Issue 9: September 2012

Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282

WORKERS COMPENSATION - Workers Compensation Commission - Arbitrator's decision - appeal to Presidential Member - error of law - whether no evidence to support finding that respondent injured while working for appellant - whether arbitrator answered wrong question in situation where possibility injury occurred at two workplaces - procedure - s 354 of the 1998 Act - procedures before Commission not governed by rules of evidence - arbitrator required to draw conclusions from material that is satisfactory in probative sense - where respondent's credit impugned - whether arbitrator entitled to rely on expert reports where medical history respondent gave experts differed from evidence accepted by arbitrator - procedures before Commission not governed by rules of evidence - Workers Compensation Commission Rules - evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions - not a reintroduction of rules of evidence

STATUTORY INTERPRETATION - s 354 of the 1998 Act - procedures before Commission not governed by rules of evidence - Workers Compensation Commission Rules - evidence required to be logical and probative, relevant to facts in issue and issues in dispute, not based on speculation or unsubstantiated assumptions, not in form of unqualified opinions - rules not to be construed in manner inconsistent with statute

Court of Appeal

Allsop P, McColl JA, Basten JA

28 August 2012

Facts:

Onesteel raised an issue concerning Mr Sutton’s credit. It submitted that he could not be believed as to the circumstances in which he said he had left its employ or as to whether, during that employ, he had complained about his back to his supervisor.

The Arbitrator considered conflicting evidence given by Mr Sutton, who said that he had made a number of complaints about his back problems to his supervisor, in 2006. His supervisor denied such assertions in his statement given in 2011. He also considered conflicting evidence in relation to the nature of the work performed at Amcor.

The Arbitrator acknowledged the need to scrutinise the contemporaneous evidence in light of his findings concerning Mr Sutton’s credit.

The Arbitrator found that Mr Sutton’s injury was a result of multiple traumata to Mr Sutton’s back over the period of his employment with Onesteel.

There were a number of issues before the Deputy President which he identified as raising errors of fact and law. Two of those were raised in the Court of Appeal, namely that the Arbitrator erred, first, in determining that Mr Sutton received injury to his back arising out of or in the course of his employment with the appellant and secondly, in “failing to find that Mr Sutton’s injury and resultant incapacity arose out of or was received in the course of his employment with [Amcor].”

Onesteel complained that the Arbitrator erred in accepting the opinions of Drs Matheson and Bodel in concluding that Mr Sutton’s employment with Onesteel was a substantial contributing factor to his injury because those opinions “were based upon a history as to the nature of the work with [Amcor] which was significantly different to those matters found in Mr Sutton’s second statement”. Mr Sutton contended that, notwithstanding the different descriptions of his work at Amcor in his first and second statements, there remained a significant distinction between the work he performed with Onesteel and that performed at Amcor such as entitled the Arbitrator to conclude that “there was no heavy lifting involved in [the work with Amcor]”. The Deputy President accepted that the factual findings as to the nature of the work with each employer were open to the Arbitrator on the evidence.

The issues on appeal were that the Deputy President:

(a) erred in law in that he ought to have found there was no evidence to support the Arbitrator’s finding that Mr Sutton suffered injury to his back in the course of his employment with Onesteel (no evidence point), and

(b) erred in law in failing to conclude that the Arbitrator defined otherwise than in accordance with law the ultimate question of fact he had to answer. This complaint arose from Onesteel’s assertion that the Arbitrator incorrectly defined the question of fact he had to answer as being in which one of his two employments Mr Sutton suffered injury to his back, rather than whether he suffered injury to his back in the course of his employment with either employer (misdirection point).

Held: appeal dismissed with costs

Allsop P

1. The relationship between the rules of evidence and hearings by the Commission is made clear by s 354 of the 1998 Act. The rules of evidence do not apply. There is no prohibition on hearsay material and opinion evidence. Nevertheless, as cases discussed by McCall JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council [2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12]. [2]

2. Rule 15.2 of the 2011 Rules provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions.  Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act [3].

3. The recognition of the difference will be important in a jurisdiction where the Commission will often conduct an appeal without an oral hearing in a statutory regime, the aims of which include expedition and low cost.  Thus, if a person has given a history to a doctor which is incorporated as an assumption for the doctor’s opinion, that recorded history may be hearsay for the Evidence Act 1995, but it may be material able to be acted on by the Commission in accepting the doctor’s opinion.  Much will depend on the context and the issues tendered for consideration as to how the Commission evaluates material before it. In most cases, as here, that evaluation will be a factual question, although the question whether material could or can support a factual conclusion is ultimately a question of law: Kostas. [4]

McColl JA

4. A “no evidence ground” of appeal may be characterised as “a decision of a question with respect to a matter of law” (Kostas). If the Deputy President erred in determining that the Arbitrator did not err in concluding Mr Sutton’s Onesteel employment was a substantial contributing factor to his injury, his conclusion could be reviewed in the Court of Appeal as long as the error was operative in the ultimate decision:  Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (at 153, 155 and 157). [57]

5. Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21;(1999) 197 CLR 611 (at [49]) per Gleeson CJ and McHugh J; Southwest Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 (at [88]) (Edmonds) and, further, r 15.2 of the 2011 Rules recognises that "evidence before the Commission must be 'logical and probative' and 'unqualified opinions are unacceptable'": Edmonds (at [131]). It is nevertheless necessary to be alert to the fact that "the rules of evidence, excluded by statute, [should not be allowed] to 'creep back through a domestic procedural rule' ": Kostas (at [17]) per French CJ. [59]

6. Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not": Edmonds (at [129]). [60]

7. Even assuming the no evidence ground was put to the Deputy President it could be given short shrift. First, Mr Sutton’s statement about his suffering of pain while in Onesteel’s employment and his assertion that he complained about the pain as being inextricably linked was not read as Onesteel contended. Further, whether or not the statement was to be read as Onesteel contended was a matter for the Arbitrator. It was apparent from the Arbitrator’s acceptance that, notwithstanding his preference for Mr Quash’s evidence, he could look elsewhere for corroboration of Mr Sutton’s evidence. This was also apparent from the fact the he dealt explicitly with the aspects of Mr Sutton’s evidence which he rejected. Had he rejected Mr Sutton’s evidence that he suffered pain during his Onesteel employ, it could be expected that he expressed that finding with the same degree of precision [63].

8. Both expert reports depended upon the proposition, in part, that Mr Sutton suffered back pain in the course of his Onesteel employment. The Arbitrator accepted Dr Matheson’s opinion that “the onset of [Mr Sutton’s] disc problems appeared to be during Onesteel employment …”. It was apparent from that conclusion that the Arbitrator accepted the history Mr Sutton gave Dr Matheson, namely that he had suffered pain during that employment. It was open to the Arbitrator to accept Mr Sutton’s evidence in this respect notwithstanding his adverse conclusions concerning his credit. Although the Arbitrator did not expressly find that Mr Sutton suffered pain during his Onesteel employment, it was implicit in his causation finding that he did so. The no evidence ground was rejected [64].

