Issue 12: December 2012

O’Grady DP

28 November 2012

Facts:

Kevin Anderson alleged that he received injury in the course of work performed by him at the Star City Casino Sydney in 2009.

A claim for workers compensation benefits made against three alleged employers being Rohy’s Maintenance Services Pty Limited (the appellant), Eco Choice Projects Pty Limited and Yadollah Shaykholislami trading as Classic Finishes, was denied.

The dispute concerning Mr Anderson’s entitlement to compensation benefits was the subject of an Application to Resolve a Dispute (the Application) which was filed with the Commission in December 2010. That Application alleged injury to Mr Anderson’s right shoulder together with “depression/anxiety” resulting from the “nature and conditions of employment for several weeks leading up to and including 18 June 2009 and again thereafter up to early August 2009”.

It appeared that Mr Anderson operated for the alleged employers under his own name and a business name of AM and PM Painting (also known as Atlantic Painting).

On 9 May 2012, in a Certificate of Determination the Commission determined that:

1. From March 2007 to 30 July 2009, the Applicant contracted with the First Respondent to perform work exceeding $10 in value, not being work incidental to a trade or business regularly carried on by the Applicant in his own name, or under a business or firm name.

2. From March 2007 to 30 July 2009, the Applicant was deemed by Sch 1 cl 2 of the 1998 Act to have been employed by the First Respondent.

3. The Applicant was not an employee, or a deemed employee, of the Second or Third Respondent.

4. Awards for the Second and Third Respondent.

5. On 17 June 2009, Mr Anderson suffered a partial thickness tear of the right supraspinatus tendon while painting the ceiling at Star City Casino in the course of his deemed employment for the First Respondent, to which his deemed employment contributed substantially.

6. Due to the nature and conditions of his work as a painter for the First Respondent in May and June 2009, he suffered injury to the right shoulder.

7. Award for the First Respondent in respect of the claim for weekly compensation from 19 June 2009 to 26 July 2009.

8. Award of weekly compensation against the First Respondent for weekly compensation at varying rates from 3 August 2009 to 10 December 2010 and continuing.

9. The First Respondent was to pay the Applicant’s costs of the proceedings as agreed or assessed.

The issues in dispute on appeal were that the Arbitrator erred in the following respects:

(a)   determining that Mr Anderson was “engaged in deemed employment with the appellant” (Sch 1 cl 2 of the 1998 Act);

(b)   in his determination of factual matters which concerned the credibility of Mr Anderson;

(c)   rejecting the appellant’s tender of statements by Mr Mohammad, a director of the appellant, and of Mrs Mohammad;

(d)   failing to give adequate reasons for his determination, and

(e)   in finding that Mr Anderson was totally incapacitated for work.

Held: The determinations and orders made in paragraphs one, two, five, six, eight and nine of the Certificate of Determination dated 9 May 2012 were revoked. Paragraph four was amended by its deletion and substitution as follows: “Awards for the First, Second and Third Respondents”.

Engaged in deemed employment

1. The Arbitrator’s conclusion that Mr Anderson was, in the circumstances, to be taken to be a worker was founded upon the provisions of cl 2 of Sch 1 to the 1998 Act [71].

2. The manner of construction and application of the clause was addressed by Bainton A-JA (Kirby ACJ and Rolfe A-JA agreeing) in Scerri v Cahill (1995) 14 NSWCCR 389 at 399 (Scerri) where his Honour stated:

On its proper construction, clause 2 of Schedule 1 requires an applicant who relies on it to establish each of the ingredients, both positive and negative, which identify the relevant ‘work’. [72]

3. There was no issue between the parties that the work performed by Mr Anderson exceeded $10 in value or that Mr Anderson had neither sublet the contract as found by the Arbitrator nor employed workers in the performance of it. The sole issue concerned the question as to whether the work performed was not work incidental to a trade or business regularly carried on by Mr Anderson in his own name or under a business or firm name. As stated by Bainton A-JA in Scerri, the onus of proof concerning that negative fact is upon the putative worker [73].

4. The questions of whether Mr Anderson worked at the direction of Mr Mohammad, a director of the appellant, or that work was performed at the request of the appellant, or that he was not proven to have worked other than at the direction of the appellant, whilst relevant, did not alone determine the question in issue being whether the work performed when injured was not incidental to a trade or business regularly carried on in Mr Anderson’s name or under a business or firm name [75].

5. The Arbitrator’s finding that “Schedule 1.2 deems [Mr Anderson] to have been an employee of [the appellant] at the time he suffered [the injury] on or about 17 June 2009” was successfully challenged by the appellant and was revoked. In so concluding, the following matters were taken into account:

(a)   the Arbitrator’s finding concerning Mr Anderson’s credit as a witness;

(b)   the state of the evidence relied upon by Mr Anderson;

(c)   the nature of the onus upon Mr Anderson to prove the negative fact being that the work was not incidental to a trade or business, and

(d)   those authorities which address the proper construction and application of Sch 1.2 [79].

Worker’s credibility

6. Mr Anderson’s evidence was that he regarded himself as an employee of the appellant; that he did not carry on a trade or a business, and that he worked for Mr Mohammad or at his direction. The evidence as a whole failed to corroborate the bare assertions made by Mr Anderson concerning his relationship with Mr Mohammad and the appellant. In such circumstances, a determination of matters in dispute required careful assessment of the evidence as a whole [81], [85].

7. The manner in which the Commission is to approach a challenge to such findings of credit may be guided by that which was stated by the High Court in Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 (Devries) and by subsequent authority. The circumstances of Devries concerned a review by the Full Court of a finding as to credit made by a trial judge. It was stated by the High Court that such a finding could properly be overturned “only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept [the plaintiff] as a witness of truth” (per Deane J and Dawson J at 483; see also Brennan, Gaudron and McHugh JJ at 479, and Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31]) [83].

8. The inconsistency concerning quantum of earnings, a matter of fundamental significance when an attempt to determine the nature of the contractual relationship between the parties was made, rendered Mr Anderson’s statements unreliable concerning the subject of remuneration [93].

9. The Arbitrator erred in his conclusions as to the credit of Mr Anderson. This finding was made having regard, in particular, to the state of the evidence as a whole and the complete absence of evidence adduced by Mr Anderson in corroboration of his assertions concerning the true nature of his relationship with the appellant and as to his allegations concerning the appellant’s complicity in “money laundering”. Whilst the Arbitrator reached no conclusion concerning those latter allegations, acceptance by the Arbitrator of the truthfulness and reliability of Mr Anderson’s assertions otherwise constituted error on his part [116].

Whether work was incidental to a trade or business & cl 2 of Sch 1 to the 1998 Act

10. The Commission, in deciding facts according to the civil standard of proof, may be guided in its task by the decision in Ho v Powell [2001] NSWCA 168; 51 NSWLR 572 (Ho) [97].

11. It was submitted that it was necessary for the appellant to satisfy the Commission on appeal that the Arbitrator had “overlooked some bit of evidence or didn’t advert to some bit of evidence that led - that displaced the conclusion”. That submission did not address the deficiency of evidence (Mr Anderson’s failure to produce documents concerning his financial affairs for June 2009 financial year) suggested by the appellant in argument [98].

12. In Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389 Dixon J, was of the opinion that what needed to be established, for a claimant to establish that the work is not work incidental to trade or business regularly carried on in the contractor’s own name or under a business or firm name  was, the relationship between the independent contractor and the principal was “special or particular” and that such was established if it be proven that the independent contractor “has no such general business or is not a general practitioner of his trade”. The scant nature of the evidence tendered on behalf of Mr Anderson, its inconsistency and unreliability, together with the absence of evidence that may reasonably be expected to have been adduced, lead to the finding that the Arbitrator had erred in accepting the bare assertions made by Mr Anderson that such special or particular relationship existed between him and the appellant [107].

