Issue 4: April 2014

Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13

Journey claim; s 10(3A) of the 1987 Act; worker travelling home in darkness due to employment requirement to work late; collision with vehicle swerving to avoid cattle on road; whether worker established a real and substantial connection between the employment and the accident; drawing of inferences; whether open to infer that darkness played a role in the accident

Roche DP

18 March 2014

Facts:

The respondent worker worked as a casual employee at the Krambach Service Station, for the appellant employers. She usually worked a minimum of five hours per day, starting at 9.30 am and finishing at 2.30 pm, for three days per week, with additional days as required. She normally rode her motorbike from her home to and from work, a journey of about 15 kilometers. If she started and finished her work at her usual time, her journeys to and from work were in daylight.

On 5 July 2012, her employers required her to work back until 5.30 pm to close the service station. While riding home in darkness on a narrow country road the worker came across cattle on the road. An oncoming car swerved and collided with the worker and she suffered a severe compound fracture.

There was no dispute that, but for s 10(3A), the worker was on a journey to which s 10 applies. The insurer denied the claim on the ground that the connection between employment and the accident was not real and substantial (s 10(3A)).

The Arbitrator found that s 10(3A) was satisfied as working late placed the worker on the road in darkness. The condition of darkness made it difficult for the worker and the other driver to see the cattle. Therefore, the employment contributed to the accident in a manner that was real and of substance.

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

• not affording the appellants procedural fairness (procedural fairness);
• finding that the cause of the accident was the condition of darkness (cause of the accident);
• finding that s 10(3) applied because there was a real and substantial connection between the worker’s employment and the accident or incident out of which the injury arose (real and substantial connection);
• finding that the worker was in a position of greater peril at night than would have applied by reason of the worker finishing at 2.30 pm (real and substantial connection);
• finding that the accident arose by reason of the special requirement placed upon the worker by the appellants whereby she was placed in a position of increased peril (real and substantial connection), and
• finding that the worker’s case fell within a “special category” (special category).

Held: The Arbitrator’s determination was confirmed.  

Procedural fairness

1. The appellants complained that at no stage prior to the publication of the Arbitrator’s decision were they given the opportunity of making submissions in respect of either Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCC 371 and/or Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 and were therefore deprived of the opportunity to make submissions in respect of the applicability (or otherwise) of the reasoning in those decisions [18].

2. The appellants’ solicitors were, or should have been, aware of the Mitchell decisions and were entitled to apply to make such further representations, or tender such further evidence, as they felt appropriate, but they did not do so. They did not explain how the Arbitrator’s failure to seek further submissions affected the outcome [21].

3. Even if the failure to seek further submissions amounted to a denial of procedural fairness, it had not prejudiced the appellants’ rights or affected the outcome, as they had an opportunity on appeal to submit whether the Arbitrator failed to apply, or that he incorrectly applied, some principle in Mitchell that supported their position [22].

Cause of the accident

4. Section 10(3A) may, but does not necessarily, require a causal connection between the employment and the accident. It certainly does not require that the employment be the sole cause of the accident (Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina)) [29].

5. Though there was no direct evidence that the other driver failed to see the cattle because of darkness, as a matter of commonsense and general human experience, the compelling conclusion was that the darkness reduced the time that both the worker and the other driver had to react and avoid a collision. It followed that it was open to the Arbitrator to conclude that the time of the journey was a factor that contributed to the accident [32]. It was not necessary for the worker to establish that fact as a matter of scientific certainty (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506). It was an inference reasonably open on the evidence [33].

6. It was open to the Arbitrator to infer that darkness was an important factor in causing the other driver to swerve and, therefore, in causing the accident (Flounders v Millar [2007] NSWCA 238) [34].

7. Riding home in darkness was a situation that was connected with the worker’s employment because her employment required her to work later than normal and to ride home in darkness rather than in daylight. In that sense, considering the evidence as a whole, there was a real and substantial connection between the employment and the accident [36].

8. The use of the indefinite article “a”, in s 10(3A), makes it clear that employment does not have to be “the” connection between the accident or incident. It only has to be “a” connection, albeit one that is real and of substance (Bina; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503). That requirement was satisfied on the facts of the present case because the worker’s employment required her to work later than normal. That meant she finished work in darkness and had to journey home on a narrow country road in darkness [42].

Real and substantial connection

9. The worker’s journey did not involve an interruption or deviation and therefore Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314 (a decision relied upon by the Arbitrator) had no application. Whether a substantial interruption or deviation caused a material increase in the risk of injury is not the issue that arises in s 10(3A) and was not an issue in the worker’s case [58].

10. The appropriateness of the Arbitrator’s statement that, by reason of her employment, the worker was placed “in a position of greater peril at night time than would have applied by reason of her normal finishing time of 3.00 pm [sic, 2.30]”, and his reference to “increased peril”, was open to doubt [61].

11. The principle of “special risk” or “special exposure”, which seemed to be the way the Arbitrator considered the “greater peril” point, developed early last century when considering if a worker’s injury arose out of his or her employment [62]. It is not correct that the employment must have exposed the worker to a “special risk” before the worker can establish that the injury arose out of the employment (Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 (Favelle Mort)) [64]. In determining if an injury arose out of the employment, the question is whether the employment – its nature, conditions, incidents and obligations – exposed the worker to the risk of the injury that occurred, regardless of whether a member of the public may also have been exposed to that risk (Dennis v A J White & Co [1917] AC 479; Favelle Mort) [68].

12. It was not argued that the worker’s injury arose out of her employment. It followed that the Arbitrator’s reference to “greater peril” was not necessary [69]. However, the reference to “greater peril” did not affect the outcome. Applying the correct test to the Arbitrator’s factual findings led to the same result [70].

13. If it were a requirement that, before a worker could succeed under s 10(3A), the worker must be engaged in an employment activity, s 10(3A) would have no work to do and would be otiose [80].

14. As s 10(1) of the 1987 Act expressly states that a personal injury received by a worker on any journey to which the section applies is “an injury arising out of or in the course of employment”, there is now no need for any implied deeming. However, for journeys on or after 19 June 2012, s 10(1) only applies to journeys to or from the worker’s place of abode and his or her place of employment if the proviso in s 10(3A) is satisfied [88].

15. Merely travelling to and from work is not something that is incidental to the performance of the work and it is not something that is required or expected in order to carry out the work. It is not something that the employer normally has any control over [89].

