Issue 12: December 2013

Unilever Australia Ltd v Petrevska [2013] NSWCA 373

(a) determining when the worker first became aware, within the meaning of s 261(6), that she had received an injury;

(b) finding that the worker had proven that she had made a claim for compensation within six months after the injury happened in terms of ss 261(1) and 261(6), and

(c) failing to give adequate reasons for her decision.

The Deputy President confirmed the Arbitrator’s determination, finding in favour of the worker.

The appellant appealed the decision of the Deputy President. The issue in dispute on appeal to the Court of Appeal was whether the Deputy President erred in law by:

(a) failing to find that the worker was “aware” that she had received “an injury” at a time when she “understood” that she had suffered hearing loss which was due to her noisy employment.

Held: Appeal dismissed   

Macfarlan JA (Meagher JA and Tobias AJA agreeing) 

Awareness of what?

1. Section 261(6) refers to awareness of receipt of an "injury". This word is defined in s 4 to mean "a personal injury arising out of or in the course of employment". It followed, as Unilever accepted, that awareness for the purpose of s 261(6) involves not only awareness of the injury as such but also of its connection to the worker's employment. In the case of a gradual loss of hearing resulting from noisy employment ("boilermaker's deafness"), which is governed by the special provisions of s 17 of the 1987 Act, awareness of a connection to the worker's employment in noisy conditions by one or a number of employers is required, rather than connection to employment by a particular employer [17]; [43]-[44] per Tobias AJA.

What is awareness?

2. The concept of awareness in ordinary English, and in the context of s 261(6), may be equated, at least in a general sense, with the concept of knowledge. The awareness to which s 261(6) refers is clearly actual awareness, as distinct from constructive notice (Deming No 456 Pty Ltd v Brisbane Unit Development Corporation [1983] HCA 44; 155 CLR 129; Harris v Commercial Minerals Ltd) [22].

3. Like the concept of knowledge, the concept of awareness may embrace different gradations of belief (Vines v Djordjevitch [1955] HCA 19; 91 CLR 512 (Vines)) [23].

4. Whilst the cause of deafness may be obvious where it has suddenly occurred after a severe impact and thus be something of which a worker is "aware" without receiving expert advice, the cause of a worker's gradual hearing loss will ordinarily be a fact of which the worker is not "aware" until he or she receives medical advice. While the worker may well have, as the worker in this matter had, an opinion or belief that the hearing loss is related to the worker's employment this is not sufficient. The high level of assurance required for "awareness" of its correctness will ordinarily require expert advice [25]; [43]-[44] per Tobias AJA (Field v Field (Court of Appeal, 21 October 1981, unreported); Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; Vines; Commonwealth of Australia v Dinnison [1995] FCA 1176; 129 ALR 239; Morris v Rawlings [2010] VSCA 306; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17 (Inghams)).

No error of law in the Commission’s decisions

5. The Arbitrator did not err in her approach. She made particular reference to Inghams which the Court of Appeal considered to aptly encapsulate the proper approach, that is, because the determination of the cause or causes of sensorineural hearing loss ordinarily requires the application of medical expertise, the opinion of a medically unqualified worker about that issue will rarely be of value, or amount to knowledge of that worker that his or her hearing loss has been caused by the worker's noisy employment. Having rejected the proposition that the worker’s belief was sufficient to establish her knowledge of a causal connection between her hearing loss and her employment, the arbitrator understandably turned to the question of when the worker was advised of that matter by a qualified person [34]. The Deputy President approach was to the same effect and did not err [35]; [43]-[44] per Tobias AJA.

6. In light of the technical nature of the issue of causation, it was open to the Commission to treat the worker’s belief as to what caused her hearing loss as of little, if any, significance. In those circumstances, the date upon which she became aware of the cause of her injury was properly regarded as the date upon which she received relevant medical advice [36].

Answer: Yes (see [69]-[70])

1. The amendments introduced by the amending Act included the introduction of s 66(1) and s 66(1A) into the 1987 Act. Section 66(1) provides that a worker who has received an injury that results in a degree of permanent impairment greater than 10 per cent is entitled to receive compensation for that impairment [52]. Section 66(1A) provides that only one claim can be made under the Act for permanent impairment compensation in respect of permanent impairment that results from an injury [53].

2. The submission that s 17 assumes that a s 4 injury has been sustained was not accurate. The section proceeds on a number of assumptions for the critical purposes of fixing a date to determine the law applicable to calculating the quantum of an entitlement to compensation and to determine by whom that compensation is payable [61].

3. Even where the subsequent losses arise from the same pathology (sensorial hearing loss), “for the purposes of” s 17(1)(a) of the 1987 Act, the injury is deemed to happen on the date the worker gives notice of the injury. In this case the deemed date of injury was 19 June 2012, the date of notification of the worker’s further loss of hearing. That was also the date of claim [62].

4. On this basis, the law applicable to calculating the quantum of the worker’s entitlement to lump sum compensation for his further loss of hearing was the law introduced by the amending Act, which applies to a claim made on or after 19 June 2012 [63].

5. The compensation claimed in this case was for a “further loss” of hearing (which is an injury) due to exposure to continuing trauma to the ears subsequent to the initial claim. The facts with which the Court of Appeal was concerned in Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) concerned only one injury, in the sense of only one injurious event and one pathological condition and therefore was distinguished [65]-[66].

6. The principles discussed in Goudappel did not insulate the worker from the application of the 2012 amendments. Accordingly, in the circumstances of this case, there was no reason to depart from the prima facie position in cl 15 of Pt 19H, that is, the amendments apply to the worker’s claim for further hearing loss because it was made on 19 June 2012 [67].

