Issue 11: November 2015

Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335

NB: This headnote substantially follows the headnote issued by the Court of Appeal with this decision.

WORKERS’ COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker appealed to Workers Compensation Commission – whether Deputy President erred in finding that the worker did not challenge the arbitrator’s finding about the thoracic spine – whether Deputy President’s misreading of the arbitrator’s reasons was an error of law – whether Deputy President had the power under the 1998 Act, s 352(7) to remit part only of the worker’s claims for re-determination

PROCEDURE – procedural fairness – Workers Compensation Commission erroneously found that appeals from an arbitrator to the Commission did not challenge the arbitrator’s finding that the worker did not suffer a thoracic spine injury – whether Commission finding that any such challenge would not have succeeded in any event indicated that the worker did not suffer any practical injustice as a result of a prima facie denial of procedural fairness – consideration of the weight to be given to contingent findings

Court of Appeal

29 October 2015

Facts:

On 18 September 2012, the worker lodged an Application to Resolve a Dispute in which he alleged that on 12 June 2009 he suffered injuries to his thoracic and lumbar spine in the course of his employment with Quality Castings Pty Ltd.

In a determination dated 17 February 2014, the Commission, constituted by an Arbitrator, found that the worker did not sustain any injury to the thoracic or L1/2 regions of his spine, but did sustain a lower lumbar region strain, the effects of which ceased by 19 January 2010. The Arbitrator awarded the worker weekly compensation until 18 January 2010 and rejected his claim under s 60 of the 1987 Act for medical and hospital expenses and his claim under ss 66 and 67 of that Act for a lump sum payment for permanent impairment and for pain and suffering. On 10 June 2014, the Arbitrator refused an application by the worker for reconsideration of his February decision.

The worker appealed the two decisions of the Arbitrator to the Deputy President. Written submissions on the appeal were originally furnished by Buttar, Caldwell & Co (the original submissions).

The worker terminated Buttar, Caldwell & Co’s retainer, and with the assistance of the Commission, retained Mr Stockley of counsel. The Deputy President directed that the appeals start again and a timetable was set for the filing of fresh submissions. Mr Stockley filed submissions on 31 October 2014, only challenging the findings concerning the injury to the worker’s lumbar spine and its consequences. On 19 November 2014, Mr Stockley advised the Commission that he was no longer instructed in the matter.

On 20 November 2014, the Registrar confirmed by email with the worker that the worker was unrepresented and that he wished to proceed with the appeal; that the worker did not wish to make oral submissions at the hearing on 2 December 2014; the worker would like the further ground raised by Mr Stockley included in his appeal, in addition to the original submissions, and that the Deputy President could determine the matter on the papers.

On 9 December 2014, the Deputy President relevantly found:

• On his appeal, the worker did not challenge the Arbitrator’s finding that he did not injure his thoracic spine.
• As a result of an error made by the Arbitrator in relation to a matter concerning the worker’s credit, his findings concerning the worker’s lumbar spine injury and the entitlements to which it gave rise should be set aside, with those matters to be remitted to a different arbitrator for re-determination.
• Any challenge to the Arbitrator’s finding that the worker did not suffer a thoracic spine injury would not have succeeded because that finding did not depend on an assessment of the worker’s credit.

The worker appealed the Deputy President’s determination.

The issues in dispute on appeal were whether the Deputy President:

• erred in finding that the worker did not challenge the Arbitrator’s finding that he did not injure his thoracic spine;
• erred in concluding that the Arbitrator’s finding that the worker did not injure his thoracic spine was independent of his assessment of the worker’s credit, and
• had power under s 352(7) of the 1998 Act to remit part only of the worker’s claims for re-determination.

Held: The appeal was allowed.  

Per Macfarlan JA and Sackville AJA (Ward JA agreeing):

1. The Deputy President erred in finding that the worker did not challenge the Arbitrator’s finding that he did not suffer a thoracic spine injury ([17]–[20], [48]).

2. The Deputy President erred in concluding that the Arbitrator’s findings did not depend on an assessment of the worker’s credit ([29]–[31], [43], [58]).

Per Ward JA and Sackville AJA:

3. The finding referred to in (1) did not result in procedural unfairness as the Deputy President nevertheless considered whether the worker suffered a thoracic spine injury ([39], [54]).

4. The error referred to in (2) did not amount to an error of law ([40]–[42], [59], [62]).

5. The Deputy President erred in point of law by not explaining why he concluded that the Arbitrator’s decision did not depend on the flawed assessment of the worker’s credit ([61]–[62]).

