Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102

Court of Appeal

4 April 2014

WORKERS' COMPENSATION - appeal - psychological injury resulting from confrontation with co-worker in course of employment - confrontation related to family dispute - whether employment a "substantial contributing factor" to injury - whether the basis for the confrontation needs to be related to employment - confrontation unlikely to have occurred but for meeting during working hours – the 1987 Act, s 9A

WORKERS' COMPENSATION - appeal from Deputy President limited to decisions in point of law - whether Deputy President committed error in point of law in upholding an appeal from arbitrator - alleged error being absence of any error of fact, law or discretion by arbitrator - no error of law in erroneously determining a question of fact – the 1998 Act, s 353

Facts:

The worker had been employed by the Department of Family and Community Services. During the last seven years her occupation had been that of a disability support worker at a group home located at Orange, New South Wales.

On 9 January 2012, the worker, in the course of her employment, attended premises in Nile Street, Orange, in the company of a fellow worker, for the purpose of picking up two clients.

Whilst waiting outside the premises for the clients to arrive a co-worker, the aggressor, walked towards the worker. There had been a long history of bitter disputation between the worker’s daughter and the aggressor. The worker alleged that at that time the aggressor addressed her in an aggressive and intimidating manner. The aggressor was found by the employer to have breached the relevant code of conduct. It was not disputed by the employer that as a result of the encounter between the worker and the aggressor, the worker suffered a “psychiatric or psychological reaction”.

It was also not disputed that since 28 January 2012, the worker had been totally incapacitated for work in terms of s 33 of the 1987 Act. The worker claimed compensation benefits and was paid, on a provisional basis, weekly compensation between 31 January 2012 and 24 April 2012. However, in May 2012, liability was declined by the insurer.

The matter came before the Commission for determination and a Certificate of Determination was issued. The Arbitrator held that the worker was entitled to compensation and, in particular, payments for medical expenses. The Arbitrator also made an order for the reinstatement of the worker’s sick leave entitlements. There was no order as to ongoing weekly compensation.

The employer appealed. The issue in dispute on appeal before the Presidential member was whether the Arbitrator erred in finding that the worker’s employment was a substantial contributing factor to the subject injury (s 9A). The Presidential member revoked the Arbitrator’s determination and made an award in favour of the employer. He accepted that there was a causal nexus between the employment and the injury but found that the employment was not a “substantial contributing factor” to the injury (s 9A).

The worker appealed to the Court of Appeal. The worker asserted that the Deputy President erred:

• as to the statutory notion of “employment concerned” in s 9A;
• as to the statutory notion of the causal linkage contained in s 9A between the “employment concerned” and the injury, in the determination of the question of whether the “substantial contributing factor” criterion was satisfied, and
• in the exercise of the power conferred by s 352(5) of the 1998 Act.

Held: Appeal upheld and remitted to the Commission to deal with the costs of the appeal to the Deputy President.    

Basten JA (Ward and Emmett JJA agreeing)

Discussion and findings

1. The subjective basis of an attack by one co-worker on another, during the course of their common employment may be a relevant factor in some cases, but in many it will not be. Where it is the common employment of two workers which leads to the outbreak of aggression in the course of the employment, in circumstances where such an incident would probably not have occurred absent the common employment, the source of the grievance felt by the aggressor is less likely to be relevant and less likely, if relevant, to carry significant weight [27].

2. The Deputy President acted on the basis that there needed to be a substantial causal nexus between the grievance which motivated the aggressor and the nature of the employment of the worker. That approach involved a restriction on the terms of s 9A which is not found within the language of the provision, nor does it arise by way of reasonable implication. To limit the scope of the inquiry in this way was an error with respect to the proper construction of the statutory requirement. The common employment was not "merely a temporal element", of no substantial causal significance, nor was it correct to dismiss it as only giving rise to causation in the "but for" sense. Accordingly, the errors sought to be identified were based on a wrong construction of the statute [28].

3. In his summary of the errors of the Arbitrator, the Deputy President referred to the "Code of Conduct" as being an irrelevant consideration. The Deputy President described it as a "code [which] regulates behaviour of the [employer's] workers”. The Deputy President appeared to have concluded that the code did not regulate the conduct of workers in relation to a private dispute and was therefore irrelevant. However, the Arbitrator had before her a statement of the worker’s supervisor acknowledging that the aggressor was in breach of the employer's code of conduct. If the employer's own supervisor took the view that the code had a broader role, it cannot have been described as an "irrelevant consideration", in the sense of one which the statute prohibited the Arbitrator from taking into account. If the Deputy President so held that too constituted an error [30]–[31].

BlueScope Steel Limited v Pitaroska [2014] NSWWCCPD 21

Section 25 of the 1987 Act; dependant’s claim for lump sum upon death of worker; s 14(3) of the 1987 Act; whether death caused by an intentional self-inflicted injury; onus of proof upon employer; standard of proof concerning alleged suicide (NB: A Notice of Intention to Appeal was filed on 14 May 2014)

O’Grady DP

17 April 2014

Facts:

On 1 January 2007 the deceased died when his body became immersed in molten metal contained in a large container known as a Treadwell at the Port Kembla premises of his employer, the appellant. The deceased had attended work on that day and performed his duties as a process worker.

The deceased’s widow made a claim against the appellant seeking payment of lump sum compensation as is provided by s 25 of the 1987Actwhich was declined by the appellant.

The appellant did not dispute the place and occasion of the deceased’s death, that is, at his place of employment during his normal shift. However the appellant asserted that the evidence established that the death was one of suicide and reliance was placed by the appellant upon the provisions of s 14(3) of the 1987 Act which provides that compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.

The matter came before the Commission and an Arbitrator determined that the deceased died as a result of injury arising out of his employment with the appellant for the purposes of s 4 of the 1987 Act. His employment was a substantial contributing factor to that injury for the purposes of s 9A of the 1987 Act. The appellant’s defence under s 14(3) failed and the deceased’s widow was awarded compensation pursuant to s 25.

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

• misdirecting herself as to the issues to be considered and considering false issues or questions;
• making a factual finding which was unsupported by evidence, contrary to the only material expert evidence, and not open as a matter of judicial knowledge;
• directing herself concerning particular matters of fact in terms that there was a need for such matters to be established with certainty or definitely;
• failing to give adequate reasons;
• failing to find that there was only one explanation of how the deceased’s body entered the opening in the Treadwell, that is, that he deliberately propelled himself, and
• failing to find that it had been established by the appellant on the balance of probabilities that the deceased died of self-inflicted injuries resulting from his intentional jump into the opening in the Treadwell.

Held: The Arbitrator’s determination was confirmed.  

Submissions, Discussion and Findings

1. The appellant suggested the Arbitrator erred in taking as the first issue for determination the question whether the appellant had discharged the onus upon it that the death was one of suicide. It was further suggested in written submissions that “on one reading of her reasons” the Arbitrator considered that the last mentioned issue was the only issue for determination [73].

2. It was argued, having regard to Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416, that it was necessary that “ingredients of [the widow’s] case were made out”. It was put that the evidence that the deceased’s gloves were found on the platform where he worked and that his hard hat had been found on the level below that platform, supported the inference that he had stopped working and broken the course of the employment [74].

