State of New South Wales v Bishop [2014] NSWCA 354

WORKERS' COMPENSATION - appeal from Deputy President of the Workers Compensation Commission - respondent suffered injuries that were said to be causally connected to an earlier work injury - whether the Deputy President erred in law by failing to identify an error of fact, law or discretion in the earlier decision of an arbitrator and thereby exceeded his statutory authority – the 1998 Act, ss 352, 353

Court of Appeal

15 October 2014

Facts:

In 1994, Ms Karen Bishop commenced work as a cleaner with Camden District Hospital. It was not disputed that she received an injury to her lower back as a result of her arduous duties on 6 May 2004 (the 2004 Injury). She returned to normal duties but continued to experience disabling pain. From time to time she worked reduced hours or was absent from work by reason of her continuing symptoms.Ms Bishop’s back pain increased and her left leg would, from time to time, “collapse”. She settled a lump sum claim in May 2007 “on the basis of five per cent whole person impairment” of her lumbar spine.

On 25 June 2011, Ms Bishop was walking on a concrete path to the clothes line at her home when her left leg “gave way” causing her to fall. She injured her left foot and ankle (the 2011 Injury). She did not work since the fall due to ongoing incapacity. Weekly compensation was paid by the employer’s insurer until 5 December 2011. It was unclear why those payments ceased. Ms Bishop then made a claim for lump sum compensation for permanent impairment in respect of the alleged consequences of the lumbar spine injury and injury to the left lower extremity. That claim was declined.

An Application to Resolve a Dispute was filed with the Commission by Ms Bishop in July 2012, that sought orders with respect to payment of medical, hospital and rehabilitation expenses and lump sums as earlier claimed. The respondent employer had admitted the occurrence of the lumbar spine injury and the only matter in dispute was whether the injury to the left lower extremity was “compensable”.

An award was entered for the respondent in relation to the claim for a consequential injury to Ms Bishop’s left lower extremity. Ms Bishop was referred to the Registrar to have an AMS assess additional WPI of her lumbar spine as a result of the injury of 6 May 2004.

Ms Bishop appealed the Arbitrator’s decision. The issues in dispute on appeal were whether the Arbitrator erred in:

• determining that there was no “causal link” between the injury received on 6 May 2004 and “the consequential left leg injury” received on 25 June 2011, and
• failing to give “proper reasons” for his determination of the dispute.

The Arbitrator’s determination was revoked in-part. The matter was remitted to the Registrar for referral to an AMS for assessment of any additional WPI of the lumbar spine and WPI of the left lower extremity.

The employer appealed the Deputy President’s decision to the Court of Appeal.

The issues in dispute on appeal were summarised as follows:

• the Presidential Member erred in point of law in exceeding the authority conferred by s 352 of the 1998 Act;
• the Presidential Member erred in point of law in failing to identify an error of fact, of law, or of discretion;
• the Presidential Member erred in point of law in determining that the Arbitrator had failed to provide reasons for his decision;
• the Presidential Member erred in point of law in concluding that the Arbitrator had accepted the evidence of Ms Bishop, when the reverse was evident from the Arbitrator's decision, and
• the Presidential Member erred in point of law by substituting his own "commonsense evaluation of the causal chain" for that of the Arbitrator.

Held: Appeal dismissed. The Court of Appeal directed that the proceedings identify the appellant as “State of New South Wales”.

1. The proposition that the Deputy President had not identified any error of fact or law was unsustainable. The errors of fact and law referred to above were identified without error on his part in point of law. There was no contravention of s 352 of the 1998 Act [22].

2. A ground of appeal alleged that the Deputy President had erred in point of law by substituting his own common sense evaluation of the causal chain for that of the Arbitrator. The focus of this complaint was by no means clear and was not clarified in the written submissions filed for the appellant. There was a somewhat muted suggestion that, having found error, the Deputy President then undertook a full "review" of the case in contravention of the statement in s 352(5) that an appeal is "not a review or new hearing"; rather, the Deputy President is limited to "the correction of" any identified error warranting intervention [23].

3. It was not necessary to determine whether this submission would have traction in other circumstances, such as a case where there were several issues to be resolved and the error identified affected only one issue. That is not this case: there was only one issue in this case, namely the question of causation. The errors identified by the Deputy President required that the finding on causation be set aside. To correct that error, the Deputy President was entitled to form his own conclusion as to the proper resolution of the matter [24].

4. In the course of oral argument, counsel for the appellant conceded that, if the Deputy President had properly identified error entitling him to set aside the order of the arbitrator, it would be difficult to identify any error in point of law in the assessment of evidence undertaken by the Deputy President. The difficulty was not surmounted [25].

5. The essential complaint by Ms Bishop before the Presidential Member, which was reiterated in the appeal to this Court, was that the Arbitrator failed to make a finding as to a critical aspect of Ms Bishop's case. The Arbitrator made no express finding one way or the other as to whether the 2011 Injury resulted from Ms Bishop's left leg giving way as she claimed [84].

6. If a finding had been made that the 2011 Injury resulted from Ms Bishop's left leg giving way, the next question for the Arbitrator should have been whether there was a causal connection between the 2004 Injury and the leg giving way in 2011. The Arbitrator concluded that such a causal connection had not been established. However, he did not deal with the considerable evidence that had been put forward by Ms Bishop in support of her claim of such a causal connection [85].

7. It is clear from the claim by Ms Bishop outlined above that there was a specific dispute between Ms Bishop and the State as to whether the 2011 Injury, to her left leg and ankle, had any causal connection with the 2004 Injury, to her back. It was therefore incumbent upon the Arbitrator to examine the evidence proffered by Ms Bishop and to make a clear finding on the basis of that evidence, first as to whether the 2011 Injury resulted from Ms Bishop's left leg giving way and, if so, whether the giving way of her leg had any causal connection with the 2004 Injury, to her lumbar spine [86].

8. In the present context, the reasons for the determination of the Arbitrator were not necessarily required to be lengthy or elaborate. All they needed to do was to demonstrate that all of the evidence had been considered and why the relevant findings of fact and conclusions were made (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). However, it was not clear from the Arbitrator's reasons whether he made a finding as to the first matter referred to above. A fortiori, it is unclear what his reasons were for making such a finding, if he did in fact do so [87].

9. Secondly, in relation to the question of causal connection between the two incidents, the Arbitrator failed to address the evidence. It may be that there were reasons why the Arbitrator might not have accepted the medical opinions proffered by Ms Bishop. However, he did not say that he did not accept them or explain why he rejected them, if he did so. Rather, the Arbitrator attached considerable significance to what was characterised as a lack of recorded complaint to Dr Mechreky, one of the worker’s treating doctors, of weakness in the left leg, prior to the consultation on the day after the fall on 25 June 2011. On the other hand, the Arbitrator appears to have given little weight to the history given to Dr Mechreky by Ms Bishop on that occasion. Dr Mechreky recorded on 26 June 2011 that Ms Bishop told him that when she was walking, due to her back pain, her leg was not stable and when she was walking out of the house she felt "something funny" in her left leg and her left leg and knee gave way and she twisted her ankle, exacerbating her lower back pain [88].

10. If the Arbitrator rejected Ms Bishop's evidence that her left leg gave way on 25 June 2011, it was incumbent upon him to say that the history given to Dr Mechreky on the following day must have been a fabrication. The Arbitrator did not address that question. On the other hand, if the Arbitrator accepted Ms Bishop's assertion that her leg gave way on 25 June 2011, it was incumbent upon him to deal with the medical opinion evidence and the history given by Ms Bishop of numbness in her leg some years before the incident of June 2011. The Arbitrator did not do so [89].

11. The Presidential Member concluded that the Arbitrator had made an error of law in failing to give adequate reasons for his conclusion that there was no causal connection between the 2004 Injury and the incident on 25 June 2011. It was therefore open to the Presidential Member to examine the material that was before the Arbitrator in order to determine whether or not there was an error of fact. The Presidential Member embarked on that exercise and concluded that the Arbitrator had made an error of fact, in so far as he had concluded that there was no relevant causal connection between the 2004 Injury and the 2011 Injury [90].

12. The remaining ground of appeal, that the Presidential Member erred in point of law in concluding that the Arbitrator had accepted the evidence of Ms Bishop, when the reverse was evident from the Arbitrator's decision, was disposed of briefly. This ground was not developed in any detail in the appellant's written submissions, but it was addressed in oral submissions. The contention was that, contrary to the interpretation of the Presidential Member, the Arbitrator had in fact not accepted the evidence of Ms Bishop that her left leg had collapsed on occasions prior to 25 June 2011. That contention turns on an interpretation of the word "telling" in [36] of the Arbitrator's decision: "[t]his ... lack of recording of any complaint by Dr Mechreky who has been the applicant's general practitioner during that period is telling". However, in the very next sentence, the Arbitrator did accept that there had been some instances of Ms Bishop's leg collapsing ("an occasional happenstance"), even though the Arbitrator was not persuaded that there had been a "pattern" of such collapses. There was no error on the part of the Presidential Member in this regard [91].

Identification of the appellant

13. The notice of appeal identified the appellant as “Camden District Hospital” and the submissions in the Court of Appeal named the appellant as “South West Sydney Local Health District t/as Camden District Hospital” [26].

14. Local health districts are constituted under the Health Services Act 1997 (NSW), s 17 and Sch 1. The proper name of the local health district which includes Camden is "South Western Sydney Local Health District". However, a local health district cannot employ staff: s 22(2). Accordingly, it could not be the employer of Ms Bishop. Rather, the government of New South Wales is empowered to employ staff to enable local health districts, and the public hospitals that they control, to exercise their functions: s 116(1)(a). Such persons constitute the "NSW Health Service": s 115(1) [27].

15. The Secretary of the Ministry of Health is empowered to exercise on behalf of the government "the employer functions of the Government in relation to the staff employed in the NSW Health Service": s 116(3). However, that statutory appointment of an agent does not derogate from the conclusion that the actual employer of Ms Bishop was the State Government. Thus, the employer should be identified, pursuant to the Crown Proceedings Act 1988(NSW), as the State of New South Wales. The proceedings in the appeal were so entitled and the direction that the appellant be identified as South West Sydney Local Health District t/as Camden District Hospital was revoked [28].

Green v Secretary, Department of Education and Communities [2014] NSWWCCPD 71

Journey claim; meaning of “place of employment”; s 10 of the 1987 Act; whether journey completed when worker crosses boundary of the land on which the workplace is situated; application of principles in Chawla v Transgrid, Burke ACCJ, unreported, Compensation Court of NSW, 11 June 2002

Roche DP

27 October 2014

Facts:

The appellant worker, Catherine Green, worked, and continues to work, for the respondent employer, the Department of Education and Communities, at the ninth floor of the building (the Bankstown Civic Centre) at 66 Rickard Road, Bankstown (66 Rickard Road).

