the “tendency, incidents or characteristics” of that employment are such as to give rise to a real risk of boilermaker’s deafness (Dawson at [44]) [62].

3. It was clear from a reading of the Arbitrator’s decision as a whole that he considered the weight to be attached to the acoustics experts’ evidence before applying the principles in Dawson [63].

4. The appellant submitted that the Arbitrator failed to give adequate reasons for his conclusions with respect to the competing, non-medical expert evidence. It submitted that the Arbitrator failed to explain whether he preferred the Woolven report of 27 October 2011 “(and/or the Noyce/Woolven report dated 8 November 2010)” over that of the “appellant’s expert evidence” [65].

5. The appellant’s submissions with respect to Dr Noyce’s report of 8 November 2010 were misconceived. The Arbitrator’s assessment of the acoustic experts’ evidence did not take into account, nor should it have, any reference to Dr Noyce’s medical opinion, although that of course would be highly relevant to the allegations concerning the failure to apply Dawson [66].

6. In so far as his assessment of the report of Mr Woolven was concerned, the Arbitrator “noted its brevity”. He then went on to note that Mr Woolven had taken readings of “a large commercial dishwasher” with an assumed exposure of eight hours per day. That was the extent of the Arbitrator’s analysis of the Woolven report. The Arbitrator did not expressly say that he rejected the report or what weight he gave it. Although it may be inferred he placed no weight on it, the Arbitrator did not state the reasons for reaching that conclusion. He failed to engage with the expert evidence and did not explain whether it was accepted or rejected (Council of the City of Liverpool v Turano [2008] NSWCA 270. [69]

7. In relation to the occupational noise survey by Nakhla, the Arbitrator noted that the 1999 survey was a general one of a number of different areas in the hospital. No further analysis was made of the report and, again, the Arbitrator failed to give any reasons, or explain whether he accepted or rejected it, or what weight he placed on it, although it was reasonable to infer that he did not accept it [70].

8. Referring to the occupational noise assessment by Ms Boon in May 2002, the Arbitrator made it reasonably clear that he gave the report no weight because the author of the report failed to identify whether the noise measurements taken were those of the large industrial dishwashing machine found in the scullery or something else called the “kitchen dishwasher”. Accepting the worker’s evidence that the kitchen and the scullery were separate and distinct areas of the workplace, this was sufficient reason for rejecting this report as expert evidence to support the proposition that the noise emanating from the large industrial dishwashing machine in the scullery, on which the worker relied, exceeded accepted occupational limits [72].

9. Whether the Arbitrator’s observation that the sampling period with respect to the dishwasher was 50 minutes was critical to his rejection of the evidence, was not clear, but the use of the words “in any event” appeared to indicate that the observation was meant as an aside, and that the real reason for rejecting the evidence was that he could not be satisfied that the equipment assessed was the relevant equipment under consideration [73].

10. Save for the report of Ms Boon, this ground of appeal was made out [74].

Weight of the expert evidence

11. The appellant argued that the Arbitrator’s decision was affected by error in that he failed to give weight to the appellant’s expert evidence as to the degree of noise exposure to which the worker was likely exposed in the course of his employment.

12. The stated purpose of Morris Nakhla’s report of 9 February 2009 was to identify any risk of noise hazard during normal operations throughout the hospital. It was not specific to Mr Oztop’s duties, nor specifically directed to the equipment alleged by him to have given rise to his deafness.  Importantly, Table 5.1 set out the sound pressure emission levels of various pieces of equipment throughout the hospital. Without being exhaustive, the sources included various saws, workshop equipment, vacuum cleaners and polishers, scrubbers, air conditioning units, the lithotripsy machine and various hyperbaric equipment. It was apparent from the report that the survey did not include an assessment of the scullery or the large industrial dishwasher the subject of Mr Oztop’s complaints. For these reasons, the Arbitrator was correct to conclude that the report was of no probative force [81].

13. The measurements referred to in Occupational Noise Assessment by Gail Boon dated 3 May 2002 report were undertaken by Ms Boon (and Mr Nakhla) on 3 May 2002. The stated aim of the survey was to assess the personal noise exposure levels of various tasks and identify noise hazards associated with the areas concerned. There was no dispute that the author of the reports identified the appropriate occupational health and safety regulations relevant to noise exposure. No issue was taken with respect to the instrumentation used, its calibration, or the noise-testing procedures undertaken [82].

14. The “results” of the assessment were included in a table in the report. It seemed that the testing was exclusively undertaken in the kitchen, the hyperbaric area, the Café Court and retail area. The hyperbaric findings were irrelevant to the issues in this matter. In so far as the measurements in the kitchen were concerned, the authors concluded that the noise emanating from the kitchen did not present a significant noise exposure to the operators and staff. The report was silent as to the noise emanating from the scullery or, in particular, from the commercial dishwashing machine contained therein. It was apparent from the report that that area of the hospital was not the subject of this assessment. For that reason, the authors’ conclusions were irrelevant and were, again, of no probative value [83].