3. The Deputy President was of the view that, whilst the Arbitrator may have erred in the manner in which she articulated the matter in issue, such error had not relevantly affected the decision. The Deputy President reached this view for the following reasons:

• there being no dispute as to the place and occasion of the deceased’s death, there arose prima facie proof of the “conditions of liability”;
• the appellant’s argument that the employment was interrupted may be accepted only upon proof by the appellant of self-inflicted injury causing death;
• the appellant’s liability arises unless the onus of proof upon the appellant concerning suicide is discharged;
• the Arbitrator made it clear that the only matter in issue concerned the question as to whether proof of suicide was made out. Proof of such fact would necessarily lead to a conclusion that the injury did not arise in the course or out of the employment, and
• nothing stated by the Arbitrator when articulating the matter in issue in her Reasons affected the manner in which the questions raised by s 14(3) were addressed [80].

4. The appellant also suggested the Arbitrator erred in taking into account evidence of “lack of motive for suicide”. It was put that such matter “could not negative a conclusion of suicide if the evidence of the physical features of the location and what was necessary by way of human conduct for the deceased’s body to enter the Treadwell, showed suicide on the balance of probabilities” [81].

5. This argument, which was rejected, had at its premise the assumption that the hypothesis founded upon the physical circumstances advanced by the appellant must inevitably have been accepted by the Arbitrator and that an inference of suicide must have been drawn. In the absence of direct evidence as to the actual events at the time of death, there was a need, in the Deputy President’s view, to consider all circumstantial evidence, including any evidence as to the deceased’s state of mind [82].

6. The appellant also argued that the Arbitrator had erred in accepting the widow’s submission that there was “a presumption against suicide” [83].

7. The Arbitrator made it clear that her approach to determining the proper inference to be drawn upon the evidence was that “the [appellant] bears the onus of proving it is more likely than not that the deceased died by [suicide] rather than as a result of an accidental fall”. The Arbitrator’s conclusion was that she was “not satisfied [the appellant] had made out its case on the balance of probabilities”. Nowhere in her reasons was there any suggestion that the submission concerning the suggested “presumption” had been taken into account in her reasoning process. No error was made out concerning her approach to the matter of onus of proof [86]-[87].

8. The appellant further argued that the Arbitrator erred in her manner of evaluation of the evidence of one of the appellant’s employees and the investigating police. The Arbitrator’s evaluation of the police evidence, as clearly stated by her, was founded in part upon an assumption of the absence of evidence to substantiate the recorded reports concerning the deceased’s state of mind. The Deputy President was not persuaded that the Arbitrator’s approach to the evaluation of the police evidence, and that of the appellant’s employee demonstrated misdirection constituting relevant error. Her conclusions as to the weight of the evidence of the police and the appellant’s employee concerning the probability of suicide was adequately explained and open to her on the evidence [88]-[90].

9. It was also argued that the Arbitrator’s reasoning demonstrated that she considered that there was a need to establish “certainty” rather than “probability” of relevant facts. That submission did not demonstrate error as to the appropriate standard of proof. The Arbitrator was addressing the question of the weight of the evidence to determine whether it was of such character as to permit a finding, on the probabilities, that the deceased had taken his own life [91]-[93].

10. The Arbitrator’s Reasons made it clear why she was not prepared to place reliance upon the appellant’s evidence found in its expert report to support a finding of suicide. That evidence was found wanting in certain respects and its weight, a matter for the Arbitrator to determine, was not such, as stated by her, to persuade her on the probabilities [95].

11. The principal challenge to the Arbitrator’s decision concerned suggested error by reason of there being “a factual finding which was unsupported by evidence, contrary to the only material expert evidence, and not open as a matter of judicial knowledge”. The relevant matter of fact concerned the Arbitrator’s failure to find that the deceased had died as a result of self-inflicted injury [96].

12. The Arbitrator’s finding that the appellant had not established on the probabilities that the deceased had committed suicide followed her rejection of the appellant’s expert evidence. It was argued that the expert’s opinion, being the only expert opinion before the Commission and being evidence which had not been challenged, should have been accepted by the Arbitrator. There is no requirement in law that unchallenged evidence be accepted by a court or tribunal. There must, however, be a reasonable basis upon which such evidence is rejected (Taupau v HVAC Constructions (Queensland) Pty Limited [2012] NSWCA 293). The Arbitrator’s assessment of the weight of the expert’s evidence constituted a reasonable basis upon which the Arbitrator relied when rejecting the hypothesis and declining to draw the inference of suicide [97].

13. The Arbitrator sufficiently revealed her reasoning process (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430) and the Deputy President was not persuaded that factual error had been established (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505) [101]-[102].

Saad Bros Motor Pty Ltd v Simon [2014] NSWWCCPD 22

Disease injury; claim for lump sum compensation; whether correct deemed date of injury is the date of incapacity or date of claim; principles in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 applied; s 15 and cl 3 of Pt 18C of Sch 6 to the 1987 Act; non-compensable impairment

Roche DP

23 April 2014

Facts:

Prior to 1 January 2002 (but after 1987), claims for lump sum compensation under s 66 of the 1987 Act were assessed under a Table entitled “Compensation for permanent injuries”, commonly referred to as the Table of Disabilities or Table of Maims. Under that scheme, workers were compensated for the loss, or partial loss, of a “thing” mentioned in the Table of Disabilities, as assessed by a judge or commissioner of the former Compensation Court of NSW, based on the medical and other evidence tendered, and by reference to the percentages in the Table of Disabilities and the nature of the injury.

For injuries received on or after 1 January 2002, workers were (and still are) compensated for the degree of whole person impairment that has resulted from the injury, as assessed by an AMS applying the WorkCover Guidelines and the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5^th ed (Sch 3 to the Workers Compensation Legislation Amendment Act 2001 and Sch 2 to the Workers Compensation Legislation Further Amendment Act 2001 (the 2001 amending Acts)).

In the present appeal, the worker suffered from a disease that he contracted in the course of his employment with the appellant between 1973 and 1996, namely, non-Hodgkin’s lymphoma, which caused an incapacity for work in 1997. He claimed and was paid weekly compensation from 1997 until he turned 66 in August 2009, but made no claim for lump sum compensation under s 66 until 30 September 2011. That claim was disputed. The appellant argued that the assessments under s 66 should be under the Table of Disabilities, not under the whole person impairment scheme introduced in 2002. It relied on cl 3 of Pt 18C of Sch 6 to the 1987 Act, which provides that (except in certain circumstances, which were not relevant to the current claim) the lump sum compensation amendments introduced in 2002 do not apply in respect of an injury received before 1 January 2002.

An Arbitrator determined that the claim for whole person impairment was as a result of an injury (deemed date of which was the date of claim, namely, 30 September 2011), within s 66(1), which impairment is itself to be treated as an injury within s 15(1), as provided by s 15(4). Therefore, the worker was entitled to have his claim for lump sum compensation assessed under the whole person impairment scheme.

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

• finding the deemed date of injury to be 30 September 2011;
• determining the s 66 assessments are to be expressed in terms of whole person impairment;
• determining the application of cl 3 of Pt 18C of Sch 6 to the 1987 Act, and
• failing to correctly apply s 15 of the 1987 Act.

Held: The Arbitrator’s determination was confirmed.  

Discussion and Findings

The authorities

1. Applying the principles in Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246, as explained in Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone), s 16 (and s 15, which is relevantly in the same terms) can “fix different dates for incapacity and impairment injuries” [61].

2. Citing GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187, P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481, and Stone, Handley AJA in SAS Trustee Corporation v O’Keefe [2011] NSWCA 326 (O’Keefe) noted that the Court has decided that incapacity in s 16(1)(a)(i) means incapacity for which weekly compensation is or can be claimed (O’Keefe) [68].

3. Handley AJA in O’Keefe explained, at [101], that the authorities “establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant. Any injury by permanent impairment (s 16(3)), is deemed to have happened when the lump sum claim is made” [69].

Did the Arbitrator err in his approach or conclusion?