On 4 October 2013, while on her way to work from her home, Ms Green sustained injuries when she slipped and fell in the courtyard/foyer of 66 Rickard Road. The Arbitrator found that Ms Green fell “inside the boundary of the land on which the building was located in which her office was in turn situated on the 9th floor”. Having made that finding, which was not challenged on appeal, the Arbitrator said that the “legal question” to be answered was “whether this location should be regarded as within [Ms Green’s] ‘place of employment’”. She answered that question “no”. Her main reasons were:

• the authorities on which Ms Green relied could all be distinguished on their facts;
• the legal boundaries of the employer’s property and the boundary of the land where the place of employment is situated will not necessarily be the same and it will be a question of fact in each case;
• Ms Green had not established that the whole of the area within the boundary of the land was occupied by her employer, and
• she could not draw the inferences submitted on Ms Green’s behalf and she was not satisfied that Ms Green had “discharged the onus of proof in this regard”.

It followed that Ms Green was still on a journey when she fell. As it was accepted that Ms Green could not establish that there was a “real and substantial connection between the employment and the accident” (s 10(3A)), her claim for weekly compensation and medical expenses failed. Ms Green appealed. The issues in dispute on appeal were whether the Arbitrator erred in:

• concluding that the worker was still on a periodic journey within the meaning of s 10 when she fell, and
• not accepting that the journey ended upon crossing the boundary of the land on which the employer’s premises were located.

Held: The appeal was successful and the Arbitrator’s determination was revoked.

Discussion and findings

14. Section 10(1) provides that a personal injury received by a worker on a journey to which the section applies is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment and compensation is payable accordingly. The section applies to certain specific journeys, such as a daily or other periodic journey “between the worker’s place of abode and place of employment” (s 10(3)(a)) [17].

15. Whilst there was a definition of “place of employment” in the 1926 Act, the definition was omitted from the 1987 Act. That may be because a worker’s place of employment is often not restricted to a fixed geographical location. A worker’s place of employment can be anywhere the employer requires the worker to perform his or her duties, or, engage in activities that are incidental to those duties (NSW Police Force v Cox [2009] NSWWCCPD 20). In the absence of a definition, the meaning of “place of employment” in s 10 was determined by reference to the ordinary principles of statutory construction. The question of the meaning to be given to words and expressions within an Act with no special or technical meaning is a question of fact (Hope v Bathurst City Council [1980] HCA 16; Comcare Australia (Defence) v O’Dea [1997] FCA 1409) [22]–[23]).

16. In Chawla v Transgrid, Burke ACCJ, unreported, Compensation Court of NSW, 11 June 2002 (Chawla), the worker drove to work and parked in his employer’s car park. He had walked a short distance towards his office when he suddenly felt acute pain behind his left knee and in his calf muscle. The parties agreed that the worker was on the employer’s property when he entered the gates to the car park. However, the worker argued that the car park was not his place of employment because that was not where he worked.  Referring to a submission by the worker’s counsel that the concept of “place of employment” has become more fluid, Burke ACCJ said that such “fluid” places of employment seemed to create more problems than they solve and “tend to make one think that there must be a simpler more definitive approach”. His Honour added that “[h]ere, the place of employment is reached or left upon crossing the boundary of the land upon which the workplace is situated”. At the time of injury, the applicant, having reached, and passed, a terminus, was no longer ‘on’ a journey and was not ‘between’ his place of abode and place of employment” [26]–[27].

17. Applying the Chawla test, the question of ownership, control or management of the land where Ms Green fell was irrelevant. It was sufficient that she crossed the boundary of the land upon which the workplace is situated. This solution, as Burke ACCJ observed, provided a more definitive approach, at least in situations where the worker has a specific, identifiable place of employment. It led to greater certainty and was consistent with the language used, read in context [44].

18. It followed that, having determined that Ms Green received her injury after having crossed the boundary of the land upon which her workplace is situated; the Arbitrator was bound to apply Chawla. That leads to only one conclusion, namely, that Ms Green was no longer on a journey at the time she fell and received her injury [46].

19. While there may well be factual distinctions between Chawla and the present case, there were no factual distinctions that justified departure from the general principle identified in that case, which the Commission applied in later decisions (Hogno v Fairfax Regional Printers Pty Ltd [2009] NSWWCCPD 33 and Gray v Sydney Southwest Area Health Service (Rozelle Hospital) [2010] NSWWCCPD 125) [47].

20. Ms Green bore the onus of proof. However, to discharge that onus she had to prove that she received her injury after she had completed her journey. She did that by proving that she fell inside the boundary of the land upon which her workplace is situated. If Ms Green were asked where she works, a reasonable answer would be “the Bankstown Civic Centre”. She therefore arrived at that place (her place of employment) when she crossed the boundary of the land for that property [48].

New South Wales Police Force v Winter [2014] NSWWCCPD 70

Interlocutory determination; s 350(3) of the 1998 Act; discretion to reconsider order of the Commission; fresh evidence; consideration of public interest in finality of litigation; delay in bringing reconsideration application

O’Grady DP

24 October 2014

Facts:

This matter concerned an appeal against an interlocutory determination made by Senior Arbitrator Snell on 14 April 2014. The application before the Senior Arbitrator was one seeking reconsideration of an award made by Arbitrator Margaret Dalley (the original Arbitrator) on 18 May 2010. The proceedings heard by the original Arbitrator were commenced by Mr Gregory Winter against his former employer, New South Wales Police Force (the appellant). Mr Winter had alleged that he received a psychological injury arising out of or in the course of his employment as a police officer.

The ultimate findings in those proceedings were that Mr Winter had failed to prove the existence of a “psychological injury” (s 11A(3) of the 1987 Act) or that he had received injury (s 4 of the 1987 Act). The award made by the original Arbitrator was in favour of the appellant.

It is relevant to note that Mr Winter brought an appeal against the decision of the original Arbitrator. That appeal was heard by Roche DP (Winter v NSW Police Force [2010] NSWWCCPD 121). On that appeal orders were made, on 16 November 2010, which provided for the revocation of the original Arbitrator’s determination. A further order was made that the matter be remitted to a different Arbitrator for redetermination.

That decision of Roche DP was the subject of an appeal by the appellant to the Court of Appeal. That appeal was upheld and orders were made on 28 October 2011 which provided for the restoration of the original Arbitrator’s determination (NSW Police Force v Winter [2011] NSWCA 330). An application made by Mr Winter seeking special leave to appeal to the High Court was dismissed on 10 May 2012 (Winter v NSW Police Force [2012] HCASL 78).

On 22 March 2013, Mr Winter made application to the Registrar seeking reconsideration of the original Arbitrator’s determination. That application was brought pursuant to s 350(3) of the 1998 Act. That application came before Senior Arbitrator Snell on 13 March 2014. The procedure adopted by Senior Arbitrator Snell, with the consent of the parties, provided for the determination of two preliminary issues raised in argument: firstly, a jurisdictional argument and, secondly, the question as to whether, having regard to the material relied upon by Mr Winter and all relevant circumstances, the discretion granted to the Commission by the provisions of s 350(3) was enlivened.

Those preliminary matters were determined by Senior Arbitrator Snell and a Certificate of Determination accompanied by a Statement of Reasons was issued on 14 April 2014. The argument raised on behalf of the appellant, which suggested an absence of jurisdiction to entertain Mr Winter’s application, was rejected by the Senior Arbitrator who determined that the Commission’s discretion pursuant to s 350(3) of the 1998 Act was enlivened.

In finding that the discretion had been enlivened, it was clear that the Senior Arbitrator, having rejected the jurisdictional argument, had determined a preliminary, or threshold question concerning s 350(3), being whether a sufficient basis to reopen the decision of the original Arbitrator had been demonstrated. In so determining, the Senior Arbitrator, in-part, exercised the discretion granted by the sub-section. The Senior Arbitrator also made findings in Mr Winter’s favour concerning the issues of delay, public interest (finality of litigation) and the relevance of any credit issue in the original proceedings.

On appeal, it was submitted that the manner in which the Senior Arbitrator expressed his view as to the character of the further evidence and its persuasive force may be perceived as going “beyond the question that [the Senior Arbitrator] was asked to consider”. Mr Stanton, counsel for the appellant, fairly and properly conceded that the Senior Arbitrator’s observations “should be seen only in the context of the exercise of the discretion” and no point was taken suggesting relevant error.

It was important to note, before addressing the merits of the appeal, that the question of the acceptance of the further evidence, that is its probative value and whether it should be believed, are questions which remain outstanding. Those questions, as was made clear by the terms of the Senior Arbitrator’s Order, will be determined separately when the merits of the application are fully canvassed in argument. Such procedure would lead to a decision as to the manner of the exercise of the discretion granted by the sub-section.

Held: Leave to appeal was granted. The Senior Arbitrator’s determination and orders were confirmed.

The grounds of appeal

1. There were three grounds of appeal relied upon by the appellant. The first of those grounds was expressed as follows:

“Ground (a):

The Commission erred at law in determining the power to reconsider a matter under s 350 of [the 1998 Act] in failing to determine that the power to exercise reconsideration under s 350 of [the 1998 Act] should be exercised in exceptional circumstances or highly unusual circumstances involving manifest injustice.”

2. The Senior Arbitrator considered the authorities raised concerning this submission and reached the conclusion that statements made by Walker J in Southern Tablelands Health Service v Solomon (1999) 19 NSWCCR 235 (Solomon) concerning the nature of the discretion and circumstances of its exercise were “unduly restrictive”. The Senior Arbitrator found that the matters stated by his Honour in Solomon, as well as matters stated by Fleming DP in Comensoli v NSW Department of Juvenile Justice [2006] NSWWCCPD 138 (Comensoli) were inconsistent with the statements of principle to be found in the decision of Roche ADP (as the Deputy President then was) in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel), a decision previously followed by the Senior Arbitrator. The appellant’s argument that the Commission should approach the application for reconsideration in the light of those matters stated in Solomon was rejected. The Senior Arbitrator noted his preference for the views expressed at [58] in that matter by Roche ADP [30], [48].

3. The appellant accepted that the principles outlined in Samuel “were proper considerations when exercising the discretion under s 350...”. It was, however, argued that the Senior Arbitrator erred in “failing to adopt the principle identified in [Solomon and Comensoli]”. The appellant effectively reiterated the argument advanced before the Senior Arbitrator. It was put that the reconsideration power “ought to be considered as the exception rather than the rule”. It was suggested that “to consider [s 350(3)] in any other way would be to render s 350(1) [finality of decisions] otiose” [49].