Special category

16. It was submitted that the Arbitrator did not set out the basis for his finding that the worker fell within a “special category” [93]. The Arbitrator’s reference to that phrase was obiter and of no consequence. His essential reason for finding that the worker had satisfied s 10(3A) was his acceptance of the factual analysis by the worker’s counsel, which was open to him and disclosed no error [101].

South Western Sydney Local Health District v Hennings [2014] NSWWCCPD 11

Section 60(5) of the 1987 Act; mandatory requirement to remit matter for referral to an Approved Medical Specialist; legal and factual issues to be determined following assessment by Approved Medical Specialist

O’Grady DP

10 March 2014  

Facts:

The worker was employed by South Western Sydney Local Health District t/as Campbelltown Hospital (the appellant) as a hospital assistant in its catering department between 1988 and March 2003. Some years after commencement of that work, the worker began to experience pain and disability in various parts of her anatomy. She also developed a condition diagnosed as plantar fasciitis in both feet.

In 2002 the worker commenced proceedings in the former Compensation Court of NSW seeking an award for compensation against the appellant. The worker alleged injury to her neck, right arm, back, right leg, right foot, left leg and left foot. Those injuries had allegedly resulted from the physical demands of her work performed after 1995. The claim was for weekly compensation and lump sum compensation in respect of permanent impairment of her neck and back and in respect of permanent loss of efficient use of her legs, right arm and feet. In 2003 those proceedings were settled by agreement.

In 2012 the worker made a further claim for lump sums in respect of further permanent loss of efficient use of each leg below the knee, lump sum pursuant to s 67 and medical expenses including the cost of proposed treatment being spinal surgery. That claim was denied by the appellant’s insurer.

The Arbitrator remitted to the Registrar for referral to an AMS the question of whether the proposed surgery was reasonably necessary and assessment of the left and right leg below the knee.

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

• rejecting the appellant’s submissions that there had been no relevant “change” in relation to the condition of the worker’s back since the date of entry of the award in 2003 and, further, failing to find that the worker was estopped from bringing a claim in respect of the proposed treatment of the lumbar spine in these proceedings;
• remitting the questions raised with respect to the proposed treatment to the Registrar for referral to an AMS, and
• finding a causal connection between “the original injuries to the lower limbs and any subsequent lumbar spine condition”.

The question as to whether the Arbitrator had erred in his approach to the application of s 60(5) was raised during argument advanced at the hearing of the appeal.

There was no challenge on appeal to the order of remitter to the Registrar made by the Arbitrator concerning the disputed “further permanent impairment” claim in respect of each leg below the knee said to have been causally related to an alleged deterioration of the condition of plantar fasciitis.

Held: Leave granted to appeal an interlocutory decision. The Arbitrator’s decision was in part revoked. The question as to reasonable necessity of treatment was remitted to the Registrar for referral to an AMS for assessment. Following assessment by the AMS the matter is to be remitted to another Arbitrator for determination of outstanding matters.

Submissions, Discussion and Findings

1. The issue for determination before the Arbitrator was the question of the appellant’s liability, or otherwise, in respect of the medical and hospital expenses claimed with respect to the proposed treatment of the worker’s lumbar spine. That question depended, in turn, upon a determination as to whether the worker’s argument that the present state of her lumbar spine results from the accepted injury, being plantar fasciitis, was accepted [37].

2. Notwithstanding the confusion and doubt raised as to the nature of his conclusions, it appeared that the Arbitrator had reached the view that the altered gait was causative of the worker’s back disability and it was found that the award entered in 2003 was not “a shield against this latest application”. The Deputy President viewed that comment to suggest that the Arbitrator was there considering the concept of estoppel [41].

3. Since the hearing before the Arbitrator and the making of the orders challenged on the appeal, the President’s decision in Tolevski v Zanardo and Rodriguez Sales & Services Pty Ltd [2013] NSWWCCPD 9 (which the Arbitrator considered), which had been the subject of an appeal brought by the employer, was upheld by the Court of Appeal (see Zanardo and Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 (Tolevski)) [42].

4. The Court of Appeal decision in Tolevski was the subject of submissions at the hearing of the appeal. It was accepted by the worker’s counsel that any decision concerning questions of liability, that is, as stated by Handley AJA in Haroun v Rail Corporation NSW [2008] NSWCA 192; 7 DDCR 139 “factual and legal issues”, should be deferred until such time as an AMS has provided an assessment as required by s 60(5). Counsel for the employer argued that the decision could be distinguished and argument was advanced which appeared to support the general approach adopted by the Arbitrator concerning determination of factual and legal issues without there being an antecedent remitter for referral to an AMS. The challenge was not to the Arbitrator’s approach but rather to his conclusion reached concerning causation [47].

5. The decision in Tolevski establishes that all disputes which fall within the terms of        s 60(5) must be remitted to the Registrar for referral to an AMS for assessment under Pt 7 of Ch 7 of the 1998 Act. The proper procedure therefore requires that such remitter should occur before any determination of factual or legal issues is made [48].

6. It followed that the Arbitrator erred in purporting to determine the question of causation before remitter for assessment by an AMS. In the circumstances it was both unnecessary and inappropriate to determine on the appeal the merits or otherwise of the appellant’s submissions concerning causation and estoppel. That task is to be undertaken by a different Arbitrator following the required assessment by an AMS. All findings and orders, except the order of remitter to the Registrar of the dispute concerning the s 66 claim, were set aside [49].

NSW Police Force v Gurnhill [2014] NSWWCCPD 12

Psychological injury; post-traumatic stress disorder; claim for lump sum compensation; pleadings; exposure to multiple traumatic incidents; personal injury or disease; challenge to Arbitrator’s finding as to nature of injury; whether injury a personal injury or disease contracted in the course of employment or an aggravation of a disease; ss 4(a) and 4(b)(i) and (ii) of the 1987 Act; role of Treasury Managed Fund insurer; thresholds in s 352(3) the 1998 Act; interlocutory orders; issues not argued at arbitration; unsatisfactory presentation of appeal; need to identify grounds of appeal in the Application – Appeal Against Decision of Arbitrator; purpose of submissions in reply on appeal

Roche DP

11 March 2014

Facts:

The worker joined the NSW Police Force in 2002 and worked in general duties until 2007 when he joined the Tactical Response Unit. Over the course of his career as a police officer, he was exposed to numerous traumatic incidents involving suicides, homicides, having weapons pointed at him and colleagues, and dangerous “vehicle stops”.