4. The Arbitrator’s reasoning in the present matter was perfectly consistent with the authorities and, but for the reference to the left hip (which should have been a reference to “Left lower extremity”) in the proposed referral to the AMS, disclosed no error [71].

5. The Arbitrator said that cl 3 of Pt 18C merely states the issue for determination, that is, whether, in relation to the worker’s claim for lump sum compensation, the “injury [was] received before the commencement of the amendments” in the 2001 amending Acts. He (correctly) noted that the answer to that question will depend on the facts in each case and will be different for a personal injury (s 4(a)) (described by the Arbitrator as a “frank injury”) and for “disease type injuries” (s 4(b)(i) and (ii)) [72].

6. Consistent with the authorities (see Crisp v Chapman (1994) 10 NSWCCR 492), the Arbitrator acknowledged that s 15 does not create an injury and that the existence of a compensable injury only arises once the worker has passed the tests in ss 4 and 9A of the 1987 Act. It was not disputed that the worker had established injury within those sections. The question the Arbitrator posed was, for the purpose of the worker’s claim for lump sum compensation, what was the date of injury. That was undoubtedly the correct question [73].

7. The Arbitrator (correctly) did not accept the appellant’s submission that the claimed losses were “consequential losses”, noting there is a distinction between incapacity and impairment, which is something for which the legislation provides. The Arbitrator added that this is not a case of a consequential injury in the “ordinary sense”. That was because the pathologies from which the worker suffers are a direct sequelae of his non-Hodgkin’s lymphoma. They are not akin to, for example, an overuse of the left arm causing pathology in that arm as a consequence of an initial injury to the right arm. This approach disclosed no error [74].

8. As the worker had not made a previous claim for permanent impairment, his previous incapacity was irrelevant (Stone and O’Keefe) and the injury was the permanent impairment for which compensation is payable under Div 4 of Pt 3 (s 15(4)). As incapacity did not result from that injury, the date of injury was the time the worker made his claim for compensation with respect to the injury (s 15(1)(a)(ii)), that being 30 September 2011 [77]. Therefore, the Arbitrator correctly determined that cl 3 Pt 18C does not prevent the post 1 January 2002 provisions from applying [78].

9. Though the worker no doubt suffered from various symptoms in 1997, his impairment was not assessed and claimed until 2011. Where what is being considered is not a worker’s claim based on incapacity, but is a claim based on impairment, the fact that there was incapacity prior to the permanent impairment claim is irrelevant [80].

10. The Deputy President did not accept the submission that, if the Arbitrator’s view of the meaning of injury in cl 3 of Pt 18C were accepted, the phrase “even if the injury is the subject of a claim made after the commencement of the amendments” in that clause, would have no work to do. It clearly applies to personal injuries received before 1 January 2002. If a worker receives a s 4(a) personal injury before 1 January 2002, but does not claim lump sum compensation until after that date, the claim will be assessed under the Table of Disabilities [81].

11. The appellant also argued that the worker’s claim was an “existing claim” under cl 2 of Pt 18C of Sch 6 and s 250 of the 1998 Act and that the new lump sum compensation provisions did not apply. The Deputy President rejected this argument. As the worker had no pending application for determination by the Compensation Court as at 1 April 2002, his previous claim was, under cl 224 of the 2003 Regulation, to be treated as a new claim. The 2010 Regulation repealed the 2003 Regulation. However, by cl 186 of the 2010 Regulation, “[a]ny act, matter or thing that, immediately before the repeal of the Workers Compensation Regulation 2003, had effect under any of that Regulation continues to have effect under this Regulation” [83]. Even without the Regulations, s 15(4) makes it clear that the claim for lump sum compensation is not a claim “in respect of the same injury” and it is therefore not a “related claim” [84].

12. As the worker’s impairment due to his haemopoietic system occurred due to something that occurred before 1 January 2002, and, as no compensation was payable for that loss under the Table of Disabilities, the compensation payable must to be reduced by the proportion of the permanent impairment that is due to the impairment of the worker’s haemopoietic system. This does not, however, apply to his other impairments, which relate to impairments due to the condition of his left lower extremity and his right and left upper extremities, all of which were losses of a kind for which compensation was payable under the Table of Disabilities [87].

13. The reduction in compensation for a previously non-compensable impairment is to be effected by a reduction “in the compensation payable”, not by a reduction in degree of whole person impairment (Fleming v NSW Police Force [2011] NSWWCCPD 33; SAS Trustee Corporation v Schmidtke [2012] NSWCA 269). An AMS must assess the degree of whole person impairment before the reduction can be made. However, an Arbitrator must make the reduction, which determines the amount of compensation payable, if the parties are unable to reach agreement [88].

Bush’s Pet Foods Pty Ltd v Badal [2014] NSWWCCPD 20

Section 52A of the 1987 Act; whether worker seeking suitable employment at the time notice of discontinuance served; meaning of “relevant time”; Hughston v Hughston & Sons Pty Ltd [1999] NSWCC 35; (1999) 18 NSWCCR 312 discussed and distinguished

Roche DP

14 April 2014

Facts:

This appeal concerned the interpretation and application of s 52A of the 1987 Act. Though that section was repealed by the Workers Compensation Legislation Amendment Act 2012, as the worker was an existing recipient of weekly compensation immediately before 1 October 2012, the section continued to apply in the circumstances of this case (see cl 6 of Pt 19H of Sch 6 to the 1987 Act).

Section 52A provided that weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work, but only if one or more of the “grounds for discontinuation” applies to the worker at the “relevant time”.

The “relevant time” was defined as the time at which the notice under s 54 of the 1987 Act of intention to discontinue payments of compensation pursuant to s 52A was given (s 52A(2)). In the present case, that date was 6 November 2012. On that date the insurer issued a s 54 notice, notifying the worker that his weekly compensation would be terminated, effective from 18 December 2012, because he was not suitably employed and was not seeking suitable employment (s 52A).

The worker claimed weekly compensation at the maximum statutory rate from 5 September 2011 (the date on which the insurer reduced the worker’s weekly compensation) to date and continuing. It was agreed that the worker was partially incapacitated, had received weekly compensation for more than 104 weeks and, at all relevant times, was not suitably employed.

The Arbitrator determined the worker to be entitled to weekly compensation under s 40 of $359.69 from 5 September 2011 to 8 May 2012 and of $559.69 from 9 May 2012 to date, such payments to continue in accordance with the provisions of the 1987 Act.

Noting that a worker may be seeking suitable employment even if, at the precise relevant time (the s 54 notice was given), the worker was not actively seeking work (Camilleri v Western Sydney Area Health [2000] NSWCC 45; (2000) 20 NSWCCR 499), and that the phrase “relevant time” is “sufficiently elastic” (Hughston v Hughston & Sons Pty Ltd [1999] NSWCC 35; (1999) 18 NSWCCR 312 (Hughston)), the Arbitrator accepted the worker’s evidence that he had been “continuously seeking employment from 2005 to 2012”.

Though the worker’s last job-seeking diary was dated either “in May or June 2012” the Arbitrator was satisfied, applying Hughston, that the “relevant time should be given elasticity”. He accepted the worker’s evidence, based on his past attempts to find work, that he had been seeking employment and was seeking employment at the “relevant time” the insurer issued the notice of discontinuance on 6 November 2012.

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

• finding that the worker was seeking suitable employment under s 52A at the relevant time, and
• his interpretation and application of the “relevant time” under s 52A.

Held: The Arbitrator’s determination was in part revoked. The employer was ordered to pay the worker weekly compensation at the rate of $559.69 from 9 May 2012 until 18 December 2012.

