Issue 11: November 2012

Mr Goudappel was employed by ADCO Constructions Pty Limited.  He was injured on a building site on 17 April 2010. It was agreed that he made a claim for compensation on 19 April 2010. An amended Application was filed, by consent, at the hearing to reflect that fact.

On 14 July 2011, Mr Goudappel was assessed as having a six per cent whole person impairment with respect to the injuries he sustained.

On 20 June 2012, his solicitors made a claim for compensation pursuant to s 66 of the 1987 Act for $8,250 representing a six per cent whole person impairment.

Section 66(1) of the 1987 Act was amended by Sch 2 cl 2.1[5] of the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). The amendment provided that a worker who receives an injury which results in permanent impairment greater than 10 per cent is entitled to receive compensation from the worker’s employer. Prior to the amendment there was no impairment threshold limiting the entitlement to lump sum compensation under s 66.

Clause 15 of Sch 12 of the Amending Act, (amendments relating to savings and transitional provisions) provides that the Sch 2 amendment “extends to a claim for compensation made on or after 19 June 2012 but not to such a claim made before that date”.

On 3 July 2012, ADCO through its insurer GIO General Limited (GIO) rejected Mr Goudappel’s claim on the basis that the compensation claimed fell below the whole person impairment threshold in s 66 of the 1987 Act, introduced by Sch 2 of the Amending Act.

As a result of the dispute, Mr Goudappel lodged an Application to Resolve a Dispute seeking $8,250 in respect of six per cent whole person impairment to the left lower extremity resulting from injuries sustained on 17 April 2010.

There was no dispute that Mr Goudappel sustained a compensable injury nor is there any dispute that he was entitled to receive weekly benefits compensation.

On 9 August 2012, GIO lodged a Reply to the Application setting out the matters in dispute.

The issue before the Arbitrator was whether the applicant was precluded from claiming lump sum compensation which had been assessed to be less than 11 per cent whole person impairment because his claim for compensation was made on or after 19 June 2012, even though he had previously made a claim for weekly compensation in respect of the same injury.

The Arbitrator considered that the issue involved a novel and complex question of law concerning the statutory construction of the amendments made by the Amending Act. The parties agreed that the question of law should be referred for determination by the President pursuant to s 351 of the 1998 Act.

The question of law referred:

Do the amendments to Division 4 of Part 3 of the Workers Compensation Act 1987 introduced by Schedule 2 of the Workers Compensation Legislation Amendment Act 2012 apply to claims for compensation pursuant to s 66 made on or after 19 June 2012 where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012?

Held: The answer to the question of law referred for determination was:

The amendments to Div 4 of Pt 3 of the 1987 Act introduced by Sch 2 of the Workers Compensation Legislation Amendment Act 2012, apply to claims for compensation pursuant to s 66 made on and after 19 June 2012, where a worker has made a claim for compensation of any type in respect of the same injury before 19 June 2012.

The legal principles

1. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ held at [78]:

... the duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (eg the presumption that, in the absence of unmistakeable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities: Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

2. They further held at [69] that any particular provision should be read in the context of the legislation as a whole.

3. In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27, his Honour the Chief Justice stated at [4]:

The starting point … is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose.

4. Judge Keating agreed with WorkCover’s submission that, reading the remarks of the Chief Justice and the majority together, the text of the legislation was the primary focus of consideration. Extrinsic materials could not be used to displace the intent of the legislature, revealed by the words of the statute [120].

5. Project Blue Sky and Alcan were consistent with the proposition that extrinsic materials could not be used until the wording of the legislation had been exhausted. The meaning of the words contained in any part of a statute should be construed in the context of the whole of the statute [121].

6. Mr Goudappel’s application was concerned with the interpretation of cl 15 which commenced with the subheading “Lump sum compensation”. The parties agreed that, as the heading “Lump sum compensation” was not a heading to a Chapter, Part, Division or Subdivision within the terms of s 35(1)(a) of the Interpretation Act 1987, nor was it a heading to a Schedule within the terms of s 35(1)(b) of the Interpretation Act, it therefore could not be taken to be part of the Act. Judge Keating accepted that to be the position and accordingly disregarded the heading [122].

7. However, cl 15 commenced with the words “An amendment made by Schedule 2 to the 2012 amending Act”. Sch 2 was headed with the words; “Amendments relating to lump sum compensation” This was a heading to a Schedule within the meaning of s 35(1)(b) of the Interpretation Act 1987 and it was therefore taken to be part of the Act. Schedule 2 introduced the amendment to s 66(1) with which the question of law was concerned [123].

8. As a general principle, courts have pointed out that they are not at liberty to consider any word or sentence in a statute as superfluous or insignificant (Project Blue Sky at [71]).

9. Clause 3 of the Amending Act, provided that amendments made by the Amending Act extended to injuries received and claims made before the commencement of the amendment, except as provided by that Part or the regulations. The Amending Act was retrospective, unless there was an exception. The only way an exception could be created for a claim for compensation under s 66 of the 1987 Act (a claim for lump sum compensation), was if the words “An amendment made by Schedule 2” were omitted or ignored. There was no justification for reading cl 15 in that way and to do so was contrary to the principles discussed in Project Blue Sky at [71] [125].

10. The intention of cl 15 was clear from its terms because it was defined by the subject matter to which it applied, namely, “An amendment made by Schedule 2 to the 2012 amending Act”. As Sch 2 of the Amending Act expressly dealt with “Amendments relating to lump sum compensation”, it followed that an amendment by Sch 2 extended by virtue of cl 15 to a claim for lump sum compensation made on or after 19 June 2012, but not to such a claim made before that date [126].

11. A right to lump sum compensation is a right that only crystallises on a specific date in respect of a defined level of permanent impairment that has a dollar value attached to it. The foundation for it, the injury, exists, but the claim to which cl 15 relates is the claim to which Sch 2 relates, namely, the claim for permanent loss compensation. That claim must have crystallised, and have been made in its terms, before 19 June 2012 to fall within the exception that cl 15 provides. As Mr Goudappel made no claim for permanent impairment compensation until after 19 June 2012, and as no such compensation was paid or payable to him before 19 June 2012, he had no entitlement to such compensation [128].

12. Senior Counsel for the applicant argued that, in the absence of more specific language, the generality of the words “a claim for compensation” in cl 15, “override” the proposition that the legislature was intending to refer to lump sum compensation. He argued that, as a matter of construction, to construe the words “An amendment made by Schedule 2” as only referring to lump sums can only be achieved by looking to provisions beyond the wording of cl 15 itself. If the words “An amendment made by Schedule 2” were intended to refer to lump sum provisions then the legislature could have been expected to have made that plain, but did not [129].

13. Implicit in the applicant’s submission was a prohibition on looking beyond the words of cl 15 to interpret its meaning. That submission was contrary to the principles of statutory construction stated in Project Blue Sky and was rejected. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole [130].

14. Without reference to all the words of cl 15 the provision would be meaningless. Contrary to the applicant’s argument the legislature used plain language to prevent the recovery of lump sum compensation in circumstances where no claim for that compensation had been made prior to 19 June 2012 [131].

15. Construing the text of cl 15, in the context of the Amending Act, the question referred was answered in the affirmative [132].

Legislative purpose

16. The context of cl 15 was that it formed part of an extensive range of amendments introduced to reduce the benefits payable to less seriously injured workers and, in limited circumstances, increased benefits payable to more seriously injured workers. In this context the interpretation of cl 15 favoured by Judge Keating was consistent with the overall purpose of the Amending Act [134].

17. Only if there was any ambiguity in cl 15, was it appropriate to then consider extrinsic material.

18. Section 33 of the Interpretation Act 1987, dictates that, in the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule is to be preferred to a construction that would not promote that purpose or object [137].

19. The clear purpose of the legislation was to restrict lump sum compensation. Applying s 33, the construction that promoted the purpose of the transitional provisions was one that limited access to lump sum compensation to claimants who have made a claim for compensation, as opposed to a claim for any form of compensation, before 19 June 2012 [138].

20. The applicant’s submission that the interpretation favoured by Judge Keating would create uncertainty and confusion on the part of the employer and the insurer, which was contrary to the overriding legislative purpose of the Acts, was rejected. The opposite was achieved. By clearly delineating those claims that may proceed, and those that may not, provides employers and insurers greater certainty in estimating claims liabilities, which was consistent with the purpose of the legislation [141].

Claiming compensation benefits

21. The applicant contended that the Workers Compensation Acts did not differentiate between claims for different compensation types and submitted that once the initial claim was made, the provisions of cl 15 were satisfied and nothing further was required [142].

22. In substance, a claim for lump sum compensation is not validly made until the requirements of s 282 of the 1998 Act, and the particulars and supporting documents required by the Guidelines, are provided. This is consistent with s 281(1), which requires that a person on whom a “claim” for lump sum compensation (or work injury damages) has been made to either accept the “claim” or dispute liability [150]-[151].

23. The applicant’s reliance on s 261(3) of the 1998 Act to support the proposition that the legislation operated so that a right to lump sum compensation is not contingent upon a specific claim for compensation, but rather any claim for compensation, was misplaced [155]. The use of the expression “claim for compensation” in that provision is limited to the application of the provisions dealing with the time limit in which claims are to be made [156].

24. The applicant submitted that the word “compensation”, as defined, has a very wide meaning. The definition does not limit the types of benefits that fall within the term compensation, and is used to refer to all types of compensation, not just one type [158]. That submission ignored the opening words to cl 15 “An amendment made by Schedule 2” which is a reference to the amendments to s 66 of the 1987 Act which is located in Div 4 of Pt 3 of the 1987 Act. That Division is only concerned with “compensation for non-economic loss”, that is, lump sum compensation for permanent impairment [160]. When read in context, the phrase “a claim for compensation” in cl 15 is clearly a reference to lump sum compensation and not a reference to compensation used in the wider sense [161].

Extrinsic material

The Minister’s second reading speech

25. Section 34(2)(f) of the Interpretation Act 1987 permits, among other things, the use of the Minister’s second reading speech to the Parliament as extrinsic material that may be considered in the interpretation of a provision [163].

26. During the second reading speech on 19 June 2012, the Treasurer outlined the government’s view that if it did not act immediately, based on actuarial advice, the scheme faced a prospect of a 28 per cent increase in workers compensation premiums. He explained that the Bill represented a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme while strongly incentivising return to work for workers with capacity to return to work [166].