Question two

If yes to the first question, whether in claims for compensation pursuant to s 66 of the 1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application), involving the same pathology of injury arising from multiple injurious events of injury, the multiple injuries can be aggregated for the purpose of determining whether or not the worker’s claim exceeds the s 66(1) threshold?

Answer: No, in circumstances where a worker has made a prior claim for compensation pursuant to s 66 of the 1987 Act. (see [113])

7. It was submitted that, the answer to question two depends in large measure on what is meant by “injury” in s 66 (as amended) and that the resolution of that question depended upon an acceptance that “injury” in s 66(1) means a pathological condition rather than a traumatic event [97].

8. The new regime (introduced with the 2012 amendments) is predicated on a construction of the legislation that permits “only one claim” (emphasis added) for ‘an injury’. In that sense, “injury” may mean injurious event or pathology [102].

9. However, compensation under s 66(1) of the 1987 Act is only payable “as provided by this section”. The reference to “this section” includes s 66(1A) and the limitation on the number of claims that can be made. It followed that, irrespective of whether ‘injury’ referred to in s 66 refers to an injurious event or the same pathological condition, the one claim that may be made under the Act, as amended, must satisfy the 10 per cent threshold before whole person compensation is payable under the section [103].

10. That construction is consistent with the legislature’s intention to limit compensation to those less seriously injured workers in favour of allowing the scheme to focus on the more seriously injured workers [104].

11. Construing the words in s 66 as a whole, the clear purpose of the amended provision is to restrict lump sum compensation claims for whole person impairment to workers who, in one claim, seek a whole person impairment of greater than 10 per cent. Regardless of whether injury in the amended s 66 means injurious event or pathology, the worker did not meet the new threshold unless the impairment in his 1996 claim was added to the impairment in his 2012 claim. That was not permitted [108].

12. Given the clear terms in which s 66 (as amended) is expressed, coupled with the repeal of the former s 66(2)(a), the President did not accept that there was any ambiguity in the new s 66. However, if such ambiguity did exist, the interpretation urged by the applicant would lead to an unreasonable and unnatural result because it would permit the s 66 threshold to be satisfied by aggregating the losses from two claims, when only one is permitted under the new provisions. The aggregation of the worker’s two claims would give an impairment greater than 10 per cent. However, for claims made after 19 June 2012, only one claim is permitted [112].

(a) finding that BP was the last noisy employer within the provisions of s 17 of the 1987 Act;

(b) not applying cl 3 of Pt 19H of Sch 6 of the 1987 Act to find that the clear intention of the 2012 amendments is that the amendments apply to all injuries, and

(c) determining that the preservation of the pre-2002 system of assessing impairment means that the amendments to Div 4 of Pt 3 of the 1987 Act (by the 2012 amending Act) do not apply to injuries sustained prior to 1 January 2002.

Held: The Arbitrator’s decision was confirmed.  

Last noisy employer

1. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399). Dr Scoopa’s reports easily complied with this test and provided a detailed explanation for his conclusion that BP was the last noisy employer. The submission that Dr Scoopa’s evidence did not comply with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 was without substance [80].

2. It was never disputed that BP’s employment was noisy (BP argued that it was not the last noisy employer) and, in any event, the worker’s employment with it exposed him to noise from a number of sources that were not present at Oilcheck or Valvoline [82].

3. As no Jones v Dunkel [1959] HCA 8; 101 CLR 298 point was argued or relied on, the explanation as to why BP did not obtain any expert evidence was irrelevant to the issue the Arbitrator had to determine. The fact was that BP did not tender any expert evidence and the Arbitrator was entitled to determine the case on the evidence presented. The Arbitrator dealt with the evidentiary issues identified by BP in relation to Dr Scoopa’s reports. His approach disclosed no error [89].

4. The submission (by the worker) that it was sufficient for the worker to prove that BP was a noisy employer and that BP bore the onus of proof in relation to whether subsequent employers were noisy was incorrect. In a claim for compensation for boilermaker’s deafness, the onus of proof is on the applicant worker to prove the elements required in the 1987 Act. In the present case the worker had to prove that the nominated respondent, BP, was the last noisy employer. He did that [90].

5. It followed that the Arbitrator made no error in accepting Dr Scoopa’s evidence and made no error in finding that BP was the last noisy employer [91].

Statutory interpretation

6. The critical issue in this matter was the effect of cls 3 and 15 of Pt 19H of Sch 6 to the 1987 Act (which were introduced by the 2012 amending Act as relevant saving and transitional provisions), in circumstances where those clauses are in apparent conflict with cl 3 of Pt 18C of Sch 6 to the 1987 Act. The answer to this question depended on whether cl 3 of Pt 18C had been impliedly repealed by the 2012 amending Act. The Arbitrator concluded that it had not and that the clause “must be given some work to do” [119].

7. Because the 2012 amendments did not repeal s 66, but only amended it, those amendments can only apply to pre-2002 injuries if they are read with s 66 in its form saved by cl 3 of Pt 18C. When one attempts to do that, the provision does not work. This was illustrated by looking at how those amendments would apply to s 66, as it was before 1 January 2002 [125].

8. The combined provisions (set out at [125]) are a nonsense and do not fit. That is because subsection (1) refers to the degree of permanent impairment whereas subsection (2) refers to the totally different concept of “losses mentioned in the Table”. In addition, the combined section provides no mechanism for calculating lump sum compensation for pre-2002 injuries. This strongly suggested that the legislature intended to preserve the pre-2002 scheme for pre-2002 injuries, regardless of when the worker claims for such injuries [126].