Discussion and findings

1. It was accepted that the “relevant time” is not restricted to the date of the particular notice, but extends to a period up to the issuing of the notice (Hughston). It followed that, to satisfy the job seeking requirements in s 52A, a worker does not have to be searching for suitable employment on the date of the notice. However, the “elasticity” of the “relevant period” referred to in Hughston is not unlimited and must be considered in the context of the facts in that case [27].

2. In the absence of any specific evidence of the worker’s job seeking after his last Job Seekers Diary, which was dated 14 May 2012, and in light of the many letters from the insurer to the worker in 2012 reminding him of his obligation to continue to seek suitable employment, his evidence (in his statement of 19 July 2012) that he had been “looking for a suitable job” did not support the Arbitrator’s finding that the worker had been looking for work “until the present time”. The worker’s evidence was vague and non-specific as to when and where he had sought employment after the security job finished in either late 2010 or early 2011 [31].

3. The last direct evidence of the worker’s efforts to find employment was in the Job Seeker Diary of 14 May 2012, which recorded that the worker’s last application for suitable employment was on 4 May 2012. Therefore the submission that the worker’s statement provided evidence that he was seeking employment at the relevant time was not accepted [32].

4. Even if it was accepted that the worker’s statement provided evidence that he continued to seek suitable employment, it only provided evidence of job seeking up to 19 July 2012, which was several months before the date of the s 54 notice and still did not satisfy the requirements in s 52A. There was no attempt to bring that evidence up to date [33].

5. It was open to the Arbitrator to accept the worker’s evidence that he had looked for work for many years and, other than obtaining security jobs for short periods, had been unsuccessful in obtaining work. However, that finding did not answer the question posed by s 52A, namely, whether, at the relevant time, the worker was seeking suitable employment [37].

6. Giving the most “elastic” interpretation to the phrase “relevant time” did not assist the worker. There was no persuasive evidence that the worker sought suitable employment between 4 May 2012 and 6 November 2012, the date of the s 54 notice. On no view of the authorities, or the definition of “relevant time”, could it be suggested that the “relevant time” in s 52A extends to six months before the date on which the notice was issued. Therefore, given the state of the evidence, the only reasonable conclusion was that the worker was not seeking suitable employment at the “relevant time” and the Arbitrator erred in finding to the contrary [38].

Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18

Hospital and medical expenses (dental treatment) under s 60 of the 1987 Act; whether proposed treatment of peri-implantitis reasonably necessary as a result of an accepted work injury; causation; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Roche DP

8 April 2014

Facts:

On 13 July 1991, the worker was assaulted in the course of his employment as a taxi driver for the appellant employer. As a result of that assault, he suffered extensive facial injuries and was treated with a four-unit fixed bridge. At the time of that treatment, it was noted that the worker had a pre-existing periodontal disease (periodontitis) that was not related to the assault.

The bridge failed in 1999 due to a failure of the supporting lateral incisor teeth, which had also been damaged in the assault. Treatment in 1999 and 2000 consisted of a new four-unit bridge supported by two implants. In a report dated 4 June 1999, the worker’s treating prosthodontist said that the loss of the worker’s four front teeth was directly attributable to the assault. It was added that the periodontal problems were not related to trauma, but were due to inadequate oral hygiene, smoking, and genetic susceptibility.

The bridge became loose in 2012 due to broken screws. It was noted that there was bone loss around the left side implant, which represented “early implantitis” or prei-implantitis. The prosthodontist recommended treatment, which included treatment for the peri-implantitis.

The worker made a claim for the cost of the peri-implantitis treatment. The insurer disputed that the worker had peri-implantitis and, even if he had that condition, the treatment was not reasonably necessary as a result of the injury.

In compliance with s 60(5), the Commission referred the matter to an AMS. The AMS, in a non-binding MAC, was unable to make a diagnosis of peri-implantitis and concluded that the periodontal work around the left side implant was not reasonably necessary. The AMS also concluded that the removal of the bridge, the investigation and replacement of the broken screws was reasonably necessary, but the construction and provision of a new bridge was not.

The Arbitrator accepted the evidence of the treating prosthodontist. She said she had to be satisfied that the proposed treatment was reasonably necessary “as a result of” the subject injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)). The Arbitrator was satisfied that the work injury contributed “in a material and real way to the present condition, and therefore the need for treatment”. On what she described as the “ultimate issue” of whether the worker should have the treatment or not, the Arbitrator found that she was satisfied that the treatment proposed by the prosthodontist was reasonably necessary (s 60(1)).

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

• her consideration of causation based on the principles outlined in Kooragang in accepting that the condition of peri-implantitis was causally related to the worker’s injury, merely because of the existence of the dental implants;
• failing to adequately consider the evidence relating to other factors such as the worker’s pre-existing periodontal condition and poor oral hygiene in analysing the chain of causation, and
• considering the need for treatment as the “ultimate issue” in the proceedings in circumstances where the causal link between the work injury, the implants and the peri-implantitis condition was the main issue for determination.

Held: The Arbitrator’s determination was confirmed.  

Did the Arbitrator err in finding that the worker had peri-implantitis?

1. In light of the prosthodontist’s qualifications, which clearly played a part in the Arbitrator’s overall assessment of the evidence, and was something that she was entitled to consider (English v Emery Reimbold [2002] EWCA Civ 605), the submission that his opinion was not the best evidence regarding the state of the worker’s condition was surprising. As the treating specialist, the prosthodontist was well placed to make a diagnosis and it was open to the Arbitrator to accept that diagnosis. The evidence of the AMS was relevant and was evidence that the Arbitrator considered. However, the submission that the evidence of the AMS was “persuasive” did not establish error by the Arbitrator. His opinion was not determinative and the Arbitrator was not bound to accept it [35].

Did the Arbitrator err in finding that the work injury contributed in a material and real way to the need for the proposed treatment?

2. It was argued that the Arbitrator erred in her application of the Kooragang test to the circumstances of the present case because the prosthodontist did not state there was a causative link between the development of peri-implantitis and injury [41]. In rejecting that submission, the Deputy President held that the evidence provided a sound basis for the Arbitrator’s conclusions and it was evidence that was open to her to accept and she clearly did accept it [48].

3. The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not “result from” the injury in the sense discussed in Kooragang. The appellant’s submissions ignored the fundamental principle that employers must take workers as they find them (State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286) [51].

4. The fact the worker had pre-existing periodontitis and poor oral hygiene, which may have been factors in him developing peri-implantitis, did not mean that the proposed treatment of the peri-implantitis was not as a result of the injury. The appellant’s approach ignored the fact, highlighted by the prosthodontist, that the worker required implants because of his injury, not because of his pre-existing periodontitis. The appellant’s submissions also ignored the prosthodontist’s unequivocal evidence that the maintenance he recommended was “directly connected to the injury”, which provided compelling support for the Arbitrator’s conclusion that the need for the treatment was necessary “as a result of” the injury [52].

5. It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28; [2009] HCA 28; 237 CLR 656). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged, the worker only has to establish that the proposed treatment is reasonably necessary “as a result of” the injury. On the evidence called from the prosthodontist, he easily met that test [53].

6. It followed that, even if it were accepted that the peri-implantitis was “caused” (in the sense of having been materially contributed to) by the non-work factors listed by the AMS, that would not have prevented a finding that, as a matter of commonsense, the need for the proposed treatment had arisen “as a result of” the injury. That was because, as the prosthodontist explained, the peri-implantitis was “only there because the worker has implants”. As a matter of commonsense, the injury was a material cause of the need for the proposed treatment (because it brought about the need for the implants), even if other factors were also present that may have also contributed to that need [54].