27. The purpose of the Amending Act, as expressed by the Minister, was to address an urgent and rapidly deteriorating deficit in the NSW workers compensation scheme. The Minister expressed the legislature’s intention to focus the distribution of benefits to those workers suffering more serious injuries [169].

28. The Minister’s reference to the time of the introduction of the lump sum reforms was clearly stated to apply to claims “from the date of the introduction of the Bill”, that is, from 19 June 2012, which was the date identified in cl 15 as the operative date [170].

29. The Minister’s speech was consistent with the conclusion reached applying the principles in Project Blue Sky and Alcan.  That meaning was that the lump sum amendments were intended to apply to permanent impairment lump sum claims made on or after 19 June 2012, even if the injury happened before that date [171].

The Regulations

30. The applicant submitted that because the Worker Compensation Amendment (Transitional) Regulation 2012 became operative before the date of its publication in the Gazette, it could not operate in a manner prejudicial to the applicant by reason of Sch 6 Pt 20 sub-cl 3(a) of the 1987 Act. To that extent it was ultra vires [176].

31. Judge Keating’s conclusion as to the effect of cl 15 did not depend on the effect of the Regulation. Therefore, even if the Regulation was ultra vires that made no difference to the outcome [178].

Roche DP

31 October 2012

Facts:

Mr Earl conducted a farming business. For several years up to and including the year ending 30 June 2008, he held the farm’s workers compensation insurance with CGU Workers Compensation (NSW) Ltd, a scheme agent.

On 23 April 2008, WorkCover wrote to CGU and informed it of proposed amendments to the 1987 Act. Under the amendments, employers with wages of less than $7,500 would be exempt from maintaining a policy of workers compensation insurance. WorkCover directed CGU to notify all employers of these changes when sending renewal notices for policies commencing on or after 30 June 2008 and provided a pro forma letter to be sent to employers for that purpose.

On an unidentified date, CGU sent Mr Earl a copy of the pro forma letter WorkCover had sent to it on 23 April 2008. The letter stated that, from 30 June 2008, employers who expected to pay $7,500 or less in annual wages would no longer require a workers compensation insurance policy, but a policy would still be required if an employer engaged an apprentice or trainee, or was a member of a group for workers compensation purposes.

The pro forma letter added that employers who expected to pay more than $7,500 in annual wages over the next year, or expected to employ an apprentice or trainee, would need to complete and submit the attached wages estimate and renew their policy. Employers who paid more than $7,500 in annual wages in 2007/08, but expected to pay $7,500 or less over the next financial year were still required to submit a wages estimate to CGU. If the employer satisfied the exemption conditions, the policy would not be renewed. However, if at any time the employer’s circumstances changed and it expected to pay more than $7,500 in wages, it would need to obtain a workers compensation policy.

The pro forma letter said that if the recipient of the letter was an employer who no longer required a workers compensation policy from 30 June 2008, its workers would still be covered. If a worker made a claim, it would be allocated to a scheme agent and an administration fee of $175 would be payable. Incidents involving injury or illness to workers should be reported to WorkCover within 48 hours

On 28 August 2008, WorkCover issued a document headed “Small Employer Policy Exemption” subtitled “Scheme Agent Administrative Requirements” (the exemption document). In summary, the exemption document provided details of the “procedures and requirements impacting employers and Scheme agents as a result of the introduction of the small employer policy exemption”. It stated in cl 4.3.1 that scheme agents should not renew policies with known wages of $7,500 or less unless an employer advised that estimated wages for the renewal were greater than that figure. If an employer with a policy renewal date on or after 30 June 2008 and known wages greater than $7,500 notified their scheme agent in writing prior to the renewal date that their estimated wages for the renewal year would be $7,500 or less, “the policy should be lapsed” (cl 4.3.2).

On 29 August 2008, Mr Earl faxed a declaration of actual wages for 30 June 2007 and 30 June 2008 and an estimate of wages for the following year. Actual earnings from 30 June 2007 to 30 June 2008 were $7,365 and estimated wages for 2008 to 2009 were $7,000.

On 19 September 2008, CGU wrote to Mr Earl a letter headed “Exempt Policy Cancellation Notice”. The letter stated that as the estimated wages were $7,500 or less, he was “classified as an exempt employer” and no longer required to hold a NSW workers compensation insurance policy. His policy had “therefore been cancelled with effect from 30/06/2008”.

On 5 January 2010, Laurence Perry, gave Mr Earl a notice of injury. The parties accepted that 5 January 2010 was the correct deemed date of injury. On 29 June 2010, Mr Earl notified CGU that the worker had sustained a work related injury.

In October 2011, WorkCover paid to the worker lump sum compensation. On 25 January 2012, WorkCover wrote to Mr Earl seeking reimbursement under s 145(1) of the 1987 Act.

Mr Earl lodged an Application in the Commission in which he disputed liability to reimburse the Nominal Insurer and sought a determination of liability pursuant to s 145(3).

The Arbitrator found that the exemption document did not remove the need for insurers to seek WorkCover’s consent to cancel a policy and failed to give any guidance as to the mechanism for dealing with the cancellation of a policy of an exempt employer, but only directed that the employer was to be advised that he or she was an exempt employer and would not need to take out a policy.

The issues on appeal were whether the Arbitrator erred in:

(a) finding that Mr Earl had a valid policy of workers compensation insurance;

(b) his interpretation of s 155AA of the 1987 Act;

(c) his interpretation of cls 17 and 18 of the statutory policy;

(d) concluding that the workers compensation policy previously issued to Mr Earl had not been validly cancelled, and

(e) not determining that Mr Earl was liable to reimburse the Nominal Insurer the amounts sought in the s 145 notice dated 25 January 2012.

The appeal turned on whether s 155AA removed the requirement in the statutory policy for an insurer to seek consent from WorkCover to cancel a statutory policy and, if it did not remove that requirement, whether CGU cancelled the statutory policy.

Held: the Arbitrator’s determination confirmed

Monetary threshold

1. The Commission’s jurisdiction to hear disputes of this kind is found in s 145(3) of the 1987 Act, which provides that a person on whom a notice is served under s 145(1) may, within a set time, apply to it “for a determination as to the person’s liability in respect of the payment concerned”. The reference to “the payment concerned” is a reference to compensation payments made by the Nominal Insurer to the worker [42].

2. The term “compensation” is defined in s 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. The money paid by the Nominal Insurer to the worker was paid as lump sum compensation and for medical expenses.  It was undeniably a “monetary benefit” under the legislation and was therefore “compensation” that exceeded $5,000 [44].

Section 155AA

3. Section 155AA(1) merely provides that an employer is an “exempt employer” during a financial year while the employer has reasonable grounds for believing that its annual wages will be $7,500 or less. Such an employer is “deemed to have obtained from the Nominal Insurer (and the Nominal Insurer is deemed to have issued)” a policy of insurance (an exempt employer policy) in compliance with s 155 for any period for which the employer is an exempt employer (s 155AA(3)) [63].

4. An exempt employer policy covers the employer for any period for which the employer is an exempt employer but does not cover the employer for any period for which it has “actually obtained a policy of insurance under section 155” (s 155AA(4)). An administration fee of $175 is payable to the Nominal Insurer by an employer in respect of each claim made against the employer in respect of an injury to a worker received during any period for which an exempt employer policy covers the employer (s 155AA(5)) [64].

5. Though Mr Earl became an exempt employer when he notified CGU at the end of August 2008 that his actual wages for the 2008 financial year were below $7,500, that did not mean that his policy with CGU was no longer governed by the terms of the statutory policy. Section 155AA says nothing, expressly or impliedly, about the circumstances in which policies can be cancelled (or not renewed) and nothing about the requirement that an insurer must obtain the consent of WorkCover before it can cancel (or refuse to renew) a statutory policy. The terms of the statutory policy were not altered by s 155AA. They had to be complied with before a policy could be validly cancelled [65].

6. Section 155AA did not say, expressly or impliedly, that existing statutory policies, that is, policies on foot at the time the section was introduced in May 2008, were cancelled or were of no effect. Its purpose was stated in the second reading speech in the Legislative Council of 14 May 2008, namely, to exempt “employers who pay wages below a threshold, initially of $7,500, from the requirement to hold a workers compensation policy” and to “reduce the costs and administrative burden on several hundred thousand small and domestic employers by removing the requirement to obtain a minimum premium or domestic workers compensation policy” [66].

7. The fact that an “exempt employer policy” covered employers for any period while the employer was an “exempt employer”, but did not cover the employer for any period for which the employer “has actually obtained a policy of insurance under section 155” (s 155AA(4)), strongly suggested that the legislature envisioned situations where statutory policies would remain on foot, even though the employer’s wages dropped below $7,500. It followed that such policies took effect according to their terms. Those terms include cls 17 and 18 of the statutory policy [67].

8. It followed that s 155AA did not have the effect of placing exempt employers into their own category and eliminating the need for an insurer to obtain written consent before cancelling existing policies. It did not override or replace the steps necessary to cancel validly a statutory policy [68].

Whether CGU cancelled that statutory policy

9. Clause 18 of the statutory policy was in clear and unequivocal terms: an insurer could not cancel an employer’s statutory policy in any circumstances without WorkCover’s written consent. The question therefore arose: did CGU have consent to cancel Mr Earl’s policy? If it did, did it validly cancel his policy? [80].

10. The answer to the first question turned on the meaning and effect of cl 4.3.2 in the exemption document.

11. If the exemption document merely said that the statutory policy would “lapse” upon an employer becoming an exempt employer, such an expression would not constitute consent to cancel the policy. However, the exemption document said that, if certain specified circumstances existed, the statutory policy of certain employers “should be lapsed”. There was no doubt that the modal verb “should” stated an obligation to do something. An obligation to do something carried with it consent to do that thing [87].

12. The Deputy President noted the email from Mr Mansfield at WorkCover to Mr Earl’s solicitor on 24 February 2012 which stated that, after checking with the appeals branch (presumably with WorkCover), that “according to WorkCover guidelines permission to cancel a policy because wages are below the exemption limited is not required”.  That statement was incorrect. Consent was required to cancel a statutory policy of an exempt employer [91].

13. While there was no direct evidence that CGU received the exemption document, the reasonable inference from the chronology of events, namely, the issuing of the exemption document on 28 August 2008 and CGU sending its letter to Mr Earl on 19 September 2008, was that CGU received the document. It was inconceivable that WorkCover would not have sent the exemption document to all scheme agents immediately after 28 August 2008 [92].