Other matters

13. The appellant’s attempt to tender the evidence (statements by Mr Mohammad and his wife) before the Arbitrator came very late in the protracted proceedings. The evidence had been prepared much earlier than notice of same had been given to Mr Anderson. The delay was not adequately explained. The Arbitrator properly took into account that further delay of the proceedings would have been occasioned by permitting the belated tender of that evidence. Further, the findings on this appeal were made upon grounds which did not concern those matters addressed by Mr Mohammad in that statement which the appellant attempted to tender. In addition, much of the pertinent evidence found in the statement of Mrs Mohammad was to be found in the material before the Arbitrator and therefore justice did not require a grant of leave to adduce that additional evidence. The appellant’s complaints concerning the Arbitrator’s ruling to reject the tender of the evidence was rejected [118], [13].

14. It was implicit in the findings that the Arbitrator had failed to properly address the evidence, in particular, concerning the questions of credit and onus of proof. The Arbitrator therefore failed to provide adequate reasons for his conclusions [119].

15. The Arbitrator’s finding of continuing total incapacity was made in circumstances where partial incapacity from 9 December 2010 was conceded by Mr Anderson in written submissions dated 6 January 2012. The Arbitrator’s findings concerning pre-injury earnings and probable earnings were made in the absence of sufficient evidence [120].

O’Grady DP

7 November 2012

Facts:

Between 1983 and 1984, Mr Taoube was employed by the State Rail Authority of NSW in two labouring positions. In the course of that work, on a date not revealed on the evidence, Mr Taoube injured his lumbar spine.

On an unknown date, Mr Taoube commenced work with Players Biscuits. On 9 June 1998, in the course of that work Mr Taoube injured his head and left leg. A claim for compensation benefits was made against the employer.

On a date not revealed in the evidence, Mr Taoube commenced employment with Eco Farms. In the course of that work, on 3 May 2000, he again injured his lumbar spine. He remained unemployed thereafter until he commenced employment as a storeman with Landmark Recruitment Pty Limited (the appellant) in May 2005. Before taking up that position, Mr Taoube was involved in a motor vehicle accident, which occurred on 28 September 2000, where he injured his cervical spine, left shoulder and lumbar spine.

On 27 September 2005, in the course of work with the appellant, Mr Taoube injured his right shoulder and right knee when he was struck by a moving forklift. Mr Taoube was absent from work for two weeks following which he returned to work on suitable duties.

On 17 January 2006, in the course of his work with the appellant, Mr Taoube injured his left shoulder and cervical spine as he attempted to move a large garbage container. Mr Taoube was absent from work for one month following which he returned to suitable part-time work. In September 2006, he ceased that work by reason of his injuries.

On 27 June 2008, Mr Taoube’s employment with the appellant resumed. On that day he travelled to work by taxi. After alighting from the vehicle at the workplace Mr Taoube tripped and fell causing fractures to his left clavicle and the left fourth metacarpal. Since that injury he reported painful symptoms in his left shoulder, neck, right shoulder, lumbar spine and right knee. Weekly compensation payments were made until 11 April 2010 at which time the appellant declined further liability.

A dispute concerning Mr Taoube’s entitlement to lump sum compensation pursuant to ss 66 and 67 of the 1987 Act came before the Commission in 2010. The appellant conceded that Mr Taoube had injured his left arm and left leg when injured in 2008. However, it disputed that he had injured his cervical spine and lumbar spine in that incident.

In a Certificate of Determination dated 28 June 2010, the Arbitrator found that Mr Taoube had received injury to his cervical and lumbar spines as a result of the 2008 injury. An order was made pursuant to s 60 of the 1987 Act and the question of whole person impairment (WPI) was remitted to the Registrar for referral to an AMS for assessment.

In a MAC issued on 27 August 2010, the AMS certified that Mr Taoube had suffered two per cent WPI as a result of the 2005 injury; one per cent WPI as a result of the 2006 injury, and 13 per cent WPI as a result of the injury received on 27 June 2008.

On 5 October 2010, Mr Taoube’s claim in respect of lump sums was settled by agreement with the appellant.

In September 2011, Mr Taoube lodged an application in respect to a claim for weekly payments from 12 April 2010 and continuing. In a Certificate of Determination dated 5 July 2012, the Arbitrator made an award in favour of Mr Taoube. Pursuant to s 37 of the 1987 Act the respondent was ordered to pay Mr Taoube weekly compensation at the maximum statutory rate for a worker without dependents, from 12 April 2010 to date and continuing. The Arbitrator also ordered that the respondent pay Mr Taoube’s expenses pursuant to s 60 of the 1987 Act.

The issues on appeal were whether the Arbitrator erred in:

(a) concluding that Mr Taoube had discharged the onus of proof upon him concerning the question of whether he had in fact suffered incapacity;

(b) failing to give reasons for her finding that moneys, being “undisclosed deposits”, were “unlikely to represent income”;

(c)    determining that Mr Taoube had, as a result of the injuries, been totally incapacitated, and

(d)    fact, law and discretion with respect to the worker’s credit.

Held: the Arbitrator’s determination confirmed

Total incapacity

1. It appeared, from the manner of submissions made, that the appellant argued that failure to explain the sources of substantial, unexplained sums of credit demonstrated a failure to establish a loss of earning power. In this regard, it was noted that Mr Taoube had received a substantial some of money through gambling and other undisclosed sources between April 2005 and December 2011. However, O’Grady DP formed the view that the concept of “income” was not one which arises for determination under the Acts when the question of incapacity was being considered [55].

2. It was necessary that the Arbitrator determined the question of the existence or otherwise of incapacity for work, and its extent (either total or partial), before any consideration of the appellant’s arguments concerning the relevance of the receipt by Mr Taoube of the money amounts. O’Grady DP was of the opinion that the Arbitrator erred in dealing with the arguments raised concerning “income” before determining the question of incapacity. However, he was of the view that the Arbitrator’s ultimate conclusions were correct and any error identified in the Arbitrator’s reasoning process did not vitiate the determination of the dispute [57].

3. Mr Taoube’s failure to “comply” with requests by the insurer with respect to rehabilitation could have no relevance to a determination of the existence and extent of any incapacity [58].

4. The question before the Arbitrator was whether, as a result of injury, incapacity prevented Mr Taoube from doing any work or that he had a reduced physical capacity for actually doing work in the labour market in which he was working or might reasonably be expected to work (see discussion in Arnotts Snack Products Pty Limited v Yacob [1985] HCA 2; 155 CLR 171 at 177 per Mason, Wilson, Deane and Dawson JJ). Entitlement to compensation in respect of such incapacity for work required proof of a loss of earning power, as stated by Jacobs J in The Commonwealth v Muratore [1978] HCA 47; 141 CLR 296, at 300-301 [58].

5. O’Grady DP cited Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; (1996) 25 NSWCCR 206 (at 213) and stated that there was before the Arbitrator evidence capable of supporting a finding of either total incapacity or one of partial incapacity [61], [63].

6. The appellant appeared to suggest error of law in that the Arbitrator had applied an incorrect test to determine the question of the existence and extent of incapacity. The appellant argued that “being uncompetitive does not equate to incapacity”. The appellant’s submissions in this regard were rejected [62]-[63].