9. There is no clear statement of intention in the legislation to entirely abolish the pre-2002 scheme. Indeed, cl 18 of Sch 8 (which reintroduces s 69A) and cl 19 of Sch 8 (which applies s 66(1A) to pre-2002 injuries, but not s 66(1)) suggest the opposite [128].

10. Clauses 18 and 19 unequivocally indicate an intention to preserve the pre-2002 scheme of lump sum compensation for pre-2002 injuries. Either those injuries are assessed and compensated under the Table of Disabilities, or they are assessed and compensated under the 2012 scheme. They can only be assessed under the 2012 scheme if cl 3 of Pt 18C has been impliedly repealed [129].

11. If the 2012 amending Act eliminated rights for all claims of less than 10 per cent whole person impairment, regardless of when the injury occurred, why would the legislature reintroduce s 69A, which has a threshold of six per cent binaural hearing loss, assessed under the Table of Disabilities, unless it intended that claims that meet that much lower threshold should be compensated. There can only be one answer: consistent with having not repealed cl 3 of Pt 18C, the intention is that pre-2002 hearing loss injuries continue to be assessed under the pre-2002 scheme. If cl 3 of Pt 18C had been impliedly repealed, it would not have been necessary to preserve s 69A for injuries before 1 January 2002. Clause 18 of Sch 8 is a clear and unequivocal indication that cl 3 of Pt 18C has not been impliedly repealed and takes effect according to its terms [133].

12. Clause 19 is directed to s 66(1A), which states that only one claim can be made for permanent impairment compensation in respect of permanent impairment that results from an injury. Clause 19 makes it clear that the one claim restriction applies to injuries received before 1 January 2002 [134]. However, cl 19 does not deal with s 66(1), which introduced the 10 per cent whole person impairment threshold. This strongly supported the conclusion that the pre-2002 scheme continues to apply for injuries received before 1 January 2002, but subject to cl 19 of Sch 8 (assuming, without deciding, that that clause was validly made) [135].

13. The above conclusion did not involve a radical departure from the “expressed” intention of cl 3 of Pt 19H. Clause 3 of Pt 19H is expressly stated to apply “(e)xcept as provided by this Part or the regulations” (emphasis added). Therefore, the clause is subject to the regulations [136].

14. Where a statutory provision permits exceptions to be made to it by regulations it is permissible to refer to the regulations as an aid to the interpretation of the provision (Ward v Commissioner of Police [1998] FCA 9; (1998) 80 FCR 427). In addition, where the section is stated to be subject to regulations, and the regulations are within the scope of the section, the regulation is to some extent to prevail (O’Connell v Nixon [2007] VSCA 131; (2007) 16 VR 440) [137].

15. This conclusion was reinforced by cl 1(2) of Sch 8, which states that the provisions of Pt 19H are “deemed to be amended to the extent necessary to give effect to this Part”. It followed that, at the minimum, the reference in cl 3 of Pt 19H to the 2012 amendments applying to “an injury received” before the commencement of the amendment must be read in light of the provisions in Sch 8 [138].

16. There are other provisions that suggest that cl 3 of Pt 18C has not been impliedly repealed, such as cl 13 of Sch 8 and cl 23 of Pt 19H [139]-[140].

17. In the present matter, the 2012 scheme was capable of sensible operation by applying it to injuries received on and after 1 January 2002 (where the claim was made on or after 19 June 2012) and applying the pre-2002 scheme, as saved by cl 3 of Pt 18C, and subject to cl 19 of Sch 8 (assuming that that clause was validly made), to injuries received before that date. Indeed, that result was not only sensible, it was consistent with the intention of the legislation, as gleaned from the words used in the various relevant provisions [145].

18. The right to permanent impairment compensation under s 66 is a significant statutory entitlement (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355) and the repealing or limiting of such a right requires clear and unambiguous language (Buck v Comcare [1996] FCA 1485; 66 FCR 359) with regard to the right to lump sum compensation for hearing loss injuries received before 1 January 2002, the legislature has not used clear and unambiguous language that points to a repealing of those rights. Rather, by not repealing cl 3 of Pt 18C, and by introducing cls 18 and 19 to Sch 8, and the other transitional provisions, it has indicated an intention that those injuries should continue to be assessed and compensated under the Table of Disabilities, subject to the one claim restriction [149].

19. It followed that, for hearing loss injuries received before 1 January 2002, cls 3 and 15 of Pt 19H must be read subject to cl 3 of Pt 18C [150].

1. The order made by the Arbitrator in the second proceedings was an interlocutory order because it had not finally determined the parties’ rights (s 352(3A) of the 1998 Act; Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439; Little v State of Victoria (1998) 4 VR 596; Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1). If the worker provides proper particulars of his claim, and the insurer either disputes or fails to determine the claim within the time limits in the legislation, he is free to lodge a fresh application and to have that claim determined on its merits [37]-[39].

Should leave to appeal be granted?

2. The Commission is not to grant leave to appeal unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute (s 352(3A)) [48]. Section 352(3A) does not involve the “balance of inconvenience and prejudice”. In any event, there was no prejudice to the worker. He was free to issue a further application [49].