4. The appellant’s submissions were rejected. The principles enunciated in Samuel, properly considered, demonstrate that the exercise of the wide discretion is tempered by the need to take into account those matters noted at sub paragraphs (c), (d), (g), (h) and (i) of [48] of that decision. Those matters represent the substance of any constraint that must be exercised when the provision is invoked [50].

5. The argument raised concerning s 350(1) was rejected. That subsection, in its terms, is expressed so as to be read subject to provisions of the Acts. It provides:

“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.” [51]

Ground (a) was not made out [52].

Ground (b)

7. The second ground of appeal was expressed as follows:

“Ground (b): The Commission erred in finding that the further evidence was new evidence that would have been likely to lead to a different result.” [53]

8. The appellant’s submissions in support of the ground made it clear that the error suggested was founded upon an assertion that, in treating the further evidence as having the result of “enlivening the discretion”, the Senior Arbitrator had erred in the exercise of discretion, given that the evidence was not “fresh” evidence, but rather “more” evidence. The argument suggested that the Senior Arbitrator had taken into account irrelevant matters [54].

9. The appellant, correctly in the Deputy President's view, submitted that in the circumstances, any fresh evidence may only be taken into account if it is directed to the question which is the subject of the reconsideration application, namely the receipt by Mr Winter of relevant injury [55].

10. With respect to Dr Smith’s evidence, the appellant suggested the Senior Arbitrator had erroneously taken that material into account, given that Dr Smith’s evidence as to psychological injury was not different to the evidence on that subject before the original Arbitrator. The argument proceeded that Dr Smith’s evidence is “more” evidence not, as is required for the proper exercise of the discretion, “fresh” evidence [58].

11. The evidence which was before the original Arbitrator to which the appellant refers is that of Mr Zuessman and Dr Canaris [59].

12. The only point of differentiation between the opinions of the medical experts whose evidence was before the original Arbitrator and that of Dr Smith was his conclusion in his later report, that Mr Winter’s condition had become “chronic”. As stated by Dr Smith himself, the diagnosis he made corresponded to that made by Dr Canaris and Mr Zuessman. In such circumstances the question was raised by the appellant as to whether Dr Smith’s evidence constituted “fresh evidence of such character that it should have been taken into account by the Senior Arbitrator when determining whether the s 350(3) discretion was found to have been enlivened” [66].

13. Dr Abeya assessed the applicant and reported to the respondent, subsequent to the arbitral decision. He effectively arrived at the same diagnosis as Dr Smith. Both of these psychiatrists were of the view that the diagnosed psychiatric disorder resulted from Mr Winter’s experiences in the employ of the respondent. The respondent’s action, in medically discharging the applicant within about four weeks of the date of Dr Abeya’s report, was consistent with an acceptance of the substance of that report. The appellant’s argument that the evidence of Dr Smith and Dr Abeya was more evidence, not fresh evidence, given the similarity of the various diagnoses, had considerable appeal. However it was clear that the disorder suffered by Mr Winter, in the opinion of those experts, had, since the original Arbitrator’s decision, become chronic and that such circumstance was relevant to his inability to perform police duties. Dr Smith, in his 2014 report, stated that Mr Winter’s condition is a formal psychiatric disorder defined in the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition) of the American Psychiatric Association. The Deputy President rejected the submission that the evidence of those experts was not fresh evidence [70].

14. The appellant’s argument that events subsequent to the original Arbitrator’s decision should not be taken into account was rejected. The nature of the condition or disorder suffered by Mr Winter had, in the experts’ views, remained consistent, albeit it had become chronic. It is that condition which, on Mr Winter’s case, constituted relevant injury. The Deputy President was not persuaded that the appellant established error on the Senior Arbitrator’s part in taking into account the evidence of Dr Smith and Dr Abeya when determining the question of “enlivenment of discretion” under s 350(3). Ground (b) failed [71].

Ground (c)

15. The third ground was expressed as follows:

“Ground (c): The Commission’s exercise of discretion miscarried as the Arbitrator:

(i) Failed to give appropriate weight to the ‘lack of frankness of the applicant’ contrary to the decision of Arbitrator Dalley (confirmed on appeal to the Court of Appeal by decision dated 28 October 2011);

(ii) Failed to give any or any proper consideration to the delay by the applicant in bringing the application for reconsideration;

(iii) Failed to give any or any proper consideration to the public interest that litigation should not proceed indefinitely;

(iv) Failed to give any or any proper consideration to the applicant’s decision to exercise a right of appeal (unsuccessfully) rather than seek a reconsideration;

(v) Failed to give any or any proper consideration to justice between the parties according to the substantial merits of the case.” (emphasis in original) [72]

16. It was submitted that the Senior Arbitrator “erred in failing to provide due weight to the credit finding made by [the original Arbitrator]”. The appellant records in submissions the Senior Arbitrator’s acknowledgement that “it would be more difficult to conclude that the fresh evidence would probably have affected the result, if the result was based upon a finding rejecting [Mr Winter’s] credit”. The complaint concerns the Senior Arbitrator’s determination that no such credit finding had been made by the original Arbitrator. The appellant argued, in effect, that the Senior Arbitrator has failed to take into account a relevant consideration [73].

17. The Senior Arbitrator addressed the credit issue in his Reasons. Whilst it is clear that the original Arbitrator expressed the view that Mr Winter had been “less than frank” in his statement concerning timing of diagnosis of post traumatic stress disorder by his general practitioner, the Senior Arbitrator noted that the original Arbitrator did not say that she relied on Mr Winter’s “credit (or lack of it) in reaching her decision” [74].

18. The original Arbitrator correctly made observations as to the state of the evidence concerning Mr Winter’s presentation to Dr Canaris, his aversion to returning to work and entries in Mr Zuessman’s notes concerning the possibility of a large monetary payment (if he left the police force). It also appears that the original Arbitrator accepted that Mr Winter was “distressed and emotionally upset at his present situation”. Notwithstanding that finding the original Arbitrator was not satisfied that Mr Winter had suffered a psychological injury. That conclusion was reached without reference to any persuasion founded upon credit. In the circumstances the Deputy President was not persuaded that the Senior Arbitrator had failed to take into account a relevant matter, namely absence of credibility, when exercising the discretion under s 350(3) [75].

19. The appellant made complaint that the Senior Arbitrator failed to take into account the delay in bringing the reconsideration application. It is put that this complaint is of particular relevance in the case of the evidence of Dr Smith, consultant psychiatrist [76].

20. Dr Smith had treated Mr Winter since 9 June 2010, that is after the decision of the original Arbitrator, and the first report of Dr Smith was dated 7 October 2010. The reconsideration application was made in March 2013. As put in supplementary submissions, an application to admit Dr Smith’s evidence as late evidence before Roche DP was withdrawn in the appeal proceedings conducted in 2010. That withdrawal, it was argued, was relevant to the question of delay. The appellant made reference to the decision of Napoli v Arthur H. Stephens (N.S.W) Pty Ltd [1970] WCR 109 (Napoli). It was made clear in Napoli that failure to bring prompt application in respect of reconsideration founded upon fresh or additional evidence and an election to proceed with appeal might lead to the exercise of the very wide discretion granted by s 36(2) of the 1926 Act against the party seeking reconsideration [77].

21. Had Mr Winter placed reliance solely upon the evidence of Dr Smith, those arguments raised by the appellant would have been persuasive and delay would have weighed heavily against exercising the discretion in his favour. However that was not the only material relied upon by Mr Winter. Dr Abeya, consultant psychiatrist, assessed Mr Winter in November 2012 and Mr Winter ceased employment with the appellant in December 2012. The Deputy President agreed with the Senior Arbitrator’s conclusion that commencement of this application in March 2013 did not constitute “delay of any significance”.  The Deputy President reached that conclusion notwithstanding the availability of Dr Smith’s evidence in 2010. The Deputy President was not persuaded that the Senior Arbitrator had erred in failing to take such delay into account when exercising the discretion [78].

22. The appellant complained that the Senior Arbitrator failed to take into account the “public interest that litigation should not proceed indefinitely”. The Senior Arbitrator concluded that the interests of justice favour exercise of the discretion to reconsider the decision of the original Arbitrator dated 12 May 2010 [79].

23. That conclusion was reached following a consideration of all relevant matters and argument advanced. The Senior Arbitrator was correct to take into account the demands of justice when considering the question of public interest. As was stated by the Court in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 314:

Ultimately, the question is whether, notwithstanding the public interest in finality of litigation, the interests of justice would justify reopening the appeal. [80]

24. The final complaints were, firstly, suggested failure by the Senior Arbitrator to properly consider Mr Winter’s decision “to exercise a right of appeal (unsuccessfully) rather than seek a reconsideration” and, secondly, suggested “failure to give any or any proper consideration to justice between the parties according to the substantial merits of the case”. These complaints appear to revive earlier argument. No submissions were provided in support of these contentions. Having regard to that which was said in Napoli, an election to proceed with appeals to the superior courts is a matter that might militate against reconsideration of the original award. The Senior Arbitrator had taken into account both the procedural history and the substantial merits of the case. No error was made out. Ground (c) failed [81]–[82].

Sanchez v Diverse Community Care[2014] NSWWCCPD 69

Weekly compensation; application of s 40 and s 43A of the 1987 Act, as they stood prior to the enactment of the Workers Compensation Legislation Amendment Act 2012; challenge to a finding of no injury to the neck; assessment of suitable employment; weight of evidence; challenge of finding of partial incapacity

Keating P

23 October 2014

Facts:

The worker was employed by the respondent part-time to provide care to elderly and disabled clients. In December 2011, whilst mopping and cleaning at a client’s home the worker felt some neck and right shoulder pain. That pain did not resolve. The worker claimed that due to the physical demands of the carer duties she was unable to return to that type of work.

This appeal concerned a Senior Arbitrator’s findings in respect of injury and an award for weekly compensation for partial incapacity pursuant to s 40 of the 1987 Act, as it stood prior to the amendments introduced by the 2012 Amendment Act.

It was not disputed that the worker was an “existing recipient” of weekly compensation immediately before 1 October 2012 and as no work capacity assessment had been conducted the worker remained entitled to compensation under Div 2 of Pt 3 of the 1987 Act “as if the weekly payments amendments had not been made” (cl 6 of Pt 19H of Sch 6 to the 1987 Act). The respondent initially accepted liability for weekly benefits. However it later denied liability for alleged injury to upper back, right shoulder and neck as it disputed that employment with the respondent was a substantial contributing factor to the injuries alleged.

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

• did not sustain an injury to her neck as alleged, and
• had a capacity to earn $300 per week at all relevant times.

It was accepted that the worker injured her right shoulder (although that was initially in dispute).

Held: The Senior Arbitrator’s determination was confirmed.  