“Onus of proof” and receipt of “income or earnings”

7. It appeared that the first ground of appeal concerned the “onus of proof” said to be upon Mr Taoube to prove “that he has not received income or earnings”. The second ground was that the Arbitrator had erred in finding that “[Mr Taoube] was not in receipt of income”. The appellant appeared to suggest that the Arbitrator erred in concluding that Mr Taoube had in fact received no relevant earnings and that no finding of economic incapacity should have been made. In examining these issues, O’Grady DP considered the decision of the High Court in Steggles Pty Ltd v Vandenberg [1987] HCA 35; 163 CLR 321 (Vandenberg) [65]-[67].

8. O’Grady DP used the conclusion reached by McHugh JA as upheld by the High Court in Vandenberg, that “economic loss was not part of the concept of incapacity” (see discussion by McHugh JA between 240 and 243) as guidance [70].

9. O’Grady DP stated that it followed from the decision in Vandenberg that the evidence of receipt of “income” at relevant times by Mr Taoube, and in the absence of any argument founded upon s 46 of the 1987 Act (which is in similar terms to s 13 of the former Act discussed in Vandenberg), had no relevance to the question of incapacity and may not be relied upon to challenge the Arbitrator’s determination of total incapacity [71].

10. The Arbitrator’s finding of total incapacity established, prima facie, that Mr Taoube had, as a result of that incapacity, been prevented from doing any remunerative work. Given the evidence concerning Mr Taoube’s financial circumstances it was necessary that he prove that such “income” did not represent relevant earnings. That is, that the monies received by him were not monies received in return “for his service or labour or under a subsisting contract of employment” see discussion by Sheller JA (with whom Mahoney and Priestley JJA agreed) in Fox Sound & Electronics Pty Ltd v Mellios (1995) 11 NSWCCR 485 at 491 and 495 (Mellios) [73].

11. In reaching her conclusion it was made clear by the Arbitrator that her view was that Mr Taoube, whilst presenting evidence as to the source of the various deposits, had not provided “supportive evidence” concerning such payments. It was thus reasonably clear that the Arbitrator was not satisfied that the sources of the funds had been explained [74].

12. O’Grady DP was of the view that the Arbitrator’s approach to the evidence correctly included an examination of the “banking history” with particular focus upon the period from 12 April 2010, the commencement date of the claim for weekly benefits. The Arbitrator formed the view that “there is no pattern that suggests money received from a regular source, such as income” [75].

13. The Arbitrator’s determination that the sums received were “unlikely to represent income” and that since 12 April 2010 Mr Taoube “has not been in receipt of income” constituted a finding that at relevant times those receipts were not “earnings” as discussed in Mellios. Such a finding was open on the evidence. The Arbitrator’s reasons were plainly and adequately stated and it was concluded that no relevant error had been demonstrated by the appellant [77].

Mr Taoube’s credibility as a witness

14. The Arbitrator’s conclusions concerning the issue of “income” were based upon her assessment of the evidence as a whole. That assessment took into account the appellant’s argument concerning credit and her apparent misgivings concerning Mr Taoube’s attempted explanations. No error was made out and this ground failed. [80].

Roche DP

28 November 2012

Facts:

Van Sang Tran injured his cervical spine in two separate incidents, on 8 January and 5 May 2009, while working for PMP Directories Pty Ltd (the appellant).

In a permanent impairment claim dated 31 October 2011, Mr Tran claimed lump sum compensation in respect of a 16 per cent whole person impairment resulting from the incidents. The appellant’s insurer, CGU Workers Compensation (NSW) Ltd (CGU), disputed the claim.

Noting that Mr Tran had identified two separate dates of injury, which had separate claim numbers, CGU advised that whole person impairment assessments were “unable to be combined for injuries that are the subject of different claims, and nor can they be combined in order to reach the threshold which would enable [Mr Tran] to receive compensation for pain and suffering”.

Mr Tran was assessed by AMS, Dr Robin Fitzsimons, to have a 17 per cent whole person impairment as a result of the two incidents.

The Arbitrator held that Mr Tran suffered an injury to his cervical spine on 9 January 2009 and 5 May 2009 and, as the pathology from the two incidents was the same, namely, a C7 disc protrusion, he was entitled to aggregate his impairments. She assessed compensation for pain and suffering under s 67 to be $17,500.

The issue on appeal was whether the Arbitrator erred in allowing Mr Tran’s application to aggregate his impairments and in awarding excess compensation for pain and suffering.

Held: The Arbitrator’s determination was confirmed.

Effect of the MAC and the definition of ‘injury’                                            

1. While it is accepted that the MAC is conclusively presumed to be correct as to the matters identified in s 326 of the 1998 Act, the issuing of a MAC does not equate to the determination of liability by the Commission (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321) [28].

2. It is for the Commission (either an Arbitrator or a Presidential member), not an AMS, who is not a member of the Commission, to determine issues of liability, such as the nature and extent of an injury, and the quantum of compensation payable as a result of that injury (Spicer Axle Pty Ltd v Merza [2007] NSWWCCPD 148; Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; 5 DDCR 337) [29].

3. The definition of injury under s 4 of the 1987 Act was unhelpful in determining the issue in the present case. In Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 423 (Lyons), Neilson CCJ held that “injury” refers to “both the [injurious] event and the pathology arising from it”. This definition was accepted as being appropriate for many (but not all) purposes under the 1987 Act and the 1998 Act [33].

4. That the term “injury” means pathology, or pathological change, is acknowledged in s 322(3) of the 1998 Act, where reference is made to “Impairments that result from more than one injury arising out of the same incident...” (emphasis added). This reference to “injury” can only mean the “pathology” that has resulted from the relevant work “incident” or injurious event. For example, if a worker falls and suffers a broken leg and separate and distinct nerve damage in the arm, he or she has suffered more than one “injury” (an injured leg and an injured arm) from the “same incident”. In other words, he or she has suffered more than one pathology (“injury”), as a result of the one incident or injurious event. Those “injuries” (pathologies) are to be assessed together. This interpretation is consistent with s 65(2) of the 1987 Act and is uncontroversial (see also Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310; Castro v State Transit Authority (NSW) [2000] NSWCC 12; 19 NSWCCR 496, and Willis v Moulded Products (Australia) Ltd [1951] VicLawRp 8; [1951] VLR 58) [37].

5. That the word “injury” can have different meanings, depending on its context in the legislation, was confirmed by Giles JA (Heydon and Meagher JJA agreeing) in Holdlen Pty Ltd v Walsh [2000] NSWCA 87 at [33] [40].

6. It cannot seriously be disputed that “injury” can have different meanings depending on its context. Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (Edmed) considered the meaning of “injury” in the context of a claim for lump sum compensation. In that case, Roche DP also referred (at [40]) to s 323(1) and added that that provision had to be read “subject to” s 322 [41].

7. In a claim for lump sum compensation, compensation is not paid for the receipt of an injury (and, in this context, whether “injury” was a reference to the injurious event or the pathology resulting from that event, does not matter), but is paid for the impairment or loss that has resulted from the pathology caused by or resulting from the injury [42].

8. The principles discussed in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 were relevant to the present matter. Those principles establish that, consistent with the approach in Edmed, a single injury (pathology) can have multiple causes. It would be illogical and unacceptable for there to be one approach to the threshold for work injury damages in s 151H and a different approach to claims for compensation under s 67 [48].

9. It followed that the Arbitrator correctly applied the principles in Edmed. As Mr Tran suffered only one injury (pathology) in the two incidents pleaded, the MAC did not prevent the aggregation of the impairments and the assessment of compensation accordingly. The Arbitrator did not alter the basis of the referral to the AMS or the assessment made by the AMS. She determined the injury issue and applied s 322 to the facts [49].