In October 2009, the worker attended an incident in Orange when, after protracted negotiations, a man shot and killed himself. Following this incident, the worker started having nightmares and difficulty sleeping. Over time his condition deteriorated.

In or about September 2010, the worker attended a job to apprehend people wanted for murder. The worker’s car was rammed by the offender’s vehicle, causing the worker to be very anxious and have flashbacks of the October 2009 incident.

On 11 November 2010 the worker saw his general practitioner and was certified unfit from that date because of post-traumatic stress disorder (PTSD). The medical certificate issued that day described the injury as having occurred as follows “Suicide – Orange – 2009 – male shot himself with a firearm”, and gave the date of injury as “10/09”.

The employer’s insurer accepted liability for the claim and commenced weekly payments of compensation. In June 2012 the worker claimed lump sum compensation in respect of a whole person impairment of 25 per cent and pain and suffering. The insurer disputed liability for the claim based on the evidence from a consultant psychiatrist.

Counsel for the employer argued that the worker suffered two injuries: a “frank injury”, or a primary psychological injury, as a result of the October 2009 incident and a second injury due to the nature and conditions of his employment between 2002 and 11 November 2010. He said that the AMS should be asked to make two assessments of whole person impairment: one due to the injury in October 2009 and one due to the nature and conditions of employment. He conceded that both assessments could then be aggregated. Counsel for the worker argued that the worker’s injury was a disease injury under s 4(b)(i) of the 1987 Act and that the Arbitrator did not have to look for discrete events that were causative.

The Arbitrator determined that the worker suffered a diseased, namely PTSD, in the course of his employment and that the deemed date of injury was 11 October 2010 (sic, 11 November 2010) and remitted the matter to the Registrar for referral to an AMS.

The issues in dispute on appeal were whether the Arbitrator erred in not finding that the worker sustained:

• a psychological disease injury due to the nature and conditions of his employment (s 4(b)(i)) and an aggravation, acceleration, exacerbation or deterioration of his disease injury as a result of the incident in October 2008 (s 4(b)(ii)) and, belatedly,
• that the Arbitrator erred in not finding that the worker sustained either a separate frank injury as a result of the incident occurring in October 2009 or an aggravation of his disease in addition to the disease injury caused by the nature and conditions of his employment.

Held: Leave was granted to appeal an interlocutory decision. The Arbitrator’s determination was confirmed, subject to the amendment of the deemed date of injury to 11 November 2010.  

Monetary threshold

1. There is no appeal under s 352 of the 1998 Act unless the amount of compensation “at issue” on the appeal is both at least $5,000 and 20 per cent of the amount awarded in the decision appealed (s 352(3)) [16]. Where the Arbitrator has made no award for the payment of compensation, but the award challenged would, if it stood, result in the claimant receiving no compensation, the question of whether the monetary thresholds have been satisfied is usually determined by looking at the compensation claimed in the Application to Resolve a Dispute (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5) [17].

2. Though it was argued at the arbitration that the worker suffered two injuries it was conceded that in the event that the worker’s whole person impairment was determined for both injuries, he was “entitled to have those impairments aggregated”. In light of that concession, it was difficult to see what purpose would be served by having separate assessments done and, more importantly, how the monetary thresholds in s 352(3) were satisfied [22]. Despite his serious reservations, the Deputy President proceeded with the appeal as if the monetary thresholds were satisfied [23].

Discussion and findings

3. It was never argued that the worker suffered an aggravation injury in October 2009 and the Arbitrator did not err in not making that finding. It is not an error for an Arbitrator not to deal with an argument never put (Brambles Industries Ltd v Bell [2010] NSWCA 162 [59].

4. It may be accepted that a “personal injury” which also aggravates a pre-existing disease, is still capable of being classified as a “personal injury”. However, that did not advance the Police Force’s position on appeal. The Arbitrator did not suggest that PTSD could never be classified as a personal injury. He merely found it “inherently unlikely” that a police officer, exposed to a number of traumatic events over his career, suffers a primary psychological injury, even if he has had a significant reaction to one particular event. On the evidence tendered, that general observation disclosed no error [63]. The was no comparison between the facts in Rail Services Australia v Dimovski [2004] NSWCA 267 and the present matter.

5. Nothing in Inman v NSW Police Force [2013] NSWWCCPD 11 assisted the employer. The critical point was that before a finding can be made that a worker has suffered an aggravation injury under s 4(b)(ii), it is first necessary to establish (among other things) that he or she suffers from a disease (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch). There was no persuasive evidence that, as at October 2009, the worker was suffering from a disease [67].

6. The Arbitrator acknowledged that, in Semlitch, the High Court found “mental illness to be a disease”. Contrary to the NSW Police Force’s submissions in reply, the Arbitrator did not say that, because “mental illness is a disease”, the October 2009 incident did not, or could not, result in a “frank injury”. His reference to mental illness being a disease was merely a reference to the submission by the worker’s counsel to that effect and was open to him [70].

7. For it to be found that a worker with a psychological condition has received a personal injury, it is necessary that the events complained of had a physiological effect on the worker (Yates v South Kirkby Collieries Ltd [1910] 2 KB 538; Anderson Meat Packing Co Pty Ltd v Giacomantonio [1973] 47 WCR 3). More specifically, the High Court has described a personal injury under s 4(a) as a “sudden or identifiable physiological change” (Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310 (Zickar)) and as “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 (Petkoska)) [72].

8. Whether a worker has suffered a physiological effect that satisfies the test for a personal injury in s 4(a) will depend on the nature and severity of his or her symptoms. However, the terms “disease” and “personal injury” in s 4 are not mutually exclusive (Zickar) and the difference will not usually be of critical importance [73]. In a case where a worker is exposed to a series of traumatic events over time, as is the case with a shearer with back symptoms, or a police officer who is exposed to a series of emotionally distressing events, it will always be difficult to establish that the worker has suffered a sudden physiological effect due to one or more incidents. Each case will depend on the precise evidence “concerning the nature and incidents of the physiological change accepted at the trial” (Petkoska), or, in this case, the arbitration [75].

9. It is in these circumstances that, provided the condition otherwise satisfies the requirements of a disease, it is often appropriate to find that the injury is a disease of gradual process under s 4(b)(i). This simplifies the assignment of liability and avoids unnecessary litigation (Grate Lace Pty Ltd v Thiess Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365) [76].