7. It followed that the Arbitrator’s approach and conclusions were open on the evidence and disclosed no error [55].

Did the Arbitrator err in her statement of the ultimate issue?

8. Reading the decision as a whole, it was clear that the Arbitrator used the word “ultimate” in the sense of “final” or “last” in a series of questions, not in the sense of the “fundamental” question that had to be determined. That involved no error [58].

9. Section 60 requires an Arbitrator to answer two questions: first, whether the condition that is said to give rise to the need for the treatment has arisen “as a result of” the injury and, second, whether the treatment is “reasonably necessary”. Both questions must be answered in the affirmative before a worker can succeed. The Arbitrator discussed the first question and concluded that question in the worker’s favour. That finding was open and disclosed no error [59].

10. The Arbitrator approached the second question by asking if the worker should have the treatment. Having considered the evidence and the parties’ submissions, the Arbitrator concluded that the worker should have the proposed treatment. The Arbitrator accepted the prosthodontist’s evidence and that acceptance was open to her and involved no error [60]-[64].

University of New South Wales v Kurup [2014] NSWWCCPD 19

Late notification of issues in dispute; s 74 of the 1998 Act; application for leave to dispute previously unnotified matters; whether leave required; exercise of discretion under s 289A(4) of the1998 Act; whether Senior Arbitrator considered prejudice to the employer if leave refused; interlocutory decisions; leave to appeal

Keating P

9 April 2014

Facts:

This appeal concerned an appeal from the decision of a Senior Arbitrator refusing leave to allow the appellant to raise previously unnotified matters pursuant to s 289A(4) of the 1998Act.

The worker was a research associate and manager at UNSW’s Faculty of Medicine. On or about 29 June 2011, the worker was assisting a colleague to install a water purification system used in a research program. In the course of doing so, she lifted the water purifier from the floor which she alleged resulted in her suffering an injury to her lower back. She was incapacitated until 5 August 2012, it was inferred that she was paid weekly compensation during that period of incapacity.

On 16 March 2012, the worker made a claim for lump sum compensation in respect of a seven per cent whole person impairment relating to her lumbar spine, based on a report of a specialist doctor. That claim was rejected on the basis that the worker’s condition had not reached “maximum medical improvement”. It did not dispute that the worker had injured her back in the subject incident or that her employment was a significant contributing factor to that injury.

On 2 April 2012 the worker lodged an Application to Resolve a Dispute in the Commission seeking lump sum compensation.

On 8 October 2012, the worker was assessed and a report was prepared by an independent medico-legal consultant retained by the employer. The specialist opined that there was evidence of exaggeration or fabrication and he was not convinced that the injury on 29 June 2011 was a substantial contributing factor to the injury described.

On 11 October 2012 the employer declined liability for the payment of compensation benefits attaching the report of the specialist doctor. On 15 October 2012 the employer filed an Application to Admit Late Documents, seeking to rely upon the specialist doctor’s report.

Following a determination by an AMS, a reconsideration by an AMS, a determination by a Medical Appeal Panel, the matter was listed for hearing on 11 November 2013 before a Senior Arbitrator on the basis that two matters were in issue. First, whether the respondent required leave pursuant to s 289A of the 1998 Act to raise the issues referred to in the s 74 notice of 18 March 2013, as matters not previously notified in the dispute. Secondly, if leave was required, whether such leave should be granted in the circumstances.

In an extempore decision, the Senior Arbitrator determined that the employer required leave to raise a liability dispute. He also determined that on the facts of this case, the interests of justice favoured a conclusion that the employer’s application should be refused.

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

• determining that a dispute notice had not been issued and that leave was required in accordance with s 289A of the 1998 Act;
• failing to have any regard to prejudice to the appellant employer (as opposed to the respondent worker) in considering whether to grant leave under s 298A(4) of the 1998 Act, and
• failing to grant leave to the appellant employer in accordance with s 289A(4) of the 1998 Act.

Held: The Senior Arbitrator’s determination was confirmed.   

Was leave required to raise previously unnotified matters?

1. The appellant argued that because there was already a dispute in existence, that was, the initial dispute in relation to “maximum medical improvement”, that gave the Commission jurisdiction to deal not only with that dispute but also matters “subsequently arising out of such a dispute” whenever they are raised without the need to seek leave to do so [75].

2. That submission was wrong, it ignored s 289A(4) which clearly states that any dispute relating to previously unnotifed matters may only be heard and dealt with by the Commission if it is of the opinion that it is in the interests of justice to do so. The issues of whether the worker had received an injury, and, if so, whether her employment was a substantial contributing factor to that injury were previously unnotified matters. To raise them the appellant required leave under s 289A(4) [76].

3. If the appellant’s submission was correct, s 289A(4) would be otiose because an employer/insurer could effectively grant itself leave to raise previously unnotified matters by merely issuing (at any time) a further s 74 notice, raising any issue it wished, after the proceedings have commenced. That is contrary to the clear terms of the legislation [80].

4. The Arbitrator was correct to find that the employer required leave to raise the previously unnotified matters, referred to in the s 74 notice of 18 March 2013, as matters in dispute [81].

Failing to have regard to prejudice to the appellant employer

5. The appellant submitted that if the matters identified in the s 74 notice dated 18 March 2013 were characterised as “previously unnotified matters”, then consideration as to whether those matters are dealt with by the Commission required determining whether it was “in the interests of justice to do so”. The appellant argued that this required balancing the interests of the parties against any prejudice to both the worker and the employer [82].

6. The Senior Arbitrator had regard to the potential prejudice to the employer if the application was refused. He referred in detail to the “merit and substance” of the issues sought to be raised. He concluded that contrary to the specialist doctor’s opinion, the histories recorded by the other specialists were consistent with the proposition that the worker was conscious of back and, to some extent leg symptoms around the time of the incident. They expressed no doubt that the incident reported to them constituted an “injury” within the meaning of s 4 of the 1987 Act [89].

7. The Senior Arbitrator considered the opinion of the appellant’s specialist, which he accepted afforded a basis for disputing whether the alleged injury was in fact suffered, or at least whether the substantial contributing factor requirements of s 9A were satisfied, but concluded, having regard to the weight of evidence to the contrary, the merit and substance of the issues sought to be raised did not support the contention that leave should be granted for the issues to be raised. This conclusion was consistent with the evidence and disclosed no error [91].

8. The Senior Arbitrator properly considered the potential prejudice to the employer, by weighing the merit and substance of the issues sought to be raised together with the history of the matter, the complexity of the issues and the potential need for additional evidence to address them. The Senior Arbitrator also considered the conduct of the parties and the protracted procedural history of the matter and the timing of the application in reaching his ultimate conclusion. These were relevant matters for the Senior Arbitrator to consider [93].

9. Weighing these matters, and the lack of potential prejudice to the employer if the application was refused, because of the lack of persuasive evidence that the worker had not sustained injury in the circumstances she alleged, the Senior Arbitrator’s conclusion disclosed no error [94].

Did the Senior Arbitrator err in failing to grant leave to the employer under s 289A(4) of the 1998 Act?

10. The appellant submitted that a proper weighing of the interests of justice would have resulted in the discretion being exercised in favour of the employer [96]. This submission was effectively seeking a re-exercise of the Senior Arbitrator’s discretion in refusing leave to allow the previously unnotified matters to be argued. In the absence of error, this is not permitted in a s 352 appeal [97].

11. The Senior Arbitrator’s determination that the merit and substance of the issues sought to be raised did not support the granting of leave was open on the evidence and disclosed no error (House v The King [1936] HCA 40; 55 CLR 499; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274) [103].