Email of 28 March 2012

10. The Arbitrator correctly concluded that the email (detailing the injuries and referral for assessment of permanent impairment to an AMS) merely referred to two separate injury dates and did not refer two separate injuries. The email was therefore of no consequence [53].

Notice of intention to seek aggregation

11. The submission that Mr Tran abandoned or waived any right to aggregate was incorrect. Mr Tran’s conduct was always consistent with his claim that he suffered a single impairment from two incidents and that the injury (pathology) he suffered was the same in each incident. That conduct was reinforced in the Application to Resolve a Dispute filed with the Commission where it was made clear that he alleged he had suffered one injury (pathology) as a result of the two pleaded incidents [60].

12. The appellant’s counsel referred to no authority in support of her submission that an estoppel arose from Mr Tran’s conduct. This issue was not raised before the Arbitrator and was without substance [61].

Jurisdiction & time limit to appeal

13. The appellant submitted that the Arbitrator erred in allowing the applicant to aggregate in view of the MAC under s 327.

14. This submission was rejected. The issue before the Arbitrator was the nature of the injury (pathology) received by Mr Tran in the two incidents. That is not an issue an AMS has jurisdiction to determine and was not a matter that Mr Tran could appeal under s 327. Appeals under s 327 are restricted to the matters that are conclusively presumed to be correct [64].

15. All of the matters in s 327(2) presupposed that there had been a separate determination of the injury and the nature of the injury (pathology) following which the AMS can certify what impairment results from that injury. Mr Tran’s failure to appeal under s 327 was therefore of no consequence [65].

16. The submission that the Arbitrator lacked jurisdiction was not made at the arbitration and, in any event, was unsustainable. The question before the Arbitrator concerned the nature of the injury or pathology Mr Tran received in the pleaded incidents. That matter was exclusively within the Commission’s jurisdiction [66].

17. It was also submitted that the Arbitrator erred in disregarding the time limits provided for lodging appeals (presumably) under s 327. As there is no appeal against a MAC on the issue of injury, the Arbitrator did not err in not considering this submission [67]-[68].

Work injury damages threshold

18. The Arbitrator was not concerned with the work injury damages threshold and this was not a matter before the Arbitrator. The submission that the Arbitrator altered the basis of the referral to the AMS or the assessments made by Dr Fitzsimons was rejected [71].

19. Based on the evidence, it was clear beyond doubt that the injury (pathology) Mr Tran sustained was a C7 disc prolapse. That pathology was mainly caused in the first incident, but partly contributed to by the second incident. Dr Fitzsimons apportioned the impairment between the two incidents on the basis of how much each accident contributed to the pathology responsible for the impairment, not on the basis that the pathology caused by each incident was different.

Section 323

20. Counsel for the appellant made no submissions about s 323 at the arbitration and it was not open to argue on appeal that the Arbitrator erred by not considering an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). Leaving that to one side, the submission on appeal was not accepted [83].

21. Section 323(1) requires that, in “assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury” or that is due to “any pre-existing condition or abnormality”. As there was only one injury in the present case there was no “proportion of the impairment that is due to any previous injury” that had to be deducted. The impairment had resulted from the one injury to the C7 disc [84].

Pain and suffering compensation

22. Assessment of compensation for pain and suffering under s 67 of the 1987 Act involves “questions of fact and degree, matters of opinion, impairment, speculation and estimation calling for the exercise of common sense and judgment (Dell v Dalton)” (Galley v Pasminco Mining Limited [1993] NSWCC 11; 9 NSWCCR 288 at 297) [89].

23. The Arbitrator’s assessment was well within the range of appropriate compensation payable for a 48 year old male who had suffered a significant cervical disc prolapse and suffers continuing pain and significant restrictions as a result [90].

Bias and onus of proof

24. It was unclear if counsel for the appellant was alleging apprehended bias or actual bias. An allegation of actual bias should not be lightly made and, if it is made, it must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [69]. To establish actual bias, it must be proved that the Arbitrator was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia Legeng at [71]) [96].

25. The test for apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 86 ALJR 14 at [31]). The test involves two steps: first, “the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits” and, second, “[t]here must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits” (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [8], Gleeson CJ, McHugh, Gummow and Hayne JJ) [97].

26. The allegation of bias was without merit and should not have been made [101].

27. The submission that the Arbitrator reversed the onus of proof was equally without merit. None of the exchanges with counsel suggested that the Arbitrator thought the onus lay anywhere other than on Mr Tran [102].

Roche DP

15 November 2012

Facts:

Cynthia Jackson worked for Cement Australia (Kandos) Pty Ltd (the respondent) (and its predecessors in title) from September 1990 until 1 July 2002. She was initially employed as a laboratory assistant and then in May 1995 a central control assistant.

Ms Jackson injured her back and right shoulder in separate injuries with her employer in 1998 and 2000. She returned to work on light office duties for two days per week in May 2001 and continued those duties until the employer dismissed her in July 2002. On 24 February 2004, the Commission ordered the employer to pay weekly compensation at the maximum statutory rate from July 2003 to date and continuing.

On 2 September 2011, the respondent’s insurer served on Mrs Jackson a notice under s 54 of the 1987 Act of their intention to cease payment of weekly compensation, on the ground that, under s 52A(1)(c), Mrs Jackson had sought suitable employment but had failed to obtain such employment primarily because of the state of the labour market which was weak at the time (rather than because of the effects of the applicant's injury). Weekly compensation payments ceased on 14 October 2011.

In dealing with Mrs Jackon’s claim for weekly compensation the Arbitrator found that Mrs Jackson was partially incapacitated, that work she sought was “suitable employment” within the meaning of s 43A of the 1987 Act, and that the respondent had established that she had failed to obtain suitable employment primarily because of the state of the labour market rather than because of the effects of her injury.

The issues on appeal were:

(a) whether, applying the principles in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584; 25 NSWCCR 206 (Lawarra Nominees), the worker was totally incapacitated for work at the relevant time;

(b)    whether, if the worker was not totally incapacitated for work at the relevant time, work as a receptionist, administrative assistant, or customer service officer was “suitable employment” for the worker within s 43A of the 1987 Act, and

(c) whether, if the worker was not totally incapacitated for work at the relevant time, the worker failed to obtain suitable employment “primarily because of the state of the labour market (rather than because of the effects of the worker’s injury)” within s 52A(1)(c) of the 1987 Act and is therefore no longer entitled to receive weekly compensation.

Held: The Arbitrator’s determination was revoked and Mrs Jackson’s payments pursuant to s 40 of the 1987 Act were reinstated.

Legislation

1. Sections 52A and 43A were repealed on 19 June 2012 by the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). As Mrs Jackson had claimed compensation before 1 October 2012 and was an existing recipient of weekly payments she remained entitled to compensation under Div 2 of Pt 3, which included ss 52A and 43A (see Sch 12 cl 6 of the Amending Act). It followed that ss 52A and 43A applied to the present matter [17]-[18].

Total Incapacity

2. Mrs Jackson’s counsel submitted that the Arbitrator should have had regard to the types of work in which Mrs Jackson was seeking employment, her limited experience, her extensive disability and the geographical location of her residence. It was also submitted that the Arbitrator failed to give sufficient reasons for dismissing the application of Lawarra Nominees and appeared to have proceeded on the basis that, as there was a “theoretical” capability for work, Mrs Jackson could not be classed as totally incapacitated [35]-[36].

3. The solicitor representing the respondent submitted that it was “almost certain” that Mrs Jackson had some capacity to work at the relevant time. That capacity was “somewhere in the vicinity of four hours per day four days, having regard to the realities of the labour market in which she was to be engaged” [39].