Neck Injury  

1. An appeal under s 352 of the 1998 Act is characterised by the identification and correction of error, it is not a review on the merits. Error is not established merely because of a complaint that the Senior Arbitrator reached a conclusion on the evidence that is antithetical to that advanced by the appellant. The appellant did not identify any factual, legal or discretionary error and that was sufficient to dispose of the appeal. However, if in substance the appellant’s complaint was that the Senior Arbitrator erred by failing to give sufficient weight to the evidence of the neck the President dealt with that issue [95]­–[96].

2. The Senior Arbitrator’s task was to decide the worker’s claim based on the evidence as a whole. That is what the Senior Arbitrator did. She weighed the worker’s evidence with the objective evidence. It could not be said that the Senior Arbitrator’s conclusions were so against the weight of evidence that some error must have been involved. (Shellharbour City Council v Rigby [2006] NSWCA 308 applied) [97]–[98].

3. Notwithstanding the worker’s history of symptomatology in the neck, neither of her two treating specialists supported her allegation of a separate injury to the neck, although they accepted that she had suffered an injury to her right shoulder. The Senior Arbitrator was entitled to give added weight to the opinions of the two treating specialists over that of her consultant occupational physician, who only saw her on one occasion in September 2013 [99].

4. The worker’s subjective view of her own injuries was not determinative of the issue the Senior Arbitrator was required to resolve. It is not necessary for an Arbitrator to state explicitly something that is clearly implicit from a fair reading of the decision overall (Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347) [102].

5. The worker bore the onus of adducing persuasive evidence addressing the question of the alleged injury to her neck. Although there was some evidence in that regard it was not sufficient when weighed with the evidence as a whole to persuade the Senior Arbitrator that the worker had sustained a separate injury to her neck in addition to the accepted injury to the right shoulder. Those findings were reasonably open to the Senior Arbitrator on the evidence presented and did not disclose error [104].

Ability to earn

6. The Senior Arbitrator analysed and weighed all the relevant evidence before reaching her conclusion about the worker’s residual earning capacity. In assessing the average weekly amount the worker would be able to earn in some suitable employment (s 40(2)(b)) the Senior Arbitrator was required to take into consideration the factors relevant to that assessment in accordance with s 43A of the 1987 Act as it was at the relevant time. The Senior Arbitrator did that; she made reference to the worker’s age, background, work experience and language skills. The Senior Arbitrator correctly noted that the worker was reluctant to pursue rehabilitation, and that as at July 2012 the worker had been certified fit for suitable duties and that such duties were available to her through her employer [108].

7. The worker lives in the metropolitan area, not in a regional or remote area where such work may not be readily available. In the absence of evidence of any particular difficulty, the Senior Arbitrator found that the worker could work in light retail or light cleaning or in home care services that involved light work only. That conclusion was consistent with the preponderance of the medical evidence save for that of the consultant occupational physician, which for the reasons explained by the Senior Arbitrator was not to be preferred. That was a conclusion that was open on the evidence [109]–[110].

8. Notwithstanding the worker’s physical limitations, on the evidence presented the Senior Arbitrator did not err in finding the worker capable of earning $300 per week [111].

Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67

Psychological injury; s 11A of the 1987 Act; reasonable action with respect to discipline; whether suspending worker and reporting alleged assault to the police reasonable; principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162 discussed and applied; failure to comply with Practice Direction No 6; attempt to conduct appeal as rehearing; need to establish error

Roche DP

14 October 2014

Facts:

The appellant worker started work for the respondent employer, Bupa Care Services Pty Ltd, as an assistant in nursing at its aged care facility at Dural, on 28 May 2004.

On 28 June 2013, the general manager, Justine Reefman, received a complaint from the daughter of a resident that, about 12 months earlier, a member of staff struck her mother, who suffers dementia, on the bottom. Ms Reefman sought advice from the “reportable team” and was told the process of reporting to police and the department needed to commence and that the staff member was to be suspended pending an investigation. The nurse who allegedly witnessed the incident identified Ms Undag as the staff member.

At about 5.42 pm on 28 June 2013, Ms Reefman summoned Ms Undag to her office and, in the presence of another member of staff, informed her of the allegations. Ms Undag denied any wrongdoing. Ms Reefman suspended her, on full pay, pending an investigation, asked her to leave the premises and told her that the matter would be reported to the police who may contact her.

Also on 28 June 2013, Ms Reefman contacted the Castle Hill Police Station and was told that, due to the time since the alleged incident, they would not be taking any action. Ms Undag’s version of the meeting was that she was made to leave the premises immediately and that they “did not explain anything”. She alleged she was told that she could go to the police station herself or they would be “knocking” on her door. Ms Undag said she went home but did not sleep because she thought the police would call.

On 29 June 2013, Ms Undag saw her general practitioner, Dr Amabel Harding. Also on 29 June 2013, Ms Undag went to the Blacktown Police Station where she was informed that no report had been submitted by the respondent regarding the alleged complaint and that, if it were reported, it would not be investigated because it occurred over 12 months ago. On 2 July 2013, Ms Reefman wrote to Ms Undag to confirm her suspension on full pay pending a full investigation into the allegation. The letter set out details of the complaint and added that the respondent “may report this alleged incident to the Office of Aged Care Quality and Compliance and the police, who may conduct their own investigations”.

On 5 July 2013, Ms Undag saw a psychologist, Fe Limjap, who diagnosed her to have an acute stress disorder. On 9 July 2013, Dr Harding issued a WorkCover certificate of capacity certifying Ms Undag unfit for work due to anxiety/depression. Also on 9 July 2013, Ms Undag attended a meeting with Ms Reefman and her manager, Wendy McLaughlin, and was informed that no further action would be taken, including any police action, and she could return to work. On the same day, Ms Reefman wrote to Ms Undag confirming the meeting of 9 July 2013 and Ms Undag’s denial that she had ever hit, slapped or tapped a resident. Ms Undag has not returned to work since she was suspended on 28 June 2013.

In an Application filed on 23 September 2013, Ms Undag claimed weekly compensation from 28 June 2013 to date and continuing together with hospital and medical expenses.

The respondent disputed liability on several grounds. At the arbitration, the only ground pressed was that Ms Undag’s injury had been wholly or predominantly caused by reasonable action with respect to discipline under s 11A of the 1987 Act.

The Arbitrator upheld the respondent’s s 11A defence. In summary, he concluded that Ms Undag suffered a psychological injury, adjustment disorder with anxiety and depressed mood, caused by her suspension on 28 June 2013, the institution of disciplinary proceedings and the reporting by the respondent to the police. The Arbitrator concluded that “both the process followed by the respondent and the result which it reached was reasonable”. An award was made for the respondent. Ms Undag appealed. The issues in dispute were whether the Arbitrator erred in:

• finding the respondent’s conduct was reasonable within the meaning of s 11A;
• failing to properly consider the significance of:
  • the respondent’s conduct in raising that the matter was one that would involve the police, and
  • “what he himself found to be unreasonable conduct (i.e. the Respondent’s failure to inform [the] Appellant that the police would not be taking any action), in the context of the disciplinary action as a whole, and [failing to] find that such conduct rendered the disciplinary action unreasonable”.
• failing to take into account Ms Undag’s circumstances at the time of the disciplinary action, when determining whether or not the respondent’s actions were reasonable, and
• finding that the unreasonable action of the respondent was not sufficient to cause the disciplinary conduct to be unreasonable.

Held: Appeal dismissed.

Discussion and findings

1. For Ms Undag to succeed with the appeal under s 352, it was necessary to establish that the Arbitrator’s decision was affected by an error of fact, law or discretion (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833) [55]–[56].

2. Mr Santone did not point to any error of fact, law or discretion in the approach to, or the conclusion on, the reasonableness issue, which requires an evaluative judgment of the whole process. The Arbitrator’s approach, in assessing the matter “overall”, was consistent with Department of Education and Training v Sinclair [2005] NSWCA 465 which observed that a course of conduct may still be “reasonable action”, even if particular steps in it are not [70].

3. The submission that, as the respondent bore the onus of proof and the Arbitrator said that the issue (of reasonableness) was “evenly poised”, the Arbitrator was “bound” to find that the respondent had failed to discharge the onus, was incorrect. The reference to the matter being evenly poised was no more than the Arbitrator acknowledging that the matter was finely balanced. That did not relieve the Arbitrator from his duty to determine the issue. He did that by determining that, though the respondent’s actions were not completely without blemish, on balance, their actions were reasonable. That finding was open on the evidence and disclosed no error [71].

4. The submission that the respondent acted unreasonably in initially reporting the matter to the police was not a point that was argued at the arbitration. The closest counsel came to raising that issue was to say that the respondent did not need to raise the prospect of the police and criminality on 28 June 2013. As it is a matter that could have been met with further evidence from the respondent, it is not a point that can be raised for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28) [72].

5. In reporting the matter to the police, Ms Reefman did not act capriciously or out of malice. She had a complaint from the resident’s daughter, corroborated by a member of staff. She sought advice. In the circumstances, the submission that it was unreasonable to report the matter to the police was untenable and was rejected [75].

6. While the respondent had a duty to be fair to Ms Undag when investigating allegations, it also had a duty to the resident concerned, and other residents, the employee who allegedly witnessed the incident, and to other potential witnesses. The Arbitrator was satisfied the respondent struck a fair balance between the competing duties and its actions were reasonable. That approach disclosed no error [76].

7. The submission that, in his assessment of the reasonableness issue, the Arbitrator should have taken into account Ms Undag’s circumstances on 28 June 2013 and, her “vulnerability”, was without substance. This was not a submission that was made at the arbitration and it is not open to argue on appeal that an Arbitrator erred in not dealing with an argument never put (Brambles Industries Ltd v Bell [2010] NSWCA 162) [77].

8. The submission that the respondent “unnecessarily and for no legitimate industrial reason, escalated an internal matter, to a level which threatened to involve the apparatus of the State” demonstrated a fundamental misunderstanding of the issues involved. It was rejected. The respondent had to balance several competing obligations. Given the seriousness of the matter, and the respondent’s position as an aged care provider, reporting the matter to the police was clearly reasonable [81].

9. Whilst it would have been preferable if the letter of 2 July 2013 stated that the police had been contacted and that they had indicated that, in view of the delay in reporting the matter, they would not be investigating it. That the letter did not do that, but in fact suggested that the police may wish to investigate the matter, was unfortunate. However, considering all the circumstances, the Arbitrator made an evaluative judgment that the respondent’s actions with respect to discipline, including the reporting to the police, and telling Ms Undag on 9 July 2013 that the police would not take action, were reasonable. That finding was open and disclosed no error [82].