10. The question before the Arbitrator was: what was the nature of the worker’s injury? The Arbitrator did not accept the submission that the worker suffered a personal injury as a result of the October 2009 incident. The proper question on appeal was whether he erred in not accepting that submission [77].

11. There was no evidence that the worker suffered a physiological effect as a result of the 2009 incident. Though the evidence suggested that he experienced nightmares (and other symptoms) at some time after that incident there was no evidence that he suffered a “sudden or identifiable physiological change” at the time of the incident in October 2009, or shortly after it. The evidence was that the worker’s symptoms developed over time and that they deteriorated in late 2010. That strongly pointed to his injury being a s 4(b)(i) injury, as the Arbitrator found, rather than a s 4(a) personal injury [82].

12. The Arbitrator concluded that neither the October 2009 incident, nor any other specific event, constituted a “frank psychological injury” (presumably the Arbitrator meant to say “personal injury” but nothing turned on this). The qualified medical evidence was unanimous that the worker’s PTSD had been caused by the “cumulative” effect of his work over the whole of his career as a police officer. In light of this evidence the Arbitrator’s conclusion that the October 2009 incident did not alone cause a primary psychological injury was open to him and disclosed no error [98].

13. As the expert evidence emphasised, the nature of PTSD is complex and its precise cause can be difficult to determine. Given the nature of the incidents to which the worker was exposed during his career in the Police Force, and his reaction to them, the compelling and logical conclusion was that, on the balance of probabilities, his psychological condition resulted from the cumulative exposure to traumatic events during his entire police career. It does not matter that some incidents may have been more traumatic than others [99].

14. A consideration of the expert evidence led the Arbitrator to conclude that the injury was properly characterised as a s 4(b)(i) disease [100]. Once it was accepted, as the Arbitrator did accept, that PTSD is a disease, and, more importantly, that the worker’s work as a police officer regularly exposed him to multiple traumatic events, and that those events had a cumulative effect on him, the conclusion that the worker suffered a s 4(b)(i) disease injury which he contracted in the course of his employment with the Police Force was inevitable and was correct [101].

15. The evidence comfortably established that the worker’s duties with the Police Force exposed him to repeated traumatic events that had a cumulative effect on him and caused his psychological condition, a condition which, in the circumstances of this case, was properly characterised as a disease under s 4(b)(i). Applying s 15(1)(a)(i), the correct deemed date of injury was the first date of incapacity, namely, 11 November 2010 [102].

Other matters

16. While the Arbitrator’s conclusions did not disclose any error and were confirmed, his finding that the deemed dated of injury was 11 October 2010 was inconsistent with the evidence and it was assumed a slip. Orders were made consistent with the evidence and the parties consented to that course [104].

17. In Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (Serna), the Court of Appeal rejected a similar argument to the argument presented by the employer in the present case. The statutory scheme is consistent with both an injury and an impairment having multiple causes and an injury being the result of a course of conduct (Serna at [29]) [109].

18. It was noted that it was difficult to see why the principle that an impairment can have multiple causes is not applicable to claims for lump sum compensation for a primary psychological injury to which s 65A applies. In other words, it is arguable that the reference to a primary psychological injury in s 65A is a reference to the psychological condition (the pathology) that has resulted from the work incidents concerned. If that is so then, even if, contrary to the Arbitrator’s finding, the worker suffered a personal injury as a result of the October 2009 incident and an aggravation injury because of his exposure to traumatic events over the whole of his career with the Police Force, his lump sum compensation could still be assessed as one lump sum because he had only suffered one injury (pathology), namely, PTSD (Madden v Kingston Industries Pty Ltd [2005] NSWCA 440) [111].

Veolia Environmental Services Pty Ltd v Gwynne [2014] NSWWCCPD 10

Disease provisions; meaning of “employment to the nature of which the disease was due”; aggravation of disease; ss 4(b)(i) and (ii); ss 15 and 16 of the 1987 Act

President Judge Keating

5 March 2014

Facts:

The worker (Mr Gwynne) was employed as a refractory bricklayer which is an occupation that involves constructing brick-lined pots used in the smelting process of aluminium. In late 2004, whilst employed by Andreco Hurll Pty Limited (Andreco Hurll) at the Tomago aluminium smelter, the worker came into contact with a substance known as "coal tar pitch” as a result of which he suffered dermatitis and contact folliculitis. Andreco Hurll is not a party to these proceedings.

After leaving Andreco Hurll in July/August 2005, the worker was employed by the appellant, Veolia Environmental Services Pty Ltd (Veolia), from 8 August 2005 until 21 August 2005, however his employment was not formally terminated until early 2007. From September 2007 until August 2008 Mr Gwynne worked as a domestic bricklayer. From 27 August 2008 until 24 October 2008 Mr Gwynne was employed by the second respondent Beroa Australia Pty Ltd ATF Beroa Australia Unit Trust (Beroa). Both Veolia and Beroa were contractors at the Tomago aluminium smelter site.

During the course of his employment with Veolia, Mr Gwynne was exposed to various chemicals including pitch and tar. It is not disputed that exposure to these substances with Veolia caused him to suffer from a disease of gradual process, namely contact folliculitis.

Mr Gwynne filed an Application to Resolve a Dispute with the Commission on 10 October 2012 against Veolia and Beroa seeking weekly compensation at various amounts from 9 November 2005 to 31 December 2012.

The issues for determination by the Arbitrator were whether Mr Gwynne’s subsequent employment with Beroa was employment to the nature of which the disease was due, such that Beroa became liable for the weekly compensation claimed by Mr Gwynne pursuant to s 4(b)(i) and s 15(1)(b) of the Workers Compensation Act 1987 (the 1987 Act) or, in the alternative, whether the subsequent employment with Beroa aggravated his injury and gave rise to liability pursuant to s 4(b)(ii) and s 16(1)(b) of the 1987 Act.

The Arbitrator found that Mr Gwynne suffered a disease injury under s 4(b)(i), namely contact folliculitis due to exposure to chemicals arising out of his employment with Veolia and to which his employment with Veolia was a substantial contributing factor.

The Arbitrator was not satisfied that Mr Gwynne suffered any s 4(b)(i) injury or an aggravation injury under s 4(b)(ii) by reason of his employment with Beroa as it was held that Mr Gwynne’s employment with Beroa was not employment to the nature of which his disease was due. Accordingly the Arbitrator entered an award in favour of Beroa in respect of the disputed compensation payments.