Per Macfarlan JA

6. The finding referred to in (1) resulted in procedural unfairness as the Deputy President only considered whether the worker suffered a thoracic spine injury on a limited, contingent basis ([27]–[28]).

Reference made to the weight to be given to contingent findings.

Tarabay v Leite[2008] NSWCA 259 at [34]; Wade v Burns [1966] HCA 35; 115 CLR 537 at 555; Jackson v Lithgow City Council [2008] NSWCA 312 at [60]; and King v Goussetis (1986) 5 NSWLR 89 at 94–95 referred to.

7. The error referred to in (2) was an error of law as it involved the misconstruction of the Arbitrator’s written determination ([32]).

First Sport Ltd v Barclay’s Bank Plc [1993] 1 WLR 1229; 3 All ER 789 at 793; Jennings v Credit Corp Australia Ltd [2000] NSWSC 210; 48 NSWLR 709 at [11]; DCL Developments Pty Ltd v Range Harvester Australia Pty Ltd [2013] NSWSC 1025 at [2] and The Australian Gas Light Company v The Valuer-General; (1940) 40 SR (MSW) at 146 cited.

Workers Compensation Nominal Insurer v Adnan Al Othmani[2012] NSWCA 45 referred to by Ward JA.

State of NSW v Simms [2015] NSWWCCPD 62

Application to extend time to appeal, Pt 16 r 16.2 of the 2011 Rules; whether delay in obtaining transcript of extempore decision constitutes exceptional circumstances; causation of injury; reasonableness of action taken by the employer with respect to discipline, s 11A(1) of the 1987 Act; costs where appeal only succeeds on a ground not initially pleaded

Keating P

16 October 2015

Facts

The worker was employed by the appellant as a breathing apparatus instructor. He travelled around NSW providing training to fire fighters, using a purpose built semi-trailer.

On 6 June 2012, the worker was contacted by phone by his employer and informed he was to be the subject of an investigation into a complaint of fraudulent travel claims. Soon after he received a letter from his employer (dated 4 June 2012) confirming a preliminary investigation would be conducted. He was provided only with a redacted copy of the complaint which had been lodged by a co-worker.

On 9 August 2012, the worker was provided with a letter which identified, in general terms, that nine issues were being investigated.

The worker was not formally charged with any offence until 5 February 2013, at which point 113 charges were laid against him. In the meantime the allegations had been referred to the police and the Independent Commission Against Corruption. Neither of those agencies pursued the complaints.

Ultimately due to the worker’s deteriorating health he was medically discharged on 13 February 2015 (two years later) and the charges were not pursued.

The worker claimed to have suffered a psychological injury as a result of the notification of the investigation which he claimed had been aggravated by the extended course of the investigation.

The claim was resisted on the basis that any condition suffered by the worker was constitutional in origin or in the alternative if the worker did suffer a psychological injury it was due to reasonable action taken with respect to discipline under s 11A of the 1987 Act.

The Arbitrator rejected the appellant’s submission that the worker did not suffer a work related injury, and instead suffered from a bipolar condition which was constitutional in origin and was unrelated to his employment. The Arbitrator also rejected the appellant’s alternative argument, namely that, if the worker was injured as alleged, that the injury was caused by reasonable action taken with respect to discipline under s 11A of the 1987 Act.

The issues on appeal were whether the:

• appellant should be granted an extension of time to lodge the appeal;
• Arbitrator erred in his analysis and determination of the question of causation, and
• Arbitrator erred in taking into account irrelevant considerations in his determination of whether the appellant’s actions taken with respect to discipline were reasonable under s 11A, being the conduct of the appellant in the prosecution and investigation of the disciplinary proceedings after 6 June 2012, notwithstanding the finding that the conduct causing the worker to sustain injury occurred on or about 6 June 2012.

Held: Time to appeal was extended. The Arbitrator’s determination was revoked and remitted to another Arbitrator for re-determination.

Time to appeal

1. The time to appeal runs from the date the Certificate of Determination was issued. Therefore, the appeal application was lodged over five weeks out of time and the appellant required leave to appeal (s 352(4); Pt 16 r 2(2) of the 2011 Rules) [27]–[30].

2. The appellant submitted that, contrary to s 294(2) of the 1998 Act and Pt 15 r 15.6 of the 2011 Rules, the Certificate of Determination did not have a brief statement attached setting out the Commission’s reasons for the extempore determination. Therefore, it was argued, it was not a proper Certificate of Determination “pursuant to the Act and rules” and time did not commence to run until the transcript of the extempore decision was provided. Accordingly, it was submitted, the appeal was filed within the time prescribed by s 352(4). In the alternative, it was submitted that there were exceptional circumstances that required an extension of time to be granted [31]–[35].