9. The Deputy President did not err in point of law in rejecting the discrepancy no evidence ground. It was manifest that there was a discrepancy between the description of the work Mr Sutton undertook at Amcor as set out in Dr Bodel’s report and that set out in Mr Sutton’s supplementary statement. The Arbitrator expressly dealt with the issue and concluded, notwithstanding that discrepancy, that Mr Sutton had established the Onesteel employment was a substantial contributing factor to his injury. It was a question of fact whether the case the expert hypothesised was sufficiently like that proven so as to render the experts’ opinion of any value: Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844. While it was open to the Deputy President to correct errors of fact, the appeal to the Court of Appeal was more confined. [69]

10. The Arbitrator was alert to the discrepancy issue. Moreover, because of the reservations he had about Mr Sutton’s credit, he was also conscious of the need, generally, to look to objective material to determine whether Mr Sutton’s employment at Onesteel was a substantial contributing factor to his injury. As the Deputy President (and the Arbitrator) concluded, both Dr Matheson and Dr Bodel’s opinions concerning the causation of Mr Sutton’s injury were based, in part, on the proposition that he had undertaken heavy lifting on a repetitive basis in the course of his work. That condition was satisfied in the case of his Onesteel employment. It was not satisfied in the case of his Amcor employment [70].

11. The fact that Mr Sutton’s supplementary statement identified for the first time that during his Amcor employment he had engaged in picking aluminium cans off the floor and bending, twisting and turning to do this, did not undermine the experts’ opinion. As the Deputy President concluded, it was open to the Arbitrator to find that the Amcor work was not heavy and did not satisfy the precondition of triggering Mr Sutton’s back complaints [71].

12. There was no doubt it was open to the Arbitrator to find that Mr Sutton’s injury could be attributable to more than one employer. However, in this case, it was also open to the Arbitrator to conclude that, having rejected the proposition that Mr Sutton’s work at Amcor involved heavy lifting, the evidence did not support any causal nexus between employment and Mr Sutton’s injury [73].

Basten JA

13. Rules of the Commission are made by the Minister: 1998 Act, s 364. They do not purport to, and should not be construed as, fettering the broad powers conferred on the Commission by s 354. Rule 15.2 is exhortatory in form and it is doubtful whether it imposes any legal constraint on the powers of the Commission when “informing itself on any matter”. The rule certainly could not, and does not purport to, impose rules governing the admissibility of evidence. To do so would be directly inconsistent with the express language of s 354. If the rule does not impose a legal constraint on the power of the Commission, in respect of the inferences the Commission may draw from the material before it, non-compliance with the rule would not constitute an erroneous decision in point of law [79].

14. In Edmonds the Court said of the predecessor to r 15.2 that it “broadly reflects fundamental principles of the common law concerning admissibility of evidence (at [128]). That language falls well short of suggesting, as the appellant appeared to imply, that an expert opinion which would be admissible at common law (or under the Evidence Act 1995 (NSW)) would constitute “no evidence” for the purposes of providing a ground of appeal [80].

15. Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once admissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 at [86].

Chung v The Benevolent Society [2012] NSWWCCPD 45

Keating P

24 August 2012

Facts:

The appellant, Ms Chung, was employed by the Benevolent Society as a network manager. In mid-2008, Ms Chung was incapacitated for work due to a non-work related condition.  She was granted leave without pay from 16 July 2008 until July 2009.

When Ms Chung sought to return to work with the Benevolent Society, she was informed that, due to a business restructure, her position no longer existed. As no commensurate positions were available for Ms Chung at that time, she agreed to accept a temporary role as a project manager, working part-time two-and-a-half days per week from 10 August 2009 to 11 November 2009. She maintained her title and was paid at her normal rate of pay for a network manager on a pro rata basis. Ms Chung signed an employment variation form confirming the agreement.

On 25 September 2009, Ms Chung injured her shoulder during a fall at work and was incapacitated. The employer accepted liability for the worker’s injury and commenced payment of weekly compensation under s 36 of the 1987 Act at a rate calculated by reference to the worker’s part-time earnings.

Ms Chung claimed she was entitled to weekly compensation, following the expiration of the three-month temporary appointment, at the rate calculated by reference to her full-time earnings, namely, $1,503.66 per week.

In its s 74 notice, Employers Mutual NSW Ltd rejected the worker’s claim that she was entitled to be compensated at the rate of $1,503.66 based on her former full-time earnings.  It asserted Ms Chung’s entitled to weekly compensation required a determination of the worker’s currently weekly wage rate under s 42 of the 1987 Act by reference to the work performed by her immediately before being incapacitated. That work was the part-time work, which attracted a lower rate of weekly compensation (for which it accepted liability).

Ms Chung lodged an application in the Commission seeking weekly compensation at the rate of $1,503.66 per week from 20 October 2009 to date and continuing. The claim was subsequently amended to a period from 10 November 2009 to 20 April 1010. The worker alleged injury to both shoulders and psychological injuries in respect of injuries sustained on 25 September 2009 and 21 August 2009.

The Benevolent Society disputed liability for the reasons referred to in the s 74 notice.

The only issue before the Arbitrator was the calculation of the worker’s current weekly wage rate for the period in question.

The Arbitrator issued an extempore decision, finding in favour of the respondent.

The issue on appeal was whether the Arbitrator erred in determining the calculation of the worker’s current weekly wage rate by reference only to the rate applicable immediately prior to the injury.

Held: Arbitrator’s determination revoked

1. The parties agreed that, during the relevant period, the worker was totally incapacitated and her entitlement to compensation was determined by reference to s 36 of the 1987 Act.  Section 36 provides that weekly compensation during the first 26 weeks of incapacity shall be the amount of the worker’s currently weekly wage rate. The current weekly wage rate means the worker’s current weekly wage rate determined from time to time in accordance with s 42 [60].

2. The parties agreed that, as the worker was not remunerated under an award, the relevant subsection was s 42(1)(d). That subsection provides that a reference to the current weekly wage rate is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of the work being performed by the worker immediately before becoming incapacitated [61].

3. Section 43 provides that, for the purposes of the provisions of the 1987 Act relating to “earnings” and “average weekly earnings”, certain rules are to be observed. The primary rule is that the average weekly earnings shall be computed in such a manner as is best calculated to give the rate per week at which the worker was being remunerated [63].

4. The worker’s unchallenged evidence was that, after her extended period of leave without pay, she planned to return to work on 13 July 2009 to her former position as a network manager, working full time. The exchange of correspondence between the respondent and the appellant’s solicitors confirmed that that was both parties’ intention, subject to there being a position available [64].

5. Applying s 42(8), the assessment of the worker’s average weekly earnings from 10 November 2009 was to be made on an assumption of what the worker would probably have earned if the worker had remained uninjured and remained in the same or some comparable employment [67].

6. His Honour, after considering the evidence as a whole, found that it was more probable than not that, at the end of the three-month variation period, the worker would have returned to full-time work in the same or some comparable employment. Ms Chung was a permanent, full-time employee of the respondent. Her consent to the variation of employment was for a limited period and set to expire on a fixed date. The uncontested evidence was that she intended to return to full-time work. It was also the employer’s intention subject to there being a position available [68].

7. Given the finding of fact, the principal issue on appeal was whether the worker’s average weekly earnings were to be calculated for the whole of the period of total incapacity by reference to the part-time earnings. Ms Chung was earning immediately before she was injured, or whether the assessment of her average weekly earnings should have taken into consideration the earnings she probably would have earned as a full-time employee after the expiration of the three-month contract variation [69].

8. Section 36 expressly provides that the compensation payable to an injured worker during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate determined from time to time in accordance with s 42.  The parties did not cite any authority as to the meaning of the words “from time to time” in this context. The appellant submitted that it envisaged that there may be more than one current weekly rate for the purposes of s 36. The respondent’s submission was to the contrary. It argued that the construction for which the appellant contended was completely unworkable. Judge Keating disagreed [70].

9. The inclusion of the words “from time to time” in the definition of “current weekly wage rate” in s 36(2) strongly favoured a construction that the current weekly wage rate will vary from time to time as the circumstances of the case required [71].