Veolia appealed the Arbitrator’s decision.

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

• misdirecting herself as to the test of determining whether the employer is liable to pay compensation pursuant to s 15(1)(b) of the 1987 Act by:
  • finding that medical evidence sufficient to establish that employment was an actual substantial contributing factor to the disease was not sufficient to discharge the less stringent test in s 15, of demonstrating that the worker’s employment with the second respondent was employment “to the nature to which the disease was due”, and
  • rejecting the only expert medical evidence addressing this issue, namely, the evidence from Dr Gillam, a dermatologist.
• determining the issue of which employer last employed the worker in employment to the nature of which the disease was due (s 15) and, in the alternative whether there was an aggravation of the accepted disease injury (s 16) by rejecting or failing to accept the unchallenged opinion of Dr Gillam.

Held: The Arbitrator’s determination of 22 October 2013 was confirmed.  

CONSIDERATION

Was the employment with Veolia employment to the nature of which the disease was due – s 15 of the 1987 Act?

General Principles

1. The President stated the following principles:

• sections 4(b)(i) and 15(1)(b) are not concerned with proof of actual causation of injury (Smith v Mann [1932] HCA 30; 47 CLR 426 (Smith));
• the employment must be of such a kind as to expose the worker to the risk of contracting a disease of gradual process (Tame v Commonwealth Collieries Pty Ltd[1947] NSWStRp 9; (1947) 47 SR (NSW) 269 (Tame));
• the employment embraces not only the actual work task performed by the worker but also their movements through the employer’s premises in the course of their employment, which expose them to the risk of injury (CIC Workers Compensation (NSW) Ltd v Kellogg (Australia) Pty Ltd (1996) 40 NSWLR 422 (Kellogg)), and
• each case must be considered on its own facts in order to determine the work tasks and/or whether a worker is exposed to the risk of injury by reason of his/her movements in and around the workplace, taking into account any protective measures available (GIO General Limited v ABB Installation & Service Pty Ltd and Ors [2000] NSWCA 118; [2000] 19 NSWCCR 720; NSWCA 118 (GIO v ABB)). [99]

2. Veolia’s attack on the Arbitrator’s conclusion focused primarily on his rejection of Dr Gillam’s evidence as providing any support for a finding that Mr Gwynne’s employment with Beroa was employment to the nature of which his disease was due [101].

3. The Arbitrator was correct to observe that Dr Gillam’s opinion was directed to the question of aggravation, not to the issue of whether Mr Gwynne’s employment with Beroa was employment to the nature of which his disease was due. The concepts are quite different and depend on the application of different legal principles [103].

4. Sections 4(b)(i) and 15 are not concerned with causation in fact, but are concerned with exposure to a risk which may be causative of the disease (Smith), whereas ss 4(b)(ii) and 16 are dependent on actual proof of an aggravation injury to which the employment is a substantial contributing factor (s 9A) [104].

5. Dr Gillam’s evidence merely speculated that Mr Gwynne’s condition resulted from either exposure to pitch or tar or some other irritating petrochemical in the course of his employment. The unchallenged evidence clearly established that Mr Gwynne was not exposed to pitch or tar during the course of his employment, nor is there any evidence of exposure to any other irritating petrochemical. For this reason, Dr Gillam’s revised opinion was of limited, if any, evidentiary value. Consequently, the Arbitrator’s treatment of Dr Gillam’s evidence, including the conclusion that it did not assist in determining whether Mr Gwynne’s employment with Beroa was employment to the nature of which his employment was due, was correct [106].

6. The Arbitrator did not misconstrue the strength and nature of the medical evidence as alleged, she carefully weighed Dr Gillam’s evidence with all of the available evidence. The Arbitrator was not persuaded by Dr Gillam’s evidence. The evaluative process undertaken by the Arbitrator did not involve any exercise of discretion [108].

Was there an aggravation injury with Beroa under s 4(b)(ii) and s 16 of the 1987 Act?

7. The appellant only challenged the Arbitrator’s finding under s 16 by reasons of her rejection or failure to accept the opinion of Dr Gillam [115]. There was no submission by Veolia before the Arbitrator that Dr Gillam’s evidence formed the basis of a finding under s 16 [116].

8. The Arbitrator only dealt with the claim under s 16 because it was part of Mr Gwynne’s alternative case (not Veolia’s) and even then it was only faintly pressed [117].

9. To the extent that s 16 was argued (by Mr Gwynne) the Arbitrator dealt with it and concluded that Mr Gwynne’s condition had not been aggravated by his employment with Beroa. Her reasons were:

• whilst working with Beroa he worked in a different part of the smelter, one that had been cleared and was free from pitch and tar;
• Mr Gwynne challenged evidence that his condition waxed and waned since 2005;
• whilst working for Beroa his symptoms were “not on the same level of severity” as those suffered in 2005;
• the conditions under which he worked with Beroa were free from exposure to pitch and tar;
• the symptoms were “transient in nature”, and
• the symptoms were not sufficiently severe to warrant seeking medical treatment. [122]

10. The factual findings were open on the evidence and they disclosed no error [123].

11. On a fair reading of the Arbitrator’s decision, she had full regard to Dr Gillam’s evidence and clearly did not accept it. The omission to make further express reference to Dr Gillam’s evidence in giving her Reasons concerning the aggravation issue did not involve an error (Sarian v Elton [2011] NSWCA 123; Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347) [125].

12. In any event, if the Arbitrator had erred by not finding a s 16 aggravation, it was not an error that affected the outcome (Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339) [126].

13. The medical evidence established that the incapacity suffered by Mr Gwynne both before and after the alleged aggravation is the same, namely, an incapacity for refractory bricklaying work where he is exposed to a risk of coming into contact with pitch or tar [137].

14. Therefore, if there had been an aggravation for which Beroa was liable, it did not sound in any economic incapacity because, for the reasons given, the limitations on Mr Gwynne’s capacity for work, namely, refractory bricklaying did not alter as a result of the alleged aggravation. (Commonwealth v Muratore [1978] HCA 47; (1978) 141 CLR 296) [138]–[140].

OTHER MATTERS

15. The appellant submitted that, in substance, what occurred in Mr Gwynne’s case is that he sustained the disease injury whilst an employee of Andreco Hurll and subsequently suffered aggravations of the disease whilst employed by both Veolia and Beroa. He further submitted that, as Beroa was the last employer to have employed Mr Gwynne in employment that was a substantial contributing factor to the aggravation, exacerbation or deterioration of his disease, Beroa would be liable for the compensation claimed under s 16 [141].