14. For an insurer to cancel validly a statutory policy, two conditions must be satisfied. The insurer must have the written consent of WorkCover to cancel that policy, and the cancellation day “must not be less than 7 days after the notice of cancellation is given to the Employer” [93].

15. The consent concerned must be consent to cancel Mr Earl’s policy. The exemption document did not provide that consent.  Clause 4.3.2 only provided consent to cancel the policies of employers who:

(a) had a policy with a renewal date on or after 30 June 2008;

(b) had known wages greater than $7,500, and

(c) notified the scheme agent in writing “prior to the renewal date” that their estimated wages for the renewal year would be $7,500 or less [94].

16. The first condition applied to Mr Earl because his policy fell to be renewed on 30 June 2008. However, the second and third conditions did not apply to him. The second did not apply because, as at 30 June 2008, he did not “have known wages greater than $7,500”. The third did not apply because he had not notified CGU prior to the “renewal date” (30 June 2008) that his estimated wages for the “renewal year” (30 June 2008 to 30 June 2009) would be $7,500 or less. If followed that the exemption document could not have provided consent for the cancellation of Mr Earl’s policy because the clause on which the Nominal Insurer relied did not apply to him [95].

17. Even assuming that CGU obtained WorkCover’s consent to cancel Mr Earl’s policy, its attempt to do so was invalid. That was because the letter of 19 September 2008 was defective in that it purported to cancel the policy from 30 June 2008. That could not happen because cl 18 stated that the cancellation took effect on the cancellation day notified in the notice of cancellation “but that day must not be less than 7 days after the notice of cancellation is given to the Employer”. As the purported cancellation day (30 June 2008) was two and a half months before the date of the notice of cancellation (19 September 2008), the notice was of no effect [96].

18. Clause 17 of the statutory policy stated that a policy was renewed on the expiration of the current period of insurance to which it applies, except where one of two conditions applied. Either, the employer had given notice that renewal was not required, or the insurer had given the employer notice in writing not less than 14 days before the expiration of the current period of insurance that the insurer refused to renew the policy, but the insurer cannot refuse to renew the policy unless WorkCover has given its prior consent in writing to the refusal [101].

19. As to the first exception in cl 17, Mr Earl did not give notice that renewal was not required. As to the second, whether or not it had obtained WorkCover’s consent to refuse to renew Mr Earl’s policy, which the Deputy President did not accept it did, CGU did not give Mr Earl notice not less than 14 days before the expiration of his policy (whether the expiration was on 30 June 2008 or 30 June 2009) that it refused to renew his policy [102].

Roche DP

31 October 2012

Facts:

Adnan Al Othmani suffered serious back injuries when he fell from the roof of a pergola on 24 June 2006. He claimed compensation from Raymond and Antoine Massoud. As the Massouds were uninsured, he also joined the Nominal Insurer to the proceedings.

His claim for compensation before Arbitrator Rimmer was unsuccessful on the ground that he was not a worker or a deemed worker. He successfully appealed that decision to an Acting Deputy President and the Court of Appeal upheld the Acting Deputy President’s decision. The Massouds were represented at, and took an active role in, the first arbitration but did not participate in either appeal.

As no orders had been made for the payment of compensation, the Commission listed the matter for teleconference before Senior Arbitrator Snell on 24 May 2012 to hear submissions on Mr Al Othmani’s entitlement to weekly, lump sum compensation and hospital and medical expenses. As Mr Al Othmani was overseas, the matter was adjourned until 28 June 2012. The Massouds did not participate.

At the teleconference on 28 June 2012, the Nominal Insurer settled the claim and the Commission issued a Certificate of Determination – Consent Orders ordering the Nominal Insurer to pay weekly and other compensation, and costs, to and on behalf of Mr Al Othmani. The solicitor for the Nominal Insurer foreshadowed an application that it be reimbursed by the Massouds. The Massouds did not participate in the settlement and there was no evidence that they consented to it.

By letter dated 4 July 2012, the Nominal Insurer’s solicitor applied for the matter to be listed for a further teleconference and sought orders that the Massouds reimburse the Nominal Insurer for the compensation and costs it agreed to pay to Mr Al Othmani.

Senior Arbitrator Snell listed the matter for teleconference on 1 August 2012. He delivered an ex tempore decision in which he referred to and applied the principles in Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121; 66 NSWLR 594.

In Raniere Holdings, Tobias JA held (Hodgson JA and Stein AJA agreeing) that, where an injured worker and the WorkCover Authority settle a claim for compensation, and orders are made in accordance with that settlement, the former Compensation Court of NSW had no power under s 144(5) of the 1987 Act to provide for the reimbursement of WorkCover by the employer under s 145 “unless and until, absent agreement, it has determined that the employer is in fact liable to pay that compensation”.

The Senior Arbitrator said that, while there had been a determination of the issue of “worker”, there had been no “contested determination on the issue of quantum”. He also noted that the Massouds had not participated in any of the teleconferences held by him since the matter had returned from the Court of Appeal.

He felt that the “more substantive difficulty” was that which flowed from Raniere Holdings, namely, that in the absence of a determination of the liability of the Nominal Insurer to Mr Al Othmani, or in the absence of agreement by the Massouds as regards the appropriateness of the compensation, it was not open to him to make orders for reimbursement.

The issue in dispute on appeal was whether the Senior Arbitrator “erred in concluding that he lacked the power to make an order pursuant to section 145 of the Workers Compensation Act 1987 (the 1987 Act) directing the Respondents [the Massouds] to reimburse the Appellant in respect of payments made by the Appellant to Adnan Al-Othmani (the worker)”.

Held: the appeal was dismissed as misconceived and lacking in substance

Monetary threshold

1. While it was correct that the compensation ordered to be paid in the consent orders exceeded $5,000, the appellant’s submissions ignored the fact that, as the orders were made by consent, and as the Nominal Insurer had a statutory right to serve on the Massouds a s 145 notice requiring them to, within a period specified in the notice, reimburse the Insurance Fund an amount specified in the notice, it was doubtful that there was any compensation “at issue” on appeal [18].

2. The Nominal Insurer’s right of recovery did not depend on the Senior Arbitrator’s refusal to make the order sought. It had a statutory right in s 145. If the Nominal Insurer were to serve a s 145 notice and if, within the period specified in the notice, the Massouds were to apply to the Commission for a “determination as to their liability in respect of the payment concerned”, that would be a dispute “in connection with a claim for compensation” (Workers Compensation Nominal Insurer v Earl [2012] NSWWCCPD 61). However, that was not the position before the Commission [19].

3. Without deciding the matter, the Deputy President doubted the appeal satisfied the thresholds in s 352(3).

Interlocutory

4. Whether an order is interlocutory depends on the nature of the order made. The test is whether the judgment or order, as made, finally disposes of the rights of the parties (Gibbs J in Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444).

5. The Senior Arbitrator’s decision did not finally dispose of the parties’ rights because the Nominal Insurer was entitled to seek reimbursement by serving a s 145 notice and nothing in his decision affected that right. It followed that the order was an interlocutory order and leave to appeal was required [24].

6. The Deputy President was not of the opinion that determining the appeal was necessary or desirable for the proper and effective determination of the dispute. If he was wrong on that issue, he dealt with the substantive issues.

Did the Senior Arbitrator have power to make an order pursuant to s 145 of the 1987 Act?

7. It was not in issue that the Massouds were uninsured at the time of injury. However, that was not the issue on appeal. The substance of the order sought was that the Massouds repay the Nominal Insurer the amount the Nominal Insurer voluntarily agreed to pay the worker [39].

8. The fact that the worker suffered serious injuries did not determine the quantum of compensation to which he was entitled.  Compensation is paid “in respect of death or total or partial incapacity resulting from an injury … not in respect of the injury itself” (Latham CJ in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) [40].

9. The resolution of the “worker” issue determined the liability dispute but did not determine the quantum of compensation payable. That was why the matter was remitted to the Senior Arbitrator [42].

10. There was no valid basis to distinguish Raniere Holdings on the grounds submitted by the Nominal Insurer. In that case, the WorkCover Authority settled the claim without the employer’s consent or knowledge and before the court heard any evidence. It made no difference that, in the present case, the Nominal Insurer settled the case after a contested hearing on liability. The quantum of compensation to which the worker was entitled still had to be resolved, either by settlement or by determination by the Commission [43].

11. If the Nominal Insurer wished to settle the worker’s matter without the consent of the Massouds, it put itself in exactly the same position as the WorkCover Authority in Raniere Holdings. The submission that the Massouds were a party to the proceedings “from the outset” missed the point. They were not parties to the settlement the Nominal Insurer reached with the worker and they did not consent to it [44].

12. The submission that the Massouds “understood that the only issue in contention was that of the question of ‘worker’” was incorrect and demonstrated a misunderstanding of the issues involved. Whether the Massouds “chose” to take no further part in the proceedings was not known. In any event, that was irrelevant [45].

13. The submission that there was no dispute that the worker suffered an injury ignored the fact that the quantum of the worker’s compensation remained in dispute, as indicated by the Nominal Insurer’s counsel before Arbitrator Rimmer [46].

14. The submission that the “function of the Commission is to resolve disputes where those disputes exist, and in this manner the Commission functions differently from the former Court” was specious.  While it is true that there are several procedural differences between the Commission and the Compensation Court, the Commission serves the same primary function as that served by the Compensation Court [47].

15. The Commission has an obligation to apply rules of law in arriving at its decisions (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 McColl AJ at [88] (Tobias JA agreeing) citing Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA). Unless Raniere Holdings could be validly distinguished, it was binding on the Commission and must be followed. The Nominal Insurer advanced no valid reason why the principles in Raniere Holdings should not apply in this case [49].

16. The power that previously existed in s 144 for the Compensation Court to hear and determine any application by a claimant under the Scheme is now found in ss 142A and 142B. However, rather than saying that the Commission may hear and determine any application by a worker and make “such orders in relation to the application as the Commission thinks fit”, as the repealed s 144(3) said, s 142A(1) provides that the 1987 Act and the 1998 Act apply to, and in respect of, a claim under Div 6 of Pt 4 “as if the Nominal Insurer were the insurer under this Act of the relevant employer at the relevant time”. The effect of the new provision is that the Nominal Insurer is directly liable to a worker, as if it were an insurer (s 159 of the 1987 Act) [51].