3. The submission that the Certificate of Determination was invalid was rejected. Where an Arbitrator delivers an extempore decision, that decision is recorded and the recording is made available to the parties on request. The Registrar then issues a Certificate of Determination and a document headed “Statement of Reasons - Extempore Orders”. That is what occurred in this matter. That document satisfied the requirements of s 294(2) of the 1998 Act, as the Commission has held on previous occasions (Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14 and New South Wales Police Service v Shelley [2011] NSWWCCPD 57 applied) [40]–[43].

4. The submission that the time for lodging an appeal did not commence to run until the receipt of the transcript of the reasons for the decision was rejected. Time ran from the date the Certificate of Determination was issued, and, therefore, the appeal was lodged out of time [44].

5. Accepting that there was a delay in the provision of a transcript of reasons for decision, counsel for the appellant was unable to advance any reason why an appeal application could not have been lodged within the time prescribed, subject to the appellant’s right to supplement the grounds and submissions following the receipt of the transcript [45].

6. The appellant was represented by counsel who was present throughout the proceedings before the Arbitrator, including the delivery of the extempore decision. Practitioners at judgment should be ready and active in taking notes (Dillon v Boland; Dillon v Cush [2012] NSWCA 364 applied) [46].

7. To the extent that it may be inferred from the appellant’s submissions that the failure to lodge the appeal within time was due to a delay in obtaining a transcript of the Arbitrator’s reasons, the President did not accept that that, of itself, constituted exceptional circumstances that justified the extension of time: Wynyard Properties Pty Ltd v Reyes [2013] NSWWCCPD 23 [49].

8. However, after weighing several matters, the lack of prejudice to the respondent and the prospects of success on appeal (at least on one critical issue), the President was satisfied, not without considerable hesitation, that there were exceptional circumstances that justified the extension of time to appeal (Pt 16 r 16.2(12) of the 2011 Rules; Gallo v Dawson [1990] HCA 30; 93 ALR 479; Bryce v Department of Corrective Services [2009] NSWCA 188; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 applied and considered) [55].

Did the Arbitrator err in his analysis and determination of the question of injury/causation?

9. The President rejected the appellant’s submission that the Arbitrator failed to have regard to the employer’s medical specialist’s opinion, which found the worker’s condition to be constitutional, namely a bipolar affective disorder, hypomanic phase, evidenced by mood swings, paranoia and disinhibition prior to June 2012. Given that the basis of that medical specialist’s opinion, namely the existence of pre-existing symptoms of unusual or abnormal behaviour, was unsupported by any evidence, it was open to the Arbitrator to reject it [93]–[95].

10. The appellant also submitted that the Arbitrator erred in relying on the worker’s medical specialist’s opinion on the question of causation because that doctor did not conclude that the worker’s condition was caused by the events on or about 6 June 2012 in isolation. It was submitted that that doctor’s evidence was that the condition resulted from a series of stressors some of which post-dated June 2012. The President found that while the Arbitrator applied the common sense evaluation of the causal chain (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) he made inconsistent findings with respect to the cause of the injury. Those inconsistences did not affect the finding on injury because, irrespective of whether the injury was due to the events on or around 6 June 2012, or due to a series of stressors during 2012, the injury still arose out of or in the course of employment. However, the findings on injury affected the approach to the determination of the s 11A issue [99]–[100].

11. The appellant further submitted that the Arbitrator failed to take into account evidence in the clinical presentations to various doctors and psychiatric nurses at Tweed Heads Hospital in 2013 and 2014 which pointed more to a constitutional diagnosis of bipolar affective disorder than a work related adjustment disorder. The Arbitrator was not taken to that evidence. Therefore, the President found that the Arbitrator could not have erred in not dealing with material in respect of which no submissions were put at the Arbitration hearing. In any event, the clinical notes did not advance the appellant’s case, as the notations in the clinical notes did not address the dispute before the Arbitrator, that being, whether the condition was idiopathic or related to the ingestion of medication for the adjustment disorder [101]–[104].

12. To the extent that the worker’s condition was due, in part, to a bipolar disorder, given the worker’s medical specialist had a full and detailed history it was open to the Arbitrator to accept it in preference to other medical evidence. The doctor explained the bipolar features of the worker’s presentation as being a reaction to his antidepressant medication. That explanation was both plausible and logical and indicated that the bipolar condition resulted from reasonable treatment for the injury [106].

13. On the evidence presented to the Arbitrator it was open to him to conclude that the worker suffered from a chronic adjustment disorder with mixed features of anxiety and depression and an antidepressant induced bipolar disorder. Whether that condition was due to the events of 6 June 2012, or a series of stressors throughout 2012, it was clear that the worker’s employment was a substantial contributing factor to the injury. These findings were confirmed and not open to challenge on the re-determination [108].