10. The submission that reasonable disciplinary action cannot include unfounded suggestions of police involvement (prior to conferring with the police) was not a submission made at the arbitration and was without substance. The evidence accepted by the Arbitrator was that, on 28 June 2013, Ms Reefman said no more than that the police “may” contact Ms Undag. That finding was open on the evidence and, in the circumstances, Ms Reefman’s statement to Ms Undag was reasonable. There was no obligation on Ms Reefman to contact the police, to ascertain their view on the matter, prior to speaking to Ms Undag. Her failure to do so did not mean the Arbitrator erred in finding that the respondent’s actions were reasonable [83].

Bohdanyuk v X-Build Constructions Pty Ltd [2014] NSWWCCPD 63

Challenge to refusal to allow amendments to add additional injury and claim for lump sum compensation; injury; challenge to finding that worker had not discharged the onus of proof; weight of evidence; assessment of evidence

Roche DP

7 October 2014

Facts:

The appellant worker started work as a bricklayer with the respondent in February or March 2012. It was not disputed that while performing his duties on 17 May 2012, he suffered a laceration to his left thigh when he fell from scaffolding. What happened after his return to work about a week later, which related to his alleged back injury, was the subject of sharply conflicting evidence.

The worker’s version was that workers passed 10 kilogram blocks from one to the other and as the worker was trying not to put weight on his left leg, he put most of his weight on his right leg. After he passed the blocks, he felt pain in his back and had trouble bending over. When he finished work, he tried to sit in his car but could not bend his back properly. When he got home, he had trouble getting out of his car. He said he had pain when he bent to take his shoes off and was unable to sleep. The next day, he attended work and told them that he was “sick”. He added that “they saw how I was unable to walk”. He said that his back did not get any better and that he could not move or drive without pain.

David Wright said that the worker was a bricklayer and it was not part of his duties to move bricks. The blocks were moved into position in pallets by a backhoe and the labourer had broken out the pallets and stacked the blocks on the ground beside the retaining wall. It was too wet to work on a couple of days and he told the workers not to work on those days.

Mr Wright said that, on a date not identified, the worker came to work smelling of alcohol in the morning, left the site at lunchtime and returned smelling of alcohol. The worker had also stopped wearing his vest and hardhat (personal protection equipment (PPE)). By the end of the week, having given the worker numerous warnings about wearing his PPE, which he disregarded, as well as the alcohol issue, Mr Wright terminated the worker’s employment. At that time, according to Mr Wright, the worker was moving normally without any physical difficulty.

On 27 September 2013, the worker’s former solicitors (Taylor and Scott) filed an Application to Resolve a Dispute (the first Application) in the Commission. It alleged that he injured his low back and left thigh and claimed weekly compensation from 17 May 2012 (later amended to 29 May 2012) to date and continuing. In a reply filed on 21 October 2013, the respondent disputed that the worker had injured his back and disputed that he had any incapacity for work.

On 25 October 2013, the insurer issued an amended s 74 notice in which it disputed that the worker had injured his back or left shoulder and disputed that he had any incapacity or any entitlement to compensation under s 66 of the 1987 Act. On 29 October 2013, Taylor and Scott wrote to the respondent’s solicitors, Hicksons Lawyers, stating that liability had been denied for the s 66 claim and, in the circumstances, it was assumed there was no objection to the claim being amended to include the reference to the insurer’s denial of liability was a reference to the insurer’s denial of liability for such a claim in the s 74 notice of 4 October 2013. However, no such claim had been made.

On 14 March 2014, Taylor and Scott wrote to Hicksons advising that they would be seeking leave to amend the pleadings to include “left shoulder in Part 4 of the ARD”.

On 16 June 2014, Taylor and Scott prepared an amended Application to Resolve a Dispute (the amended Application) which they attached to an Application to Admit Late Documents of the same date. The document was filed with the Commission on 18 June 2014 and the Senior Arbitrator received it the day before the arbitration.

The amended Application sought to add an injury to the left shoulder, alleged to have been received when the worker “developed pain in the left shoulder due to the nature and conditions of employment as a brick layer”. It also, for the first time, particularised a claim for lump sum compensation of 12 per cent, alleged to be for the “lumbar spine and left shoulder” and added a claim for hospital and medical expenses. The documents attached to the amended Application were the same as those attached to the first Application.

At the arbitration, counsel for the respondent, Mr Halligan, objected to the worker relying on the amended Application. In response, counsel for the worker, Mr Lucas, submitted:

“Your Honour [sic], I’m nominally asked to press it, I understand my friend’s difficulty.”

The Senior Arbitrator rejected the application to rely on the amended Application and the matter proceeded on the first Application, though that document was amended to seek an order for the payment of hospital and medical expenses for the back and left leg laceration.

The Senior Arbitrator found that the worker had not suffered any injury to his back and had no incapacity as a result of the accepted injury to his left thigh.

In an appeal filed by new solicitors, Shine Lawyers, the worker sought to challenge the refusal to allow him to rely on the amended Application and the finding that he suffered no injury to his back. The issues in dispute were whether the Senior Arbitrator erred in:

• failing to provide adequate reasons for her rejection of the amended Application (the late documents/amendment), and
• failing to provide a clear finding on the issue of causation or adequate reasons that the worker “did not suffer from a frank injury or an injury subject to the nature and conditions of [his] employment” (the back injury).

Held: The Senior Arbitrator’s determination was confirmed.

The late documents/amendment

1. First, the basis on which the Senior Arbitrator’s ruling caused the worker to be disadvantaged in his options for pursuing relief for his injuries, and therefore suffer an injustice, was not explained. Given the concession by Mr Pardy, the respondent’s solicitor, that the worker was free to pursue his claim for the alleged injury to the left shoulder, there was no disadvantage or injustice to him. He could bring a separate claim for the left shoulder and, in light of Mr Pardy’s formal concession on appeal, the respondent would not be entitled to rely on Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 [39].

2. Second, the claim for hospital and medical expenses was not properly particularised in the amended Application and it was difficult to see what disadvantage the worker suffered by the ruling refusing the amendment to claim them. In respect of the alleged injury to the back, and the agreed injury to the left thigh, the Senior Arbitrator allowed the first Application to be amended to make a general claim for s 60 expenses. As the claim for the back failed, the entitlement to s 60 expenses for that injury also failed. It was not known if there are any medical expenses for the left shoulder. None were particularised [40].

3. Third, the claim for lump sum compensation under s 66 was said to be for the injury to the lumbar spine and left shoulder. As the worker failed to establish that he injured his lumbar spine, and as the appeal against that finding was unsuccessful, any claim for lump sum compensation for that part of his body failed. It followed that the refusal to amend to claim lump sum compensation was of no consequence [41].

4. Fourth, the Senior Arbitrator’s ruling, at least with respect to the alleged injury to the left shoulder, was an interlocutory order that did not finally determine the parties’ rights (Licul v Corney [1976] HCA 6). Granting leave to appeal that order, and allowing the appeal, gave the worker nothing more than the opportunity to have that part of the claim determined by another Arbitrator. In light of Mr Pardy’s concession on appeal, that could be achieved by making a new claim, supported by appropriate evidence, which was lacking in the present claim (the worker gave no evidence that he injured his left shoulder working for the respondent) [43].

5. Fifth, the reliance of Mr Kranz, the worker’s solicitor, on Pt 10 r 10.3(3) was misplaced as the provision relates to an injustice from the refusal to admit late documents into evidence. While this ground of appeal was framed as a challenge to the rejection of the Application to Admit Late Documents, the substance of the challenge was the refusal to allow the worker to rely on the amendments in the amended Application. Thus, Pt 10 r 10.3 had no application [47].

6. Last, while the Senior Arbitrator did not give extensive reasons for her ruling, an Arbitrator’s obligation to give reasons depends on the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725) and, in particular, must be considered in the light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162). In the present matter, the only submission Mr Lucas made in support of the amendments was that he was “nominally asked to press it” and that he “understood” Mr Halligan’s “difficulty”. In light of the indifferent way Mr Lucas pressed the application, the Senior Arbitrator’s reasons were adequate [49]–[50].

The back injury

7. In a detailed and well-reasoned decision, the Senior Arbitrator reviewed the relevant evidence from both sides. Her ultimate finding was that the worker failed to make out his case. That conclusion was open to her [53]–[54].

8. The complaint that the Senior Arbitrator placed insufficient weight on the evidence from Dr Collins was unsustainable. The Senior Arbitrator referred extensively to Dr Collins’ evidence. The acceptance of that opinion depended on an acceptance of the worker’s version of what happened. The respondent addressed the worker’s case, including his medical case from Dr Collins, by calling evidence that the underlying assumptions in Dr Collins’ report were incorrect and that the evidence carried no weight. Contrary to Mr Kranz’s submission, the Senior Arbitrator did not disregard Dr Collins’ evidence. She did not accept it because she did not accept the worker’s evidence. As such, the Senior Arbitrator was not required to deal further with Dr Collins’ evidence [55]–[56].

9. The contention that the respondent had not “discharged its duty to disprove [the worker’s] matter” reversed the onus of proof. It was not for the respondent to disprove the worker’s allegations but for the worker to prove his case, which he failed to do [57].

10. The submission that the Senior Arbitrator ought to have considered the worker’s incapacities in more detail when making her determination made no sense. This ground of appeal challenged the Senior Arbitrator’s finding that the worker did not injure his back. The incapacity that resulted from that injury was a different issue that only arose if the worker could establish that he injured his back, there being no argument that he has an incapacity from the laceration to his left thigh [60].

11. While it was correct that the Senior Arbitrator referred to Mr Wright’s evidence that the worker had not been wearing his PPE and smelt of alcohol, nowhere did she say or imply that that evidence was determinative of the injury issue or that she used it to discredit the worker. Mr Kranz’s submission, made with no reference to the Senior Arbitrator’s reasons, was without substance [63].

12. Last, the submission that the Senior Arbitrator’s findings were not supported by evidence involved a fundamental misunderstanding of the Senior Arbitrator’s reasons. The Senior Arbitrator was not satisfied that the worker had made out his case that he injured his back, either as a result of the “frank injury to his left thigh on 17 May 2012” or “as a result of the nature and conditions of his employment”. This conclusion followed logically from the Arbitrator’s analysis [65].

13. In summary, the Senior Arbitrator concluded that the worker had not discharged the onus of proof. That conclusion was open and disclosed no error. It followed from “the contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; [2003] HCA 22; 214 CLR 118) [66].

Sydney’s Tune Pty Ltd v Scala [2014] NSWWCCPD 64

Procedural fairness; parties’ entitlement to address all issues; challenge to factual findings; s 145(4) of the 1987 Act; application by uninsured employer concerning liability to reimburse payments of compensation made by Nominal Insurer; onus of proof

O’Grady DP

9 October 2014

Facts:

This appeal came before the Commission following a complex procedural history. Ms Scala alleged that she received injury arising out of or in the course of her employment with Sydney’s Tune Pty Ltd (the appellant) on 19 September 2012. She was in Melbourne and carried dresses from the sidewalk upstairs to the showroom. The gowns were wrapped in plastic and on wire coat hangers. She carried about 3 to 6 at a time. There were 15 cartons containing 20 to 30 gowns in each box.