10. In Carter v Carter (1959) SR (NSW) 163 (Carter), the NSW Court of Appeal was concerned with the meaning of the words “from time to time” as appearing in s 21(1) and (4) of the Deserted Wives and Children Act 1901–1952. Street CJ (Owen and Herron JJ agreeing) held that, in the context of that legislation, the words “from time to time” in reference to maintenance orders did not mean that only one order could be made, and permitted the exercise of the power to vary an order as frequently as the circumstances of the case required. While Carter may have been of limited assistance in the construction to be given to the words “from time to time” in s 36(2), those words must have some work to do. The plain meaning of those words favoured a construction that the current weekly wage rate can vary according to the circumstances of the case [72].

11. A worker’s entitlement to weekly compensation pursuant to s 36 will not necessarily arise in one continuous period commencing on the date of injury. The entitlement may be broken up into several periods that can be months or even years apart [73].

12. For these reasons, the Arbitrator’s conclusion that she was bound to find only one current weekly wage rate, being the rate set by reference to the worker’s part-time earnings, was an error [74].

13. The compensation paid to the worker during the period of her part-time employment was not in issue. The question then was whether Ms Chung was entitled to be compensated for the balance of the period of incapacity, following the expiration of the three months, by reference to her full-time earnings. Pursuant to s 42(8), the assessment of the worker’s average weekly earnings is determined either by reference to the worker’s earnings at the time of injury or the time at which the compensation is due, taking into consideration the worker’s probable earnings at that time, whichever produces the higher average weekly earnings [75].

14. Section 42(1) commences with the qualification “Subject to this section a reference to the current weekly wage rate … (emphasis added)”. In applying s 42(1)(d), regard must had to the definition of “average weekly earnings” in s 42(8). That subsection provides the alternative means of calculating the worker’s average weekly earnings such that the worker is entitled to the higher of the earnings either at the time of injury or the earnings that would have been paid (if the worker had been uninjured) at the time the compensation is paid. The respondent’s submissions were silent as to the application of s 42(8) [78].

15. Contrary to the respondent’s submission, s 43 did have work to do in the circumstances of this case. That section envisages that there will be a variety of circumstances which will complicate the assessment of a worker’s average weekly earnings, and provides a series of rules designed to best calculate the rate per week at which the worker was being remunerated in order to overcome any unfairness to the worker and the employer, and involves an element of judgmental evaluation as noted in Pratt v Claydon (1996) 14 NSWCCR 86, but applying the terms of the legislation [79].

16. On a reading of s 42(8) and applying s 43(1)(a), the task of assessing the worker’s average weekly earnings in the circumstances of this case required an assessment of what Ms Chung would probably have been earning when the compensation was due, that is, at the expiration of the three-month period of part-time work, had she not been injured and had she continued to be employed in the same or some comparable employment [80].

17. At the time the compensation was due, the probability was that Ms Chung would have returned to a full-time position and would have been earning the agreed weekly sum of $1,503.66 per week, and that sum was the amount of the worker’s current weekly wage rate for the purposes of s 36. The prescribed proportion under s 36 was agreed at $1,202.88 [81].

Roche DP

28 August 2012

Facts:

On 18 January 2007, the respondent worker, Margaret Dyer, suffered a serious injury to her left elbow when she fell in the appellant employer’s car park as she was leaving work. The insurer accepted liability for that injury and paid compensation for it.

Ms Dyer had treatment to her left elbow, including surgery. Following surgery, her left arm was immobilised in a brace leaving her so restricted that the insurer approved the provision of domestic assistance. That assistance included personal care assistance with bathing.

While at Ms Dyer’s house on 12 January 2009 to provide her with assistance with bathing, a nurse/carer inappropriately touched her. As a result, the nurse was charged with offences under s 611 of the Crimes Act 1900, but was ultimately acquitted.

It was not disputed that, as a result of the elbow injury, Ms Dyer suffered a secondary psychological injury in the nature of an aggravation of a pre-existing depressive disorder. Further, regardless of how the events on 12 January 2009 were characterised, it was not disputed that, as a result of those events, Ms Dyer developed post-traumatic stress disorder and suffered a further aggravation of her depressive condition (the psychological condition).

Ms Dyer’s claim in the Commission was for lump sum compensation in the sum of $22,000 in respect of a 22 per cent whole person impairment due to the psychological condition allegedly resulting from the incident on 12 January 2009, and for compensation for pain and suffering resulting from that impairment.

When a worker suffers a psychological injury, s 65A of the 1987 Act provides that lump sum compensation is only payable if that injury is a primary psychological injury. No lump sum compensation is payable for a permanent impairment that has resulted from a secondary psychological injury. A primary psychological injury means a psychological injury that is not a secondary psychological injury (s 65A(5)). A secondary psychological injury means “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury” (s 65A(5)).

The Arbitrator found that, on 12 January 2009, Ms Dyer suffered a s 4 injury in the nature of a psychological injury arising out of her employment, that her employment was a substantial contributing factor to that injury, and that her injury was a primary psychological injury and not a secondary psychological injury.

The issues on appeal were:

(a) the injury issue: whether Ms Dyer suffered a s 4 injury on 12 January 2009;

(b) the causation issue: whether the chain of causation between the physical injury and the development of the psychological condition was broken by the events of 12 January 2009, and

(c) the s 65A issue: whether, assuming the chain of causation was not broken, the psychological condition was a primary psychological injury or a secondary psychological injury.

Held: Arbitrator’s determination revoked

The Injury Issue

1. The appellant argued that the psychological condition had no connection with any feature of Ms Dyer’s employment and that the incident on 12 January 2009 was a novus actus intervenniens that broke the chain of causation.

2. The novus actus principle relates to the assessment of the quantum of compensation and not to whether a worker has received a s 4 injury. The appellant’s novus actus argument (that the incident on 12 January 2009 was an intervening act that broke the chain of causation) was relevant to whether Ms Dyer’s psychological condition had resulted from her physical injury, or from some other unrelated event (the causation issue), but was not relevant to determining whether Ms Dyer suffered a s 4 injury arising out of her employment, as the Arbitrator found [22].

3. Although it was not clear from the Arbitrator’s decision, it appeared that he found that Ms Dyer suffered a “personal injury” under s 4 on 12 January 2009. The Arbitrator’s decision failed to distinguish between  “personal injury” arising out of employment under s 4, on the one hand, and a medical condition that resulted from an injury, in the sense discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), on the other. The two situations are quite separate and distinct [23].

4. In Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504 (Smith), Starke J observed that the authorities had established the following propositions:

1.  The expression ‘arising out of’ imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do—out of his service (Stewart v Metropolitan Water, Sewerage and Drainage Board, and the cases there cited).

2. An injury does not cease to arise out of the employment because its remote cause is the ideopathic condition of the injured man. The ideopathic condition must be dissociated from the other facts (Wicks v Dowell & Co).

3. An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment (Upton v Great Central Railway Co; Brooker v Thomas Borthwick & Sons (Aus) Ltd).” (emphasis added) [24]

5. The words “arising out of” require “a causal connection between the employment or its incidents” (Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547 at 556) (emphasis added) [25].

6. The term “employment” in s 4 is not to be too narrowly construed and the Commission must look at the employment’s “nature, its conditions, its obligations and its incidents” (Thom v Sinclair [1917] AC 127 at 142). To establish that a s 4 injury arose out of the employment concerned, there must be a causal connection between the employment (its nature, its conditions, its obligations and its incidents) and the injury [26].