16. Even though that submission was not argued before the Arbitrator, the President found that it was found on a false premise that Mr Gwynne suffered an aggravation injury with Veolia. It was conceded before the Arbitrator that Veolia’s liability arose under s 4(b)(i) not s 4(b)(ii). Veolia’s counsel, Mr Stanton, disavowed any claim under s 4(b)(ii). It was therefore untenable to suggest on appeal that Beroa’s liability arose under s 4(b)(ii) and s 16 [143].

Woolworths Limited v Christopher-Coates [2014] NSWWCCPD 14

Death claim; heart attack; factual findings; assessment of expert evidence; disease provisions; ss 4(b)(i), 4(b)(ii), 15 and 16 of the 1987 Act

Keating P

21 March 2014

Facts:

The deceased was employed by Woolworths Limited (Woolworths), as an operations site manager, at the Plumpton Petrol Site and mini mart. On 16 April 2009 the deceased suffered a fatal heart attack whilst en route to a management meeting.

It was not disputed that the deceased suffered from a number of comorbidities which predisposed her to the risk of cardiac disease. It was alleged that her death resulted from a disease she contracted in the course of her employment under s 4(b)(i) of the 1987 Act, or, alternatively, the death resulted from the aggravation of a disease under s 4(b)(ii) by reason of the stressors of her employment as an operations site manager from June 2000, which included working long hours.

.

The deceased’s children brought an application pursuant to s 25 of the 1987 Actfor lump sum compensation to be apportioned equally between them. Woolworths denied liability. It argued that the deceased’s death did not arise out of or in the course of her employment with Woolworths.

A Commission Arbitrator found that the deceased died as a result of an injury for the purposes of ss 4 and 25 of the 1987 Act. The deceased’s employment with Woolworths was found to be a substantial contributing factor to that injury and therefore s 9A was satisfied. As there was no dispute about dependency, orders were made under s 25(1)(a).

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

• to the extent that she found the deceased’s sedentary lifestyle was employment related;
• in finding that the employment caused or contributed to an aggravation, acceleration, exacerbation or deterioration of the underlying disease;
• in failing to give adequate reasons as to the the significance attached to the appellant not presenting “a positive medical case”, and
• in finding injury within s 4(b)(ii), or alternatively finding that employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act.

Held: The Arbitrator’s determination was confirmed.  

Was the deceased’s sedentary lifestyle employment related?

1. There was ample evidence to support the Arbitrator’s conclusion that the deceased’s sedentary lifestyle was the inevitable consequence of the conditions under which the deceased worked [151]-[153].

2. The excessive hours regularly worked by the deceased coupled with a substantial amount of untaken annual leave formed a proper basis for the consultant cardiologist’s conclusion that the deceased’s working conditions inevitably contributed to a sedentary lifestyle [155].

3. Whether the disease resulted from the employment is a question of fact. What is required is a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates(1994) 35 NSWLR 452. The causal chain was established in this case by the evidence concerning the deceased’s working hours and lack of leave, coupled with the expert evidence of probable contribution to the inevitable sedentary lifestyle dictated by working under those conditions [158].

4. The Arbitrator’s conclusion that there was no time for any other activities and no time for relaxation had to be taken literally (Sarian v Elton [2011] NSWCA 132). It was not suggested that the deceased worked 24 hours a day seven days per week. The Arbitrator’s inference was amply supported on the evidence [159].

5. The Arbitrator was correct to conclude from the consultant cardiologist’s evidence that he clearly formed the view that the combination of the documented vascular risk factors together with a work related sedentary lifestyle contributed to the development of the underlying disease. Any caveat expressed by the doctor related only to his views concerning the contribution made by an unusual degree of stress on the day of the deceased’s death as being a contributing factor to the myocardial infarction she suffered [161].

Was the disease aggravated by an acute stressful event?

6. The Arbitrator accepted that the evidence when taken as a whole, supported a conclusion that the deceased may well have been feeling stressed on the day in question. She also held that there was a factual foundation for the consultant cardiologist’s opinion, that unusual stress on the day of the death may well have been the “final straw” that led to the fatal infarct. These findings were open on the evidence and disclosed no error [164]

7. The Arbitrator’s finding which made reference to the combination of a sedentary lifestyle and work-related stress contributing to the fatal infarct was a finding of aggravation of the deceased’s vascular disease which was consistent with and open on the evidence to make [165].

8. The Arbitrator found that there was an unbroken and immediate chain of causation between “these events”, which was a reference to the deceased’s extremely stressful work, both on the day of her death and leading up to that day, and the acute myocardial infarction which resulted in her death (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). The Arbitrator was satisfied that the relevant causal connection existed between the employment and the injury, that is, between the employment and the aggravation of the coronary artery disease. That finding was open on the evidence [166].

9. In the event that the Arbitrator failed to determine the issue of aggravation by reasons of an acute stressful event, the President re-determined that issue and found that he would have reached the same conclusion as the Arbitrator [167].

10. If the expert evidence suggests a possible view, then after examining the lay evidence the Judge (or in this case the Arbitrator) may decide that it is the probable view (EMI (Aust) Ltd v Bes [1970] 2 NSWR 238; Tubemakers of Australia Ltd v Fernandez [1975] 2 NSWLR 190 (Fernandez)) [173]-[176].

11. The President accepted the consultant cardiologist’s opinion that exposure to an unusual degree of stress related to the deceased’s employment on the day in question could have been a contributing factor to the cause of the deceased’s death. That evidence considered with the lay evidence led the President to conclude that it was more probable than not, that the deceased was experiencing symptoms of untreated angina prior to her death [177]-[178].

12. It was clear that the deceased was feeling very considerable stress in anticipation of attending the management meeting on the subject day. These meetings occurred infrequently and in that sense it was an unusual event. On the balance of probabilities, the unusual stressful event on the day of the deceased’s death and immediately before that day aggravated, accelerated or exacerbated her underlying vascular disease which “led to vascular events causing an acute myocardial infarction and subsequent cardiac rupture leading to her death” (Bes and Commonwealth v McLean (1996) 41 NSWLR 389 (Bes)) [179]–[180].