12. The Senior Arbitrator properly weighed the factors for and against the granting of the leave and concluded, on balance, that the interests of justice were not served by granting leave. The approach and conclusions reached by the Senior Arbitrator did not demonstrate error (Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 [104].

Vandenberg v Department of Corrective Services [2014] NSWWCCPD 17

Injury; challenge by employer to factual findings; challenge by worker to assessment of expert evidence; whether multiple sclerosis caused or aggravated by work incident or subsequent surgery to the cervical spine; reasons; failure in process of fact finding; application for adjournment of appeal hearing; application to rely on fresh evidence or additional evidence on appeal; consequences of medical treatment reasonably undertaken as a result of injury

Roche DP

2 April 2014

Facts:

The worker was a prison officer with the Department of Corrective Services (the employer) at the Parklea Prison. On 2 December 2007, she was assisting nursing staff with an inmate suffering a fit when the inmate kicked her in the chest forcing her onto a concrete wall, causing her several injuries. Exactly which injuries and conditions resulted from the incident was disputed.

The worker’s case was that she injured her chest, left knee, right shoulder, neck and back, and that the injury caused or aggravated her multiple sclerosis or Brown Séquard Syndrome or Partial Brown Séquard Syndrome. She also alleged that she suffered a psychological condition as a result of her injuries. The employer conceded that the worker injured her left knee but disputed that she injured her neck and back and disputed that her multiple sclerosis or Brown-Séquard Syndrome or Partial Brown Séquard Syndrome had been caused or aggravated by the incident.

The Arbitrator found that the worker injured her left knee, neck and back in the incident and that she suffers from multiple sclerosis, a condition which is unconnected with the work incident. The Arbitrator also found that the psychological condition had been caused by the worker’s multiple sclerosis and it was not compensable. The injury to the right shoulder appeared to have been resolved, or at least was not a controversial part of the claim. Both parties appealed.

The worker challenged the Arbitrator’s findings with respect to the multiple sclerosis, the Brown-Séquard Syndrome, the Partial Brown Séquard Syndrome and her psychological condition. The employer challenged the findings with respect to the cervical spine and lumbar spine. Both appeals were heard together.

The employer alleged that the Arbitrator erred in that he:

• made incorrect findings of fact in relation to complaints made by the worker to medical practitioners (including physiotherapists) (contemporaneous complaints and medical histories);
• determined that the medical histories corroborated the worker’s claim (that she injured her neck and back on 2 December 2007) (contemporaneous complaints and medical histories);
• accepted and relied on unreliable evidence from Mr Bourke (Ms Vandenberg’s partner at the time of the injury) and Mr Lloyd (Ms Vandenberg’s son) (Mr Bourke and Mr Lloyd’s evidence);
• failed to determine that the contemporaneous evidence, including medical evidence, supported a finding that the worker did not injure her neck or back in the subject incident (failure to determine that the worker did not injure her neck and back);
• made incorrect findings of fact in relation to the oral evidence of Professor Lance (the employer’s qualified specialist) (Professor Lance’s evidence), and
• determined that Professor Lance’s evidence supported a finding that the worker injured her neck during the subject incident (Professor Lance’s evidence).

The worker alleged that the Arbitrator erred in:

• finding that the injury on 2 December 2007 did not cause and or aggravate and or trigger the neurological condition of multiple sclerosis and or Brown-Séquard Syndrome or Partial Brown Séquard Syndrome and or foot drop;
• that the finding in ground one (above) was against the evidence and against the weight of the evidence;
• failing to give adequate reasons for his finding that the injury had no causal relationship to the neurological conditions identified in ground one (above);
• finding that the employment with the employer was not a substantial contributing factor to the psychological/psychiatric injury of 2 December 2007, and
• failing to give adequate reasons for his findings that the injury had no causal relationship to the worker’s psychological/psychiatric condition.

Held: The Arbitrator’s determination with respect to the multiple sclerosis was revoked and remitted for re-determination by a different Arbitrator. Otherwise, the decision was confirmed.

The employer’s appeal

Contemporaneous complaints and medical histories

1. Having heard and seen the worker give oral evidence, the Arbitrator was entitled to accept, and did accept, Ms Vandenberg’s evidence that she did complain to her general practitioner of her neck and back symptoms. This was evidence he was entitled to take into account in determining if the worker injured her neck and back on 2 December 2007 [67].

2. The inconsistency between the general practitioner’s notes and the worker’s evidence was explained by the worker’s evidence that she recalled telling the doctor about right shoulder pain going up to her neck, that it “hurt everywhere”, and that his response was that “multiple soft tissue injuries take a long time to heal”. The Arbitrator was entitled to accept that explanation and, clearly, he did accept it (Mason v Demasi [2009] NSWCA 227) [68].

3. Dealing with the discrepancy between the clinical records from Blacktown Hospital and the worker’s evidence it was noted that it was not unexpected that their records did not specifically refer to any injuries to the neck and back [69].

4. The Deputy President did not accept that the Arbitrator erred in finding that there was evidence of complaints of neck and back pain to a physiotherapist (though the Arbitrator twice referred to “physiotherapists”, and it seemed that the worker only saw one physiotherapist, nothing turned on this discrepancy) [71].

5. It followed, once the evidence and the Arbitrator’s reasons were examined in context, it was open to the Arbitrator to conclude that the general practitioner’s notes, together with the worker’s (unchallenged) complaints of having had physiotherapy treatment for her neck and back in late 2007 and early 2008, “tend to corroborate her claim”. Though it would have been preferable if a report had been obtained from the physiotherapist, the worker’s evidence that she had physiotherapy to her neck and back shortly after the incident, and that the insurer paid for that treatment, provided a sound basis for the Arbitrator’s conclusion [81].

6. The submission that the Arbitrator erred because he should have given more weight to the absence of complaints in the documentary evidence was, in the circumstances of this case, unpersuasive and did not establish that the Arbitrator erred on this point [84].

7. The Arbitrator’s conclusion, and acceptance of various medical histories, was consistent with the worker’s evidence and did not disclose any error [101].

Mr Bourke and Mr Lloyd’s evidence

8. The fact that the statements from Mr Bourke and Mr Lloyd did not mention the worker’s knee or chest symptoms did not mean that the Arbitrator was bound to reject their evidence. Their evidence corroborated the worker’s evidence that she had complained about those parts of her body. In the circumstances, given the brief cross-examination of Mr Bourke and Mr Lloyd, and the equally brief submissions about their evidence, it was open to the Arbitrator to accept their evidence [108].

Professor Lance’s evidence

9. The substance of this complaint was that Professor Lance did not say that the worker “must have” injured her neck in the incident, but merely accepted that a violent forceful incident was something capable of causing significant trauma to the worker’s cervical spine. This error was said to have affected the result because the Arbitrator appears to have relied on Professor Lance’s evidence to support his conclusion that the worker did injure her neck and back on 2 December 2007 [109].

10. Though Professor Lance did not express himself in the terms used by the Arbitrator his evidence, viewed in the context of his report, provided strong support for the Arbitrator’s conclusions, and, ultimately, that the worker injured her neck and back on 2 December 2007. That evidence was in emphatic terms, namely, that the injury on 2 December 2007 was “almost certainly the cause of increasing neck and low back pain”. That statement was consistent with his acceptance that the force of the incident on 2 December 2007 was “capable of” causing significant trauma to the cervical spine and that she had in fact sustained significant trauma of the spine at that time [114].