4. It was held that the incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the worker was working or might reasonably be expected to work (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 at 177) [40].

5. It was open to the Arbitrator to base his conclusion on the evidence of Dr Jones, a specialist in rehabilitation medicine. Dr Jones suggested that, notwithstanding her restricted capacity, Mrs Jackson would be able to do the work of a receptionist for four hours per day. It was open to the Arbitrator to accept the evidence in Dr Ali’s initial WorkCover certificates (which said the worker was fit for light duties) in preference to the doctor’s later certificates (which said the worker was totally unfit), especially in circumstances where that doctor did not explain his change of view in his later certificates [43]-[44].

6. Though neither party raised it, a further reason why this ground of appeal could not succeed was because Mrs Jackson was receiving compensation under s 40 pursuant to orders made by the Commission on 24 February 2004. That award could not be varied to be an award for total incapacity without an application for review under s 55 of the 1987 Act based on a change in circumstances and no such application had been made. As the Amending Act repealed s 55, it was too late for such an application [49].

Suitable employment

7. In the absence of any evidence that Mrs Jackson was not capable of performing the jobs listed by RemoteFocus (rehabilitation providers), and no evidence was submitted to that effect, it was open to the Arbitrator to make a finding that the type of work for which Mrs Jackson was making application was suitable employment, having regard to s 43A of the 1987 Act [50], [59].

Section 52A

8. While the job market where Mrs Jackson lived was “weak”, the test under s 52A was whether the worker failed to obtain suitable employment “primarily” because of the state of the labour market rather than because of the effects of the injury. It was therefore necessary to look at the meaning of the word “primarily” [75].

9. While s 52A is a restricting or limiting provision, workers compensation legislation is beneficial legislation and, as such, it should “be given a ‘fair, large and liberal’ interpretation” (AB v Western Australia [2011] HCA 42 at [24]) [82].

10. The use of the relative word “primarily” in s 52A, like the word “substantial” in s 9A, acknowledges that other causes may be relevant and that an assessment must be made of the strength of those causes to determine if the state of the labour market was the “primary” cause of the worker’s failure to obtain suitable employment. “Primarily” in s 52A means “chiefly” or “principally” [83].

11. The Arbitrator properly noted that Mrs Jackson’s job applications did not refer to any restrictions on her employability and that, as a result, she had not given any prospective employers information that would lead them to think that, because of her injury, she was “vulnerable to further injury” [84].

12. However, in considering why Mrs Jackson had failed to obtain suitable employment, the Arbitrator failed to have regard to the fact that, because of her injury, Mrs Jackson had been out of the workforce since 2002 and, because of that fact, had extremely limited skills and experience [84].

13. Mrs Jackson’s time out of the workforce, her lack of relevant experience, and her seriously out-of-date and limited training, are all matters the Commission was entitled to take into account, without the need for expert evidence, in assessing her employment prospects. In assessing the “realities of the labour market”, the expertise of the Commission, as a specialised tribunal, is “particularly relevant” (O’Brien Glass Industries Pty Ltd v Bahmad [2001] NSWCA 224 Hodgson JA (Powell and Beazley JJA agreeing) at [28] referring to the expertise of the former Compensation Court of NSW). Moreover, as the respondent carried the onus on this issue, Mrs Jackson had no obligation to call any evidence [87].

14. The evidence the employer relied on was internally inconsistent. The assertion that Mrs Jackson’s inability to obtain employment was because of the state of the labour market was prefaced with the words “[i]n particular having regard to [Mrs Jackson’s] restrictions”. Those restrictions included extensive restrictions on the number of hours Mrs Jackson could work, her ability to lift, sit, stand, travel and key [88].

15. In all the circumstances, the Arbitrator erred in finding that the state of the labour market was the “primary”, in the sense of the “chief” or “principal”, reason for Mrs Jackson’s failure to obtain suitable employment. It followed that the respondent had not made out its case under s52A(1)(c) [92].

Keating P

15 November 2012

Facts:

Mrs O’Brien worked as a secretary for the Trustees of the Roman Catholic Church for the Diocese of Parramatta (the Trustees).

On 28 October 1999, she was injured when a chair she was attempting to sit on broke, causing her to sustain various injuries.

The Trustees accepted liability in respect of the injuries to Mrs O’Brien’s back and neck.

The dispute before the Arbitrator was whether Mrs O’Brien injured her left arm and left leg in the accident on 28 October 1999.  The Trustees accepted liability for lump sum compensation, subject to an assessment by an AMS, in respect of the claimed impairments to the neck and back.

The Arbitrator found in favour of the worker in respect of the disputed impairments to the left arm and left leg.

The issues on appeal were that the Arbitrator erred:

(a) in concluding that the report of Dr Michael Long provided evidence probative of the proposition that Mrs O’Brien sustained an injury to her left knee on 28 October 1999;

(b) in concluding that there was support from Dr Khan for the proposition that Mrs O’Brien suffered an injury to her left knee on 28 October 1999;

(c) by relying on expert opinion which was at odds with the worker’s consistent account of the fall and its immediate aftermath, namely that she did not fall onto a flexed left knee and symptoms following the fall did not include any left knee symptoms;

(d) by failing to apply the terms of Rule 70 [sic, Rule 15.2] of the 2011 Rules and the principles enunciated in South Western Area Health Service v Edmonds [2007] NSWCA 16 at [127];

(e) by discounting the contemporaneous evidence of Dr Martino because of the absence of his clinical notes and drawing the inference his evidence was unreliable for that reason, and

(f) by concluding that the report of Dr Griffith supported the proposition that the respondent worker had fallen onto a flexed left knee injuring that knee, whereas, in fact, Dr Griffith’s evidence was to the contrary.

Held: Arbitrator’s decision revoked

1. Mrs O’Brien asserted in her 22 June 2010 statement, made more than 11 years after the incident on 28 October 1999 that she injured her left knee when it “twisted under me” as she fell from a broken chair during the course of her employment [92].

2. The appellant submitted that the objective evidence indicated that Mrs O’Brien made no complaint of an injury to the left knee or symptoms referable to a left knee injury after the incident or at any other time until 1 November 2007 when she reported an injury to the left knee to Dr Wong. At that time she referred to a fall three weeks earlier. No other evidence was given regarding the circumstances of the fall or any injuries that may have been sustained at that time [93].

3. As the chronology revealed that Mrs O’Brien saw many doctors and provided a history of her injury on numerous occasions between 1999 and 2007, none of which made any reference to the knee being injured in the circumstances that she described, or of any symptoms referable to a left knee injury [94].

4. The Arbitrator found that although the worker’s statement was only of recent origin, she accepted it as a detailed account of what happened; namely, that the worker’s left leg twisted under her in the fall [95].  The question was whether that finding, having regard to the objective evidence, was correct [96].

5. The Commission is not bound by the rules of evidence: s 354 of the 1998 Act. The correct approach to the appraisal of evidence by the Commission was recently considered by the Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 281, per Allsop P at [2] and [3]. [97]

6. It was not in accordance with any principle of law that, although Mrs O’Brien was not cross-examined as to her evidence, it must be taken to be true. The worker’s submission that her version of events was not challenged was not correct. The employer directly challenged it as being inconsistent with Dr Martino’s history and her own claim form [98]. Mrs O’Brien’s account of what happened to her knee in the incident on 28 October 1999 was very much in issue before the Arbitrator [99].