The appellant did not hold a policy of insurance issued by a licensed insurer, as is required by the provisions of s 155 of the 1987 Act. As such, Ms Scala made a claim against the Nominal Insurer, as permitted by the provisions of s 140 of the 1987 Act. Ms Scala received notice, by letter dated 1 November 2012, of provisional acceptance of liability by the Nominal Insurer with respect to the claim. Payments of workers compensation benefits were subsequently made in respect of weekly compensation and medical expenses. A notice, which was issued in accordance with the provisions of s 145(1) of the 1987 Act, was served by WorkCover upon the appellant on 26 February 2013 seeking reimbursement to the Workers Compensation Insurance Fund (the Fund), of payments made by the Nominal Insurer to Ms Scala, within 28 days of that date of service.

The appellant disputed the claim made against it and filed with the Commission an Application seeking particular orders concerning the claim with respect to reimbursement. That Application was amended by the filing of an Amended Miscellaneous Application on 2 December 2013. That Application named as respondents WorkCover, as representative of the Nominal Insurer, Ms Scala and GIO General Ltd (GIO). Leave was granted pursuant to Pt 11 r 11.1 of the 2011 rules, to join GIO as a party to the proceedings. The joinder of GIO came about by reason of the appellant’s intention to seek orders pursuant to s 156A of the 1987 Act, concerning liability arising from Ms Scala’s claim. GIO did not take part in the proceedings conducted by the Arbitrator, and particular orders were made by the Arbitrator concerning the relief sought by the appellant against that party.

The Application came before the Commission for Arbitration and the Arbitrator delivered his determination of the dispute extempore. A Certificate of Determination was issued, in which the following matters are recorded:

“The determination of the Commission in this matter is as follows:

1. I determine that the amount of $15,057.07 is the amount of the Applicant’s liability to the Nominal Insurer in respect of the Notice dated 26 February 2013;

2. I defer making an order under s. 145(7) of the 1987 Act pending the determination of the proceedings in relation to s. 156A of the 1987 Act;

3. The parties have liberty to apply to re-consider order two;

4. I disqualify myself from hearing the balance of the proceedings which relate to s. 156A of the 1987 Act for the reasons given in the ex tempore decision;

5. The Applicant is to pay the First and Second Respondent’s costs as agreed or assessed. I make no order as to costs as between the Applicant and the third Respondent. I declare that the matter is complex for the purposes of costs and order an uplift of 15% in favour of the Nominal Insurer. Reasons for the order were given in the ex tempore decision.”

The employer appealed. Having regard to oral submissions made by counsel at the hearing, it was apparent that the issues in dispute on appeal were that:

• whether the Arbitrator erred in finding that Ms Scala had received injury, being disc lesion at L4/5, arising out of or in the course of her employment with the appellant, and
• whether the Arbitrator had erred in law by failing to afford the appellant procedural fairness.

Held: The Arbitrator’s decision was confirmed.

Disposition of the appeal

1. The argument as advanced by the appellant on this appeal was directed to the establishment of grounds permitting “review” of the Arbitrator’s decision. That such approach was incorrect was acknowledged by counsel at the hearing of the appeal. A large proportion of the “grounds” of appeal suggested a failure by the Arbitrator to afford “proper weight” to various aspects of evidence and particular findings which were not ultimate findings. The difficulties presented by these prolix submissions were raised with the appellant’s counsel at the hearing. Counsel acknowledged that the appellant’s fundamental complaint was an assertion of error of fact as to the occurrence of injury as found by the Arbitrator [73].

2. The difficulty to which the Deputy President referred arose when the following submission by the appellant was considered:

In the Appellant’s submission the Commission on review faces no disadvantage in determining the substantive merits of the appellant’s application and the matter does not need to be remitted. (emphasis added) [83]

3. The appellant appeared to treat a ground founded upon natural justice as a “fall back” position if the challenge to the factual finding were rejected. Should that circumstance have arisen, the appellant seemed to assert that, upon acceptance of its argument as to defect of natural justice, the Commission should have proceeded to re-determine the “the substantive merits” of its case on appeal [84].

4. Notwithstanding the appellant’s approach, the Deputy President addressed the argument raised concerning alleged denial of procedural fairness before the allegation of factual error. If the appellant’s argument prevailed there would have been a need to revoke the Arbitrator’s determination following which the question as to further conduct of the appeal, that is redetermination on appeal or remitter, could be decided. That question necessarily required consideration of the force of the appellant’s argument concerning factual error. Such an approach would, properly, have avoided the appellant being treated “as bearing the burden of displacing an adverse decision which, for lack of natural justice, ought never to have been reached” (G A Flick, Natural Justice Principles and Practical Application (Butterworths, 2^nd ed, 1984) at 42) [85].

Procedural Fairness

5. The appellant asserted that it was denied procedural fairness given that the Arbitrator’s decision concerning the occurrence of injury was founded upon “a line of reasons which was not based on the respective cases submitted”, and that “the critical documents setting out [Ms Scala’s] duties, which was [sic] pivotal to the Arbitrator’s Reasons was [sic] never part of the WorkCover case” [86].

6. It is clear that the Arbitrator was obliged to conduct the proceedings in a manner whereby procedural fairness was afforded to the parties (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 per McColl JA) [87].

7. The Arbitrator was required to determine matters in dispute according to the substantial merits of the case: s 352(3) of the 1987 Act. That the state of the medical evidence, particularly that of Dr McGee-Collett, neurosurgeon, and of Professor Ryan, qualified by WorkCover, was, to an extent, unsatisfactory was plainly stated by the Arbitrator. His concerns were demonstrated during exchanges in the course of submissions and by his exhortation that further evidence be adduced [92].

8. The Deputy President rejected the appellant’s argument that the Arbitrator’s approach to the evidence, in particular the drawing of inferences as to Professor Ryan’s knowledge of relevant history, constituted a recasting of argument as presented by WorkCover and Ms Scala. The case was that injury was caused by physical activity on the day in question. Not all of Ms Scala’s allegations concerning prevailing circumstances were accepted by the Arbitrator. What was found proven was that, as alleged, significant symptoms which were to be distinguished from earlier episodes of pain, followed the activity described. On subsequent examination, and following MRI investigation, a disc rupture was identified. Both the history of onset of that pain and disability and the opinions of the medical witnesses permitted the Arbitrator’s conclusion as to the occurrence of injury. The appellant’s criticism of the Arbitrator’s reasoning was rejected. Denial of procedural fairness was not made out [93].

The Arbitrator’s determination of the issue of injury

9. The appellant asserted factual error of the Arbitrator in determining that Ms Scala received injury arising out of or in the course of her employment. The Arbitrator made reference during the hearing to the question of onus of proof. The Arbitrator referred to the Commission’s decision in WorkCover Authority of New South Wales v Bowie Couriers Pty Limited [2006] NSWWCCPD 241(Bowie) and stated, initially, that his preliminary view was that the onus of proof was on the WorkCover Authority [94]–[96].

10. Whilst the question of onus of proof was, later in the Arbitrator’s reasons, determined in favour of the appellant, and that matter was not the subject of careful attention at the hearing of the appeal, the matter was touched upon during argument. Following consideration of matters raised at that time together with relevant authority, including Bowie, the legal burden of proof was upon the appellant and the Arbitrator’s conclusion was incorrect. The observations made by Moore ADP in Bowie were directed to proof of matters arising under s 9A and, further, the Arbitrator in Bowie had spoken of a “shifting evidentiary onus”. Those matters were not addressed by the Arbitrator in the present matter [99].

11. The Commission here dealt with an uninsured employer seeking orders pursuant to s 145(3) and (4) concerning its liability to reimburse WorkCover. A matter which it had to establish was that Ms Scala did not receive injury as alleged. The evidence relied upon included the employer’s denial that injury was reported, the lay evidence of a colleague with Ms Scala in Melbourne, antecedent history of back disability and the suggested inconsistent histories as to injury. There was a need for the appellant to bring evidence to found its application. There may then be a shift of the “tactical burden”, but only if the evidence raised disputing liability was of a character to permit, if not refute, an inference that the employer is not liable. There is no shifting of the burden of proof [102].

Suggested factual error

12. It was a matter for the Arbitrator to determine the weight to be ascribed to the expert and lay evidence. In addition to that evaluation, it was open to the Arbitrator to draw inferences as to matters of which Professor Ryan was aware given proof of his receipt of certain correspondence. The Arbitrator’s factual conclusion as to injury was available to him on that expert evidence which had been considered together with the balance of the evidence presented by the parties. It remained to be considered as to whether any relevant error of law was made out concerning the Arbitrator’s approach to the evidence which has relevantly affected his decision [108].

Suggested errors of law

13. The Arbitrator concluded that the “heavy lifting” history was incorrect. It was also apparent that Professor Ryan’s notation that sciatic pain commenced on the day of injury was incorrect. Notwithstanding those shortcomings, the Arbitrator afforded Professor Ryan’s opinion some weight, and such was a matter for him to determine. The finding of injury was not made solely upon the evidence of Professor Ryan. The Arbitrator addressed the appellant’s arguments concerning Professor Ryan’s evidence. No error concerning the Arbitrator’s approach to the determination of the weight of that evidence, nor concerning the Arbitrator’s acceptance, in part, of Professor Ryan’s opinion was made out. The appellant’s suggestion that the decision in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; (2010) 8 DDCR 399 had been utilised by the Arbitrator as authority which permitted him to “[trawl] through the evidence to find material supportive of [his] theory of the case” was rejected [123].

14. In so far as the appellant’s submissions may be construed as asserting the total absence of evidence as to the disc lesion having been caused by work injury, such suggestion was rejected. Whilst the manner in which evidence was presented in this matter fell well short of ideal standards relevant to conduct of contested proceedings, it could not be said that the Arbitrator reached a conclusion as to injury in the absence of evidence. Ms Scala was accepted as to the onset of significant disability during performance of duties, which were plainly arduous. The disability was accepted as being plainly distinguishable from pain and discomfort previously experienced by her. The evidence established the existence of a significant disc rupture. The appellant’s suggestion of there being no report of injury was rejected and no reliance was placed upon a foreshadowed defence founded upon failure to report [124].