7. The Arbitrator said that the causal connection with Ms Dyer’s employment (and her psychological condition) was through her treatment for the accepted (physical) injury, and it was that injury that required surgery and gave rise to the need for a nurse. That did not establish that the psychological condition that resulted from the incident on 12 January 2009 arose out of the employment [29].

8. The causal connection with the employment and the psychological condition needed to establish a s 4 personal injury was missing in this case. It was no part of Ms Dyer’s employment to “hazard, to suffer, or to do that which caused” (Smith) her psychological condition. What the Arbitrator relied on to base his finding of injury was the connection between the need for care and the (physical) injury. That was an entirely different issue to whether an injury had arisen out of the employment [30].

9. The question of whether a worker suffers a further injury when he or she receives treatment for an accepted injury was considered in Hand v Alcan Gove Pty Ltd [2008] NTSC 25 (Hand). In that case, the Mr Hand injured his knee at work and had numerous operations over several years and ultimately had a total knee replacement. Because of his extensive treatment, his impairment increased over time. He claimed additional compensation on the ground that each operation on his knee was, in itself, a “new injury”.

10. In rejecting that argument, Mildren J said (at [20]) that it was difficult to envisage a situation where an operation could be an injury that arose out of or in the course of the employment. His Honour added, “[s]uch a concept postulates that it was part of a worker’s employment duties or otherwise sufficiently connected with the employment to undergo an operation”. In the present case, it was no part of Ms Dyer’s employment duties to have home care [32].

11. It followed that the Arbitrator erred in finding that, on 12 January 2009, Ms Dyer suffered a s 4 injury arising out of her employment. This conclusion made it unnecessary to consider if employment was a substantial contributing factor to the injury. In addition, as the appeal was originally presented, it also made it unnecessary to determine if the psychological condition was a secondary psychological injury. That was because the only claim before the Commission was for lump sum compensation and, even if the psychological condition could be characterised as a secondary psychological injury, that did not entitle Ms Dyer to recover lump sum compensation for it [33].

12. In the course of the oral hearing of the appeal, Ms Dyer’s counsel sought leave to present an alternative argument that, even if Ms Dyer had not suffered a s 4 injury, she still suffered a primary psychological injury that resulted from the physical injury. The appellant did not oppose the presentation of that argument, though it had not been raised at the arbitration, or in the written submissions on appeal, and involved relying on the injury on 18 January 2007, which had not been pleaded. As the new argument did not require any further or additional evidence, and as it involved no prejudice to the appellant employer, leave was granted to rely on it and to rely on the injury on 18 January 2007 [34]. However, it was appropriate to deal with the causation issue before considering any alternative argument. It was in this context that the nvous actus argument was relevant.

The Causation Issue

13. The leading authority on causation in workers compensation cases is Kooragang.  What is required is a commonsense evaluation of the causal chain.

14. The test of causation in a claim for lump sum compensation is the same as the test in a claim for weekly compensation, namely, has the impairment “resulted from” the relevant work injury (Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; 16 NSWCCR 123; Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648)? [48].

15. The principles stated in Kooragang are consistent with the later decision by Mason CJ (with whom Toohey and Gaudron JJ agreed) in March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March v Stramare), where his Honour said that causation is resolved as a matter of commonsense and experience; the “but for” test is not definitive; that causation was a question of fact; but it was a question of fact into which considerations of policy and value judgments necessarily entered [49].

16. Ms Dyer’s argument was (though not expressed in these terms), based on the “but for” test for causation: but for the injury to the elbow, Ms Dyer would not have needed assistance with bathing and the incident on 12 January 2009 would not have occurred. The fact that Ms Dyer required assistance merely provided the setting for what followed [51].

17. On the evidence available, the Deputy President was comfortably satisfied that, on the balance of probabilities, the nurse’s actions constituted an assault. The evidence did not support a conclusion that the nurse was performing an authorised act in an unauthorised way: the nurse did something that he had been told not to do and something that, on the evidence, was not part of the assistance he had been engaged to provide. The medical evidence was unanimous that it was that conduct that caused Ms Dyer’s psychological condition [54].

18. It was not for the appellant employer to show that the nurse acted with criminal intent. It was for Ms Dyer to prove that her psychological condition resulted from the physical injury. She failed to do so [56].

19. Applying a commonsense evaluation to the causal chain, as explained in Kooragang and March v Stramare, the Deputy President was satisfied that the chain was broken by the assault because, on the uncontested evidence, the nurse’s conduct was a “free, deliberate and informed act” (Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 at 429–430) which was intended to exploit, and did exploit, the situation created by the original physical injury. It followed that Ms Dyer’s psychological condition could not be found to have resulted from the injury to the elbow on 18 January 2007 and that it could not be either a primary psychological injury or a secondary psychological injury under s 65A [59].

The 65A issue

20. Ms Dyer’s counsel submitted that, even if a finding was made against Ms Dyer on the injury issue, his client was still entitled to succeed because, on 12 January 2009, in the course of receiving care for the condition resulting from the physical injury, Ms Dyer sustained a primary psychological injury that resulted from the injury on 18 January 2007 [61].

21. For the purposes of this argument, the Deputy President assumed, contrary to his finding, that Ms Dyer’s psychological condition resulted from the injury on 18 January 2007 [62].

22. Ms Dyer’s physical injury was caused by a fall on 18 January 2007 and that was the injurious event for which she sought compensation. It is accepted law that, when medical treatment (including care) is provided to alleviate an injury, the total condition as a consequence of the injury and the treatment is to be attributed to the original injury (D & W Livestock Transport v Smith (No 2) [1994] NTSC 31; 4 NTLR 169; Lindeman Ltd v Colvin [1946] HCA 35; 74 CLR 313). That is because the treatment, and the condition that results from it, results from the original injury and is not a new injury (Kooragang and Hand) [65].

23. It followed that, if Ms Dyer’s psychological condition developed because of the events of 12 January 2009, it could not be characterised as a primary psychological injury. That was because the psychological condition was a condition that developed “as a consequence of” (s 65A(5)) the physical injury [66].

24. In Cannon v The Healthy Snack People Pty Ltd [2009] NSWWCCPD 32, the worker suffered a physical injury in the course of her employment. On her return to work on suitable duties, she suffered a psychological injury as a result of harassment over her “suitable duties”. It was held that her psychological condition was a primary psychological injury because the harassment was an event that was “extraneous or extrinsic” to the original physical injury and not part of the series of events that followed from the physical injury. It was not part of the causal chain. Therefore, the psychological injury had not arisen “as a consequence of, or secondary to, a physical injury” (s 65A(5)) but had resulted from the harassment, which was a separate cause [68].

25. Accepting, for the purposes of this argument, that the psychological condition resulted from the physical injury, Cannon did not assist Ms Dyer in establishing that she received a primary psychological injury because, in the event of such a finding, the care provided to her was not “extraneous or extrinsic” to her physical injury, but was provided as a result of, or as a consequence, of that injury. It followed that, if there had been no break in the chain of causation, the connection between Ms Dyer’s physical injury in 2007 and the development of her psychological condition in 2009 was that the psychological condition developed “as a consequence” of her physical injury and it could not be a primary psychological injury [69].

26. Relying on Cannon, the Arbitrator said that a psychological injury is a secondary psychological injury when the clinical or physical effects of an earlier injury so affected the mind or psyche of a worker that the worker suffered a psychological injury. He concluded that the connection between Ms Dyer’s physical injury and the psychological injury was not dependent upon “the pain and/or the discomfort and/or loss or impairments caused by that [earlier] injury” and, accordingly, was not a secondary psychological injury [71].