11. Given the history in this matter, and given the worker’s evidence that she had pain everywhere immediately after the incident, including her neck and back, which the Arbitrator accepted, it was open to the Arbitrator to conclude that, based on Professor Lance’s evidence, the worker injured her neck and back on 2 December 2007. That was so despite the fact that Professor Lance did not expressly say that the worker must have injured her neck and back because the incident involved so much force [115].

12. It followed that the Arbitrator’s partly inaccurate reference to Professor Lance’s oral evidence made no difference to the outcome. A fair reading of the evidence revealed that, as the Arbitrator held, Professor Lance supported the worker’s claim that she injured her neck and back on 2 December 2007 [117].

Failure to determine that the worker did not injure her neck and back

13. Given the above revealed that the Arbitrator’s findings were open on the evidence, it followed that he did not err in failing to find that the worker did not injure her neck and back on 2 December 2007 [132].

The worker’s appeal

14. The Arbitrator said that he accepted the evidence of Professor Lance, which was based on scientific literature, but did not consider the scientific literature relied on by Ms Vandenberg.

15. Thus, the Arbitrator said he found Professor Lance to be a “very impressive witness” he did not explain what it was about the Professor’s evidence that made him an impressive witness [183].

16. In resolving conflicts of expert evidence, a coherent reasoned opinion by a qualified expert should be the subject of a coherent rebuttal, unless it can be discounted for other good reasons (Eckersley v Binnie (1988) 18 Con LR 1; Moylan v The Nutrasweet Company [2000] NSWCA 337; Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; [2004] NSWCA 174; 60 NSWLR 127) [184].

17. The Arbitrator failed in his duty to explain adequately the basis for his conclusions on the cause or, more importantly, aggravation or exacerbation or acceleration of the worker’s neurological condition. In these circumstances, the process of fact finding had miscarried (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816) [185].

18. As the worker wished to tender further evidence on this issue, the matter was remitted to another Arbitrator for this issue to be re-determined [186].

Conclusion

19. The worker’s appeal was successful and the employer’s appeal was not. It followed that the Arbitrator’s orders relating to and consequent upon the multiple sclerosis claim were revoked and remitted to a different Arbitrator to be re-determined [187].

Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23

Pleadings; nature and conditions of employment; injury; assessment of medical evidence; unsatisfactory submissions on appeal; failure to refer to transcript; unmeritorious appeal

Roche DP

30 April 2014

Facts:

The respondent worker commenced work for the appellant employer in August 2007. Initially, she worked as a care worker at the appellant’s nursing home but became a team leader after she completed a Certificate IV in nursing in October 2008. Her duties included administering medication, toileting, bathing, feeding and bedding residents.

In November 2009, she became the roster clerk, which primarily involved computer work, however she continued to work as a team leader on Sundays, and as an extra, assisting other care workers on Tuesday and Friday mornings. She was also in charge of care for a particular resident who needed special attention. By March 2010, she worked primarily as the roster clerk, except on Sundays, when she worked as a team leader.

Approximately six weeks prior to 28 June 2010, she started to experience intermittent neck and shoulder pain. At the start of her shift on Sunday, 27 June, she immediately felt pain while administering medication to residents, and she went home. On 28 June 2010, she saw her general practitioner, Dr Morian, who referred her to Blacktown hospital. The hospital discharged her with a diagnosis of muscular injury. After a week off, she worked intermittently but was unable to perform her duties. Dr Morian certified her unfit.

The insurer denied the claim on the ground that the worker did not suffer a work related injury in August 2007 or due to the nature and conditions of employment between November 2009 to 28 June 2010 and that, even if she had suffered an injury, her employment was not a substantial contributing factor to such injury.

The Arbitrator found that the worker suffered injury to her cervical spine, a disc protrusion at the C5/6 level, which arose out of or in the course of her employment with the appellant between November 2009 and 28 June 2010 and remitted the matter to the Registrar for referral to an AMS.

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

• found that the pleadings in the Application constituted adequate pleadings and that deficient pleadings can be cured by reference to the medical evidence served in support of the claim (pleadings);
• found that the evidence from Dr Gray, orthopaedic spine surgeon, of 28 January 2011 was supportive of causation (Dr Gray’s evidence);
• found that the histories and opinions of Dr New, orthopaedic and spinal surgeon, and Dr Giblin, orthopaedic surgeon, were able to be reconciled to support the worker’s claim on causation (histories and opinions of Dr New and Dr Giblin);
• failed to address a key submission made by the appellant as to the reliability of Dr New’s history (submissions about Dr New’s history), and
• relied on the opinion of Dr New when his history was not sufficient basis on which to found his opinion on causation (Dr New’s evidence).

Held: The Arbitrator’s determination of 24 January 2014 was confirmed.

Pleadings

1. The function of pleadings is to state with sufficient clarity the case that must be met and to ensure the basic requirement of procedural fairness, that a party had the opportunity to meet the case against him or her (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 (Banque Commerciale)) [52].

2. The initial letter of claim, dated 4 April 2012, referred to an industrial accident in “August 2007” (which related to the earlier back injury) and from “November 2009 to 28 June 2010”.The insurer did not seek any further particulars of the cause of the injury and did not need to; it was well aware of the allegations made by the worker [53].

3. In these circumstances, though it was unsatisfactory that the Application alleged the worker’s injury had been caused by the “nature and conditions of employment”, that did not prevent the Arbitrator from determining the claim on its merits. Cases are decided on the evidence tendered, not on the pleadings (Banque Commerciale) [56].

4. The Arbitrator stated that the relevance of the pleadings had to be considered in the context of the case and correctly concluded that inadequacy of the pleadings did not render the claim “totally incomprehensible or defective” (Hua v Freedman Electronics Pty Ltd [2011] NSWWCCPD 60) [64].

5. As pleadings are only a means to an end and if, in the running of the case, the parties choose to restrict them, enlarge them, or to disregard them, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest (Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138)) [65].

6. The appellant was well aware of the case it had to meet. If it was not aware, it did not seek further particulars. In these circumstances, the appellant could not complain that the Arbitrator erred in determination of the case on the evidence tendered. The appellant pointed to no prejudice suffered by that course being adopted. Whether the duties were that of a team leader and/or roster clerk did not assist the appellant as both duties were part of the nature and conditions of her employment that caused the worker’s injury [66]-[67].

7. The appellant’s submission that the parties were left to “speculate as to precisely what ‘duties’ or ‘nature and conditions’ the Arbitrator” referred to was incorrect. The Arbitrator accepted that both aspects of the worker’s duties, her work as a team leader and roster clerk, had caused the cervical spine injury. Those findings were open on the evidence and disclosed no error [73]-[74].

Dr Gray’s evidence

8. The Arbitrator accepted that the worker’s duties over the relevant period were mixed, albeit she worked mainly as a roster clerk, and observed that the experts had slightly different medical histories. Dr Giblin and Dr Hsu, adult and paediatric spine surgeon, did not have detailed histories whilst Dr New and Dr Gray had slightly different histories. Dr Gray took a history that the worker felt the onset of pain was related to her administrative work and also helping as a care worker. Whilst he was not asked to provide an opinion on causation (and did not do so), Dr Gray did not reject the possible connection between the injury and the worker’s employment [84]-[85].

9. The Arbitrator’s statement that Dr Gray did not dismiss the worker’s account as an explanation for what occurred was consistent with the evidence. Without more, however, it did not mean that the Arbitrator found Dr Gray’s evidence was supportive of the worker’s claim on causation [86].

Histories and opinions of Dr New and Dr Giblin

10. The Arbitrator correctly accepted Dr New’s opinion that treating patients and doing normal office work led to the disc bulge. Despite a “more limited history”, the Arbitrator correctly observed that the history by Dr Giblin (which only referred to the worker’s administrative duties) was not so much wrong but incomplete (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705) [102]-[103].