3. The submission that the worker was “thrown out” of the Commission “and cannot pursue his rights” was incorrect. The Worker has the same rights now as he had before the Arbitrator dismissed the proceedings. His right to weekly compensation has not been “repealed” from 1 January 2013, but has been substantially amended by the provisions introduced by the Workers Compensation Legislation Amendment Act 2012. Those amendments will apply to any fresh application, just as they would have applied to the second Application, had it not been dismissed [51].

4. The Arbitrator made no findings on the merits of the claim and no order made on appeal, if leave were granted, would have advanced the determination of the dispute. It would have merely remitted an inadequately prepared matter to another Arbitrator. That step can be achieved by the issuing of a fresh application, after first obtaining legal aid. It followed that determining the appeal was not necessary or desirable for the proper and effective determination of the dispute [53].

Alternative finding 

5. The Deputy President considered the merits of the proposed appeal. The question in this case was “about a dispute having arisen”, because prior to filing either the first Application or the second Application, the worker did not particularise his claim. As a result, the insurer had neither disputed liability for it, nor failed to determine it. It followed that the matter could not be referred for determination by the Commission and the Commission could not hear or otherwise deal with any dispute where s 289 provides that the dispute cannot be referred for determination by the Commission (s 289(5)) [82].

6. Section 289 is not satisfied by a worker’s subjective belief that a dispute exists. The section operates on the presumption that the worker gave particulars of the compensation claimed and that the insurer has either disputed liability or failed to determine the claim as and when required by the 1998 Act. Arguably, neither of those conditions was satisfied in this case [84].

7. The worker’s initial claim was finalised in July 2009. If he intended making a further claim, he had to particularise that claim to give the insurer the opportunity to accept it (as it did with the first claim) or reject it. This approach is consistent with the clear wording of ss 289 and 289A. As no further claim was particularised, no dispute arose and ss 289(5) and 289A prevent the Commission from hearing or otherwise dealing with the matter [85].

8. That interpretation of ss 289(5) and 289A is consistent with the second reading speech when the Bill that introduced those provisions was before Parliament. It followed that, because of non-compliance with ss 289 and 289A, the second Application was “lacking in substance” and the Arbitrator was entitled to dismiss it under s 354(7A) [86]-[87].

9. The Arbitrator was wrong, however, to say that the proceedings were a nullity (Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364). While Pt 1 r 1.6(4) of the 2011 Rules provides that the Commission may determine that the proceedings, or any step taken in them, are a nullity, and strike out the proceedings, or any step taken in them, the Arbitrator did not rely on any non-compliance with the 2011 Rules. He relied on non-compliance with the 1998 Act and that brought into play s 354(7A) [88].

10. It followed that, had leave to appeal been granted, on the arguments presented, the appeal would have failed [89].

Other matters

11. There may well be cases where it is appropriate to find that, where an earlier claim has been filed in the Commission, and disputed in a reply filed by an employer, that earlier application and reply might, depending on the circumstances, provide the basis for compliance with s 289. As that issue was not argued, either before the Arbitrator or on appeal, it was not necessary to express any concluded view about it. Had this point been argued on appeal, it would not have affected the outcome because leave to appeal on the ground that the Arbitrator’s decision was interlocutory [90].

(a) finding that the worker’s accepted psychological injury was not wholly or predominantly caused by action taken with respect to discipline;

(b) finding that the relevant action taken was not reasonable, and

(c) failing to provide adequate reasons for his findings.

Held: The Arbitrator’s decision was confirmed.   

Causation

1. The employer carries the onus of establishing that the injury was wholly or predominately caused by the relevant actions of the employer with respect to discipline and that those actions were reasonable (Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206; Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57 (Minahan)) [106].

2. The meaning of “predominantly caused” is “mainly or principally caused” (Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92) [107].

3. The test of causation in workers compensation matters is the commonsense test, not the proximate cause test or the but for test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796). Scientific certainty is not required, but the decision maker must feel actual persuasion of the occurrence or existence of the fact in issue before it can be found (N O M v DPP [2012] VSCA 198) [108].

4. It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28). That is especially so in cases concerning a psychological injury where, in many cases, multiple events over a long period have contributed to the injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct [110].

5. While it was correct that there was no direct expert evidence that the worker would not have suffered a decomposition following the racial comments allegation had it not been for the incidents before 12 November 2011, that is not the correct test of causation and, in any event, the medical evidence had to be viewed in the context of the histories recorded [112].

6. The medical experts all took histories of significant conflict over an extended period prior to 12 November 2011. The conflict in the months up to November 2011 were matters that clearly, based on the medical histories, and as a matter of commonsense, played an important role in the development of the worker’s injury [117]. Those histories were consistent with the worker’s oral evidence at the arbitration [118]. The evidence was clear and unchallenged that significant events occurred prior to November 2011 that troubled the worker [120].

7. While the temporal proximity between the events on 12 and 14 November and the worker’s attendance on her general practitioner on 14 November 2011 was important, and was considered by the Arbitrator, it was not the only matter to consider and, in light of the medical histories, was not determinative [122].

8. As it is well accepted that an injury can have more than one substantial contributing factor, the employer’s psychiatrist’s answer that the substantial contributing factor to the worker’s psychological condition was work related, and related to the events of 12 November 2011, was an acknowledgement that those events satisfied the test in s 9A, but did not address the test of whole or predominant cause in s 11A [127].

9. The Arbitrator did not err in concluding that the employer had not discharged the onus it carried on the issue of the whole or predominant cause of the injury. His reasons for not being satisfied were clearly stated, namely, the events that preceded 12 November 2011, which, given the medical histories, were significant events that, when combined with the events on 12 and 14 November 2011, led to the worker’s psychological decomposition [136].