Did the Arbitrator take into account irrelevant considerations in determining the s 11A defence?

14. The appellant submitted, relying on Northern NSW Local Health Network v Heggie [2013] NSWCA 255, that the Arbitrator erred by taking into account irrelevant considerations in assessing the reasonableness of the appellant’s conduct. It submitted that the Arbitrator took into account the conduct of the investigation after 6 June 2012, being the deemed date of injury. Those matters included the Arbitrator’s criticism of the letter of 9 August 2012 as containing inadequate particulars of the allegations made against the worker. The appellant also relied upon the Arbitrator’s findings that the worker was left in a state of uncertainty about the investigation notwithstanding that the preliminary enquiry had been completed by 29 August 2012 [109].

15. The Arbitrator found that the injury was caused by the telephone call and reading the letter of 4 June 2012. However, the Arbitrator inconsistently found that the injury was also caused by “subsequent events” after 6 June 2012. Those two findings did not sit comfortably together [113]–[115].

16. It was further unclear whether it was the events on or about 6 June 2012 that were found to be the whole or predominant cause of the injury or whether it was those events combined with the whole of the investigation process that followed. The failure to make a clear finding on this issue was an error that affected the whole approach to the s 11A defence. Accordingly the challenge to the Arbitrator’s s 11A finding succeeded [116]–[118].

17. It followed that, except for the Arbitrator’s findings on the question of injury, which stand, the Arbitrator’s determination was revoked and the matter remitted to another Arbitrator for re-determination [119].

Lee-Anne Oxley as trustee for Storm Oxley, James Oxley, Kiara Oxley and Mia Oxley v EDCO Contracting Group Pty Ltd and Ors [2015] NSWWCCPD 61

Section 25 of the 1987 Act; claim by and on behalf of dependants of deceased worker; s 4 of the 1998 Act; whether claimants dependent upon the deceased; whether deceased and a claimant were in a de facto relationship; s 21C of the Interpretation Act 1987; whether child, on behalf of whom a claim is brought, was one to whom the deceased stood in place of a parent; apportionment of lump sum compensation payable to dependants upon death of a worker

O’Grady DP

15 October 2015

Facts:

The worker died on 17 April 2013 as a result of injuries received by him in a motor vehicle accident which arose out of or in the course of his employment with Edco Contracting Group Pty Ltd. Following his death, a number of parties made claims against the employer in respect of lump sum payment and weekly payments under s 25 of the 1987 Act.

The worker’s former wife, Lee-Anne, made a claim on behalf of the deceased’s and her four children: Storm (born in 2000); James (born in 2002); Kiara (born in 2007), and Mia (born in 2008) in that they were wholly or partially dependent on the deceased.

Thea Neville, the worker’s alleged de facto partner, made a claim in both her personal capacity, and as the legal personal representative of her children Lilliana (born in 2011) and Zanda (born in 2013) in that they were wholly or partially dependent on the deceased. Zanda was a natural child of the deceased. Lilliana was born from another relationship and was alleged to be a person to whom the deceased stood in the place of a parent. Thea and the deceased were not living together at the time of the deceased’s death. The deceased’s mother, Shirley, also made a claim.

The employer accepted that it was liable to pay compensation to those entitled following the deceased’s death. A dispute arose as to the alleged dependency of Shirley and that of Thea and her child Lilliana. The employer submitted that it was a matter for the Commission to determine the questions as to dependency and apportionment.

On 2 June 2015, the Commission issued a Certificate of Determination, in which it was found that Storm; James; Kiara; Mia; Shirley; Thea; Lilliana, and Zanda were wholly or partly dependent on the deceased, and the lump sum death benefit was apportioned among them in various sums. Lilliana was also awarded weekly payments pursuant to s 25(1)(b)(i) of the 1987 Act. Lee-Anne appealed on behalf of Storm, James, Kiara, and Mia.

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

• Thea was, at relevant times, in a de facto relationship with the deceased;
• Thea was either wholly or partially dependent upon the deceased, and
• Lilliana was a person to whom the deceased stood in the place of a parent and was wholly or partly dependent upon the deceased.

The Arbitrator’s decision as to the manner of apportionment of the lump sum payable pursuant to s 25 of the 1987 Act was also the subject of challenge.

Held: The Arbitrator’s determination was confirmed.  