27. The Deputy President was in general agreement with the Arbitrator’s first statement, save that, where he said “psychological injury”, the Deputy President would use the term “psychological condition”. However, it did not follow that, just because the later psychological condition had not resulted from the pain and discomfort of the earlier physical injury, it must be a primary psychological injury [72]. The example given in Cannon of circumstances where a psychological condition will be a secondary psychological injury under s 65 was not intended to be exhaustive.

28. If, as a consequence of receiving the personal care (as opposed to being assaulted), Ms Dyer developed a psychological condition, that condition would be a secondary psychological injury under s 65 because it would have arisen as a “consequence of” a physical injury [74].

29. It followed that, had the assault not broken the chain of causation, Ms Dyer’s psychological condition would, for the purposes of s 65A, properly have been characterised as a secondary psychological injury [75].

O’Grady DP

22 August 2012

Facts:

The appellant, Mr Vella, had been engaged by the respondent as a backhoe operator/excavator/labourer from 1973 to 2010. At all material times Mr Vella and his wife were in partnership, trading as Adam and Kathleen Vella. A claim was made on the respondent for lump sum compensation in respect of hearing loss. That claim was declined on the basis that Mr Vella was not a worker within the meaning of s 4 of the 1998 Act, nor was he a “deemed” worker as provided by cl 2(1) of Sch 1 of the 1998 Act.

In a Certificate of Determination dated 11 May 2012, the Senior Arbitrator determined that Mr Vella had failed to establish that he should be taken to be a worker, and an award was entered in favour of the respondent.

The arrangement between Mr Vella and the respondent was accepted to be a “series of contracts”, the date of injury falling within the last of those contracts (the Chipping Norton contract). Mr Vella had paid his son approximately $5000 for labour from time to time, but argued that the work undertaken in performance of the Chipping Norton contract was severable from that payment.

The evidence concerning employment of Mr Vella’s son was “sparse”, and an inference was drawn that the payment was an annual one, in consideration of which the son agreed to make himself available throughout the year, to bring gear to the appellant, if required.

The issues in dispute on appeal were that:

(a)  the Senior Arbitrator had erred in determining that Mr Vella had not established, on the balance of probabilities, that he had not employed any worker in the last contract with the respondent, and

(b)  that Mr Vella had not been afforded procedural fairness by deciding the matter on an issue not previously raised by the respondent in either the s 74 notice, the Reply, or at the teleconference.

Held: Arbitrator’s determination confirmed.

Ground (a)

1. Mr Vella relied on cl 2(1) of Sch 1 of the 1998 Act, which, in certain circumstances, “deems” a contractor to be a worker for the purposes of the Act. The Senior Arbitrator approached the construction of that clause guided by Scerri v Cahill (1995) 14 NSWCCR 389 (Scerri), which states that an applicant must establish:

1. that he was a party to a contract with the respondent to perform work;

2. that the work exceeds $10 in value;

3. that the work is not work incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and

4. that the applicant has neither sublet the contract nor employed workers in the performance of it. [27]

2. The fact in issue was whether Mr Vella employed a worker in the performance of the Chipping Norton contract. This required proof by Mr Vella of a negative. The suggestion in submissions that the Senior Arbitrator had failed to take into account the absence of evidence adduced by the respondent was rejected, as there was not a shift to the respondent of an evidentiary onus. [35]

3. There were deficiencies in Mr Vella’s evidence identified by the Senior Arbitrator, and attention was given to the authorities relevant to discharging an onus to prove a negative [37]. In discussing the evidentiary deficiencies, he referred to the decision of Cook’s Construction Pty Limited v Brown [2004] NSWCA 105, in which Hodgson JA observed (at [42]):

where a party has to prove something and prima facie has available evidence that would directly deal with the question, a court will be very hesitant in drawing an inference in that party’s favour from indirect and second-hand evidence, when the party doesn’t call the direct evidence that prima facie it could have called, at least unless some explanation is given, or the circumstances themselves provide an explanation.

4. Mr Vella failed to identify any relevant error under ground (a).

Ground (b)

5. This ground suggested error on the part of the Senior Arbitrator in failing to afford Mr Vella procedural fairness. The Commission is bound by the rules of natural justice. A party must be afforded procedural fairness, and the opportunity to answer the case against him or her. [42]

6. Mr Vella’s submissions implied that he was in some way taken by surprise by “the Arbitrator’s thinking on [the issue of ‘employment of any worker’]”. That suggestion was rejected [45]. The decision of Scerri had been adverted to by counsel in the course of submissions. The issue of employment of any worker, and its importance, was squarely raised by the respondent’s denial that he was a deemed worker. [43]

7. The onus remained on Mr Vella concerning proof of the issue of employment of any worker, and no inference could be drawn by the suggested failure of the respondent to adduce evidence or to cross-examine concerning the issue. The argument that there had been a denial of procedural fairness was rejected. [46]

Roche DP

6 August 2012

Facts:

The appellant alleged she injured her left shoulder in the course of her employment on 8 June 2006, 28 August 2006, and 16 March 2009.

The insurer disputed liability on various grounds including notice of injury and not claiming compensation within six months for the 8 June 2006 and 28 June 2006 injures, and whether Ms Willis sustained an injury to her shoulder arising out of or in the course of her employment. If Ms Willis established these matters, the insurer disputed whether employment was a substantial contributing factor to injury.

The Arbitrator entered an award for the respondent for all three injuries. The appellant lodged an appeal against that decision, two business days out of time.

Held: Application to extend time to appeal refused. Arbitrator’s decision confirmed.

Time

1. In support of the application to extend time to appeal, the appellant worker submitted that:

(a)  counsel was unavailable to advise on the prospects of success of the appeal;

(b)  prejudice to the respondent was minor, as the appeal was only two days out of time, and the respondent had received unsealed copies of the appeal on 22 May 2012 (the day before the matter was filed in the Commission);

(c) the respondent was granted significant procedural liberties throughout the running of the case, and

(d)  there would be demonstrable and substantial injustice to the appellant if she were prevented from lodging an appeal. [11]

2. An extension of time to appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules. The question was considered in Gallo v Dawson [1990] HCA 30; 93 ALR 479, McHugh J indicating (at 480) that it is necessary to have regard to: the history of the proceedings; the conduct of the parties; the nature of the litigation; the consequences for the parties; the prospects of the applicant succeeding in the appeal, and the fact that the respondent has a vested right to retain judgement at the expiry for the time for appeal [14].

3. The explanation for the appeal being out of time was unsatisfactory. Unavailability of counsel does not provide exceptional circumstances that justify an extension of time to appeal, especially where the worker’s solicitor prepared the submissions in support of the appeal [15]. The submission that the respondent was granted “significant procedural liberties” was incorrect and completely irrelevant to the application to extend time [16].

4. While it was correct that the respondent raised issues in addition to those initially raised in the s 74 notice, the issues the appellant identified as being in dispute were agreed between the parties. It was therefore untenable on appeal to suggest that the respondent was granted “significant procedural liberties” throughout the running of the case [18].

5. The fact that the appeal was only a few days out of time was a relevant factor to be considered. However, the Commission was not simply required to compare the competing prejudices to each of the parties. Ms Willis was required to establish that in exceptional circumstances, to lose the right to appeal would result in a demonstrable and substantial injustice. To consider whether that was the case required an examination of the merits of the appeal [20].

Grounds of appeal

6. The merits of the appeal were then considered. There were two grounds of appeal:

(a)  that the Arbitrator had erred in failing to find that the worker had “reasonable cause” for not giving notice of injury pursuant to s 254 of the 1998 Act, and

(b)  that the Arbitrator erred in finding that the worker had not established injury.