10. The Arbitrator’s reasons were supported by the histories recorded by the medical experts and provided an explanation of the basis for his conclusion. They satisfied his obligation to give reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [137].

11. While it was not necessary to consider the reasonableness issue, the Deputy President dealt with whether the actions of the employer were reasonable [138].

Reasonableness 

12. The question of reasonableness is an objective test of fact, weighing the rights of the employees against the objective of the employer. It should be attended, in all the circumstances, by a question of fairness (see Irwin v Director General of School Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997); Ivanisevic v Laudet Pty Limited (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998); Minahan) [149] – [150].

13. Contrary to the employer’s submissions, nothing in the Arbitrator’s approach was inconsistent with Northern NSW Local Health Network v Heggie [2013] NSWCA 255. The Arbitrator did not determine reasonableness by reference to events after 14 November 2011, but merely considered that it was not reasonable to discuss not continuing the worker’s employment when the employer had not conducted a “full investigation” [166].

14. The Arbitrator noted that the statutory declarations from staff members in relation to the allegations of racist remarks all post-dated the scheduled time for the worker to attend the meeting to discuss not continuing her employment. On that basis, the Arbitrator was entitled to consider that the investigation was incomplete and that, in those circumstances, the employer’s comments in the telephone conversation on 14 November 2011 were not reasonable [168].

15. The Arbitrator was also entitled, in making an evaluative judgment of the kind involved in this case, to conclude that the suspension was not reasonable because the employer did not take into account the worker’s long period of employment and suspended her before a formal meeting with senior management. While there may have been other matters the Arbitrator could have considered on this issue, there is no compulsory checklist that an Arbitrator must complete before reaching a conclusion on reasonableness [169].

16. It is correct that, while the Arbitrator noted that the matter was serious and that it “could” well have led to the worker’s dismissal, he did not refer to the short period of the suspension pending a meeting being held. The shortness of the period of suspension was not decisive, especially if the decision to suspend was not reasonable. The Arbitrator’s finding that he was not satisfied that the suspension was reasonable was open to him and disclosed no error [170], [177].

17. One would have thought that, weighing the worker’s rights against the employer’s objectives, a reasonable (fair) approach on 12 November 2011, given the conflicting accounts, would have been to caution the worker against the use of racially insensitive language (noting her denials) and to arrange a meeting where the issues could be more fully discussed and, if necessary, counselling arranged. Instead, the employer peremptorily suspended the worker. Viewing the matter objectively, given that there was no issue of patient (or, in this case, staff or guest) safety involved, or any policy directive that required the worker to be suspended, as there was in Heggie, that was not reasonable [171], [182].

18. Whether the employer said the meeting was to discuss “not continuing [the worker’s] employment” or to “discontinue [the worker’s] employment”, the very clear impression, objectively conveyed by the words used, was that the worker’s fate had effectively been determined and that she was required to show cause why her employment should not be terminated because of something that she strongly denied doing [180]. That was not reasonable because it assumed that the worker was guilty of conduct that justified her dismissal unless she could prove otherwise [181].

19. The Arbitrator explained the basis for his conclusion and, while some issues could have been covered in greater detail, or with more clarity, his reasons were adequate to enable the parties to understand why the employer had not made out its s 11A defence. There was no failure of the process of fact-finding (Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816]). The Arbitrator made an evaluative judgment that was open to him on the evidence [184], [194] (Heggie).

(a) failing to determine that the worker was prevented from pursuing a claim for injury to the neck and back, and

(b) finding that for there to be an injury it was sufficient that there be a complaint of symptomology, when symptomology was not referred to the employment of the worker.

Held: The Arbitrator’s decision was confirmed.  

Estoppel 

1. While it is accepted that consent orders may create estoppels between parties, they do so “only as to those matters which are necessarily decided” (Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69). In determining what matters have been “necessarily decided”, it is necessary to examine the available evidence [35].

2. The consent orders made no orders and determined no issues [36]. The case was therefore determined by reference to the complying agreement. While there may well be circumstances where a complying agreement creates an estoppel (CSR Ltd v Gonzales [2010] NSWWCCPD 118 (Gonzales)) neither the facts nor the result in Gonzales assisted the appellant [37].

3. A complying agreement must be construed according to the usual principles of contract law. It is not the parties’ subjective beliefs or understandings about their rights and liabilities that govern their contractual relations. The meaning of the terms of a contract is determined by what a reasonable person would have understood them to mean (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165). The test to determine the meaning of a contract is objective, not subjective [38].

4. The agreement identified the medical report relied upon “to assess the degree of permanent impairment” to be the report from Dr Fearnside [40]. The suggestion that the parties agreed to resolve the dispute about injury to the worker’s neck, back and shoulders “by adopting the assessment by Dr Fearnside” was untenable [43].

5. On any objective view of the evidence, the complying agreement resolved only the claim for the right upper extremity and nothing else. In the absence of any admissions and agreed facts, or any orders based on admissions and agreed facts, the agreement determined no more than the worker’s entitlement to lump sum compensation for the injury to her right upper extremity [45].

6. The Arbitrator was correct when he said that the reference to Dr Fearnside’s assessment was an agreement about the right arm, and nothing more, and that it fell well short of an explicit outcome creating an issue estoppel, or an estoppel of any kind [47]-[48].

7. The complying agreement only resolved the claim for lump sum compensation for the worker’s upper right extremity and nothing more. It followed that the Arbitrator did not err in his approach or conclusion on the estoppel issue [51].