11. The facts assumed by an expert do not have to correspond with complete precision with the facts established. It is a question of fact whether they are sufficiently like the facts established to render the opinion of the expert of any value (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; [1985] HCA 58; 59 ALJR 844; Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282) [104].

12. Contrary to the appellant’s submissions, the opinions from Dr Giblin and Dr New did not have to be reconciled. They were not contradictory and were both supportive of the claim. It was open to the Arbitrator to accept the opinions of both doctors, as she did. As there were two potential causes of an injury (in this case, the computer duties and the nursing duties), which were both work related, it did not advance the employer’s position to say that one doctor referred to only one cause and another doctor referred to both. Dr Giblin’s opinion that the computer work caused the injury was not undermined by Dr New’s evidence that it occurred while treating patients and in the course of her office duties [105]-[106].

13. The alleged inconsistency between the injury listed on the claim form and Dr New’s history was of no consequence, except (perhaps) to the worker’s credit, which was not challenged at arbitration or appeal. The more significant point was that the claim form is consistent with Dr Giblin’s evidence, which strongly supported the claim on its own [108].

Submissions about Dr New’s history

14. The appellant submitted that Dr New provided no opinion on causation, that his history was a completely different account to that in the notice of injury form and in the claim form, and that the various medical histories were problematic. The Arbitrator addressed the inconsistencies in the histories when dealing with the pleadings and did not accept that they were so inconsistent as to be ultimately unreliable. That finding was open and disclosed no error. The Arbitrator did not deal with that issue further because there was no submission that Dr New’s history should not be accepted because it was inconsistent with the claim form. It is not an error for an Arbitrator not to deal with an issue never argued. (Brambles Industries Ltd v Bell [2010] NSWCA 162; [2010] NSWCA 162; 8 DDCR 111 (Bell)) [117].

15. Even if the appellant had argued that point at the arbitration, the discrepancy between the claim form and Dr New’s history was insignificant. The claim form was only one part of the evidence. Dr New’s history was consistent with the worker’s statement, which referred to her feeling pain in her neck while at her desk and attending to residents. The Arbitrator accepted the factual foundation in Dr New’s report, which was consistent with the worker’s statement and the Arbitrator’s earlier findings of fact about the nature of her duties. Those findings were open and disclosed no error [118].

Dr New’s evidence

16. The submission on appeal, that Dr New’s opinion did not provide a fair climate for the opinion expressed, was not argued before the Arbitrator. It is not an error for an Arbitrator not to deal with an issue not argued (Bell). A party is bound by the conduct of his case and it is only in the most exceptional circumstances that a party is allowed to raise a new argument that was not put at the hearing (University of Wollongong v Metwally (No 2) (1985) (1985) 59 ALJR 481). There were no submissions as to why the appellant should have been permitted to raise this issue on appeal [123]-[124].

17. The submissions ignored the principles addressing the assessment of expert evidence in the Commission. The Commission must be satisfied that expert evidence provides a satisfactory basis upon which findings can be made (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399) [126].

18. An expert’s duty is satisfied by the identification of the facts and reasoning process which they assert justifies the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinion expressed (Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157) [127]-[129].

19. Dr New’s evidence comfortably satisfied the above standard. He based his opinion on the history, his findings on examination, radiological evidence and, though unstated, his experience as an orthopaedic and spinal surgeon. The only evidence against the opinions of Dr Giblin and Dr New was the evidence of Professor Ehrlich, which the Arbitrator rightly rejected. Professor Ehrlich, qualified by the employer, took no relevant history at all. In the absence of any history, his opinion that the disc protrusion occurred spontaneously carried no weight [133].

Puffett v Leighton Contractors Pty Ltd [2014] NSWWCCPD 24

Notice of claim, s 261 of the 1998 Act; weight of evidence; absence of direct evidence of relevant facts

O’Grady DP

30 April 2014

Facts:

The appellant worker was employed by the respondent as a yardman between September 2003 and August 2007. The appellant ceased work on 14 August 2007 due to ongoing pain and disability experienced in both his knee joints and had suffered from osteoarthritis in each knee for a number of years prior to the cessation of work. The evidence revealed that the appellant underwent total knee replacement to the left knee in August 2009 and the right in November 2010.

There was no dispute that the appellant received an unrelated injury in the course of his employment on 8 May 2007. The injury, as a result of a fall on stairs at the respondent’s premises, involved a laceration to the appellant’s right leg, a fracture of his left arm and aggravation of the degenerative conditions of the knees. Proceedings commenced on behalf of the appellant concerning that injury were settled by agreement and the proceedings were discontinued.

On 19 December 2012, the appellant’s solicitors forwarded a notice of claim to the respondent and its insurer seeking payment of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act and for hospital, medical and other expenses. The notice made reference to an “Industrial Accident: 17 September 2003, 10 March 2005, 21 November 2006, 8 May 2007 and from September 2003 to August 2007”. The injuries particularised in the notice of claim involved injuries to the right foot, back, left ear, as well as the injuries received on 8 May 2007.

The respondent disputed the claim and forwarded a s 74 notice which asserted that the alleged injury said to have been caused by employment between September 2003 and 14 August 2007 had not been the subject of notice required by ss 254 and 255 of the 1998 Act, nor had a claim been made as required by ss 260 and 261.

An Application to Resolve a Dispute was filed with the Commission by the appellant in February 2013. That Application was subsequently amended at the hearing. Following that amendment, the only allegation of injury was that of aggravation of the osteoarthritic condition of the appellant’s knees as a result of the nature and conditions of employment with the respondent.

The Arbitrator found that the worker had injured both knees as alleged. A further finding was made that a notice of claim had not been made as required by s 261(1) of the 1998 Act. Award was made in favour of the respondent employer.

The issues in dispute on appeal were whether:

• the Arbitrator erred in finding that the appellant had failed to comply with the provisions of s 261 of the 1998 Act concerning notice of claim, and
• the Arbitrator erred in failing to find that the appellant was not aware of the subject injury until the notice of claim was served on 12 October 2012.

Held: The Arbitrator’s determinations and findings were confirmed.

Submissions, discussion and findings

1. There were shortcomings in presentation of the appellant’s case; he erroneously referred to s 254 of the 1998 Act whereas it appeared, instead, that he intended to suggest error concerning the Arbitrator’s findings of the requirements of s 261. The error suggested by the appellant was that the Arbitrator failed to take circumstantial evidence into consideration in finding proof of the date when the appellant first became aware of the subject injury (s 261(6)). There was no direct evidence from the appellant or his solicitor regarding the appellant’s state of knowledge of injury. The Arbitrator was correct in his conclusion that the appellant could not rely upon the provisions of ss 261(4)(b) or 261(6) of the 1998 Act [28]-[32].

2. Nothing raised on appeal demonstrated error. It was a matter for the Arbitrator to determine the weight of the evidence before him. The Arbitrator had earlier, having regard to the absence of any direct evidence from the appellant concerning relevant matters, determined that he was not satisfied that the appellant had “discharged the onus of showing that his failure a [sic, failure to] bring a claim out of time can be excused by reason of ignorance, mistake, absence from the State or other reasonable cause pursuant to s 261(4)(b) of the 1998 Act”. Nothing raised on this appeal demonstrated relevant error on the Arbitrator’s part in so concluding. Nothing put by the appellant seeking to challenge the Arbitrator’s conclusion concerning s 261(6) was in any manner suggestive of relevant error [34].

3. The Deputy President accepted the respondent’s submission that ground one, which suggested error concerning s 254 of the 1998 Act, was misconceived [35].