Fresh evidence

1. An application was made by Lee-Anne seeking leave to tender fresh or additional evidence, being a handwritten document that appeared to be signed by Shirley. The application was refused. There was a failure to establish that the evidence in question was not available and could not reasonably have been obtained before the proceedings concerned, nor had it been established that failure to grant leave would cause substantial injustice (see: Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (at [66]) and CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 at [31]) [15]–[31].

Submissions, discussion and findings

2. The appellant made no challenge concerning the Arbitrator’s finding that Shirley was dependent on the deceased. Notwithstanding the absence of such challenge, it was noted by the Deputy President that the relief sought in the Application was “recalculation of the lump sum and weekly benefit amounts be apportioned for the appellant’s children and [Zanda] only”. It was also noted that, notwithstanding the challenge concerning apportionment, no submissions had been put concerning any relevant error on the part of the Arbitrator other than the suggested erroneous inclusion of Thea and Lilliana as being persons entitled to apportionment [62]–[63].

Grounds one and two

3. It was of significance to note that the Arbitrator, correctly, addressed the issue of the existence of the de facto relationship by reference to the terms of s 21C of the Interpretation Act 1987. The appellant had failed to make any reference in submissions to that legislation nor was there any analysis of the Arbitrator’s reasoning [68].

4. Having regard to the matters enumerated at [61] of the Arbitrator’s reasons, which addressed the criteria in s 21C of the Interpretation Act, the Arbitrator concluded that Thea and the deceased were in a de facto relationship at the time of death and that Thea was partly dependent for support upon the deceased at that time. The Arbitrator expressly rejected the assertions found in Lee-Anne’s evidence that such a relationship did not exist [71].

5. It was held on appeal that the factual conclusion reached by the Arbitrator was one open to him on the evidence and, more particularly, that his finding as to the existence of the relationship was made in accordance with relevant principle. Argument as advanced by Lee-Anne sought to place particular emphasis upon the fact that at the date of death, and for some time earlier, the deceased and Thea were not residing together. Such fact did not, of itself, defeat Thea’s argument that the relationship, as defined by the statute, existed in fact (see Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [196]–[200], [205] and Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635 at [34]–[35]) [72]–[74].

6. The Arbitrator correctly addressed the question as to the existence of the de facto relationship and, upon acceptance of the evidence of Thea, concluded that such relationship subsisted as at the date of death. The evidence was, it was held, capable of establishing that fact and the appellant had failed to make out any relevant error concerning that particular issue. As to the question of dependency the Arbitrator, again, accepted the evidence of Thea concerning the financial and other support afforded to her by the deceased. It was correct, as argued on behalf of the appellant, that there was little evidence before the Commission which corroborated Thea’s statements concerning these matters. Notwithstanding the scant evidence concerning the issue of dependency, it was open to the Arbitrator to conclude as he did concerning this question. Again, the appellant had failed to make out any relevant error on the part of the Arbitrator [76].

7. The appellant challenged the Arbitrator’s conclusion that Lilliana was a person to whom the worker stood in the place of a parent in terms of s 25(5). The Arbitrator’s conclusion concerning this question was reached following his acceptance of Thea’s evidence. That evidence included the statement that the deceased “treated Lilly as if she was his own child and when Lilly started to talk she called [the deceased] ‘dad’”. Thea also gave evidence that the deceased regularly bought clothes and toys for Lilliana and continued to pay the rent. The deceased, as stated by Thea in evidence, also paid for some of Lilliana’s medical expenses including leg braces which she required in late 2012 [77].

8. It was held that it was open to the Arbitrator to accept the evidence and that such evidence permitted the Arbitrator’s conclusion as to Lilliana being a person to whom the worker stood in place of a parent. No relevant error had been made out regarding this issue which had not been squarely raised in the grounds of appeal. That evidence was taken by the Arbitrator as establishing that Lilliana was partially dependent upon the deceased and, again, it was found that conclusion was reached without error on the Arbitrator’s part [78].

Ground three

9. The appellant asserted an error of law in failing to provide, as the Arbitrator was obliged, sufficient reasons for his conclusion. It was plainly stated by the Arbitrator that his conclusion concerning the nature of the relationship was founded upon his acceptance of Thea’s evidence. It was clear that the Arbitrator rejected argument founded upon suggested inferences to be drawn from the evidence of Shirley concerning this issue. It was held that the Arbitrator had discharged his obligation concerning the provision of reasons and no relevant error had been made out [79]–[80].

Ground four

10. This ground challenged the Arbitrator’s apportionment of the lump sum, asserting that the error arose “by reason of inclusion of [Thea] and [Lilliana] in both lump sum and weekly benefit death entitlements”. The relief sought on this appeal was that there be “a recalculation” of both “lump sum and weekly benefit amounts” and that they be apportioned “for the appellant’s children and [Zanda] only” [81].