Injury

8. It is not necessary for there to be contemporaneous complaints for there to be an aggravation of an underlying degenerative condition. The Arbitrator did not have to be “satisfied as to injury from the contemporaneous material prior to determining whether the opinions [of specialist doctors] were available to make a finding of injury”. It is not law that a worker must have corroboration before he or she can succeed. It is the task of a judge to decide, on the basis of the whole of the evidence, what he or she accepts (Chanaa v Zarour [2011] NSWCA 199) [73]-[74].

9. Even without corroborating witnesses, a tribunal of fact is free to accept the evidence of a claimant as credible (Woolworths Ltd v Warfe [2013] VSCA 22) [76].

10. The absence in medical records of complaints by the worker about the relevant body parts did not mean that the Arbitrator erred in not rejecting her evidence. It required the Arbitrator to assess her evidence, along with other evidence, to determine its reliability. That meant considering her explanation for the lack of complaint, and the other evidence tendered, especially the evidence about the heavy physical nature of the worker’s duties and the expert evidence [77]. The evidence supported the Arbitrator’s findings that the worker did not complain about her neck, back and shoulders at consultations about her right arm because the focus was on getting the arm “fixed” [78].

11. The Arbitrator concluded, after having seen and heard the worker give evidence, that her evidence was “honest and credible”. It was open to him to accept her explanation for the lack of contemporaneous complaint about the relevant body parts [86].

12. The Arbitrator applied the correct test to establish an aggravation injury under s 4(b)(ii). He found that the worker’s symptoms had been made worse due to the aggravation of her underlying degenerative (disease) conditions (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 and Cant v Catholic Schools Office [2000] NSWCC 37;20 NSWCCR 88) [89]-[91].

13. The worker’s history did not have to accord with contemporaneous records before the opinion based on it could be accepted. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock)) [96].

14. In any event, to the extent that an expert has based his or her opinion on assumed facts, those facts do not have to be the real facts, but only the facts asserted (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764). The asserted facts do not have to correspond “with complete precision” with the facts established. It is a question of fact whether they are “sufficiently like” the facts established “to render the opinion of the expert of any value” and whether they provide a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) [97].

15. The specialist doctor’s evidence the Arbitrator relied upon to find in favour of the worker complied with those authorities, and given the acceptance of the worker’s evidence, he was entitled to accept the specialist’s conclusions [98], [120], [122].

16. In assessing a medical expert’s evidence, it is first necessary to consider all of his or her reports. A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence (Hancock) [101].

17. It followed that the Arbitrator clearly explained the basis for his conclusionsand discharged his obligation to give reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [127].

(a) determining that the worker received injury as alleged on 20 January 2008, 9 April 2008 and 7 May 2008;

(b) failing to provide proper reasons for those findings concerning injury;

(c) failing to correctly apply s 9A of the 1987 Act to the facts;

(d) referring the matter to an AMS for a “general medical opinion”, and

(e) making a referral to an AMS for general medical dispute on capacity for work.

Held: The Arbitrator’s decision was revoked and the matter was remitted for hearing afresh by another Arbitrator.   

1. The Deputy President was not satisfied that the reasons stated by the Arbitrator were an adequate, or sufficient, statement of reasons for his conclusions. The Arbitrator’s failure to state sufficient reasons constituted an error of law (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430) [35].

2. The Arbitrator’s failure to acknowledge argument advanced by the appellant, and his failure to state reasons for the apparent rejection of such argument demonstrated error (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). Little, if any, attention was given to the arguments founded upon the apparent deficiencies, as suggested, of the histories of injury recorded by those medical witnesses who had treated the worker or had examined her for the purposes of the litigation [36].

3. The Arbitrator stated: “I have no reason to accept that her employment with the respondent was not a substantial contributing factor to each of those injuries”. That statement reversed the onus upon the worker to prove relevant facts which satisfy the requirements of s 9A. That constituted an error which affected the Arbitrator’s decision (Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561) [37]-[38].

4. The order of referral concerning general medical opinion regarding station and gait, bladder function, anorectal function and sexual function was misconceived and an error. The Arbitrator had made a finding of relevant injury; once such a finding is made, the question of whole person impairment is to be referred to an AMS for appropriate assessment (s 65(3) of the 1987 Act read with s 321(4)(a) of the 1998 Act). However, the Arbitrator adopted the incorrect concept, that the sequelae, being station and gait etc, were “consequential injuries”, or that there was a need to determine that there had been “consequential injuries” relating to such pathology. A condition which results from an injury (consequential condition) is not an injury in terms of the Acts (Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4) [39]-[41].

5. While the specialist doctor suggested that the sequelae following injury to the worker’s cervical and lumbar spine included station and gait etc, and that Table 15-6 of AMA 5 was relevant to assessment, it is a matter for the AMS to determine the correctness or otherwise of that approach and identification of those sequelae. The terms of the referral to the AMS should have been to assess whole person impairment resulting from injury to the cervical spine and lumbar spine, and the Arbitrator erred in ordering otherwise [44].

6. The Arbitrator erred in referring the worker’s capacity for work to an AMS. It appeared that such an order was made to determine the worker’s entitlement to weekly compensation. However, there was no dispute before the Arbitrator concerning such entitlement [45].

7. Given the erroneous referral of the above matters to an AMS, together with other circumstances, and given the need to remit the matter for hearing afresh (due to the Arbitrator’s consideration of incomplete documentary evidence), it was appropriate that all the orders be revoked on appeal [46]-[47].

(a) determining that the worker had not received injury to his left hip on 15 July 2011 and was thus not entitled to medical treatment expenses and an increase of weekly payment.