17. The power that previously existed in s 144(5) for the Compensation Court to make an order providing for the reimbursement of the WorkCover Authority Fund is now found, with a subtle variation, in s 142B(2). Section 144(5) provided that “[a]n order under subsection (3) [of s 144] may provide for the reimbursement of the WorkCover Authority Fund under section 145”. Section 142B(2) provides that the “Commission may make orders providing for the reimbursement of the Insurance Fund under section 145” [53].

18. The subtle change in s 142B(2), compared to s 144(5), namely, the omission of the words “an order under subsection (3)”, suggests that reimbursements are now exclusively dealt with by notice under s 145 and that the general power for the Commission to order reimbursement in the absence of a s 145 notice has been removed [54].

19. In the event of a settlement, the uninsured employer’s rights are protected because it has the right, within the period specified in the notice, to apply to the Commission for a determination as to its liability in respect of the payment. If the employer does not dispute that notice within the time specified, the Nominal Insurer may recover the amount specified in its notice as a debt in a court of competent jurisdiction (s 145(6)) [56].

20. Once the nature of the amendments to Div 6 of Pt 4 were understood, it was clear beyond doubt that, subject to one caveat, the principles discussed in Raniere Holdings apply to proceedings in the Commission and to the circumstances of this case. It was open to the Commission to make the orders in the Consent Orders (s 142A). However, applying Raniere Holdings, there was no power in the Commission to order reimbursement unless the employer’s liability to pay compensation to the injured worker has been determined or agreed (Raniere Holdings at [56]). Neither of those things happened in this case [58].

21. The caveat did not assist the Nominal Insurer. It is that, in light of the amendments introduced in 2007, it is now doubtful that, in the absence of a notice issued under s 145, the Commission has power to order reimbursement even after a determination of the employer’s liability to pay compensation to the worker. However, as it was not necessary to determine that issue to resolve the appeal, the Deputy President expressed no concluded view save to note that it is arguable that, absent consent of the uninsured employer, reimbursement should normally be pursued by notice under s 145. Whichever view was taken of the new provisions, they do not support the Nominal Insurer’s position [59].

22. The submission that, there being no “liability” issues, the calculation of entitlements “was not properly the subject of dispute”, was incorrect. The determination of the “worker” issue did not determine all matters in issue and quantum was still to be determined. As the Nominal Insurer settled that part of the case, the Commission made no determination [60].

O’Grady DP

10 October 2012

Facts:

Mr Buckland was employed as a loss prevention officer with Woolworths Limited.  His duties included surveillance of customers present in the appellant’s store in Orange. He was required to detect shoplifting activities which, on many occasions, required him to apprehend those he believed had attempted to steal property belonging to the appellant.

On 2 December 2008, Mr Buckland was assaulted when he attempted to discipline a group of five young persons who were throwing balls around the Woolworths store premises. When Mr Buckland directed them to stop the activity one of the group assaulted him and pushed him to the ground. As he fell he struck a metal trolley causing injury to his left shoulder. He followed the group from the store at which time he was again assaulted.

Mr Buckland sought treatment at Orange Base Hospital and was thereafter treated by Dr Kwa, orthopaedic surgeon. By reason of incapacity he was absent from work for one week, following which he returned to work and was provided with suitable employment.

Mr Buckland was unable to return to his pre-injury duties following the injury. The appellant provided suitable duties until he was summarily dismissed from his employment on 7 May 2009 by reason of serious misconduct. Mr Buckland denied the allegations and commenced proceedings for wrongful dismissal. That dispute was settled by agreement.

Following his dismissal, Mr Buckland sought alternative employment in Orange. He obtained a casual position driving taxis. However, his earnings were considerably less than his pre-injury earnings in the employ of the appellant.

On 19 May 2009, the appellant wrote to Mr Buckland advising that it was their view that his entitlement to any ongoing weekly benefits in relation to the workers compensation claim he had lodged in respect of the shoulder injury had “ceased”.

In late 2010, Mr Buckland claimed, and was paid, lump sum compensation pursuant to ss 66 and 67 of the 1987 Act in respect of whole person impairment and pain and suffering resulting from the left shoulder injury. In 2011, Mr Buckland made a claim for weekly payments pursuant to s 40. Liability in respect of that claim was denied, although the appellant accepted liability in relation to medical expenses.

The Arbitrator made an award in favour of Mr Buckland pursuant to s 40 in the amount of $300 per week from 9 May 2009 to date and continuing.

The issues on appeal were whether the Arbitrator erred:

(a) in determining that Mr Buckland was entitled to weekly compensation as quantified, and

(b) as his finding of an entitlement to weekly compensation was made in the absence of any medical evidence to support such determination.

Held: the Arbitrator’s determination confirmed

1. The appellant was correct to assert there was no expert medical evidence which suggested that Mr Buckland was unable, by reason of incapacity, to work full-time. It was also correct that Dr Wallace stated that Mr Buckland was able to work on a full-time basis [43].

2. The difficulty with the submission that Mr Buckland had no incapacity and thus no entitlement to weekly compensation because the evidence established that he was fit to work a full week was that Dr Wallace in evidence stated that Mr Buckland had suffered “significant injuries to his left shoulder” as a result of the subject injury; that he was unfit to return to his pre-injury duties as a loss prevention officer; he would “not be fit for activities requiring repetitive bending or twisting movements at his left shoulder, any overhead tasks at his left arm, repetitive lifting above 5 kgs at his left hand, or prolonged use of hand tools at his left hand”, and that he was fit “to return to work full-time light duties, with due consideration given to restrictions on his activities [as stated]” [44].

3. The appellant did not challenge the evidence of Dr Wallace. In those circumstances there existed uncontroverted evidence of physical incapacity. Mr Buckland was prevented from carrying out his pre-injury duties and those tasks and activities described by Dr Wallace [45].

4. The appellant seemed to suggest that Mr Buckland was capable of working full-time as a taxi driver and that such work would generate an income greater than his present earnings. The difficulty with that suggestion was that Mr Buckland asserted in evidence that he experienced certain difficulty with the taxi work and that he would not do more hours than he had performed following the termination of his employment with the appellant because he was “only able to do what [he was] doing” [47].

5. It was clear that the Arbitrator, as was open to him, accepted Mr Buckland’s self-assessment of his capacity to perform suitable duties, namely taxi driving.  The question of entitlement to weekly compensation in such circumstances was considered by him with guidance from the decision of the Full Court in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20. [48]

6. The Arbitrator, having accepted the evidence of Mr Buckland, had plainly rejected the appellant’s argument that the agreed actual earnings were not a true reflection of Mr Buckland’s capacity to earn following the injury. That approach to the evidence and his conclusion concerning Mr Buckland’s ability to earn were open to him and the appellant failed to demonstrate any relevant error on the Arbitrator’s part [49].

Roche DP

11 October 2012

Facts:

Ms Ozcelik worked for Oracle Corporation Australia Pty Ltd in November 2004 as a projects co-ordinator. In March 2006, she was promoted to contracts manager. Her case was that she suffered a psychological injury because of the “stressful work environment” as the contracts manager between 1 February 2006 and July 2008, which forced her to cease work on 26 April 2008.

The job of contracts manager required significant legal knowledge and knowledge of business practices. She said that she was not given adequate training and that, initially, there were insufficient staff to do the work resulting in her working excessive hours.

In late 2007 or early 2008, three lawyers and a new contracts manager (also a lawyer) were hired to do the work Ms Ozcelik had performed with two non-qualified staff. Ms Ozcelik trained the new team. She felt she had been taken advantage of, unfairly treated, and pushed aside. She went from being the contracts manager to not having a role and only doing insignificant and meaningless tasks. She felt demeaned, belittled and humiliated by what happened and she took leave at the end of April 2008 and did not return to work.

Her treating psychiatrist, Dr Moorthy, diagnosed her with a major depressive disorder and generalised anxiety disorder related to her work and, Dr Allnut, a qualified psychiatrist, expressed a similar conclusion.

Oracle’s managers spoke of Ms Ozcelik in glowing terms, but acknowledged that she probably did not have the right skills for the job. That was why they hired people with a legal background. In the six months prior to Ms Ozcelik stopping work, there was no overtime and no extended workload. Oracle’s case was that its managers had not noticed Ms Ozcelik in any distress between 2006 and April 2008 and that, when she asked for leave in April 2008, she did so because of “personal reasons” and to “manage some issues at home”, not because of work issues.

Oracle’s medical case was from Associate Professor Robertson, a consultant psychiatrist, who concluded that Ms Ozcelik had bipolar disorder, which was constitutional, but may have been exacerbated by her work with Oracle.

On 6 October 2011, Ms Ozcelik filed an application claiming lump sum compensation of $22,000 in respect of a 15 per cent whole person impairment (due to her psychiatric impairment) and $45,000 for pain and suffering.  She made no claim for weekly compensation or for hospital and medical expenses.

The Arbitrator found that, due to the nature and conditions of her employment, Ms Ozcelik sustained a psychological injury on 26 April 2008, the date on which she stopped work.

The issues on appeal were whether the Arbitrator erred in:

(a) her application of ss 4 and 9A of the 1987 Act (ss 4 and 9A);

(b) failing to provide “appropriate reasons for the decision” (reasons);

(c) failing to give “proper weight to the medical opinion of Associate Professor Robertson” (evidence of Associate Professor Robertson);

(d) failing “to give proper weight or otherwise discounted other relevant factual issues” (weight of evidence);

(e) exercising her discretion on the facts in finding that Ms Ozcelik sustained a psychological injury on 26 April 2008 due to the nature and conditions of her employment from 2006, that the injury arose out of or in the course of her employment and that employment was a substantial contributing factor to the injury (exercise of discretion);

(f) finding in favour of Ms Ozcelik when she had failed to prove her case (whether Ms Ozcelik had proved her case);

(g) as clinical notes from Northside West Clinic (where Ms Ozcelik had been treated for her psychiatric condition) should have been obtained by Ms Ozcelik, the Arbitrator reversed the onus of proof when she said that Oracle could have obtained those notes (onus of proof);

(h) accepting Ms Ozcelik’s medical case when her doctors had no history of the “gambling problem” referred to in the notes from St John of God Hospital (the gambling issue);

(i) finding that the gambling was a symptom and not a cause of Ms Ozcelik’s medical condition (the gambling issue), and

(j)  the Arbitrator should have placed “little weight” on the medical opinions of Dr Moorthy and Dr Allnut because they failed to analyse “crucial elements” of Ms Ozcelik’s condition (evidence of Dr Moorthy and Dr Allnut).