Reasonable cause for not giving notice

7. It was submitted that it was reasonable for the worker to have ignored or played down the effects of the “injury” on 8 June 2006 because she did not wish to claim workers compensation [28]; that as her treating doctor was unclear of the diagnosis of her left shoulder injury, it was reasonable to not notify the respondent [29]; that it was reasonable for the appellant to believe that she did not need to give notice of the injury of 8 June 2006, as she had given notice of the 28 August 2006 injury [30], and, last, that the previous “special circumstances” satisfied s 254 because Ms Willis had “reasonable cause” for failing to notify the respondent of the incident on 8 June 2006 [31].

8. The appellant’s submissions were rejected. They were baseless and did not come close to establishing that the Arbitrator had erred in approach or conclusion. The appellant worker tendered no evidence in support of the circumstances provided for in s 254(3) and her counsel merely submitted that there was some “obvious confusion” on her part. The worker gave no explanation for having not reported her injury. There was no persuasive evidence that the appellant worker did not report the incident of 8 June 2006 because she did not wish to make a claim. The submissions were simply made up and had no basis in fact or law. Moreover, the submissions were completely inconsistent with the submissions counsel made at the arbitration.

Injury

9. The appellant submitted that the Arbitrator erred in failing to place due weight on the evidence of the three traumatic work-related incidents. In rejecting this submission, the Deputy President quoted that “the Arbitrator’s observation that the evidence was unsatisfactory was an understatement”. It was remarkable for the worker to have run a case (where she alleged that she had shoulder surgery because of her work injuries) without tendering any evidence from her treating specialists, and without an opinion from her qualified specialist expressing a view on diagnosis [35].

10. The Arbitrator considered the evidence in detail, and accepted the opinions of Drs Hitchen and Edwards that Ms Willis suffered from adhesive capulitis or frozen shoulder. There was no evidence that the pathology revealed on MRI scan was due to Ms Willis’s employment with the respondent. In the circumstances, the lack of compelling evidence of pre-existing shoulder complaints was irrelevant – it was for the worker to prove her case, not for the respondent to disprove it [36].

11. The submission that each of the three incidents involved manual duties and was traumatic was unsupported by any medical evidence. The second ground of appeal on “injury” was baseless and without merit [38].

12. As the appellant had not established that, in exceptional circumstances, to lose the right to appeal that would result in any injustice, the application to extend time to appeal was refused [42].

O’Grady DP

3 August 2012

Facts:

Mr Zi Jin Pan suffered an injury on 12 October 2010 whilst on a journey between his home and his place of employment. The injury occurred early in the morning at Campsie railway station. Mr Pan fell forward between an approaching train and the railway platform, suffering multiple injuries to his pelvis, legs, chest, head, and back, and was hospitalised for a period of two months. He had not returned to work due to ongoing symptoms. Mr Pan claimed benefits for weekly compensation and treatment expenses.

Weekly compensation benefits were paid to Mr Pan for approximately six months, when a decision was made by the insurer to decline further liability. A notice pursuant to s 74 of the 1998 Act was served on Mr Pan, placing reliance on s 10(1D) of the 1987 Act in declining liability. It was not in dispute that the subject injury had occurred, nor the consequential incapacity. The s 74 notice stated that Mr Pan’s personal injury resulted from a medical or other condition, namely epilepsy, and that the journey did not cause or contribute to the injury.

Mr Pan had been employed by the appellant since 1994. He had been diagnosed as suffering from epilepsy in 2008. On the date of injury, Mr Pan walked towards the edge of the platform as the train approached, then passed out and stated that “I may have suffered an epileptic fit at the time but I am not sure”.

The only issue on appeal was whether the Arbitrator had erred in law in the manner of his application of s 10(1D) of the 1987 Act.

Held:  Arbitrator’s decision confirmed

1. In submissions the appellant relied heavily upon the decision of Bishop J in Gavalas v Montbase Pty Ltd t/as Quayside Brasserie (2002) 24 NSWCCR 285 (Gavalas). Armitage J in McGraw v Commonwealth Bank of Australia (2002) 24 NSWCCR 372 (McGraw) summarised his Honour’s conclusion in Gavalas as follows (at [42]):

[that] the applicant simply suffered an epileptic fit on a journey and was injured, the fit being the sole cause of injury and on his Honour’s findings unconnected with the employment or the journey.

2. Gavalas concerned a worker injured in a motor vehicle accident following an epileptic seizure. The employer in that case successfully argued that there was no causal relationship with work, his Honour stating (at [22]) that:

Whether one is looking at causation or contribution there must be more than a temporal connection, be it an application of a common sense chain of causation or a normative decision.

The decision in Gavalas was distinguished as it was accepted on appeal that there was more than a “temporal connection” as outlined by Bishop J. The appellant’s submission that there was a need to address the issue of causation in line with Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 was rejected as being too high a standard, as s 10(1D) deals with the “contribution” of the journey.

3. The appellant argued that s 10(1D) addresses the incident (the injurious event), not its consequences, adopting the terms expressed by Neilson J in Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422, where it was stated: “injury refers to both the event and the pathology arising from it”. That argument was rejected. Section 10 concerns personal injury, a term found within the definition of injury in s 4 of the 1998 Act. The defence in s 10(1D) concerns personal injury resulting from the medical or other condition of the worker whilst upon such journey. The “event” and the “pathology arising” from the event are each addressed by s 10(1D). That is, contribution to either the event or pathology is governed by the subsection.

4. The injurious event was the fall occasioned by loss of consciousness related to the seizure. The personal injury comprised the multiple orthopaedic and soft tissue injuries caused by the impact of the moving train. The train’s presence was an element or condition of the journey and constituted a potential hazard.

5. The evidence lead inevitably to the conclusion that the journey had a “real or operative influence” (McGraw at [43]), and hence contribution, to the injury received by Mr Pan.

Keating P

13 August 2012

Facts:

Dr Noyce’s evidence

1. The Arbitrator identified a number of reasons why the history obtained by Dr Noyce did not provide a fair climate for the acceptance of his opinion:

(a) Dr Noyce relied on a history that the worker was employed in the cafeteria as a cleaner. The report made no reference to employment in the scullery, which was the employment the appellant ultimately relied upon as establishing the tendency, incidents or characteristics necessary to give rise to a risk of hearing impairment;

(b) The history taken by Dr Noyce did not accurately reflect the period of employment ultimately relied upon by the appellant. The worker’s claim was confined to work in the scullery between 1995 and 1999. Dr Noyce relied on a much longer period of employment, that is, the two periods between 1980 and 1985, and the period from 1995 to 2001, and

(c) Dr Noyce relied upon a history of exposure to noise from three sources, that was, dishwashers, polishers and vacuum cleaners. There was no evidence at all of the worker’s exposure to polishers or vacuum cleaners. The Arbitrator’s finding that Dr Noyce did not express an opinion related only to the noise in the scullery, on which the appellant relied, to the exclusion of all other possible causes of her hearing impairment, was clearly correct. The history relied upon by Dr Noyce did not accord with Ms Oztop’s evidence as to the cause of her hearing loss. [56]

2. The appellant conceded in her submissions that Dr Noyce’s reliance on a history of “continuous” exposure to noise was inaccurate. Moreover, the appellant’s submission that the facts recorded by Dr Noyce, being “exposure to the noise of dishwashers ... on an intermittent and at times continuous basis for up to eight hours a day” and the use of the ellipsis demonstrated the weakness in its submission. The quotation omitted the reference to “polishers and vacuum cleaners” in Dr Noyce’s report. Dr Noyce based his opinion, in part, on the worker’s exposure to three sources of noise, namely, the noise from dishwashers, polishers and vacuum cleaners. The absence of any evidence of exposure during the period claimed to the noise of polishers and vacuum cleaners was found by the Arbitrator to be significant. Her approach was in accordance with authority and did not demonstrate error. Although the worker proved that she was exposed to the noise from the dishwasher, which did not appear to be significant, her evidence did not accord with the history relied upon by the doctor for the reasons given by the Arbitrator [57].