15. There were a number of deficiencies in Industrial Audiology Services report by Ross Woolven of October 2010. First, it was not asserted that the conclusions were based on an assessment of the noise emanating from the scullery at the Prince of Wales Hospital or, in particular, the large industrial dishwasher at that location. The report was silent as to the methodology adopted by the author to reach his conclusions. It was silent as to when the testing referred to was carried out, the equipment used, or the methodology used. All that could be gleaned from the report was that the author reached a conclusion from “projects undertaken by IAS and their associates”; it was unknown as to what those projects were, where they were undertaken, when they were undertaken, or the results obtained from the so-called “projects” [84].

16. It was apparent that the author had attempted to reach a conclusion about Mr Oztop’s exposure to noise at the Prince of Wales Hospital without having visited the hospital or having accessed his particular workplace. For these reasons, the conclusions reached by Mr Woolven were unreliable in the circumstances of this case and had no probative value [85].

17. For the reasons given in this decision, although the Arbitrator’s reasons were inadequate, his ultimate conclusions with respect to the weight to be attached to the non-medical expert evidence did not involve error [86].

Did the Arbitrator err in the application of Dawson?

18. The appellant submitted that the worker’s evidence alone was not sufficient to discharge the onus of proof upon the applicant worker in a hearing loss case. The appellant submitted that the worker’s subjective evidence must be supported by sufficient expert evidence to allow a proper conclusion that the employment had the necessary “tendency, incidents or characteristics” to give rise to a real risk of industrial deafness.

19. In Dawson, evidence necessary to prove a hearing loss case in the absence of evidence from an acoustics engineer was discussed. For the reasons already given, although there was evidence from acoustics experts, it was of no probative value [93].

20. In order to discharge the onus of proof, the worker was required to provide detailed evidence as to the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the tendency, incidents or characteristics of that employment were such as to give rise to a real risk of boilermaker’s deafness (Dawson) [95].

21. After noting that the applicant relied on the report of Dr Noyce, the Arbitrator made no further reference to Dr Noyce’s evidence and clearly did not take Dr Noyce’s evidence into account in terms of satisfying the expert evidence component of the standard of evidence necessary to prove a hearing loss claim in accordance with Dawson. In that respect, the Arbitrator erred [98].

22. However, the Arbitrator’s error with respect to the reasons was not material to the outcome of the appeal because, for different reasons, Judge Keating reached the same conclusion as to the weight to be attached to the non-medical expert evidence [99].

23. However, the error with respect to the application of the principles discussed in Dawson was material to the outcome of the appeal. An error must be corrected unless it could not possibly have affected the outcome of the arbitration (Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561). [100]

24. There was no challenge to the worker’s evidence. However, a careful analysis of the worker’s evidence revealed that the industrial dishwasher only operated at intervals during each shift [104].

25. On the 6.00 am to 2.30 pm shift, Mr Oztop would have only been exposed to the noise of the industrial dishwasher for two-and-a-half hours in the morning and one hour in the middle of the day, a total of three-and-a-half hours [105].

26. On the 8.00 am to 4.30 pm shift, the worker would have been exposed to a maximum of five hours of noise from the dishwashing machine [106].

27. On the 1.00 pm to 9.00 shift, the worker could only have been exposed to a maximum of five-and-a-half hours’ noise exposure, as the machine only operated between 1.30 and 4.00 pm, and 6.00 pm and 9.00 pm during that shift [207].

28. The history of exposure given to Dr Noyce, which formed the basis of his conclusion, was that Mr Oztop was exposed to the noise of commercial dishwashers, metal dishes and pans on an intermittent and, at times, continuous basis for up to eight hours a day. That was incorrect. On the worker’s own evidence, he could never have been exposed to the noise from the industrial dishwashing machine for up to eight hours a day [108].

29. In addition, it seems reasonably clear from Mr Oztop’s own evidence that he did not work in the scullery every day. He said that he was “quite often rostered to work in the scullery room”. When he wasn’t working in the scullery, he worked in the hospital kitchen. He also dispensed meals to patients and attended to the rubbish disposal and other duties. Although the worker gave subjective evidence that some of those activities were noisy, there was no expert evidence that the noise exposure from those activities could give rise to a risk of boilermaker’s deafness [109].

30. The actual evidence of Mr Oztop’s exposure (duration) to the noise from the dishwashing machine was at odds with the history relied upon by Dr Noyce. Unlike the facts in Dawson, Dr Noyce did not have access to the worker’s statement setting out the detail of the period or nature of his noise exposure.

31. It followed that the history provided to Dr Noyce did not provide a sound basis for the acceptance of his conclusions. Therefore the worker’s subjective evidence of his exposure to noise was not supported by expert evidence concerning the nature (volume) and the extent (duration) of the noise to which he was exposed. In the circumstances the worker could not satisfy the onus of proof and the application failed [111].