Held: the Arbitrator’s determination confirmed

Sections 4 and 9A

1. The appellant only made a broad allegation that the Arbitrator erred in law in her application of these sections, but made no submission in support of the point.  As part of its general submissions, the appellant said that Ms Ozcelik had “failed to prove that her psychiatric injury arose out of, or in the course of, her employment and that employment was a substantial contributing factor to that injury” [24].

2. Those submissions failed to properly identify any error by the Arbitrator. They may have been appropriate in a hearing de novo, but were not appropriate in an appeal restricted to the identification and correction of error [25].

Reasons

3. While it is accepted that an Arbitrator has an obligation to provide adequate reasons for his or her decision (Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48), the appellant did not identify the respects in which it was alleged the Arbitrator’s reasons were not adequate or, to use its term, “appropriate” [27].

4. The Arbitrator’s decision set out the background to the claim, the issues for determination, a detailed summary of the relevant evidence and reasons for her findings. In the course of reaching her conclusion, the Arbitrator dealt with the submissions made by counsel for Oracle [30].

5. The only possible area for complaint about the adequacy of the Arbitrator’s reasons, which was not argued by the appellant, was that she did not expressly deal with why employment was a substantial contributing factor to the injury (s 9A). However, when considering adequacy of reasons, an Arbitrator’s reasons must be read as a whole (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 430-44). When that was done, it was clear that, having rejected Oracle’s argument that the condition was constitutional or was caused by gambling, the Arbitrator accepted work as the cause of Ms Ozcelik’s condition.  It followed that her reasons supported the s 9A conclusion [34].

Evidence of Associate Professor Robertson

6. The only submission made by the appellant was that the Arbitrator “failed to give proper weight to the medical opinion of Associate Professor Robertson” [36].

7. The Arbitrator considered Associate Professor Robertson’s evidence in detail but did not accept it.  The Arbitrator noted that the only support for his diagnosis of Type II Bipolar Disorder was the notation in the clinical notes from Cumberland Hospital on 28 May 2009. Having regard to the diagnosis of major depression in the notes from St John of God Hospital, the Arbitrator did not accept the diagnosis of Type II Bipolar Disorder [31].

8. The Arbitrator said that, though Associate Professor Robertson considered the gambling to be a “significant issue in respect of causation” and that the psychiatric injury (condition) was due to a “constitutional condition”, his opinion was “ambivalent in respect of causation”. This was because he related “employment with the ‘emergence’ and ‘exacerbation’ of the disorder”, which the Arbitrator felt “could be argued” assisted Ms Ozcelik [32].

9. The Arbitrator found the evidence from Ms Ozcelik and Dr Moorthy to be “compelling”, noting that Ms Ozcelik gave a “detailed and very plausible history of the nature and conditions of her employment and her downhill spiral into a severe and disabling psychiatric injury”. She found the reports of Dr Moorthy and Dr Allnut to be “unequivocal in supporting the claim of injury due to the work environment” [33].

Weight of evidence

10. The appellant submitted that the Arbitrator “failed to give proper weight or otherwise discounted other relevant factual issues” but made no other submissions in support of this point. This submission was of no assistance and advanced no reasoned argument as to how the Arbitrator erred [39]-[40].

Exercise of discretion

11. The Arbitrator’s conclusions on the issues in dispute, namely, whether Ms Ozcelik had received an injury to which her employment was a substantial contributing factor, did not involve the “exercise of a discretion”. The Arbitrator was required to weigh the evidence and the respective arguments, make factual findings, and apply the legislation. If the factual findings supported a particular outcome according to law, that is the outcome that must be reached. That is not a discretionary decision [42].

Whether Ms Ozcelik had proved her case

12. The Arbitrator referred to Ms Ozcelik’s evidence in detail in a manner that was not challenged on appeal. In summary, that evidence was that the role of contracts manager required significant legal knowledge and business practices training. That training never took place. Instead, she received a few hours of casual training for the first three days and was subsequently left to her own devices to try to work out how to process contracts.  During 2006 and 2007 there were insufficient employees to do the work and Ms Ozcelik worked excessive hours and under pressure with strict guidelines [56].

13. Ms Ozcelik became aware that reporting lines and dynamics of the team were changing and that Oracle would hire a senior contracts manager and legal staff.  She was not advised of the details of what her role was to be.  She trained the new staff on internal processes, system and business practices. Because management had insinuated that the area needed lawyers, Ms Ozcelik felt inferior. She felt taken advantage of and unfairly treated. She was pushed aside and felt she was being judged by her new colleagues, and the business, to be no longer capable of carrying out her role. When she tried to follow up on what her role was, she was ignored. She felt demeaned, belittled and humiliated [57]-[62].

14. Dr Moorthy said that Ms Ozcelik was unfit for her pre-injury duties. He was not able to identify any other contributing or perpetuating factors like family, relationship, medical, substance abuse, personality issues or financial problems. He recorded a history that Ms Ozcelik performed well at work and worked long hours without being properly remunerated. This was not a significant issue until she found her diligence, hard work, loyalty and sincerity to the company went unrewarded. The psychological stresses resulting from that had accumulated slowly to the point of her suffering a psychological injury. She was stoic and reluctant to acknowledge that she would suffer a psychological injury in any form or manner [70]-[72].

15. Dr Allnut’s opinion was that Ms Ozcelik manifested symptoms consistent with a major depressive disorder of a chronic nature characterised by a long term of probably fluctuating symptoms of depression including depressed mood, impaired sleep, reduced appetite, changes in appetite, reduced energy, impaired motivation, poor concentration, reduced self esteem and feelings of shame, loss of interest in activities, social withdrawal, anhedonia and intermittent suicidal ideation. In addition, she described episodes of panic that could last a few minutes or more, which did not seem to be triggered by any specific situation [75].

16. On the question of whether there had been an aggravation or deterioration of any existing injury, Dr Allnut said that Ms Ozcelik described a high level of stress within the workplace and denied any external personal stressors at the material time, but did note a gradual deterioration in her mood occurring in 2008 in the context of work stressors, with the emergence of depressive symptoms [77].

17. Associate Professor Robertson was of the opinion that Ms Ozcelik suffered from Type II Bipolar Disorder and presented in October 2011 “with a severe depressive pole of the illness, which has emerged since her defaulting on treatment”. He also expressed the view that her employment had exacerbated her constitutional condition [85]-[87].

18. Given the evidence, the appellant’s submission that Ms Ozcelik “failed to adduce sufficient and consistent medical evidence to discharge the burden of proof” was unsustainable [88].

19. The “mechanism of the injury” was found in the circumstances of Ms Ozcelik’s employment between March 2006 and 2008, which needed to be considered in two distinct periods. First, the period from 2006 when she worked long hours with limited resources until several lawyers were hired to do the job she had performed with fewer staff. The second was after the lawyers were hired. After training the new staff, Ms Ozcelik felt she was been squeezed out and that made her feel demeaned, belittled and humiliated, though she did not show her problems to anyone [89].

20. The submission that Ms Ozcelik failed to prove “the date on which the injury began” was not a submission made at the arbitration. In any event, as Ms Ozcelik’s psychological injury was a disease, the injury was deemed to have happened at the time of incapacity or, if no incapacity had resulted from the injury, at the time she claimed compensation [92]. In a case where it was alleged that the injury occurred because of events over a period, it is usually impossible to prove that the injury occurred on a specific date [93].

21. The Arbitrator referred to the Cumberland Hospital notes and to Oracle’s submission that the notes supported Associate Professor Robertson’s diagnosis of bipolar disorder. She rejected that diagnosis because the only support for it was in an annotation on admission to Cumberland Hospital on 28 May 2009. That finding was open and rendered the history of past bipolar disorder of limited relevance in the current claim [104].

22. That was especially so in circumstances where the reference to “past history of bipolar disorder” was not explained or expanded in the evidence, and where Ms Ozcelik was well when she started work for Oracle in 2004. It was not known when it occurred or in what circumstances.  The entry in the Hospital’s notes supported the connection between Ms Ozcelik’s symptoms on admission and her employment with Oracle. Having regard to the whole of the evidence, and the fact that the Arbitrator did not accept the diagnosis of bipolar disorder, the histories recorded by Dr Moorthy and Dr Allnut provided a fair climate for the acceptance of their opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) [105]-[106].

Onus of proof

23. The appellant submitted that the clinical notes from Northside West Clinic should have been available to assist the resolution of the dispute. The Arbitrator said that either party could have requested an order for the issue of a direction (for production) and the submission had “no real value”. That statement was correct and involved no error [109].

24. More importantly, Ms Ozcelik’s case did not hinge on the notes from Northside West Clinic and she had no obligation to obtain them. Her history of work stress was recorded in the reports of Dr Moorthy, her treating psychiatrist, and Dr Allnut, her qualified psychiatrist.  Their opinions provided a sound basis for the Arbitrator’s conclusion [110].

The Gambling Issue

25. The Arbitrator noted the references to gambling in the notes from St John of God Hospital and said that Ms Ozcelik’s statement disclosed the “problem gambling” and, on any reading of the documents, it was clear the gambling was a symptom, not a cause, of her medical conditions [115].

26. The notes included a history on 7 July 2009 that Ms Ozcelik had been well until two years ago and was “significantly overworked – hard time in work for 2 years”. She worked more than 45 hours per week and had been requested to do a job (legal work) she was not trained to do. She was not appreciated at work. This history was consistent with Ms Ozcelik’s case [117]. The notes later referred to “gambling for 1.5 years – lost $5,000 over that period” [118].

27. Significantly there was no reference in the notes to Ms Ozcelik’s condition having been caused by gambling.  On the time scale recorded in the notes, the depression occurred two years before July 2009 and the gambling 18 months before that date. That suggested the gambling came after the depression and gave support to Ms Ozcelik’s evidence, which the Arbitrator accepted [121].

28. It was correct that, apart from the references to gambling in the hospital notes, the doctors did not deal with it. However, in the absence of any clear evidence that gambling caused Ms Ozcelik’s problem, that was not critical.  The histories recorded by Dr Moorthy and Dr Allnut, taken with the other evidence in the case, provided a fair climate for the acceptance of their opinions (Paric). Their evidence was not “incomplete and faulty” [124].