11. The only argument advanced in support of this ground was founded upon the assumption that the challenge made to Thea and Lilliana’s entitlement was upheld. The author of the submissions overlooked the fact that Shirley was found by the Arbitrator to be entitled to a small portion of the lump sum. That fact had not been taken into account in submissions. It was of more significance to note that the appellant had made no effort to analyse the method adopted by the Arbitrator concerning his apportionment. The only argument advanced was that he erred in relation to the entitlement of Thea and the child Lilliana and, therefore, there should be either reapportionment on this appeal or remitter to another arbitrator to permit such reapportionment. No argument had been advanced as to the Arbitrator’s reasoning concerning the apportionment of the lump sum and it was concluded that his determination of that issue should not be disturbed [82]–[83].

City Commercial Painting NSW Pty Limited v Pargovski [2015] NSWWCCPD 59

Second claim for lump sum compensation for whole person impairment; preclusion of additional claim by application of s 66(1A) of the 1987 Act; consideration of Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250; challenge to Arbitrator’s factual finding of consequential right shoulder condition; weight of evidence

O’Grady DP

2 October 2015

Facts:

The worker fell in the course of his employment on 12 October 2010. He claimed compensation in the Commission, alleging that he had suffered whole person impairment by reason of injuries to his cervical spine and left upper extremity. The matter was referred to an AMS, who issued a MAC on 7 February 2013, certifying that the worker had whole person impairment of 13 per cent.

Agreement was subsequently reached between the parties concerning the worker’s claim, and orders were made by an Arbitrator on 24 April 2013, by consent, which made provision for the payment by the appellant to the worker of $18,700 in respect of 13 per cent whole person impairment (s 66 of the 1987 Act) together with the sum of $12,500 in respect of pain and suffering (s 67 of the 1987 Act).

On 10 February 2014, a second claim was made by the worker in respect of lump sum compensation pursuant to s 66. That claim particularised an alleged further loss of one per cent whole person impairment relating to the left upper extremity, five per cent whole person impairment in respect of the right upper extremity, which loss was said to be a consequence of the injury which occurred in 2010, and lump sum compensation in respect of 11 per cent whole person impairment by reason of a lumbar spine condition which was alleged to have been relevantly caused by the 2010 injury. Those claims were disputed by the appellant.

The claim heard by the Arbitrator concerned an alleged further one per cent loss in respect of the left upper extremity, a five per cent whole person impairment in respect of what was described as a consequential loss involving the right upper extremity and 11 per cent whole person impairment in respect of the worker’s lumbar spine which, it was alleged, had been suffered as a result of the fall in 2010.

The Arbitrator found that the worker had failed to establish that his lumbar spine had been injured in the subject fall. The Arbitrator further found that the worker suffered a right shoulder condition as a consequence of the 2010 injury. An order was made remitting the matter to the Registrar for referral to an AMS.

The issue in dispute on appeal was limited to a challenge to the Arbitrator’s factual finding that the condition of the worker’s right shoulder is a consequence of the subject injury.

Held: The Arbitrator’s determination was revoked in part.  

Preliminary matters

1. The worker’s submission that the appeal cannot be maintained and that it must fail, and should be dismissed by reason that the monetary thresholds (s 352(3) of the 1998 Act) were not met, was rejected, given that the claim made on behalf of the worker “remain[ed] on foot”, and the quantum of that claim, which may be defeated by operation of law, exceeded the relevant threshold [9].

2. There was no relevant point of distinction between the facts of Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 and the present facts. In the circumstances, the Arbitrator’s approach to the adjudication of the rights and liabilities of the parties as well as the manner of presentation of this appeal had been, by reason of that authoritative decision of the Court of Appeal, overtaken by events. It was accepted by the worker’s solicitor that having regard to the Court of Appeal’s construction and application of the provisions of s 66(1A) of the 1987 Act, the worker was not entitled to make the further claims which were the subject of these proceedings. It followed that the order made by the Arbitrator concerning remitter to the Registrar for referral to an AMS should be revoked [17],[19].

Challenge to finding of consequential right shoulder condition

3. The Arbitrator’s finding concerning the condition of the right shoulder was reached following a careful consideration of all the evidence and argument presented on behalf of the parties [22].

4. The appellant’s submissions did not expressly identify the grounds upon which the challenge to the Arbitrator’s factual finding concerning the worker’s right shoulder was founded. Those submissions merely asserted error [28].