Adequacy of reasons

13. The Arbitrator clearly expressed the reasons for her conclusion. It is necessary that the Arbitrator’s Reasons show that attention has been given to the evidence critical to the issues in the case and that the basis of the critical findings be apparent (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;  Northern NSW Local Health Network v Heggie [2013] NSWCA 255 and her reasons were perfectly adequate to do so [181]-[183].

Significance attached to the “no positive medical case”

14. Where the expert evidence suggested a possible link between the deceased being subjected to an unusual degree of stress on the day of her death, taken together with other lay evidence, the possible cause of the death may be taken to be the probable cause of death. The principles discussed in Bes and Fernandez may only be applied where no alternative cause is established or suggested by the evidence. The Arbitrator was correct to note in her analysis that no contradictory expert evidence had been submitted by Woolworths. The Arbitrator’s Reasons adequately revealed the significance of her remarks concerning the absence of contradictory medical evidence, and they were consistent with established authority and revealed no error [184]-[187].

Injury and s 9A

15. It had not been suggested that the Arbitrator misapplied the legislation or failed to apply the relevant test as discussed in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 [189].

16. Section 9A is satisfied when the contribution made by the employment factors to the cause or aggravation of the disease was real and of substance. All that was required for the death to be compensable was for the dependants to establish that the employment was a substantial contributing factor to the aggravation of the disease not the disease itself: Cant and Murray v Shillingsworth [2006] NSWCA 367 [191].

17. Given the President’s finding on the re-determination of the aggravation issue, and the concession that if that finding was made it would be “hard to see why that would not be relevant in substance” the s 9A issue fell away. However the contribution played by the employment generally and the acute stress on the day of the deceased’s death more than comfortably satisfied the requirement of s 9A [192]–[193].

Field v Department of Education and Communities [2014] NSWWCCPD 16

Journey claim; s 10(3A) of the 1987 Act; relief teacher hurrying to school because of late notice of requirement to attend; failure to accept unchallenged evidence; whether worker established a real and substantial connection between the employment and the accident; relevance of worker’s belief and perception; relevance of principles in Attorney General’s Department v K [2010] NSWWCCPD 76 discussed

Roche DP

27 March 2014

Facts:

The appellant worker worked for the Department of Education and Communities (the respondent) as a casual/relief primary school teacher. On 23 October 2012, he suffered an injury when he tripped and fell on broken and uneven ground while walking hurriedly to the Hampton Park Public School (the school).

When the worker was required to fill a vacancy at a school, the respondent, through an agency known as “Casual Direct”, would telephone him, usually between 6.30 am and 7.00 am, and tell him of the name and location of the school where he was needed.

On 23 October 2012, a person from Casual Direct telephoned the worker at 7.30 am and asked him to attend at the school. The worker had worked at the school before and noted that it was a “strict school; staff were required to be present at the school by 8.30 am in order to be given lessons for the day, shown to the classrooms or given 8.30 am playground duty”.

The worker’s evidence was that he was walking “hurriedly”, to get to work on time and was looking straight ahead. As a result, he tripped over the broken footpath. He stated that if he had received proper notice from Casual Direct he would not have had to rush to arrive at class on time.

The only issue before the Arbitrator was whether there was a real and substantial connection between the worker’s employment and the accident or incident out of which his injury arose (s 10(3A)). The Arbitrator found that the worker could not establish the requirement of s 10(3A) of a causal nexus between the employment and the incident. He found that any link between the employment and the incident was the worker’s belief or perception that he had to be at the school at 8.30 am, which was not supported by evidence that the respondent required or demanded his attendance at that time.

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

• failing to find that the worker was required to be at the school at 8.30 am;
• finding that s 10(3A) requires a causal nexus between the employment and the accident or incident, as stated in Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55, and
• his general approach to the evidence and his reference to the worker’s belief and perception.

Held: The Arbitrator’s determination was revoked. The Commission found that the evidence established a real and substantial connection between employment and the accident or incident out of which the worker’s injury arose. The matter was remitted to another Arbitrator for determination of outstanding matters.  

Discussion and Findings

1. The Arbitrator based his decision on the premise that the worker had to prove that his employment caused the accident or incident. That was an error. Section 10(3A) may, but does not necessarily, require a causal connection between the employment and the accident (Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72). The appellant’s submission that the word “connection” in s 10(3A) involves a wider concept than causation was accepted [34].

2. The Arbitrator erred in stating that, based on the worker’s “belief or perception”, he could not draw an inference that the worker was required to be at the school by 8.30 am. Such a finding did not require the drawing of an inference. It was the worker’s direct and uncontested evidence that based on his experience “staff were required to be present at the school by 8.30 am”. Having been directed by Casual Direct to work at the school on that day, the worker was part of the school’s staff [36].

3. It is no answer to a witness’s evidence to say that it cannot be accepted because “it is only his or her belief or perception”. Virtually all evidence from a witness is based on the witness’s perception of the particular event or situation he or she is describing. It is for the tribunal of fact to assess the reliability of the evidence against the “contemporary materials, objectively established facts and apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118) [38]. Attorney General’s Department v K [2010] NSWWCCPD 76 had no application [54].

4. As the worker’s evidence was not “inherently illogical or unreliable” (Hamod v State of New South Wales and Anor [2011] NSWCA 375), or defective in some other material way, the Arbitrator erred in not accepting it [39].

5. The worker only had to establish his case on the balance of probabilities, not beyond reasonable doubt. His unchallenged evidence comfortably established that, for reasons that he explained, he was required to be at the school by 8.30 am [45].

6. It is not a pre-requisite to satisfying s 10(3A) that the worker had to call evidence that the respondent “required” him to hurry or to use a particular road [47]. Section 10(3A) only requires a real and substantial connection between the employment and the accident or incident out of which the injury arose. Whether, and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision in a commonsense and practical manner in each case [48].

7. The uncontested evidence established that staff were required to be present at the school by 8.30 am. On the evidence, the only logical conclusion was that that requirement applied to the worker. Though the decision to hurry was the worker’s decision and there was no express direction that he hurry or use any particular road [49], the worker was hurrying because of the late notice he received from Casual Direct to attend at the school on the day of the accident and because he had to be at the school by 8.30 am to be given lessons for the day, shown to the classrooms or be given playground duty. These reasons were perfectly plausible and logical and, more importantly, were unchallenged. In these circumstances, the only conclusion open was that the worker was hurrying because of reasons that were directly connected with his employment as a relief teacher with the respondent [50].