Evidence of Dr Moorthy and Dr Allnut

29. Ms Ozcelik’s case was strongly supported by both her treating specialist and by her qualified specialist. She also gained some support from Associate Professor Robertson in that he conceded she suffered an exacerbation of her condition in the course of her employment with Oracle [136].

30. The Arbitrator dealt with the issues argued before her. Her finding that the gambling problem was a symptom and not a cause was open to her, as was her finding that Ms Ozcelik was not suffering from bipolar disorder.  In those circumstances, it was open to the Arbitrator to accept the evidence of Dr Moorthy and Dr Allnut [139].

31. The appeal was completely without merit and did not comply with Practice Direction No 6. The submissions filed did not address the “issues” identified, quoted cases out of context and failed to refer to relevant authorities.

Roche DP

15 October 2012

Facts:

Tim Grima was an electrical line worker with Ausgrid. On 25 September 2009, he was walking home when three men accosted him. To escape, he jumped over a high fence and landed heavily on his right foot.

An ambulance took Mr Grima to Royal Prince Alfred Hospital where x-rays revealed a fracture of the right medial malleolus with displacement. On 14 October 2009, he had surgery on his right ankle.

Mr Grima’s case was that, at about the time of this surgery, he noticed pain across his lower back, which he assumed was muscular and would resolve. He was immobile following his surgery and spent the first few months lying down in bed. He believed that his back pain was aggravated by lying down for a prolonged period. Following his operation, he wore an ankle boot and used crutches. His back pain continued and was aggravated by significantly favouring his right ankle.

He had further surgery on his right ankle on 28 January 2010 and was again sedentary for a prolonged period. He was prescribed pain medication, which helped the pain in his ankle and also masked the pain and discomfort in his low back. It was not until he started to recover from his leg injury that he realised that his “back pain was separate from the injury to [his] right leg and ankle”. His leg and ankle had stabilised, but the back continued.

He returned to work because he assumed his back pain was muscular. He did not mention his persistent back problems because he felt it would adversely impact on his ability to return to work and would cause his employer to react negatively to him. He also believed that mentioning another injury at that point would not have been taken seriously. He did not discuss his back pain with his doctors because he believed it was a muscular injury as a consequence of his leg injury and that it would “cease on its own”.

It was not until he saw Dr Patrick on 25 January 2011 for a medicolegal consultation that he mentioned his back symptoms and was told that it was a separate injury.

Mr Grima claimed lump sum compensation of $13,750 in respect of a 10 per cent whole person impairment due to the condition of his lumbar spine, right lower extremity and scarring, plus $12,500 for pain and suffering.

He presented his case on two alternative bases. Either that his back symptoms were caused by an injury to his back on 25 September 2009 or, they had resulted from the injury to his ankle. This was incorrectly referred to as the “consequential injury”.

Ausgrid did not dispute the right ankle injury. It disputed whether he suffered an injury to his back on 25 September 2009 or that his back pain resulted from the ankle injury.

The Arbitrator delivered an ex tempore decision in favour of Mr Grima.

The issues on appeal were whether the Arbitrator erred in:

(a) failing to provide an adequate analysis of the relevant evidence and therefore failing to exercise his function fairly and according to law;

(b) failing to properly consider the relevant evidence and weight of evidence;

(c) failing to give a clear or logical explanation as to why the evidence of Dr Patrick was preferred over other evidence, and

(d) accepting the evidence of Dr Patrick when that evidence was against the weight of evidence.

Held: the Arbitrator’s determination confirmed

1. Though the reference to Mr Grima having received a “consequential injury” was inappropriate and apt to mislead, since the legislation makes no reference to a “consequential injury”, and it was more accurate to describe the alternative question as whether Mr Grima’s back condition or symptoms resulted from the injury on 25 September 2009, nothing turned on the point and the parties agreed that the Arbitrator correctly identified the issue in dispute [43].

2. Though Mr Grima was able to return to work with Ausgrid, he said he had back pain when doing those duties and with his general activities. He was unable to do many of the activities he previously did, including activities in his surf lifesaving club and playing football. After noting that Dr Stephen took a history that Mr Grima had returned to football, the Arbitrator said that he accepted Mr Grima’s evidence that he had not played football since 25 September 2009. The Arbitrator also accepted that Mr Grima was “suffering with pain and problems with his right leg, and also has back pain which is restricting him from doing a lot of pre-injury activities” [45]-[46].

3. The Arbitrator noted that Dr Brody’s clinical notes included a prior complaint of neck and upper thoracic pain because of an injury playing football in 2008, but had no reference to any prior back injury or symptoms. He therefore accepted that Mr Grima had not suffered any injury to his back or made any complaint about his back prior to 25 September 2009. That finding was open on the evidence [48].

4. The Arbitrator said the case required him to “apply a commonsense evaluation to consider whether there was a causal link between the onset of back complaints and the injury” (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). That was not challenged on appeal [49].

5. The Arbitrator said that it did not seem to be an issue that Mr Grima “complains about back pain”. That statement was correct. Dr Stephen’s evidence was not that Mr Grima had no symptoms, but that, because the back symptoms had not commenced until four months after the 25 September 2009 incident, they did not relate to it [50].

6. After referring to Nguyen v Cosmopolitan Homes [2008] NSWCA 246, the Arbitrator said that, there being no other evidence that the onset of the back pain during the period when Mr Grima had suffered a fractured ankle requiring surgery with immobilisation and bedrest resulted from any cause other than the injury on 25 September 2009, he felt “actual persuasion” of a fact and was satisfied on the balance of probabilities that there was a causal link or connection between the onset of back pain on or about 14 October 2009 and the injury on 25 September 2009 [54].

7. Consistent with Kooragang, the Arbitrator found that the back pain resulted from the ankle injury. That finding was consistent with the fact that Mr Grima did not say in his statement that he injured his back on 25 September 2009 [56].

8. The submission that it was not open to the Arbitrator to find that Mr Grima injured his back on 25 September 2009, and that he gave no reasons for that finding, addressed an issue that did not arise because the Arbitrator did not make that finding [57].

9. With regard to Dr Stephen’s evidence, the Arbitrator said that Dr Stephen may have come to a different view if he had had a history that Mr Grima noticed his back pain at about the time of the first operation. That observation was open, but was not, of itself, determinative [59].

10. In dealing with the appellant’s submission about the lack of complaint of back pain to a treating doctor or physiotherapist, the Arbitrator accepted Mr Grima’s evidence that he believed his back pain was muscular and was due to immobilisation and bed rest, that it had not resolved. That finding was open to him [61].

11. The submission that it was not open to the Arbitrator to find a spinal injury causally related to the injury on 25 September 2009 (either “directly or consequentially”) in the absence of any radiological investigations or treatment may have had some weight if the Arbitrator had found that Mr Grima suffered a personal injury to his back. To the extent that this submission related to an alleged consequential spinal “injury”, it confused an “injury” with a condition that has resulted from the “injury”.

12. Applying Kooragang, the Commission has consistently held that a condition that has resulted from a “personal injury” is not itself an “injury” within the meaning of s 4 of the 1987 Act but is a consequential condition (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Vivaldo v Uniting Church of Australia t/as Lucan Care [2010] NSWWCCPD 41; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8; Australian Traineeship System v Turner [2012] NSWWCCPD 4; Moon v Conmah Pty Limited [2009] NSWWCCPD 134; Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48). [63]-[64]

13. If the appellant intended to submit that, because of the lack of radiological investigations or treatment relative to the lumbar spine, it was not open to the Arbitrator to find that Mr Grima’s back pain was a consequential condition that resulted from his ankle injury, that submission was rejected. Applying a “commonsense evaluation of the causal chain” (Kooragang), the Arbitrator was entitled to conclude that, given the history of no back symptoms before 25 September 2009 and the history of immobilisation, wearing a boot and using crutches, then, in the absence of any other trauma to the back, the back pain resulted from the ankle injury and its sequelae [65].

14. The submission that Mr Grima’s reason for not mentioning his back pain to anyone prior to seeing Dr Patrick “was not a satisfactory explanation” was unhelpful in an appeal restricted to the identification and correction of an error. More importantly, the Arbitrator did not base his decision on that part of Mr Grima’s evidence, but said he had no reason not to accept Mr Grima’s evidence that, at about the time of the surgery, he noticed back pain, which he thought was muscular. He accepted that the back pain did not go away. That conclusion was open to the Arbitrator [66].

15. The submission that Mr Grima’s statement that his medication for his ankle masked his back pain was not an “adequate explanation” for him not mentioning his back pain prior to seeing Dr Patrick was irrelevant because the Arbitrator did not rely on the masking effect of the medication to support his conclusion [68].

16. The submission that the Arbitrator should have placed more weight on Mr Grima’s lack of complaint to treating doctors was an attempt to conduct a re-hearing. The issue was not the weight to be attached to the admitted lack of complaint, but whether the Arbitrator erred in accepting Mr Grima’s evidence regarding his back symptoms [69].

17. The submission that the Arbitrator did not provide proper reasons for his conclusion was not accepted. An Arbitrator does not have to refer to every piece of evidence. He or she must refer to evidence that is important or critical to the proper determination of the matter (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). The Arbitrator complied with that obligation in this case [72]-[73].

18. Notwithstanding the use of the incorrect expression “consequential injury”, the Arbitrator’s ultimate finding was that Mr Grima’s back symptoms resulted from the ankle injury. Whether he is entitled to lump sum compensation is a matter for an AMS [75].

O’Grady DP

2 October 2012

Facts:

Ms Ring was injured in the course of her employment with Eclectic Holdings Pty Ltd on 28 May 2007.

In May 2011, proceedings were commenced in the Commission on behalf of Ms Ring by her then solicitors seeking orders with respect to weekly payments, lump sums pursuant to ss 66 and 67 and an unspecified claim in respect of medical, hospital and rehabilitation expenses pursuant to s 60 of the 1987 Act.

At the Arbitration hearing on 8 June 2011, agreement was reached concerning the claim for weekly payments. A general order was made by consent that the respondent pay Ms Ring’s reasonably necessary medical and related expenses. The parties agreed that the claims for lump sums for alleged whole person impairment be remitted to the Registrar for referral to an AMS. The AMS was also asked to assess “whether future treatment by way of physiotherapy, massage therapy or exercise therapy is reasonably necessary”.