7. Contrary to Mrs O’Brien’s submission, the appellant did not assert that her case must fail unless she could corroborate her version of events concerning the fall in 1999. In civil proceedings, corroboration is not a legal requirement for the acceptance of a witness’s evidence: Chanaa v Zarour [2011] NSWCA 199 at [86].

8. The reliability of Mrs O’Brien’s evidence with respect to the alleged knee injury, must be assessed in light of the evidence of histories she provided to her various treating doctors between 28 October 1999, when she was injured, and 1 November 2007, when a complaint in relation to the left knee first surfaced in Dr Wong’s notes [101].

9. The history obtained by Dr Martino on the day of the incident was entirely consistent with the worker’s account of what happened, except for the absence of a reference to twisting her left knee. Dr Martino took a very careful history of what happened on the day of the incident and made a careful note of the worker’s complaints of injury. The Arbitrator’s conclusion that Mrs O’Brien may not have given a full account of what happened to Dr Martino because of the distress and pain she was suffering immediately after the incident was speculative. Mrs O’Brien did not say that she failed to report any injury to her knee for that reason [103].

10. Over the ensuing years to 2007, Mrs O’Brien made no reference to any injury to her knee or symptoms in the knee to numerous attending medical practitioners including Drs Yap, Griffith, Sheridan, Salmon, Lombardo, Day, Giblin, Cheun, Ellis or Norsworthy. Nor was there any record of any such complaints in the clinical notes of general practitioners attending her during that period [104].

11. The Arbitrator accepted that there were inconsistencies as to what happened on 28 October 1999. Mrs O’Brien made no attempt to address the inconsistencies in her own evidence as to the circumstances of the incident and that which is recorded in the many treating doctor’s reports and notes [106].

12. It may readily be accepted that an injured worker having suffered injuries to multiple body parts may not accurately refer to each of them at each and every medical examination. However, Mrs O’Brien did not mention the problems with her knee to any of her treating doctors between 1999 and 2007. The only reference to an injury to her knee emanated from her own evidence and from the histories she gave to medico-legal consultants after 2007 [107].

13. Factual findings may be disturbed on appeal in those circumstances stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (Kerr) which decision has been discussed in the context of Commission appeals by Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25. It must be shown that the Arbitrator was wrong.

14. The Arbitrator erred by giving too little weight to the abundant objective evidence of an absence of reported injury to, or the presence of symptoms in, the left knee for many years after the incident. The preponderance of the evidence did not support the Arbitrator’s conclusion of injury to the left knee as alleged. Judge Keating rejected Mrs O’Brien’s submission that the absence of complaints of knee pain was “not devastating to her case”. The objective evidence against a finding of injury to the knee was so overwhelming that Mrs O’Brien’s evidence on that issue should not have been accepted [109].

15. The Arbitrator found that Mrs O’Brien also suffered an aggravation of pre-existing arthritis in the left knee in the incident of 28 October 1999. That finding was based on the evidence of Drs Long and Khan. Dr Long gave a detailed account of Mrs O’Brien’s presenting problems requiring his assessment. However, there was no mention of any presenting problems with the left knee [111].

16. Dr Long did not record a history of symptoms in the left knee following the work incident in 1999. That was unsurprising as Mrs O’Brien made no reference in her evidence to a continuation of left knee symptoms following the incident on 28 October 1999. He did not identify any trauma to the knee arising from the 1999 incident or identify any pathological change to the knee sustained at that time. His only reference to the left knee was the history that it doubled beneath her when she fell. Dr Long did not provide any explanation for the conclusion that the worker suffered an aggravation of an arthritic condition in the knee arising from the incident in 1999. In those circumstances, Dr Long’s conclusion that Mrs O’Brien aggravated the arthritic condition of her left knee during the fall on 28 October 1999, was difficult to accept. For these reasons his evidence carried little weight [113].

17. The Arbitrator’s finding of aggravation of a disease was based, in part, on the evidence of Dr Khan. Dr Khan recorded the history that Mrs O’Brien’s legs went from under her in the incident in 1999. His conclusion however, of an aggravation of a degenerative disease, was based on the worker having fallen on her flexed left knee which had twisted during the fall. In her submissions on appeal, Mrs O’Brien expressly disavowed the suggestion that she fell on a flexed knee [114].

18. There was no contemporaneous evidence that Mrs O’Brien suffered a flexion injury to the knee in the fall at work. The absence of such evidence was not necessarily fatal to her claim, but the absence of such evidence and the absence of any reference to knee symptoms until she fell in late 2007, was telling [115].

Roche DP

14 November 2012

Facts:

Paul Hayman (the deceased) committed suicide on or about 11 or 12 September 2008. He had been a senior fire fighter with Fire & Rescue NSW (the appellant) for 25 years.

Mr Hayman had injured his right arm in the course of his employment with the appellant on 13 December 2001 and aggravated that injury on 5 June 2002. His injury had a marked effect on him and resulted in the loss of his career when he was medically discharged on 11 November 2004. It also prevented him from engaging in a range of personal and recreational activities. He felt ashamed and embarrassed that he could not even do basic activities such, as pack up camping gear or domestic chores.

Though he obtained alternative work, and remained on voluntary payments of weekly compensation, Mr Hayman suffered significant financial problems because of his loss of career with the appellant.

The appellant’s insurer disputed the claim by Mrs Hayman (the applicant) for compensation for herself and her two children on the ground that the deceased’s death was caused by family relationships and/or world events and did not result from the original work injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). In the alternative, if it was found that the death resulted from the injury, compensation was not payable because the death “was an intentional self-inflicted injury” under s 14(3) of the 1987 Act.

At the arbitration, counsel for the appellant, submitted that the facts were in stark contrast to the facts in Holdlen Pty Ltd v Walsh [2000] NSWCA 87; 19 NSWCCR 629 (Holdlen).

The Arbitrator accepted that Mr Hayman’s physical injury caused him to become withdrawn and depressed. He concluded that Mr Hayman’s depressive illness, which led to his suicide, resulted from the injury at work in December 2001 and June 2002.

The issues on appeal were whether the Arbitrator erred in:

(a) determining that Mr Hayman’s suicide resulted from an injury sustained by him in the employment of the appellant, in the absence of a finding that the suicide was other than intentional and broke the chain of causation;

(b) determining that, even if there was a chain of causation between the work injury and Mr Hayman’s major depressive illness, Mrs Hayman was entitled to compensation in the absence of a determination that the suicide was other than an intentional act, and

(c) determining that Mrs Hayman was entitled to compensation when, on her case, Mr Hayman had suicided and his death was the result of an intentional self-inflicted injury.

Held: the Arbitrator’s determination confirmed

Case not presented

1. There was a fundamental obstacle to the appellant’s argument on appeal: it was never put to the Arbitrator. The appellant never submitted that, to succeed, Mrs Hayman had to prove that her husband’s mind was so unhinged as to dethrone his power of volition. The issue presented for determination was whether the death resulted from the injuries to Mr Hayman’s right arm. The Arbitrator determined that issue [31], [37].

2. It was not open to the appellant to allege on appeal that the Arbitrator erred in not dealing with a case not presented (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [42].

3. While it was correct that the s 74 notice referred to s 14(3), that did not mean the issue was “in play” at the arbitration. The raising of an issue in a s 74 notice means that the dispute raised may be referred to the Commission for determination (s 289A of the 1998 Act). The issue may or may not remain alive at the arbitration, depending on the arguments presented and the way the case is conducted. When experienced counsel conducts a case in a certain way, an Arbitrator is entitled to rely on that conduct in his or her determination of the case [45].

The “intention” issue

4. While suicide is the intentional taking of one’s own life, that does not mean that it was not an issue that had to be argued. Intention only became relevant if the appellant pressed its defence under s 14(3) [47].