8. Given the background to the accident, the worker’s unchallenged evidence that he tripped and fell “because [he] was hurrying” (to get to the school on time) comfortably established a real and substantial connection between his employment and the accident. That is, the connection between the accident and the employment was real and of substance [51].

Conclusion

9. The Arbitrator erred in his approach and conclusion. The evidence comfortably established a real and substantial connection between the worker’s employment and the accident or incident out of which his injury arose [55].

10. As the claim for weekly compensation in the application to resolve a dispute was inconsistent with the wages schedule filed, and as the parties made no submissions on the nature of the worker’s current incapacity, if any, the matter was remitted to another Arbitrator for all outstanding issues to be determined [56].

Christian Community School Limited v Airs [2014] NSWWCCPD 15

Admission of fresh or additional evidence; s 352(6) of the 1998 Act; challenge to factual findings; partial incapacity; ability to earn; s 40 of the 1987 Act

O’Grady DP

25 March 2014

Facts:

The worker commenced employment as a secondary school teacher with the appellant in 1997. On 9 March 2005, the worker was injured when struck by a motor vehicle in the appellant’s car park at the completion of her day’s teaching. There was no dispute that the injury received was compensable.

The worker suffered a significant injury to her left leg involving a crush injury of the knee joint, laceration in the area of that knee and a degloving injury to her left calf. She took some time off work and underwent surgical treatment. The employer’s workers compensation insurer accepted liability in respect of the worker’s absences from the workplace and paid medical expenses incurred up to January 2006.

At the end of 2006 the worker retired, giving the employer notice of her intention to retire by letter dated 14 July 2006. No mention of the injury was made in that correspondence. Following her retirement, the worker relocated to Mudgee.

In September 2012 the worker claimed weekly benefits from 1 January 2007 to date and continuing. The employer disputed that claim. That matter came before the Commission and an Arbitrator entered an award for the worker.

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

• permitting the worker to give oral evidence at the hearing (ground one);
• failing to take into account all the evidence (ground two);
• making assumptions concerning the documentary evidence (ground three);
• accepting medical evidence tendered by the worker (ground four);
• determining that the worker had a capacity to earn $300 per week (ground five), and
• “coming to the wrong conclusion in that [the Arbitrator] ignored overwhelming evidence from other medical examiners not referred to by [the Arbitrator] which had he done so, would have resulted in a different decision” (ground six).

Held: The Arbitrator’s determination was confirmed.  

Fresh evidence

1. The appellant sought to admit a medical report on appeal that was available at the time of the hearing. An earlier report of that practitioner was in evidence. The Deputy President found that there was a risk, should the additional evidence not be admitted, that the Commission might be misled as to the doctor’s ultimate views concerning matters in issue. He also found that its absence would prevent proper adjudication of the complaint concerning the Arbitrator’s manner of dealing with the witness’s evidence. It was for those reasons that the Deputy President concluded that a failure to grant leave to tender the report would cause substantial injustice and accordingly leave was granted. [18]–[19]

Ground One

2. The appellant submitted that the Arbitrator made an “error of discretion” by granting leave to allow the worker to give oral evidence which “place[d] the appellant at a disadvantage” [49]. The Deputy President rejected this ground of appeal, noting that the worker’s evidence conformed to the terms in respect of which leave had been granted and that counsel for the appellant took the opportunity to cross examine the worker during her oral evidence. That cross-examination did not touch upon matters stated in chief. It was further noted that the appellant failed to established that the Arbitrator, in granting leave, acted upon a wrong principle or had allowed extraneous or irrelevant matters to guide or affect him, or, mistaken the facts or failed to take into account some material consideration when such leave was granted (House v King [1936] HCA 40; 55 CLR 449) [50]–[51].

Ground Two

3. Error was asserted being failure to refer to or take account of all the evidence, which, it was submitted, led the Arbitrator to erroneously conclude that the worker had “cajoled her general practitioner into certifying her fit for employment so that she could...get back to full time work...” [53]. The evidence did not support that inference drawn by the Arbitrator and he had erred, however that error could not be said to have relevantly affected the Arbitrator’s decision [54], [56].

4. The Arbitrator accepted that, notwithstanding the content of the certificates noted by him, the worker had, as she reported to a specialist doctor, returned to work “sooner than she should have done because she felt a responsibility to the staff and she went back to school as soon as she could manage stairs”. That reported statement and the medical certificates were the only evidence relevant to the worker’s state of health at the relevant time [55].

5. The evidence of the specialist doctor included recorded history that the worker returned to full duties “apart from playground duties”. That demonstrated that the worker was unable to perform all the duties required of her. The worker, in her statement, complained of difficulty performing teaching duties. That evidence, which was accepted by the Arbitrator, taken together with the Arbitrator’s acceptance of the evidence of the specialist doctor, permitted the ultimate conclusion reached that partial incapacity had resulted from the subject injury [56].

Ground Three

6. It was asserted that the Arbitrator erred by “making assumptions in relation to the documentary evidence”. The only assumption raised was that with respect to the “assumption” that the worker had “cajoled” the general practitioner. As that issue had been address in ground two this ground was rejected [57].

Ground Four

7. This ground appeared to assert error demonstrated by the Arbitrator’s acceptance of medical evidence “obtained six years after [the worker’s retirement]”. It was not put to the Arbitrator at the hearing that that evidence, having come into existence years after the commencement of the claim, would have little, if any, weight [58]. The question as to what weight that medical evidence was to be given was one for the Arbitrator. His acceptance of the persuasive nature of that medical evidence demonstrated no relevant error [59].

Grounds Five and Six

8. It was asserted that the Arbitrator’s finding that the worker had the capacity to earn $300 per week was made in error (s 40) [61]. The Arbitrator’s findings, having regard to the factual circumstances generally and particularly the length of the period (six years) during which the claim was made, were made following very brief consideration of the evidence. There was, however, no suggestion made in submissions that the Arbitrator’s Reasons were deficient [63].

9. The Arbitrator made the required findings, that is, regarding the worker’s ability to earn and her probable earnings but for injury (Mitchell v Central West Health Service (1997) 14 NSWCCR 526). Any omission to address the question of discretion had not been raised [64].

10. It was finally suggested that the Arbitrator’s conclusions as to incapacity for work were against the evidence. As noted above, the Arbitrator’s acceptance of evidence as to incapacity did not demonstrate any relevant error [65].