Dr Alan Home, Occupational Physician, issued a MAC dated 14 October 2011 certifying Ms Ring had suffered a 12 per cent whole person impairment in relation to the injury to the cervical spine and the lumbar spine. Dr Home was of the opinion that further physiotherapy, massage therapy or exercise therapy was not reasonable and necessary.

Ms Ring’s Application was listed for teleconference on 6 December 2011 at which time agreement was reached between the parties concerning Ms Ring’s entitlement to a s 67 lump sum, and an award was entered regarding her entitlements pursuant to ss 66 and 67. The issue as to whether physiotherapy, massage therapy and exercise therapy was reasonably necessary was reserved for hearing on 14 February 2012.

On 14 February 2012, Ms Ring appeared before the Arbitrator unrepresented. The matter was adjourned and fixed for hearing on 4 June 2012. Ms Ring was unrepresented at that hearing. Following the hearing, the Arbitrator was not satisfied that physiotherapy, massage therapy and exercise therapy were reasonably necessary medical or related expenses.

The issues in dispute on appeal were whether the Arbitrator erred in concluding that Ms Ring had failed to establish that the future treatment and services, which were the subject of referral to Dr Home, were reasonably necessary.

Held: Arbitrator’s determination confirmed

1. It was apparent that Ms Ring had misapprehended the nature of the proceedings. This was demonstrated, firstly, by the form of the Application which instituted the appeal and by the submissions she put that related to claims well outside the claim defined by the Arbitrator [40]-[41].

2. Ms Ring presented lengthy submissions which accompanied her Application and her response to the respondent’s arguments. Much of the substance of those submissions had little relevance to the issue for determination on appeal [44].

3. The question before the Arbitrator was essentially one of fact. In determining the matter the Arbitrator had been guided by those matters addressed in the authorities (Rose v Health Commission (NSW) (1986) 2 NSWCCR 32, Pelama Pty Ltd v Blake (1988) 4 NSWCCR 264 and Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233).  The Arbitrator adopted those matters stated by Burke J in Rose as being relevant [45].

4. There was no dispute that the services, being physiotherapy, massage therapy and exercise therapy, fell within the meaning of “proposed treatment or service” as found in s 60(5) of the 1987 Act. The only issue raised was the question as to whether those services were “reasonably necessary” within the meaning of s 60 [46].

5. In determining that question, the Arbitrator had given careful attention to the medical and other expert evidence concerning, as stated by Burke J, “the relevance and appropriateness of the particular treatment” [47].

6. The conclusion reached by the Arbitrator was open to him on the evidence and no error on his part was established. In her response dated 14 September 2012, Ms Ring asserted that “everybody except Dr Home recommends Physio/massage and exercise”. That assertion was not borne out by an examination of the evidence as a whole. The only witnesses that expressly advised ongoing treatment of this nature were Mr Thomason as expressed in a report dated 25 October 2007; Mr Oldmeadow, who suggested in 2010 conduct of a “carefully tailored exercise program”, and Dr Slinger who, in 2010, advised a “regular stretching and strengthening program” directed by a physiotherapist, following which Ms Ring would be able to “self direct”.  Dr Wong, as noted by the Arbitrator did not expressly identify the “treatment” which he considered reasonably necessary. The balance of the expert evidence, as summarised by the Arbitrator, either did not expressly address the issue of “reasonable necessity” or expressly stated that there was no reasonable necessity for such future treatment [49].

Keating P

31 October 2012

Facts:

Mrs Colefax was employed by the appellant as a teacher. She suffered a psychological injury due to bullying in about August 2008.  It was accepted that Mrs Colefax suffered an injury in the course of her employment and weekly compensation from time to time was paid on a voluntary basis.  Mrs Colefax was certified as being partially incapacitated and was placed on selected duties at various schools from about December 2008.

In October 2009, Mrs Colefax developed symptoms in her back and legs resulting from transverse myelitis. That condition did not result from the employment injury.

As at 21 December 2010, Dr Watson, Mrs Colefax’s treating neurologist, recommended that she should be looking for work within a distance-based radius of 25-30 minutes average drive from her home. Dr Lam, a treating rehabilitation physician, agreed.

Mrs Colefax was placed in suitable duties at schools within a 30 minute drive of her home up until late 2010. On 24 December 2010, she was transferred to Willoughby Public School which it was accepted was beyond a 30 minute drive from her home. She did not attend at that school and was given a temporary placement at Asquith Public School, but that work ceased to be available to her in late 2011.

Mrs Colefax has not attended for duty at Willoughby Public School. The appellant maintains that the driving restriction was not by reason of the work related injury but was due to the non work related condition of transverse myelitis, and therefore it was not required to provide suitable duties that complied with the driving restriction.

Mrs Colefax lodged an Application to Resolve a Workplace Injury Management Dispute. The Registrar’s delegate recommended that an independent rehabilitation provider be appointed to assist in locating suitable duties. The appellant disputed that decision and that matter came before Senior Arbitrator Snell. The Senior Arbitrator determined that the employer was to provide suitable duties to the worker at a school not more than 30 minutes drive from her residence.

The issues on appeal were:

(a) Whether the worker’s non work related medical condition is to be taken into account in determining the question of suitable duties pursuant to s 43A of the 1987 Act, and

(b) Whether the obligation to have regard to “other relevant circumstances” within the meaning of s 43A of the 1987 Act, namely the transverse myelitis condition, is an ongoing obligation or one that is limited in time to the point at which the worker has recovered from the work related injury.

Held: monetary thresholds in s 352(3) were not satisfied; no right to appeal

Monetary threshold

1. The appellant submitted that the issues the subject of the appeal could potentially involve monetary amounts greater than $5,000 in that Mrs Colefax had not performed suitable duties since 2011 as a result of the appellant’s alleged failure to provide her with suitable duties and as such, had not been able to derive her pre-injury income of approximately $900 per week [18].

2. The term “compensation” is defined in s 4 of the 1998 Act as follows:

Compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.

3. In the proceedings before the Senior Arbitrator the worker did not seek an order for the payment of “compensation”. The application was an Application to Resolve a Workplace Injury Management Dispute [21].

4. The appellant’s submission was rejected.  The application before the Commission did not involve a dispute as to the worker’s entitlement to weekly compensation and there had been no determination made by the Commission on that issue [22].

5. In circumstances where there has been no monetary award made, the threshold question was to be determined by reference to the amount of the claim as particularised by the applicant:  Grimson v Integral Energy [2003] NSWWCCPD 29.  In this case there was no amount of compensation claimed in the application, hence there was no amount of compensation “at issue” on the appeal and the thresholds in s 352 had not been met [23].

Roche DP

3 October 2012

Facts:

Amy Hume worked for the respondent as a causal part-time customer service worker from 2007 until April 2011. She worked about ten hours per week. Throughout most of this time, she was a school student.

She alleged that she suffered a strain to the ligaments in her right wrist as a result of repetitive lifting in the course of her employment with the respondent in July 2010. She claimed weekly compensation of $72 per week from 1 August 2010 to 17 November 2010, lump sum compensation in respect of a two per cent whole person impairment due to the condition of her right upper extremity and a general order under s 60.

The Arbitrator stated that, in view of the lack of contemporaneous medical and other evidence in support of the claim, she was not satisfied that Ms Hume had established the necessary causal connection between her employment and her wrist condition. She made an award for the respondent.

The issues on appeal were whether the Arbitrator erred in:

(a) incorrectly applying the statutory test in determining that Ms Hume had not discharged the onus of proof (the statutory test);

(b) determining that objective information (as to the weight of boxes and baskets of chips) was required (objective information);

(c) concluding that Dr Conrad’s history was “incomplete” and failing to give more weight to his opinion (Dr Conrad’s evidence), and

(d) preferring the incomplete and equivocal evidence from Drs Chan and Hanna (evidence of Drs Chan and Hanna).

The submissions in support of the appeal did not comply with Practice Direction No 6 in that they did not properly identify the grounds of appeal and make submissions in support of those grounds. Instead, they merely set out a discursive narrative of why Ms Hume should have succeeded interspersed with general complaints of alleged errors. That was unacceptable.

Held: the Arbitrator’s determination confirmed

The statutory test

1. The Arbitrator referred to the terms of s 4 of the 1987 Act and correctly noted that Ms Hume carried the onus of proof on the balance of probabilities. She was not satisfied that Ms Hume had discharged her onus. The submissions provided no reasoned argument in support of the allegation that the Arbitrator erred in the application of the statutory test. The submissions did not identify the “statutory test” that the Arbitrator allegedly erred in the application of, but merely amounted to an assertion that the Arbitrator erred in not accepting Ms Hume’s evidence. The failure to accept one side’s evidence may or may not amount to an error, but it did not establish that the Arbitrator incorrectly applied the “statutory test” [64].

2. The submission that there was contemporaneous evidence that Ms Hume received an injury to her right wrist was incorrect. Ms Hume complained to Dr Hanna of pain in her wrist but made no complaint that that pain had been caused by work with the respondent [65].

Objective Information

3. It was accepted that “heaviness” could be a subjective assessment, and that Ms Hume was not required to prove the weight of the objects she lifted before she could succeed. However, the Arbitrator did not base her decision on the lack of objective information about the weight of the objects Ms Hume lifted in the course of her employment. That was merely one observation the Arbitrator made in the course of her assessment of the evidence overall [67].

4. The Arbitrator did not say that “objective information” about weights was required before Dr Conrad’s opinion could be accepted, but merely noted that Dr Conrad did not appear to have had the benefit of any objective information about the weights lifted. That was not a critical part of her reasoning and did not affect the outcome [68].

Dr Conrad’s evidence

5. The fact that Dr Conrad was aware Ms Hume had completed her HSC in 2010 was, on its own, of no significance and did not advance Ms Hume’s case. What was important was that, as the Arbitrator noted, when Ms Hume first complained about wrist pain, it was in the context of it affecting her ability to write, but with no reference to her work. That history was inconsistent with Dr Conrad’s history of pain having been caused by activities at work, regardless of the nature of those activities [76].

6. Therefore, Dr Conrad’s history (taken one year after the event) was incomplete. This undermined the weight to be attached to his evidence and the Arbitrator was entitled to consider the incomplete history in her assessment of the case [77].

7. The submission that Dr Conrad determined that Ms Hume had suffered “the injury” in the course of her employment misunderstood the nature of the issue in dispute. The question of whether a worker has received an injury under s 4 is a matter for the Commission. In determining that question, the Commission must consider all the evidence. Expert medical evidence will be important, but not determinative [80].