3. For the reasons given by the Arbitrator, it was open to her to reject Dr Noyce’s opinion on the basis that the history he relied upon did not provide a fair climate for the acceptance of his opinion [58].

The alleged discretionary errors

4. The appellant submitted that it was relevant, in terms of assessing the probative weight of Dr Noyce’s evidence, that there was no contradictory expert opinion. That submission was misguided and rejected on appeal. The applicant bore the onus of proof. It was the applicant who needed to establish, on the balance of probabilities, that her employment with the responded carried the risk of her suffering from industrial deafness (Galdemar v Asta Enterprises Pty Ltd [1998] NSWCC 47; 17 NSWCCR 155 (Galdemar) at [26]). The applicant was unsuccessful before the Arbitrator because she failed to discharge that onus [62].

5. The appellant’s submission that the Arbitrator failed to have regard to the evidence with respect to the use of hearing protection was incorrect. The Arbitrator referred to the evidence with respect to the use of earmuffs and earplugs. She accepted the unchallenged evidence that earmuffs were provided, but often were not worn because they were too hot. She also accepted that earplugs were made available to staff. She accepted that the applicant wore small earplugs if they were available [63].

6. The appellant’s submission failed to recognise that it was not enough that she established that working in the scullery was noisy, even to the point of being required to wear hearing protection. In order for her to succeed, it was essential that she present detailed evidence (in the absence of expert evidence from an acoustics engineer) of the nature (volume) and the extent (duration) of the noise exposure and for that evidence to be given to an expert for his or her opinion as to whether the “tendency, incidents or characteristics” of that employment are such as to give rise to a real risk of boilermaker’s deafness (Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35 at [44]) [64].

7. The appellant alleged that the Arbitrator placed an excessive emphasis on the evidence as to the duration of the worker’s exposure to noise in the scullery. That submission was rejected. The Arbitrator was required to determine the extent of the worker’s exposure to noise and then to determine if the expert evidence, based on correct history, supported a finding that that level of exposure gave rise to a risk of the worker suffering a hearing loss. It was not merely the level of noise to which the worker was exposed that was relevant, but also the length of that exposure. Those issues must be the subject of relevant assessment by specialist evidence (Galdemar at 160; see also Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 at [31]) [65].

8. The fundamental difficulty which the appellant was unable to overcome was that Dr Noyce had an incomplete and inaccurate history upon which he based his opinion. In terms of duration of exposure, he relied on the history given to him by Ms Oztop that her exposure was on an intermittent and, at times, continuous basis for up to eight hours a day. The Arbitrator correctly concluded that that did not accord with the evidence [66].

9. The dishwasher only operated at intervals throughout the day, not continuously. The machinery only operated for a maximum of eight hours during a time span between 9.00 am and 9.00 pm. Apart from the fact that the worker said that she worked regular overtime, she provided no details as to her hours. She provided no evidence as to the number of hours she spent working in the scullery on a daily basis. It was clear from her evidence that she did not work continuously in the scullery because she said that, when the dishwasher was not operating, she was making meals for patients and assembling meal trays. She could not have been exposed to noise in the scullery for up to eight hours a day unless she worked from 9.00 am to 9.00 pm and there was no evidence to support that conclusion [67].

Roche DP

10 August 2012

Facts:

The appellant worker was employed by the respondent as a truck driver. On 3 August 2011, his offsider, Mr Morton, and another truck driver, Mr Ellis, were involved in a physical altercation at a loading dock.

The fight began after Mr Morton had used grossly offensive language to ask Mr Ellis to move his truck to allow access to a loading bay. What happened next was the subject of conflicting evidence. Mr Doohan said that he approached the two men and tried to stop the fight and pull Mr Ellis’s hand off Mr Morton’s face. As he thought they had stopped fighting, he backed off and Mr Ellis then stood up and punched him. Mr Ellis’s version was that, while he was in a headlock on the ground, he felt a hard pounding to his back as Mr Doohan kicked him while Mr Morton punched him. After he yelled “help” several times the two men got off him and he stood up and punched Mr Doohan.

The appellant claimed weekly compensation from 8 August 2011 to date and continuing, along with hospital and medical expenses. The respondent’s insurer disputed liability, on the grounds of injury, substantial contributing factor, incapacity and that the worker did not require medical treatment. The focus of the dispute before the Arbitrator was whether, by reason of gross misconduct, the appellant had taken himself outside the course of employment, and therefore had not suffered an injury pursuant to s 4 of the 1987 Act.

The Arbitrator held that, because of racist and repugnant remarks made by Mr Morton and Mr Doohan to Mr Ellis prior to 3 August 2011, there had been a build-up of tension between the three men, which culminated in the fight, which could not be characterised as being in the course of their employment or incidental to it and she made an award for the respondent.

The issues identified on appeal were in essence that the Arbitrator failed to evaluate the evidence and failed to give reasons why she preferred the evidence on which she based her conclusion.

Held: Arbitrator’s determination revoked. Matter referred to a different Arbitrator for re-determination.

Submissions

1. The appellant submitted that in a series of telephone calls immediately following the incident, there was no mention by Mr Morton or Mr Ellis that Mr Doohan had kicked Mr Ellis. These telephone calls were part of the res gestae and therefore entitled to greater weight [17].

2. The Arbitrator relied on information in an initial notification of injury form completed by Ms Collins, and documents produced by NSW Police, which were hearsay and inconsistent with other statements. Rather than finding a discrepancy and affording the evidence in the initial notification form (which described Mr Doohan as punching Mr Ellis) less weight, the Arbitrator “conflated the pieces of evidence” to conclude that Mr Doohan had punched and kicked Mr Ellis [18]-[20].

3. The evidence of a witness identified as “Colin” could not have any weight, as it was not known who he was, what he saw, or if he was present at the time of the incident [22].

4. The Arbitrator misquoted Ms Collins’s evidence, recording that “Mr Doohan had punched him [Mr Ellis]”, but it was clear that this was referring to Mr Morton [23].

5. The Arbitrator referred to the evidence at [9]-[49] of her reasons, but failed to address what evidence she preferred and why [24].

6. The Arbitrator placed undue weight on the evidence of animosity between the three men. [25]. The Arbitrator concluded that Mr Doohan had “punched and kicked” Mr Ellis, but did not say what evidence she relied on to reach that conclusion [26].

Findings

7. The Arbitrator failed to give any adequate reasons to support her critical findings. It was not known whether the Arbitrator had “conflated” parts of the evidence (as the appellant had submitted), as there was no explanation for her findings. There was no indication how or why the Arbitrator concluded that Mr Doohan had punched and kicked Mr Ellis [35]. Mr Ellis’s consistent allegation was that Mr Doohan had kicked him while he was on the ground. That evidence did not support the Arbitrator’s critical conclusion that Mr Doohan “kicked and punched Mr Ellis” [40].