University of New South Wales v Brooks [2014] NSWWCCPD 68

Failure to give reasons; failure to determine issues in dispute; failure to consider evidence; alleged failure to draw Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference; alleged reversal of onus of proof

Roche DP

20 October 2014

Facts:

The respondent worker, Christine Brooks, works for the appellant employer (the University) as an event manager for the School of Taxation and Business Law. On 27 February 2012, while at her desk at work, ceiling tiles fell on her. Mrs Brooks jumped out of the way and felt pain in her left hip. Mrs Brooks saw her general practitioner, Dr Graham Collins, on 1 March 2012 who issued a WorkCover medical certificate that day recording a history that “ceiling tiles fell down sending a desk fan towards [Mrs Brooks]. [Mrs Brooks] jumped away causing hip pain”. Dr Collins referred Mrs Brooks for physiotherapy and to Dr John Best, a sports physician who had previously treated her for left hip pain that started in mid-2011.

Mrs Brooks gave evidence that the 2011 left hip pain had resolved by November 2011 and that she was untroubled by either pain or restriction in her left hip until the incident on 27 February 2012. The University’s case was, among other things, that this evidence was incorrect because Mrs Brooks had seen Dr Best for her left hip on 27 January 2012 and her physiotherapist, Mr Messiter, for her left hip on 10 and 16 February 2012.

On 29 April 2012, Mrs Brooks underwent an MRI scan of her left hip which revealed a thin anterosuperior chondrolabral junction tear. (An MRI scan of the left hip in 2011 was reported as not showing such change or any osteoarthritis.) Dr Best reported on 1 May 2012 that Mrs Brooks still had an irritable hip with impingement and the MRI scan showed some subchondral oedema which was consistent with a contusion type injury from her work injury. As a corticosteroid injection in March 2012 did not offer relief, Dr Best recommended a surgical opinion and referred her to Dr Peter Walker, orthopaedic surgeon.

Relying on a report from Dr Anthony Smith, orthopaedic surgeon, dated 28 May 2012, the University disputed the claim in a s 74 notice, dated 6 June 2012. The University declined liability for medical expenses on the ground that the “medical treatment is not reasonably necessary” (as required by s 60 of the 1987 Act). (This notice did not dispute that Mrs Brooks had injured her left hip on 27 February 2012.)

In an Application registered in the Commission, Mrs Brooks claimed hospital and medical expenses of $7,436.30, plus travel expenses, relating to the injury to her left hip on 27 February 2012. In its Reply, the University disputed the claim. Mrs Brooks’s claim was supported by evidence from Dr Best to the effect that she injured her hip at work on 27 February 2012 when she suddenly moved to avoid being hit by part of the ceiling that had come away. The Arbitrator found:

• that Mrs Brooks sustained injury to her left hip on 27 February 2012 during the course of her employment with the University and that employment was a substantial contributing factor to that injury;
• the medical and related expenses, as detailed in the Application, were reasonably necessary, and
• Mrs Brooks was entitled to an order under s 60 of the 1987 Act.

The University appealed. The issues in dispute were whether the Arbitrator erred in:

• failing to give adequate reasons (reasons);
• failing to address all of the issues identified and relied on in the parties’ submissions (reasons);
• consideration of the evidence (consideration of the evidence);
• failing to draw adverse inferences in the absence of reports from the physiotherapist (Mr Messiter) and the general practitioner (Dr Collins) (absence of reports from Mr Messiter and Dr Collins), and
• reversing the onus of proof (onus of proof).

Held: Appeal allowed. The matter was remitted to a different Arbitrator for re-determination.

Reasons

1. The extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725). In the present case, the Arbitrator failed to give adequate reasons on the issues she considered, failed to determine several issues in dispute and therefore failed to determine the matter according to law [27].

2. Given the way the parties conducted the case, and noting that, subject to the Commission’s rules and the rules of procedural fairness, cases are determined on the evidence and the arguments presented, not on the pleadings (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11), the Arbitrator was required to deal with the issues the parties presented. She did not do so and that was an error [37].

3. The Arbitrator’s reasons did not deal with any of the University’s submissions on injury, substantial contributing factor or causation. While reasons do not have to be “lengthy or elaborate” (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444), an Arbitrator is required to engage with the issues canvassed by the parties and explain why one expert is accepted over the other (Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293). The Arbitrator did not do that [42].

4. The Arbitrator did not address the injury issue at all. Given the way the parties conducted the case, it was necessary for her to determine if Mrs Brooks suffered an injury and, if so, whether that injury was a personal injury or an injury in the nature of an aggravation of a disease, and if employment was a substantial contributing factor to the injury found. It was then necessary for her to determine if the medical expenses claimed by Mrs Brooks were reasonably necessary as a result of the injury found. The Arbitrator made no findings on any of these issues [45].

5. While it will not always be necessary, or possible, for an Arbitrator to make a finding on the exact pathology caused by the alleged work incident (Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104), and that causation can be established though the precise diagnosis is not known (Grace v Elmasri [2009] VSCA 111), in the present case, where the nature of the injury was sharply in focus, and the parties and their experts addressed it at length, the Arbitrator had to properly consider it and give reasons for her findings. She did not do that. It followed that grounds (a) and (b) of appeal succeeded and the case must be re-determined [46]–[47].

Consideration of the evidence

6. The University’s complaint that the Arbitrator ignored the clinical records from Mr Messiter was correct and consistent with the complaint that the Arbitrator failed to engage with the evidence or the parties’ submissions. The relevance of the submission about these notes was that the references to Mrs Brooks having physiotherapy for her left hip in February 2012, a few days prior to the accident on 27 February 2012, was (arguably) inconsistent with Mrs Brooks’s evidence that her left hip pain had resolved in about November 2011. That was an issue the Arbitrator had to address but did not [51]–[52].

7. It was not sufficient for the Arbitrator to dismiss the evidence from Mr Messiter by merely saying that his account (his memo of fees) did not note the reason for the attendance on 10 and 16 February 2012 when the clinical notes, to which the Arbitrator did not refer, did explain the reason for the attendances. Mr Messiter’s notes were an important part of the University’s case, which the Arbitrator simply ignored. The Arbitrator therefore erred in failing to deal with the notes. In view of the Deputy President’s findings on grounds (a) and (b), it was not necessary to deal further with the Arbitrator’s handling of Dr Smith’s evidence [54].

Absence of reports from Mr Messiter and Dr Collins

8. The principles that arise when a party takes a Jones v Dunkel point were succinctly summarised by Macfarlan JA (Ward and Gleeson JJA agreeing) at [53] in MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416) at [53]:

• “[a] Jones v Dunkel inference may be drawn against a party where the party would be expected to, but does not, call a witness who could give evidence on a relevant matter and that failure is unexplained (Payne v Parker [1976] 1 NSWLR 191 at 201)” (Payne) (two other preliminary points identified in Payne, as being necessary before a Jones v Dunkel point arises, were that the witness’s evidence would elucidate a particular matter and that his or her absence is unexplained);
• “[t]he inference to be drawn in these circumstances is not that the witnesses’ evidence would have been adverse to the party, but simply that it would not have assisted the party’s case (Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361 at [64]; ASIC v Hellicar [2012] HCA 17; 247 CLR 345 at [168] and [232])” (Hellicar);
• “[t]he inference permits the Court to make a finding unfavourable to the party with greater confidence (Hellicar at [232])”;
• “for a Jones v Dunkel inference to be drawn, there must be evidence that the party against whom it is to be drawn is required to explain or contradict (Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 at [51])”, and
• “to base a judgment against a party simply upon his or her failure to call evidence would involve the erroneous drawing of an inference that the party’s evidence would have been positively adverse to his or her interests” [60].

9. Where Jones v Dunkel applies, other evidence may, not must, be accepted and inferences drawn more readily (Galea v Bagtrans Pty Ltd [2010] NSWCA 350). The drawing of an inference is not mandatory and, “generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal” (Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53) [62].

10. Applying the above principles, the first question was whether Mr Messiter was a witness Mrs Brooks would be expected to call. Mr Messiter’s notes were in evidence and recorded no history of the work incident, though he saw Mrs Brooks on 16 March 2012, just over two weeks after the event. Thus, his evidence was relevant to an issue in dispute, namely, the condition of Mrs Brooks’s left hip shortly before the work incident and whether she mentioned the work incident to him. As the absence of such a report was unexplained, the Arbitrator erred in not considering if she should have drawn a Jones v Dunkel inference [63]–[64].

11. There was no expectation that Mrs Brooks would obtain a report from Dr Collins to say what he had already said in his medical certificates which were in evidence and supportive of Mrs Brooks’s claim. There is no need for a party to call all available evidence (Hellicar per Heydon J at [234]). Nor is there a requirement to call cumulative evidence (LexisNexis Butterworths, Cross on Evidence, 9^th ed, 2013, at [1215]). It followed that no Jones v Dunkel inference was available in respect of the absence of a report from Dr Collins and it is not open to the University to argue this at the second arbitration [67]–[69].

Onus of proof

12. The University’s submission at the arbitration was that Mrs Brooks had not discharged the onus of proof on injury. It is tolerably clear that, though the s 74 notice did not properly raise injury as an issue, Mrs Brooks was being put to proof on that issue and there was no objection to that course by her counsel at the Arbitration. In these circumstances, Mrs Brooks could prove an aggravation injury, by relying on Dr Smith’s evidence, though obviously she did not accept his opinion that the effect of the injury had ceased [74].

13. If the injury were found to be an aggravation injury under s 4(b)(ii), to which employment was a substantial contributing factor, and that, prima facie, the effect of the injury was continuing, the evidentiary burden would shift to the party asserting that the effect of the injury had ceased. He who asserts must prove (The Commonwealth v Muratore [1978] HCA 47). If this was what the Arbitrator was referring to, she erred in saying that she had not been referred to any evidence to support the submission that any aggravation had ceased. She had been referred to the evidence from Dr Smith. Contrary to the University’s submission, she did not reverse the onus of proof [75].

14. However, counsel for Mrs Brooks did not rely on Dr Smith’s evidence to establish injury. He relied on the evidence from Dr Best. The logical inference from this evidence was that the injury was a personal injury under s 4(a), namely, a tear to the labrum caused when Mrs Brooks jumped out of the way of falling ceiling tiles at work on 27 February 2012. While the Arbitrator said that she found Dr Best’s evidence compelling, she did not say if she drew the inference that Mrs Brooks’s counsel invited. Thus, the matter must be re-determined [76].

Reid v ANZ Banking Group Ltd [2014] NSWWCCPD 65

Incapacity; entitlement to weekly compensation; weight of evidence; onus of proof

Keating P

9 October 2014

Facts:

The worker was employed by ANZ Banking Group Ltd, the respondent, as a team senior. She was a permanent part-time employee, initially working four days per week and then three days per week. Her duties required her to process superannuation contributions and assist the assistant managers with enquiries with business units and within the teams.