5. It was not accepted that the Arbitrator was “abreast” of the “intention” issue, or that he looked at it. The connection between Mr Hayman’s arm injury and his death was not broken by an intentional act unless s 14(3) applied. In that situation compensation would not be payable “in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”. The appellant never submitted at the arbitration that s 14(3) prevented Mrs Hayman from recovering compensation and the Arbitrator never directed his mind to it [52].

6. The appellant was bound by the conduct of its counsel at the arbitration (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]). The Arbitrator dealt with the issues in the submissions put to him and those submissions said nothing about an intentional act breaking the chain of causation [53], [55].

7. Moreover, it is not correct that, for an applicant to succeed, the causal connection must remain unbroken by an intentional act. An intentional act will often be part of the chain of causation (Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 at [10]). If a worker, acting on the advice of a competent doctor, intentionally undertakes a course of treatment that makes the worker’s condition worse, he or she will be entitled to compensation for the worsened condition (Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313 at 321; Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 529–530) [56].

8. The question therefore remained as to whether the appellant was entitled to raise the “intention” and s 14(3) issue for the first time on appeal [57].

Raising a point for the first time on appeal

9. A point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 498) [58].

10. The new issue in the present case was not one that could not possibly have been met by evidence at the arbitration. It was doubted that it was in the interests of justice to allow the appellant to raise the new issue for the first time on appeal, but given the state of the evidence it involved no prejudice to the applicant and, as she did not object, the Deputy President dealt with it [59].

Section 14(3) of the 1987 Act & Holdlen

11. In Holdlen, Giles JA said (at [33]) that s 14(3) was not easy to construe because the word “injury” is used twice and the sub-section could have two meanings. On the first meaning, the sub-section said nothing about death by suicide because it could only apply if the injury to the deceased’s leg (in this case, the injury to Mr Hayman’s arm) was an intentional self-inflicted injury. On the second meaning, the sub-section could arguably apply to death by suicide, because the death of the worker by suicide could be said to have been caused by an intentional self-inflicted act of injuring [60].

12. His Honour, Giles JA, said it was not necessary to decide if s 14(3) applied because, if applied to death by suicide, the trial judge’s finding that the deceased had “lost the ability to control his suicidal impulses” and his “power of volition was seriously compromised” negated its application [61].

13. The appellant seemed to have conducted the case before the Arbitrator on the basis of the first meaning of s 14(3) referred to by Giles JA. Assuming the second meaning of s 14(3) applied, Giles JA said that suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Whether that was the situation in the present matter was the issue now argued on appeal [62]-[63].

14. Dr Klug said that Mr Hayman “lost the ability to control his suicidal ideation and that this developed into suicidal intent”, and that Mr Hayman’s “power of volition was likely to have been seriously compromised at that point”. Read in its proper context, Dr Klug’s evidence that Mr Hayman’s power of volition was likely to have been “seriously compromised” can only mean that it was so “overborne or influenced” by his circumstances that the suicide should not be regarded as an intentional act breaking the chain of causation [64]-[65].

15. Significantly, Dr Klug expressed his opinion in language that was virtually the same as the finding made by the trial judge in Holdlen. Dr Klug’s evidence provided compelling evidence for a conclusion that Mr Hayman’s suicide was not an intentional self-inflicted injury within s 14(3) [66].

16. It was held that, as a result of his depressive disorder, which had been caused by the injury to his right arm, Mr Hayman lost the ability to control his suicidal ideation, which developed into suicidal intent, and that his power of volition was seriously compromised, that is, it was so overborne that, though the suicide was a deliberate act, it was not an intentional act. This finding negated the application of s 14(3) and the defence based on that provision failed [75].

17. It followed that, considering the new issue on appeal on its merits, and assuming, for the purpose of the appeal, that the Arbitrator erred in not dealing with the issue of intention and s 14(3), the evidence from Dr Klug comfortably satisfied the test in Holdlen and the Arbitrator’s error made no difference to the outcome [76].

Acting President Roche

21 November 2012

Facts:

Vera Krstevska started work for the respondent as a process worker in 1987 or 1988. Her job was to machine valves for use in a paint-mixing machine. Her duties required constant and repetitive movement of her right arm in particular, until her job became automated in or about 2002 or 2003.

In 1999 Ms Krstevska developed symptoms in her right hand and left elbow. Her left elbow symptoms resolved, but her right-sided symptoms spread up her arm to her shoulder. In January 2003, Ms Krstevska reduced her working week from full-time to three days per week and in December 2006 she stopped work.

In February 2007 a claim for lump sum compensation was settled, in relation to Ms Krstevska’s right upper extremity and cervical spine.

On 29 August 2011, Ms Krstevska claimed compensation for her left upper extremity together with additional compensation because of a deterioration in the condition of her right shoulder and her neck. She alleged that the injury to her left shoulder had been caused by “repetitive process work” with the respondent and by increasing the use of her left arm as a result of the injury to the right arm.

The insurer disputed the left shoulder claim. However, it did not dispute the claim for additional lump sum compensation in respect of the right shoulder (save as to quantum) and that part of the claim would be assessed by an AMS.

On 23 August 2012, the Arbitrator found that Ms Krstevska did not have the “level of proof” for her to conclude that the left shoulder injury was work related and it was not accepted that it resulted from the right shoulder injury.

The issues on appeal were whether the Arbitrator erred in:

(a)    dismissing the opinion of Dr Deveridge as offending the dicta in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita);

(b)    finding that there was no objective evidence of symptoms in the left shoulder in 2005 (objective evidence of symptoms in 2005);

(c)    finding that Ms Krstevska’s injury was acute in 2010, in the absence of any medical opinion to support that finding (lack of evidence of an acute injury in 2010);

(d)    giving excessive weight to the “lack of contemporaneous medical evidence” or complaints of pain in the left shoulder up until 2010 (lack of contemporaneous medical evidence);

(e)    dismissing Ms Krstevska’s evidence without any adverse findings as to her credibility as a witness (credit), and

(f)     stating, with respect to the alleged “consequential injury”, that the onus was on Ms Krstevska to prove the injury was caused at or in the course of employment and that work was a substantial contributing factor to the injury (the consequential condition).

Held: The Arbitrator’s determination was confirmed.

Expert evidence & evidence of injury

1. In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), it was not in issue (on appeal) whether the worker had suffered a work injury. The issue was the nature and extent of that injury and the weight to be attached to the treating surgeon’s evidence in circumstances where he did not have a history of subsequent non-work incidents. The first issue in the present case was whether Ms Krstevska injured her left shoulder in the course of or arising out of her employment with the respondent. The second issue was whether the left shoulder condition resulted from the accepted injury to the right shoulder [40].

2. The Arbitrator’s statement that it was difficult to find “any evidence that the actual nature and conditions of the work up until 2006 caused any injury to the left shoulder” was open to her and was consistent with the evidence. In this context, the Arbitrator said that the only explanation for the tear in the left shoulder was Dr Deveridge’s opinion that it had resulted from Ms Krstevska’s “previous work tasks”. The Arbitrator correctly observed that there was nothing in the evidence, from either Dr Deveridge or Ms Krstevska, to support that conclusion. Given that the “work tasks” when the left shoulder symptoms allegedly started were “much easier” than in the early years, the Arbitrator’s statement was clearly correct. Arguably, it was not necessary for her to go further because this finding meant that Ms Krstevska had not established her case on the injury issue [46].