8. The evidence of “Colin” (set out in a note of a telephone conversation made by Ms Collins on 29 August 2011) was closest to the Arbitrator’s conclusion that Mr Doohan had “punched and kicked” Mr Ellis, but his account was ambiguous, and in any event, the Arbitrator did not say if she accepted or rejected his account [41].

9. Though the Arbitrator set out a detailed summary of the evidence (at [9]-[44] of her reasons), she did not analyse or weigh the evidence, and did not indicate which she accepted and which she rejected, but merely expressed a conclusion not supported by any evidence. That error went to the heart of the dispute between the parties, namely whether Mr Doohan’s actions took him outside the course of employment [43].

10. There were significant issues between Mr Doohan and Mr Ellis, and the Arbitrator was entitled to consider those issues in the assessment of the case. Whether she placed undue weight on the evidence of animosity was unclear, because she did not explain how the animosity contributed to her conclusion [47]. While it was open to the Arbitrator to conclude that Mr Doohan’s actions were violent, inappropriate and wrongful behaviour in the workplace, given the conflicting evidence, it was not open to reach that conclusion without first determining which evidence was accepted and which was rejected, and why. Even if the Arbitrator accepted Mr Ellis’s version, that did not support a finding that Mr Doohan “kicked and punched” Mr Ellis, and for that reason alone, the decision could not stand [49].

11. The submission that the evidence in the telephone conversations made on 3 August 2011 were more reliable, and should have been accepted over other evidence, because they were part of the res gestae, was rejected. As the phone calls were made after the fight, and not contemporaneously with it, it was doubtful that they were part of the res gestae. Moreover, the doctrine of res gestae is a rule of inclusion that provides an exception to the rule against hearsay. As the Commission is not bound by the rules of evidence, and the conversations are admissible without resort to that doctrine, it is difficult to see what role it has to play in proceedings in the Commission. The doctrine says nothing about the weight to be attached to the evidence that is admitted as part of the res gestae, which will be a matter for the next Arbitrator.

12. In view of the questions involved and the unsatisfactory state of the evidence in general, the determination was revoked and the matter set down for re-determination by a different Arbitrator.

Roche DP

6 August 2012

Facts:

This appeal concerned a claim for the cost of proposed hospital and medical treatment in the form of an L5/S1 disc replacement; L2/3 and L3/4 spinal fusion; and C4/5 and C5/6 anterior cervical decompression and fusion as a result of injuries received in a motor vehicle accident on 23 August 2006. The total cost for the proposed treatment was $127,095.75.

The third party motor vehicle insurer declined to meet the cost of the proposed surgery. Mr Yee was unsuccessful in an application to the Motor Accidents Authority (Professor Lance) for an opinion that the surgery was reasonable and necessary in relation to the subject injury. The appellant’s workers compensation insurer, QBE, declined liability for surgery on the ground that it was not reasonably necessary and that the quoted cost exceeded the maximum amount payable under s 61(3) and s 62(5) of the 1987 Act.

Mr Yee applied to the Commission and was referred to Associate Professor Ryan, an AMS, who provided a non-binding opinion under s 60(5) of the 1987 Act that the surgery was “neither reasonable nor necessary”. The matter came before an Arbitrator, who determined that the surgery was reasonably necessary and directed that the insurer was liable for the cost of the medical and related treatment and hospital treatment, including amounts additional to the amounts fixed by ss 61(3) and 62(5) of the 1987 Act.

Held:  Arbitrator’s decision confirmed

Submissions

1. The appellant made the following submissions:

Because Professor Lance and Associate Professor Ryan provided the only genuinely independent evidence in the case their evidence was entitled to “special or additional weight” and the Arbitrator erred in not according their evidence “special or additional” weight;

(a) the weight of the expert evidence favoured a finding that there was no discal injury and trauma as a result of the accident;

(b) the evidence of Dr Cleaver could not be taken to be entirely independent;

(c) the weight of the medical evidence established that the proposed surgery was not appropriate and therefore not reasonably necessary, even if some measure of the discal trauma was found to be present resulting from the injury;

(d) the medical evidence concluded that no surgery was indicated;

(e) the Arbitrator gave no reasons why she preferred the evidence of the treating surgeon (Dr Cleaver) to that of Professor Lance;

(f) on the balance of the evidence there was no chance of a successful outcome from the surgery;

(g) the Arbitrator failed to accord appropriate to the evidence of Associate Professor Ryan, where he referred to statistical studies indicating a very low chance of a favourable outcome for Mr Yee, and

(h) the proposed surgery failed the “reasonably necessary” test on the basis of the cost alone, when compared to conservative treatment such as physiotherapy.

Findings

2. The submission that the evidence from Associate Professor Ryan and Professor Lance should have been given “special or additional” weight was unsupported by any authority and was rejected. A non-binding MAC is “evidence (but not conclusive evidence)” in the proceedings (s 326(2)) and is not entitled to “special or additional weight”, but the Commission, when weighing the evidence overall, is entitled to taken into account an AMS’s position as an independent assessor [42].

3. Without Dr Cleaver having been cross-examined about his alleged lack independence, it was not open to make such a submission on appeal. The Arbitrator was entitled to take his evidence into account in assessing the claim and to give weight to the fact that he was the treating surgeon and had assessed Mr Yee on several occasions [43].

4. The evidence that Mr Yee suffered a discal injury in the accident on 23 August 2006 was in the extensive radiological investigations and in the evidence from Dr Cleaver based on those investigations and his clinical examinations [44] – [46].

5. Cases are determined by an analysis of the relevant medical evidence, not by a simple head count of how many experts accept a particular proposition and how many are opposed to it [50].

6. On the issue of the need for surgery, the Arbitrator was entitled to prefer the evidence of Dr Cleaver, an orthopaedic surgeon, over the evidence of an occupational physician [51].

7. Dealing with the evidence from Associate Professor Ryan that there was a statistically low chance of a successful outcome from the proposed surgery, the Arbitrator was entitled to accept the evidence from Dr Cleaver, who had the benefit of a number of consultations with Mr Yee and spent considerable time considering whether or not surgery was likely to benefit him [53].

8. The Arbitrator said that without the surgery Mr Yee would continue to experience high levels of pain, which conservative treatment had failed to alleviate, and it was therefore better for him to have the surgery than not to do so [53] . The Arbitrator correctly applied the principles discussed in  Bartolo v Western Sydney Area Health Service (1997) 15 NSWCCR 233 where Burke CCJ described the test of “reasonably necessary” as follows:

The question is should the patient have this treatment or not. If it is better that he have it, then it is necessary and should not be forborne. If in reason it should be said that the patient should not do without this treatment, then it satisfies the test of being reasonably necessary.

9. The Arbitrator gave extensive reasons for accepting Dr Cleaver’s evidence. These included the fact that he was the treating surgeon and had examined Mr Yee on a number of occasions [57]; his reports and opinions were “detailed, thorough and persuasive and consistent with the legal authorities” [58]; his opinion was consistent with the opinion of a qualified specialist (Dr McKee) [59]; and Mr Yee’s condition was deteriorating despite conservative treatment [60].

10. Whether any particular treatment is reasonably necessary as a result of an injury must be assessed on a case by case basis with the Commission exercising “prudence, sound judgment and good sense” (Rose v Health Commission (NSW) (1986) 2 NSWCCR 32). It is not solely a matter for statistical analysis, though that will often be relevant [67].

11. The proposed surgery did not fail the “reasonably necessary” test because of the cost alone when compared to conservative treatment. Conservative treatment had been tried and had not provided effective pain relief. Therefore, comparing the cost of surgery to the cost of physiotherapy was not a relevant exercise [69].