5. The Arbitrator’s factual conclusion concerning a causal nexus between the subject fall and the condition of his right shoulder was reached in the absence of evidence concerning the nature of physical activity which had, apparently, been taken into account by Dr Guirgis. The submissions did not make clear whether the appellant was asserting error of law committed by reason of an absence of evidence. Upon an assumption that such error of law was asserted, the appellant’s submission was rejected. It was noted that the arguments advanced on appeal were also put on behalf of the appellant during submissions before the Arbitrator. When dealing with those arguments, the Arbitrator, correctly, concluded that the criticism concerning the state of the evidence were matters going to the weight of that evidence [29].

6. The absence of any description of “daily activities of living” to be found in Dr Guirgis’s reports was treated by the Arbitrator as being a factor relevant to the assessment of the weight of the views expressed by that witness. That question, concerning the weight of relevant evidence, was one to be determined by the Arbitrator. The appellant had failed to identify any relevant error on the part of the Arbitrator concerning his evaluation of the evidence relevant to this matter. The Arbitrator, correctly, cited the observations of Basten JA at [20] in State of New South Wales v Bishop [2014] NSWCA 354 [30].

7. The manner in which argument had been presented on appeal suggested that the appellant was seeking a review or rehearing of the matter in dispute. As is expressly provided in s 352(5) of the 1998 Act, this appeal is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion. Such an appeal is not a review or new hearing [31].

Carter v Star Track Express Pty Ltd t/as Star Track Express [2015] NSWWCCPD 60

Claim for lump sum compensation as a result of consequential conditions alleged to have resulted from accepted injury to right shoulder; assessment of evidence; whether worker established a prima facie case; principles in Watts v Rake [1960] HCA 58; 108 CLR 158 considered

Roche DP

8 October 2015

Facts:

This appeal challenged the Arbitrator’s finding that the worker did not suffer symptoms in her cervical spine and thoracic spine as a result of an accepted injury to her right shoulder.

The appellant worker performed office duties for the respondent employer, Star Track Express Pty Ltd, from January 2009 until 30 June 2013. On 18 May 2010, she tripped at work and fell, injuring her right elbow and right shoulder. The insurer accepted liability for this injury and paid compensation for surgery to the worker’s right shoulder (a rotator cuff repair) performed by Dr Duckworth, orthopaedic surgeon, on 29 September 2011.

In October/November 2011, the worker’s right arm was immobilised in a sling. She gave evidence that, during this period, she was conscious of constant pressure on her neck, shoulder and mid-back area.

In a statement dated 3 December 2014, the worker said that her neck and mid-back pain became “noticeably worse” about six months after the operation on her right shoulder and was “somewhat incapacitating as a result of protecting [her] right arm and shoulder”. She had not experienced neck or mid-back symptoms before the right elbow and shoulder injury.

The claim before the Arbitrator was for lump sum compensation as a result of symptoms alleged to have developed in the worker’s left shoulder, thoracic spine (mid-back) and cervical spine (neck) as a result of the accepted injury to the right shoulder (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796).

The worker alleged that she also developed symptoms in her neck and thoracic spine in 2012, because of the altered biomechanics as a result of the right shoulder injury and surgery, and that she complained about her symptoms to her treating doctors and to Ms Gardiner-Keenan, physiotherapist. Clinical notes produced from those sources did not support that assertion.

The worker relied on evidence from Dr Giblin, orthopaedic surgeon, who first saw her on 24 February 2014, at the request of her solicitors, and took the first documented history of neck and thoracic spine symptoms. He stated that it was common for someone who wears a sling for a period, or who has altered mechanics of their shoulder mechanism, to have cervical and thoracic pain. (X-rays taken in March 2014 revealed degenerative changes in the worker’s neck and thoracic spine.)

The Arbitrator found that, because of overuse of the left shoulder due to pain and restrictions in the right shoulder, the symptoms in the left shoulder resulted from the injury to the right shoulder. However, she did not accept that neck and thoracic spine symptoms developed as a consequence of the right shoulder injury. On 30 June 2015, the Commission issued a Certificate of Determination, making an award for the respondent in relation to the allegation of consequential conditions in the cervical spine and thoracic spine and an award for the worker in relation to the left shoulder being a consequential condition caused by the agreed right shoulder injury on 18 May 2010. The worker appealed against the Arbitrator’s findings relating to the cervical spine and thoracic spine.

The grounds of appeal were:

• the Arbitrator erred in considering it necessary for the worker to give contemporaneous evidence regarding muscle spasm;
• the only medical evidence is to the effect that the worker’s neck symptoms resulted from her accepted injury (to the right shoulder), and
• the Arbitrator erred by not taking into account a submission based on Watts v Rake [1960] HCA 58; 108 CLR 158.