3. The Arbitrator was wrong when she said that, in evaluating the weight of expert evidence, it was important to look at what the expert had “done to try and prove that those assumptions are correct”. It is no part of an expert’s role to prove that the assumptions underlying the opinion are correct, or that the opinion is based on “objective provable facts”. The expert merely assumes certain asserted facts and expresses an opinion. If the foundation for the opinion is false or inadequate, or, if the opinion is unexplained, the opinion will be of limited probative value [53].

4. The first question is whether the assumed facts have provided a “fair climate” for acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85 (Paric); Brady v Commissioner of Police (2003) 25 NSWCCR 58 at 76). The Arbitrator seemed to have been of the view that Dr Deveridge’s reports, which included no history that the easier work from 2003 placed any stress or strain on Ms Krstevska’s left shoulder, or that it caused any symptoms in the left shoulder, did not provide a “fair climate” for the acceptance of his opinion. That conclusion was open. Even if that conclusion was wrong, or was not clearly articulated by the Arbitrator, there remained the question of whether Dr Deveridge explained his opinion. There was no valid basis for Dr Deveridge’s opinion and the Arbitrator was entitled to reject it [54], [58].

5. The submission that Dr Deveridge “complied with the requirements for expert evidence as set out in Hancock” and the Arbitrator erred in giving little or no weight to his opinion was not accepted. This submission was tantamount to saying that an expert’s evidence must be accepted regardless of how unsatisfactory the history or how inadequate the explanation for the conclusion. That is not the law [59].

6. Strict compliance with every feature of Makita was not required. However, when an expert’s reports are wanting in several critical respects, and the evidence overall is seriously deficient, the Commission must weigh the evidence to determine if the worker has discharged the onus of proof. Given the deficiencies in the evidence from Ms Krstevska and Dr Deveridge, there was no persuasive evidence that Ms Krstevska’s duties caused an injury to her left shoulder and the Arbitrator’s conclusion was correct [62].

Lack of evidence of an acute injury in 2010

7. The Arbitrator merely said that the general practitioner’s notes seemed to indicate that the injury was quite acute. She did not make a formal finding to that effect and did not refer to it again. It was clearly a passing observation in the context of Ms Krstevska’s presentation to her general practitioner in 2010. This observation did not undermine the Arbitrator’s ultimate finding [69]-[70].

Lack of contemporaneous medical evidence

8. The Arbitrator was correct in that she said that there was “absolutely no contemporaneous evidence of any complaint of injury to [Ms Krstevska’s] left arm during this period” (the period from 2003 to 2007) [77].

9. While corroboration is not essential in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]), in a case such as the present, the lack of corroboration in the form of contemporaneous evidence was a factor the Arbitrator was entitled to consider [83].

10. The lack of contemporaneous complaint that Ms Krstevska’s duties with the respondent caused the symptoms in her left shoulder made a connection between those duties and the symptoms less likely. That conclusion was reinforced in circumstances where, notwithstanding that she was seeing doctors and solicitors between 2004 and 2007 for a workers compensation claim for her right shoulder, she made no complaint of left shoulder symptoms having been caused by her work until 2011 [84].

Credit

11. The case turned on the lack of evidence about whether Ms Krstevska received an injury to her left shoulder arising out of or in the course of her employment with the respondent. In considering that issue, the Arbitrator had regard to the lack of probative evidence in Ms Krstevska’s statements and correctly observed there was “simply nothing in the second statement [to support her claim]” [86].

The consequential condition

12. The Arbitrator correctly concluded that there was no evidence that the left shoulder condition resulted from the accepted injury to the right shoulder. This conclusion was fortified by the lack of evidence from Ms Krstevska about the use to which she put her left arm and shoulder because of her right shoulder symptoms [95].

Roche DP

27 November 2012

Facts:

The appellant employer filed an appeal challenging the Arbitrator’s orders in favour of Mr Zbigniew Banka in relation to weekly compensation. The appellant argued that, on the basis of “new evidence”, which was available but not tendered at the arbitration, Mr Banka was only entitled to compensation under s 38(3) of the 1987 Act at the rate of $703 per week up to 6 February 2012 and that his entitlement from 7 February 2012 to 14 April 2012 was $562.40 per week instead of $703 per week.

The “new evidence” sought to be relied on was the Employer’s Report of Injury form and evidence said to demonstrate that CGU Workers Compensation (NSW) Ltd (the appellant’s insurer) paid Mr Banka voluntary weekly compensation under s 38(3) from 8 August 2011 to 16 October 2011 and, therefore, his entitlement under that section expired on 6 February 2012. It was also submitted that the list of payments revealed an overpayment of compensation totaling approximately $555.

Held: The Arbitrator’s determination was confirmed.

Threshold Issue

1. Before a party can appeal to a Presidential member, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act [10].

2. Under s 352(3) of the 1998 Act there is no appeal right unless the amount of compensation “at issue” on appeal is both “at least $5,000” and at least 20 per cent of the amount awarded in the decision appealed against [11].

3. There was an immediate obstacle to the Commission making the orders sought by the appellant. Mr Banka only claimed compensation from 14 October 2011, the date on which he asserted that voluntary payments ceased. As there was no dispute about Mr Banka’s entitlement to compensation up to that date, it was not open to the employer to amend on appeal the worker’s claim for compensation. Workers, not employers, make claims for compensation [13].

4. Once that was understood, it was clear that the only compensation “at issue” on appeal was the quantum of compensation for the period between 7 February 2012 and 14 April 2012. Accepting that the appellant’s argument was correct (that Mr Banka was only entitled $562.40 per week instead of $703 per week), the total of that compensation was well below both the thresholds in s 352(3) and there was no right of appeal [15].

5. Even if it was accepted that Mr Banka was overpaid, the issue of the overpayment was not argued before the Arbitrator and it was not open on appeal to submit that the Arbitrator erred by not dealing with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [17].

6. As there was no right of appeal, the Commission did not have jurisdiction to determine the issues raised [19].

Additional Evidence

7. In the circumstances, it was not necessary to deal with the application to rely on additional or fresh evidence on appeal, which was wrongly described as “new evidence” in the appellant’s submissions. However, it was observed in passing that a submission that evidence that was readily available at the arbitration, but was not tendered due to “an administrative error”, will rarely satisfy the test for the admission of additional or fresh evidence in s 352(6) of the 1998 Act [20].

Keating P

8 November 2012

Facts:

On 9 September 2012, an Arbitrator lodged an application for leave to refer a question of law.

The application concerned the interpretation of the savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation.

The application was made by the Arbitrator at the request of the parties and the intervener, WorkCover.

The question of law was determined on 22 October 2012 (Goudappel v ADCO Constructions Pty Limited[2012] NSWWCCPD 60). It was held that the respondent’s interpretation of the effect of the transitional provisions, upon which it relied to defeat Mr Goudappel’s claim for lump sum compensation, was correct. In that sense, Mr Goudappel was unsuccessful.

The question of costs was reserved and the parties were given liberty to apply.

Held: each party pay his or its own costs

1. It was accepted that the issues raised for determination in Goudappel No 1 were in the nature of a test case. The outcome of the application would clearly have had implications not only for Mr Goudappel, but would also have affected the rights of other applicants in similar circumstances [14].

2. The awarding of costs in the Commission is discretionary. The Commission has full power to determine by whom, to whom and to what extent costs are to be paid: s 341 of the 1998 Act [15].

3. The question of law was referred from the Arbitrator with the consent of all concerned. Nothing in the respondent’s conduct invited the litigation or unnecessarily protracted it (Oshlack v Richmond River Council (1998) 193 CLR 72; HCA 11). It was appropriate that each side pay his or its own costs of the application [17].