Held: The Arbitrator’s decision was revoked in part and it was determined that no order concerning weekly compensation should be made on appeal.

The finding of no injury to hip

1. It was suggested that the Arbitrator paid “undue regard to GP recording and the failure to diagnose, and [the worker’s] own inability to isolate his problem as a hip problem”. However, the Arbitrator acknowledged the relevant evidence, and it was a matter for him to determine the weight to be ascribed to such evidence and to determine what, if any, available inference may be drawn [53].

2. The Arbitrator’s apparent reliance upon the evidence of a specialist doctor, which evidence was criticised as being “inconsistent with the evidence as a whole”, appeared to be asserted as demonstrating relevant error. That merely demonstrated a conflict of opinion between the medical evidence and in no way made out a basis upon which relevant error could be asserted [54].

3. The fundamental basis of the Arbitrator’s rejection of the allegation of hip injury seemed to have been the absence of relevant contemporaneous complaint and evidence concerning a twisting or similar action at the time of the injury. The rejection of the argument that the awkward position in which the worker found himself at the time of injury and his being forced back against the adjacent shelf constituted ‘twisting’ as contemplated by the medical experts demonstrated no error [56]-[57].

4. The Arbitrator’s conclusion as to there being no relevant aggravation was open to him on the evidence. His acceptance of that evidence demonstrated no error (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505) [58].

The Arbitrator’s conclusion concerning the claim for increased weekly payments

5. The claim was brought pursuant to s 40 of the 1987 Act as it stood prior to the 2012 amendments [62].

6. Voluntary payments made by the insurer corresponded to the maximum statutory rate for a worker without dependants (despite evidence suggesting the worker had dependent children). Whilst it was argued that the worker’s entitlement to an increase of weekly payments was “by reason of the hip disability”, it was clear that there had been a failure to appreciate and apply correct principle to the facts [63].

7. A proper approach to determination of any entitlement the worker may have to weekly compensation required an assessment made in accordance with the principles made clear in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell). Such a determination would follow the Arbitrator’s decision as to whether the hip disability was relevantly work related. Once a determination was made that the hip disability was not compensable it would have been open to the respondent to argue that the Commission’s discretion should be exercised to reduce any entitlement as is addressed in the decision of Mitchell [64].

8. Given the undisputed level of the worker’s probable earnings but for injury and the earnings that he had made performing selected duties as demonstrated in the latest wages schedule he was, prima facie, entitled to the difference in earnings subject to the maximum rate as fixed by statute and, further, subject to any reduction found to be proper in the circumstances. Upon proof of the dependency of the worker’s children, that statutory maximum was $643.30. Those matters were not argued before the Arbitrator and resolution of the question of entitlement must await agreement between the parties, failing which a fresh application accompanied by all relevant evidentiary material may be made [65].

9. The only matter put in argument, with respect to the complaint about the Arbitrator’s dismissal of the claim for weekly payments, was entitlement to “increased weekly benefits follows upon a finding of injury to the left hip, as [the worker’s] incapacity resulting from that injury was not put in issue by the s 74 Notice” [66]. The Arbitrator’s order concerning the misconceived claim in respect of weekly benefits, that reflected the confused manner in which argument was presented, was revoked and in substitution it was determined that no order concerning weekly compensation should be made [67].

(a) finding that the worker’s employment with the appellant was a contributing factor to his injury (s 4(b)(ii));

(b) failing to give consideration to the provisions of sub-ss (d) and (e) of s 9A(2) in finding that the worker’s employment with the appellant was a substantial contributing factor to the aggravation of a disease;

(c) failing to prefer the opinion of Dr Potter, rheumatologist, or give proper weight to this opinion, as to the cause of the worker’s disease and symptomology, over the opinions relied upon by the worker;

(d) finding that the worker sustained an injury to his knees in the course of his employment with the appellant;

(e) finding the appellant liable to pay the worker weekly payments of compensation between 17 February 2010 and 26 September 2012;

(f) finding the appellant liable to pay the worker compensation pursuant to s 60 of the 1987 Act, and

(g) ordering the appellant to pay the worker’s costs.

Discussion and findings

1. In determining if a worker has suffered an aggravation injury, it is necessary to ask the following questions:

(a) is the worker suffering from a disease?

(b) if so, was there an aggravation, acceleration, exacerbation or deterioration of it?

(c) if so, was the employment a contributing factor?

(d) if so, was employment a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration? [52]

2. It was accepted that the worker suffered from osteoarthritis in his knees and that that condition is a disease [53].

3. On the question of whether the worker’s employment with the appellant was a factor to the aggravation, acceleration, exacerbation or deterioration of the disease of osteoarthritis, the parties called conflicting evidence. For reasons given, which were not challenged, the Arbitrator accepted the evidence of Dr Bodel, the worker’s qualified orthopaedic surgeon. It was open to him to do so [54].

4. The Arbitrator correctly determined that the worker’s work contributed to a worsening of the symptoms in his knees and that he had therefore suffered an aggravation injury (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; Cant v Catholic Schools Office [2000] NSWCC 37; 20 NSWCCR 88). The evidence from Dr Bodel strongly supported that conclusion and nothing in the appellant’s submissions pointed to any error by the Arbitrator on this point [55]-[57].