8. Contrary to the appellant’s submissions, the effects of Ms Hume’s studying for the HSC were not irrelevant to the question of whether she had received a s 4 injury. Dr Hanna’s history, which Ms Hume never challenged or disputed, was important evidence as to whether she had received an injury and was evidence the Arbitrator was entitled to consider. There was no evidence that Ms Hume had received an injury with KFC that was subsequently aggravated by study for the HSC [81].

9. Contrary to the appellant’s submission, the Arbitrator did not assign more evidentiary weight to Dr Hanna’s notes than to Dr Conrad’s report. She correctly noted that Dr Hanna took a history of wrist pain, but did not attribute that pain to any cause and made no reference to work being a cause. That history was significant and the Arbitrator was entitled to rely on it in assessing the weight to be attached to the other evidence in the case [84].

10. Dr Conrad’s evidence had to be considered with all the evidence in the case and his opinion was only as good as the foundation upon which it was based (City of Brimbank v Halilovic [2000] VSCA 12 at [23]-[24]). That foundation was unreliable and not accepted. Having considered all the relevant evidence, the Arbitrator concluded that Dr Conrad’s opinion was not to be preferred and that Ms Hume had not made out her case. That conclusion was open to her and disclosed no error [85].

Evidence of Drs Chan and Hanna

11. There was no basis for the submission that Dr Chan thought that work with the respondent was a causative factor in the development of Ms Hume’s symptoms in August 2010. The fact that he had a history that Ms Hume worked part-time at KFC, but took no history of any symptoms caused by that work, strongly pointed to the opposite conclusion [90].

12. The Arbitrator did not prefer “incomplete or equivocal evidence”. She said that, with respect to causation, she could give little weight to Dr Chan’s reports. Her statement that they did not “assist Ms Hume”, but gave some support to the respondent, was correct. Dr Chan did not support an allegation of injury with the respondent and his history of pain being intermittent and “worse with writing” undermined the allegation [91].

13. It was correct that Dr Conrad and Ms Hume both stated that the injury was caused by Ms Hume’s employment. However, that was not the only evidence in the case and the Arbitrator was not bound to accept their evidence. That was especially so in light of the evidence from Drs Chan and Hanna, neither of which made any reference to work with the respondent having been responsible for the symptoms, and the evidence from Mr Hannaford and Ms Soertz, which undermined Ms Hume’s evidence that she reported her pain and that her work was heavy and repetitive [93].

Error of fact and discretion

14. The Arbitrator gave detailed reasons as to why she did not accept Ms Hume’s case. In addition to the reasons discussed above, the Arbitrator also referred to the lack of any report of injury form or contemporaneous claim form. With regard to Ms Hume’s evidence that she told Mr Hannaford of her injury, the Arbitrator noted his denial of any such report and added that, if Ms Hume had reported her difficulties to him, it was “most plausible” that she may not have done so in a manner which he understood to be a report of injury [97].

Roche DP

3 October 2012

Facts:

Melissa Hume worked for the respondent as a causal part-time customer service worker from 2007 until April 2011. She worked about eight hours per week. Throughout most of this time, she was a school student.

She alleged that she injured her right wrist as a result of repetitive work and lifting in the course of her employment with the respondent. She claimed weekly compensation of $60 per week from 9 August 2010 to 17 November 2010, lump sum compensation in respect of a two per cent whole person impairment due to the condition of her right upper extremity and a general order under s 60.

The Arbitrator stated that, in view of the lack of contemporaneous medical and other evidence in support of the claim, she was not satisfied that Ms Hume had established the necessary causal connection between her employment and her wrist condition. She made an award for the respondent.

The issues on appeal were whether the Arbitrator erred in:

(a) incorrectly applying the statutory test in determining that Ms Hume had not discharged the onus of proof (the statutory test);

(b) determining that objective information (as to the weight of boxes and baskets of chips) was required (objective information);

(c) concluding that Dr Conrad’s history was “incomplete” and failing to give more weight to his opinion (Dr Conrad’s evidence);

(d) characterising the evidence from the treating general practitioner, Dr Stanton, as an opinion (Dr Stanton’s evidence);

(e) her assessment of the evidence from the treating specialist, Dr Chan (Dr Chan’s evidence), and

(f) failing to find that Ms Hume had suffered an injury and providing no reasoning as to why Ms Hume’s evidence should not be accepted (injury and reasoning).

The submissions in support of the appeal did not comply with Practice Direction No 6 in that they did not properly identify the grounds of appeal and make submissions in support of those grounds. Instead, they merely set out a discursive narrative of why Ms Hume should have succeeded interspersed with general complaints of alleged errors. That was unacceptable.

Held: the Arbitrator’s determination confirmed

The statutory test

1. The Arbitrator referred to the terms of s 4 of the 1987 Act and correctly noted that Ms Hume carried the onus of proof on the balance of probabilities. She was not satisfied that Ms Hume had discharged her onus. The submissions on appeal merely amounted to an assertion that the Arbitrator erred in not accepting Ms Hume’s evidence. The failure to accept one side’s evidence may or may not amount to an error, but it did not establish that the Arbitrator incorrectly applied the statutory test [62].

2. The submission that there was contemporaneous evidence that Ms Hume received an injury to her right wrist was incorrect. Ms Hume complained to Dr Stanton of pain in her wrist secondary to study. That was not a complaint of injury caused by work. Her complaint of pain to Mr Hannaford (manager) was disputed [63].

Objective Information

3. It was accepted that “heaviness” could be a subjective assessment, and that Ms Hume was not required to prove the weight of the objects she lifted before she could succeed. However, the Arbitrator did not base her decision on the lack of objective information about the weight of the objects Ms Hume lifted in the course of her employment. That was merely one observation the Arbitrator made in the course of her assessment of the evidence overall [66].

4. The Arbitrator did not say that “objective information” about weights was required before Dr Conrad’s opinion could be accepted, but merely noted that Dr Conrad did not appear to have had the benefit of any objective information about the weights lifted. That was not a critical part of her reasoning and did not affect the outcome [67].

Dr Conrad’s evidence

5. The fact that Dr Conrad was aware Ms Hume had completed her HSC in 2010 was, on its own, of no significance and did not advance Ms Hume’s case. What was important was that, as the Arbitrator noted, Ms Hume’s first complaint to a doctor about her hand in 2010 was that her hand pain was secondary to study for the HSC and she made no complaint about her work. That history was inconsistent with Dr Conrad’s history of pain having being caused by activities at work, regardless of the nature of those activities [74].

6. Therefore, not only was Dr Conrad’s history (taken one year after the event) incomplete, it was inconsistent with the objective contemporaneous evidence recorded by Dr Stanton. These matters significantly undermined the weight to be attached to his evidence and the Arbitrator was entitled to consider them in her assessment of the case [75].

7. The submission that Dr Conrad determined that Ms Hume had suffered “the injury” in the course of her employment misunderstood the nature of the issue in dispute. The question of whether a worker has received an injury under s 4 is a matter for the Commission. In determining that question, the Commission must consider all the evidence. Expert medical evidence will be important, but not determinative [78].

8. Contrary to the appellant’s submissions, the effect of Ms Hume’s studying for the HSC, and the pain that that study caused, were not irrelevant to the question of whether she had received a s 4 injury. Dr Stanton’s history, which Ms Hume never challenged or disputed, was important evidence as to whether she had received an injury and was evidence the Arbitrator was entitled to consider [79].

Dr Stanton’s evidence

9. Dr Stanton took an unchallenged history on 8 August 2010 that Ms Hume had hand pain “secondary to study for HSC”. Her medical certificate stated that Ms Hume was suffering from an acute strain injury of the right hand. She essentially repeated that opinion in her notes on 13 August 2010 and in her referral to Dr Chan. The only reasonable inference was that she believed the wrist pain had been caused by (was “secondary to”) study for the HSC [85].

10. Dr Stanton based her opinion on the history she took that Ms Hume was studying for the HSC and “not coping” and Ms Hume’s complaint of pain in her right wrist. That provided a proper basis for the Arbitrator to assess her evidence and she was entitled to prefer it to Dr Conrad’s opinion expressed one year after the event [86].

11. The submission that the manifestation of symptoms while studying was not evidence as to causation ignored the fact that that was the only history Dr Stanton took and Ms Hume did not challenge that history. That history was clearly relevant to whether Ms Hume had received an injury in the course of her employment with the respondent [89].

Dr Chan’s evidence

12. There was no basis for the submission that Dr Chan thought that work with the respondent was a causative factor in the development of Ms Hume’s symptoms in August 2010. The fact that he had a history that Ms Hume worked part-time at KFC, but took no history of any symptoms caused by that work, strongly pointed to the opposite conclusion [96].

13. The Arbitrator did not prefer “incomplete or equivocal evidence”. She said that, with respect to causation, she could give little weight to Dr Chan’s reports. Her statement that they did not “assist Ms Hume”, but gave some support to the respondent, was correct. Dr Chan did not support an allegation of injury with the respondent and his history of pain being intermittent and “worse with writing” undermined the allegation [97].

14. The submission that the only evidence that could be used to determine causation was the evidence from Dr Conrad and Ms Hume was simply wrong. The Arbitrator was not only entitled to consider all the evidence, but was required to do so. The evidence from Dr Stanton, Dr Chan, Mr Hannaford and Ms Soertz was directly relevant to the weight to be attached to the evidence from Dr Conrad and Ms Hume. Weighing all of the evidence, the Arbitrator did not accept Dr Conrad’s opinions. That conclusion was open to her and disclosed no error [99].

Injury and reasoning

15. While the Arbitrator said that there was no issue with respect to Ms Hume’s truthfulness, the submission that the Arbitrator “gave no reasoning” as to why Ms Hume should not be accepted as a witness of truth misstated the issue in the case. The respondent’s case was not that Ms Hume had been untruthful, but that her condition had been caused by writing in preparation for the HSC and not by her part-time work with it, which was neither heavy nor repetitive. The Arbitrator essentially accepted that argument [106].

16. The Arbitrator also referred to the lack of any report of injury form or contemporaneous claim form. With regard to Ms Hume’s evidence that she told Mr Hannaford of her injury, the Arbitrator noted his denial of any such report and added that, if Ms Hume had reported her difficulties to him, it was “most plausible” that she may not have done so in a manner which he understood to be a report of injury [107].