Held: The Arbitrator’s determination was confirmed.  

Ground 1: contemporaneous evidence

1. The Arbitrator was confident that, given that Ms Gardiner-Keenan expressly recorded pain in the left shoulder, had the worker complained of pain in the cervical spine or thoracic spine, Ms Gardiner-Keenan would have recorded it. The fact that she did not was an important piece of evidence the Arbitrator was entitled to consider and did consider in her assessment of the claim [24].

2. Read in its proper context, the Arbitrator’s reference to the absence of contemporaneous evidence of spasm was a reference to the absence of any complaint by the worker to her treating doctors, or her physiotherapist, of any symptoms in her neck or mid-back in late 2011 or 2012. That finding was open on the evidence and disclosed no error [30].

3. The submission that the treatment by Ms Gardiner-Keenan was indicative of altered mechanics of the shoulder mechanism did not advance the worker’s position on appeal. Such treatment may well have been “indicative of altered mechanics of the shoulder mechanism”, but did not establish relevant error by the Arbitrator in circumstances where, for reasons given, she did not accept the worker’s history [31]–[32].

4. The submission that the Arbitrator failed to take account of Dr Duckworth’s evidence of spasm around the shoulder did not establish error. The worker did not rely on this evidence at the arbitration and it is not an error for an Arbitrator not to deal with material on which no submissions were made (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [22] and [30]). That is particularly so in a case where, as in this matter, there were over 500 pages of material in the Application to Resolve a Dispute alone, much of which was irrelevant. The Arbitrator did not err in failing to refer to Dr Duckworth’s evidence of spasm around the shoulder [33], [35].

5. If the Arbitrator did err in failing to refer to that entry in Dr Duckworth’s report, that error made no difference to the outcome. Reading the decision as a whole, it was clear that the lack of evidence of spasm was not the crucial factor in the Arbitrator’s determination. The Arbitrator based her conclusion on a lack of complaint of neck and mid-back symptoms to the treating doctors and the physiotherapist in 2011 and 2012, the fact that she did not accept the worker as a reliable historian, and the fact that the neck and thoracic spine symptoms developed so long after the injury to the right shoulder. Though it may have been more accurate to have noted the long delay between the worker ceasing to wear the sling for her right shoulder and the first documented complaint of neck and thoracic spine symptoms in 2014, nothing turned on that. The Arbitrator’s findings were open on the evidence and disclosed no error [36].

6. It is for the parties to present their respective cases and to draw the Arbitrator’s attention to relevant evidence. A judge (or an Arbitrator) is not obliged to search through a mass of apparently non-supportive evidence to find supportive material (Gamester Pty Ltd v Lockhart [1993] HCA 79; 112 ALR 623; 67 ALJR 547) [34].

Ground 2: medical evidence regarding neck symptoms

7. Though Dr Panjratan provided some support for the worker in his first report, with his reference to the worker having suffered a “[s]econdary strain to the neck”, it was tolerably clear, on proper analysis of the whole of his evidence, that that was not his ultimate conclusion. In assessing a doctor’s opinion it is always important to consider all of the doctor’s evidence. That is because a deficiency (or ambiguity) in one part of the expert’s evidence “may be made good by other material, either in another report or in oral evidence” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [92]) [46].

8. It was clear that, as required, the Arbitrator considered all of Dr Panjratan’s evidence. It was open to her to conclude that the worker had not discharged the onus of proof that her neck and thoracic spine conditions resulted from the injury to her right shoulder. This was so even though there was an ambiguity as to what Dr Panjratan meant when he said, in his first report, that he did “not believe the neck and thoracic spine are related to her right shoulder injury”. That ambiguity was clarified in his second report, which he prepared after specific and extensive reference to the evidence from Dr Duckworth, Dr Chara, Ms Gardiner-Keenan and the worker, and where he clearly rejected the suggestion that the neck symptoms resulted from the right shoulder injury [48].

Ground 3: Watts v Rake

9. At the arbitration, counsel for the worker did not refer to Purkess v Crittenden [1965] HCA 34; 114 CLR 164 or Watts v Rake, nor argue that the worker had established a prima facie case and that, therefore, the evidentiary burden shifted to the respondent. It followed that the Arbitrator did not err in not referring to those authorities [50].

10. The Arbitrator did not accept that the worker had made out a prima facie case with respect to her claim that her neck and thoracic spine symptoms resulted from the right shoulder injury. That conclusion was open on the evidence and disclosed no error (see Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587 at [83]). In the Commission, the ultimate persuasive onus rests with the applicant worker. The worker failed to discharge that onus. This ground was not made out [53]–[54].