5. The Arbitrator was right to reject Dr Potter’s opinion. Not only did Dr Potter not discuss the correlation of the worker’s experience of symptoms during the course of his work with the appellant, he wrongly focused on whether there was a history of “injury causing advancing arthritis”. His use of the word “injury” and his later reference to there being “no history of trauma ... to [the worker’s] knees” indicated that he considered it necessary for the worker to have sustained some specific trauma before he could succeed. That was incorrect. An aggravation injury can and, in many cases, will be caused over time by repeated stress (Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244). Dr Potter’s failure to properly acknowledge that fact further undermined his evidence [59].

6. Dr Bodel based his opinion on the history, examination and documents provided to him and therefore complied with the principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399. It was not speculative as Dr Potter had asserted [60].

7. Amongst other things, Dr Potter had ignored the effect of the strenuous work the worker did with the appellant and it appeared that he had applied the wrong test of causation (s 4(b)(ii)). It followed that the Arbitrator did not err in accepting Dr Bodel’s evidence in preference to the evidence from Dr Potter [61]-[63].

8. The worker did not have to establish that his employment was a substantial contributing factor to the underlying disease process (Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313) [65].

9. In determining whether the worker had received a compensable injury, Dr Bodel had to consider: whether there was an injury within the terms of s 4(b)(ii) and, if so, was employment a substantial contributing factor to that injury. Dr Bodel considered those questions and, noting the relevant legislation, answered yes to both. Nevertheless, the ultimate determination of these issues was for the Commission [71].

10. The issue before the Arbitrator was whether the worker’s employment was a substantial contributing factor to the aggravation injury. The evidence comfortably established that it was. Moreover, in an aggravation injury case, it is doubtful it is necessary to deal specifically with s 9A(2)(d) and (e). That is because the injury is the aggravation (or acceleration) of the disease and, if employment caused that aggravation (or acceleration), as it did in this case, it is the cause of the injury and s 9A is satisfied [72].

11. In any event, Dr Bodel’s statement that the worker’s knees would not have reached “this level of degeneration at this point in time” had it not been for his work, was a clear and unequivocal statement that dealt with s 9A(2)(d) and (e) in a manner that supported the worker [73].

12. It did not matter that part of the worker’s current condition may have also resulted (in part) from his pre-existing condition. Dr Bodel’s evidence comfortably established that the worker’s employment with the appellant was a substantial contributing factor to the worsening of the symptoms of the disease of osteoarthritis in his knees and that the effect of that worsening was continuing. Thus, s 9A was satisfied [75].

(a) finding that the worker did not sustain an injury to his thoracic spine in the original injury on 13  February 2007, and

(b) determining “the effects of the motor vehicle accident on 14 June 2007”.

Held: The Arbitrator’s decision was confirmed.  

Did the worker sustain an injury to his thoracic spine in the injury on 13 February 2007?

1. After an assessment of the evidence, it was noted that the worker’s complaints to his treating doctors were largely in relation to the lower back and not the thoracic spine [109]-[112].

2. The submission that clinical notes of an occupational therapist on 22 March 2007, referral for x-rays of the thoracic spine in April 2007, and a comment on a specialist doctor’s report supported the contention that the worker was complaining of thoracic pain from the initial injury was rejected. In the absence of complaint relating to thoracic pain, that evidence could not support a conclusion that the Arbitrator erred in finding that the worker did not injure his thoracic spine in the initial injury [113]-[118].

Did the worker injure his thoracic spine in the motor vehicle accident on 14 June 2007?

3. The worker submitted that the evidence of the employer’s consultant occupational physician was misleading and ambiguous and the Arbitrator erred by relying on it [119].

4. That doctor concluded that the effects of the motor vehicle accident on both the thoracic spine and the lumbar spine were short lived. There was no ambiguity. The Arbitrator’s rejection of the claim that the worker continued to experience thoracic pain thereafter was consistent with the doctor’s opinion, which was compelling in that he examined the worker and took a history of his complaints within a week of his involvement in the motor vehicle accident [120].

5. Contrary to the worker’s submissions, that doctor examined the thoracic spine and made allowance for the possibility of an aggravation of the Scheurmann’s disease arising from the worker’s involvement in the motor vehicle accident. The Arbitrator’s reliance on the doctor’s evidence to conclude that the worker had not aggravated his constitutional condition, but had merely suffered a short term flare-up of symptoms, was open to the Arbitrator and did not involve any error [121]-[122].

6. The submission that the Arbitrator erred by rejecting the worker’s evidence when it was not tested by cross examination was rejected. An Arbitrator may reject evidence that has not been the subject of cross-examination, if, for example, it is inconsistent with other evidence which he accepted. The worker’s evidence was inconsistent with the documentary evidence of his complaints to his treating doctors and therefore it was not incumbent on the employer to seek leave to cross-examine the worker (NSW Police Force v Winter [2011] NSWCA 330) [123]-[124].

7. Contrary to the worker’s submissions, the entry in hospital notes of “chronic pain” since 2007 did not provide any probative evidence to link the finding of tenderness in the thoracic region of the worker’s back to either of the injuries upon which the worker relied [125].

8. The submission that the Arbitrator erred by failing to refer to the evidence of another specialist doctor was incorrect. The Arbitrator referred to that evidence and it was open to him to assess the weight to be given to that evidence, and his treatment of it did not involve any error [126]-[127].

9. The Arbitrator did not accept that the worker made out a prima facie case of injury to the thoracic spine as a result of either of the injuries pleaded. In those circumstances the onus of proof did not shift. The worker carried the ultimate onus of proof, which, for the reasons given by the Arbitrator, and which disclosed no error, he failed to discharge (Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229; Brown v Lewis [2006] NSWCA 87) [129].