The worker alleged that as a result of harassment by her superiors from January 2012 to April 2012 she suffered a personal injury in the form of an adjustment disorder with depressed mood, together with an aggravation to her pre-existing irritable bowel syndrome. The worker’s claim for weekly compensation, from 27 April 2012 to date and continuing, and medical expenses was declined by the respondent’s insurer.

The matter came before a Commission Arbitrator who found that the worker was  incapacitated for work from 27 April 2012 until 31 July 2012 and ordered that she be paid weekly compensation for that period.

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

• concluding that there was no persuasive evidence as to the level of incapacity the worker suffered as a result of her psychological injury after 31 July 2012, and
• placing too much weight on the histories given to expert witnesses and insufficient weight on the worker’s evidence of her incapacity.

Held: The Arbitrator’s determination was confirmed.

Discussion and Findings

1. The appellant submitted that the Arbitrator should have accepted the worker’s uncontradicted evidence that she was not capable of seeking alternative employment, particularly as he accepted her as a witness of truth [47].

2. The Arbitrator’s task was to decide the worker’s claim based on the evidence as a whole, and he did that. The Arbitrator provided his reasons for his conclusion and weighed the worker’s evidence, including her statement that as a result of her work related injury she had “not been in the right frame of mind to seek alternative employment”, with the medical evidence [48].

3. The totality of the evidence did not persuade the Arbitrator that the worker was unfit to earn her pre-injury average weekly earnings of $558 per week after 31 July 2012. The Arbitrator was left with the impression that the worker may have had difficulty achieving this for a time but he was not persuaded on the probabilities by that evidence to be able to make factual determinations which would warrant a s 40 award for a further period [51].

4. The worker’s subjective view of her own fitness for work was not determinative of the issue the Arbitrator was required to resolve. Her evidence had to be weighed against the medical evidence which is what the Arbitrator did [52].

5. In the absence of any persuasive medical evidence in support of the worker’s allegation of incapacity beyond 31 July 2012, it was open to the Arbitrator to conclude that the worker had failed to discharge the onus of proof on the issue of incapacity beyond 31 July 2012. There was no requirement for him to accept the worker’s subjective evidence as to her incapacity beyond that date [53].

6. It could not be said that the Arbitrator’s conclusions were so against the weight of the evidence that some error must have been involved. That is because the worker failed to adduce any persuasive evidence as to her capacity or incapacity for employment beyond 31 July 2012 (Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 applied) [56]–[57].

7. The appellant’s submission that there was no inference available that she was able to return to work on 1 August 2012 was misguided. That was not the conclusion the Arbitrator reached. He determined that the worker had failed to discharge the onus of proving that she was incapacitated beyond 31 July 2012. That finding was open on the evidence and disclosed no error [58].

8. The submission that the Arbitrator had the opportunity to ask the worker questions at the Arbitration hearing or seek further submissions and/or evidence from her seemed to imply that he erred in not doing so. If that was the submission the President rejected it. While an Arbitrator has the power to ask questions and to inform himself or herself (see s 354(2) of the 1998 Act) he or she is not bound to do so. It is for the parties to prepare and present their respective cases (Goodwin v J & P Employment and Training Services (9) Pty Ltd t/as Drake Recruitment and Training [2008] NSWWCCPD 57) [60].

Sydney Community College Inc v Mudie [2014] NSWWCCPD 62

Challenge to factual finding of injury; alleged failure to consider general practitioner’s clinical notes; relevance of absence of contemporaneous evidence of complaint of injury; issues not argued at the arbitration; application of the principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111; failure to comply with Practice Direction No 6

Roche DP

2 October 2014

Facts:

The respondent worker, Natalie Mudie, worked for the appellant employer, Sydney Community College Inc (the College), as a part-time singing tutor. In the course of her employment on 5 May 2009, she tripped while stepping over a keyboard cord and fell, sustaining injury.

Ms Mudie alleged that she injured her arms, shoulders, legs, knees and back. With regard to her left shoulder, which was the only part of the body with which the appeal was concerned, Ms Mudie’s case was that she injured that shoulder because she landed on her knees and then on her “outstretched” hands. Her medical evidence was that the fall caused a capsular shrinkage in her left shoulder (which was a pre-existing condition) to be stretched.

Ms Mudie claimed lump sum compensation in respect of a 20 per cent whole person impairment as a result of her injuries together with compensation for pain and suffering, plus $7,501 for hospital and medical expenses.The College did not dispute that the fall occurred at work or that Ms Mudie injured her knees and her right shoulder. It disputed that she injured her back and left shoulder. Essentially, counsel for the College, Mr Hammond, argued that Ms Mudie had not suffered any injury to her left shoulder because her initial complaint (to her treating general practitioner, Dr Matthews) was only of the right shoulder and she only fell on that shoulder.

In an extempore decision delivered on 25 June 2014, the Senior Arbitrator found in Ms Mudie’s favour in respect of the injury to the left shoulder and in favour of the College in respect of the alleged injury to the lumbar spine (back). She remitted the matter to the Registrar for referral to an AMS for assessment of Ms Mudie’s whole person impairment as a result of the found injuries.

The College challenged the Senior Arbitrator’s findings with respect to the left shoulder. Though counsel appeared for the College at the arbitration, a solicitor prepared the appeal papers. The College’s essential complaint on appeal was that the Senior Arbitrator erred in finding that Ms Mudie injured her left shoulder in circumstances where there was no complaint of left shoulder symptoms recorded by Dr Matthews, no contemporaneous evidence in support of that finding and in relying on Dr Sonnabend’s notes.

Held: The Senior Arbitrator’s determination was confirmed.

Dr Matthews’ evidence

1. It was not disputed that, initially, Dr Matthews took no history of injury to the left shoulder. However, the submission that the Senior Arbitrator failed to consider adequately Dr Matthews’ evidence was unsustainable [25].

2. The Senior Arbitrator expressly acknowledged that Dr Matthews (only) recorded a history of a fall on Ms Mudie’s outstretched right arm resulting in injuries to her right shoulder and both knees. However, after stating that she was persuaded by Dr Sonnabend’s opinion, and noting the history recorded by WorkFocus Australia, which recorded that Ms Mudie “fell to the floor, landing on her hands and knees”, which was consistent with the history taken by “every doctor”, except Dr Matthews, the Senior Arbitrator added:

“it is not explained how Dr Matthews came to that view, but it is well acknowledged that sometimes doctors don’t record everything and Dr Matthews’ opinion is probably consistent with [Ms Mudie’s] own evidence that she was more concerned about her right knee and her right shoulder initially, following the incident.” [26]

3. The Senior Arbitrator’s statement was appropriate and disclosed no error. Her reference to it being well acknowledged that, sometimes, doctors do not record everything was a reference to established authority that inconsistencies between a claimant’s evidence and medical histories should be approached with caution (Mason v Demasi [2009] NSWCA 227; Nominal Defendant v Clancy [2007] NSWCA 349; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; King v Collins [2007] NSWCA 122 and Kovacic v Henley Arch Pty Ltd [2009] VSCA 56). The Senior Arbitrator adopted that approach and properly determined whether the worker injured her left shoulder by reference to all of the evidence [27].

Lack of contemporaneous evidence

4. The submission that the Senior Arbitrator erred in finding in favour of Ms Mudie seemed to be based on the erroneous assumption that a worker cannot succeed without contemporaneous evidence of his or her complaint. That is not correct. In the civil law, the task of a judge (or, Arbitrator) is to decide, based on the whole of the evidence (denials and all), what he or she accepts (Chanaa v Zarour [2011] NSWCA 199). Considering the evidence on which the parties addressed, and the issues argued, the Senior Arbitrator accepted Ms Mudie’s evidence [34].

5. The absence of an explanation for Ms Mudie’s left shoulder symptoms in the claim form, or in Dr Matthews’ notes, was not fatal to the claim and did not establish error by the Senior Arbitrator. As the Commission has held in numerous decisions, parties are bound by the conduct of their case at the arbitration and it is only in the most exceptional circumstances that they will be permitted to raise a new argument on appeal which they failed to put during the hearing (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 (Metwally)) [35].

Dr Sonnabend’s evidence

6. The Senior Arbitrator correctly noted that the history of the work accident recorded by Dr Sonnabend, Professor of Orthopaedic Surgery at Sydney University, was consistent with the history recorded by Dr Machart, orthopeadic surgeon qualified for the insurer in 2014, and Professor Ehrlich, specialist qualified by the insurer in 2013. (Why, in apparent breach of the Workers Compensation Commission Regulation 2010, the College was permitted to rely on evidence from more than one qualified specialist was not explained and was not an issue on appeal.) It was also consistent, as the Senior Arbitrator noted, with the history recorded by Dr Bodel, orthopaedic surgeon qualified by Ms Mudie’s solicitors [44].

7. The Senior Arbitrator then said that, on all the evidence, she was not persuaded that Ms Mudie injured her back on 5 May 2009. One of her reasons for reaching that conclusion was that there was insufficient contemporaneous evidence from the treating doctors, which she regarded as particularly significant. However, acknowledging that there was very little contemporaneous material in relation to the left shoulder, the Senior Arbitrator reached a different conclusion with respect to that injury, as she was entitled to do [45].

8. The submission that Dr Sonnabend’s opinion could not be probative of the fact that the fall caused laxity in the left shoulder overlooked the evidence considered and accepted by the Senior Arbitrator [46].

9. The submission that Dr Sonnabend’s opinion could not be shown to have been based on a consideration of the evidence that Ms Mudie did not sustain the injury as alleged (that is, Dr Sonnabend was not informed that Ms Mudie did not immediately complain of left shoulder symptoms after the fall) involved two points. The first point was based on a false assumption that, because Ms Mudie did not initially complain of left shoulder symptoms to Dr Matthews, she did not injure that shoulder in the fall. The failure of Dr Matthews to record a complaint of left shoulder pain was a relevant matter, which the Senior Arbitrator carefully considered. However, weighing that matter against the other evidence, she did not consider it decisive. That disclosed no error [47].

10. The second point seemed to suggest that Dr Sonnabend’s evidence should not have been accepted because he did not have the benefit of Dr Matthews’ notes. Mr Hammond made no submission along those lines at the arbitration. He submitted that for the Senior Arbitrator to accept Dr Sonnabend’s opinion, she needed to accept Ms Mudie’s “description of the mechanism of injury, being that she fell on both hands rather than, rather than one hand”. As explained above, for reasons given, the Senior Arbitrator did accept Ms Mudie’s evidence as to the mechanism of injury and it was open to her to do so [48].

The motor vehicle accident

11. The submission that Ms Mudie’s left shoulder symptoms were causally related to a motor vehicle accident in 1998 which Ms Mudie was involved was unsustainable and was rejected. First, no such submission was made at the arbitration. It was therefore not a matter that could be raised for the first time on appeal (Metwally). Second, the argument was unsupported by any reference to the evidence [49]–[51].