Issue 4: April 2015

Hassan v Spotless Property Cleaning Services Pty Ltd [2015] NSWWCCPD 19

Factual findings made by consent in previous proceedings; whether issue estoppel arises from such finding; jurisdiction of Arbitrator to make findings which imply that no medical dispute exists; s 65(3) of the 1987 Act

O’Grady DP

6 March 2015

Facts:

The question raised in this appeal was whether the worker was, by reason of the making of a consent finding in earlier proceedings in the Commission, estopped from asserting in these proceedings that he suffered whole person impairment as a result of injury received by him whilst employed by the respondent.

There was no dispute that the worker suffered a back injury in the course of his employment with the respondent on 27 August 2007. He was absent from work by reason of incapacity for two weeks, following which he returned to suitable duties that he performed until a return to full duties in January 2008.

The worker was paid workers compensation benefits until, November 2007, the insurer gave notice that it denied liability. The worker stated that he experienced ongoing pain and discomfort following his return to normal duties. In June 2012 he suffered, what he described as, “a recurrence of lower back pain” and was certified unfit for work.

A dispute arose concerning the worker’s entitlement to workers compensation. Proceedings claiming weekly compensation were commenced in the Commission, which came before the original Arbitrator for conciliation, at which time agreement was reached by the parties concerning settlement of the matters in dispute. A consent finding was made “that from 27 September 2013 the applicant has fully recovered from the effects of the injury the subject of this claim”.

On 12 March 2014, a claim was made by the worker’s solicitors against the respondent and its insurer in respect of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. The worker relied upon a report of Dr Denise Tong, musculoskeletal consultant, in support of the claim which alleged an 11 per cent whole person impairment as a result of the injury received on 27 August 2007. The claim was declined by the respondent’s insurer in a s 74 notice dated 24 April 2014. It was asserted that the worker was estopped from denying the matters found by the original Arbitrator.

The worker commenced these proceedings on 11 June 2014 by filing an Application to Resolve a Dispute, seeking orders with respect to lump sum compensation, the date of injury being 27 August 2007. Senior Arbitrator Moore issued a Certificate of Determination on 23 October 2014.

The issue in dispute on appeal was whether the Senior Arbitrator erred in concluding that, by reason of the existence of the consent finding noted in the Certificate of Determination dated 13 November 2013, the worker was estopped from pursuing a claim for lump sum compensation.

Held: The Arbitrator’s determination was revoked.  

Disposition of the appeal

1. The worker relied upon three grounds, each of which alleged error of law on the part of the Senior Arbitrator. It was asserted that the Senior Arbitrator failed to consider the question of whether the original Arbitrator had jurisdiction to make a finding which determined the claim for permanent impairment benefits (ground one). It was also alleged that the Arbitrator erred in determining that the consent finding was one legally indispensable to the award made (ground two). It was further asserted that the Arbitrator erred in determining that the consent finding could create an issue estoppel (ground three) [29].

2. It was faintly argued on behalf of the worker that an estoppel may not be created by a consent finding. That submission was rejected given the views expressed by Handley JA in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 (at [9]) concerning the consequences of the entry of a consent award [30].

3. The defence relied upon by the respondent before the Senior Arbitrator was that by reason of the consent finding, the worker was estopped from asserting in these proceedings that he was entitled to whole person impairment compensation. However, in the arbitration and on appeal, there was a difficulty, being that the “issue” which the respondent asserted was being agitated in these proceedings, and which the worker was said to be estopped from pursuing, had not been plainly identified [31].

4. Before the Senior Arbitrator, the respondent’s counsel characterised the issue finally determined by the Arbitrator as being that “any effects of the workplace injury have resolved”. It was later asserted in submissions before the Senior Arbitrator, in reply to argument advanced on behalf of the worker, that it was “open for an Arbitrator and the Commission to make a determination that the effects of an incident or an injury have ceased”. At the hearing of the appeal, the attention of the respondent’s counsel was drawn to the written submissions furnished in support of the appeal. It was made clear by the respondent’s counsel at the hearing of the appeal that reliance was placed upon the drawing of an inference from the terms of the consent finding that “there has been a finding made that there can be no medical dispute between the parties”. There was no doubt that counsel was there adopting the expression “medical dispute” as that term is defined in s 319 of the 1998 Act, which definition includes a dispute as to “the degree of permanent impairment of the worker as the result of an injury” [32]–[34].

5. The Senior Arbitrator’s ultimate conclusion that the worker “was estopped from pursuing his claim for lump sum compensation” appeared to have been founded upon the Senior Arbitrator’s view that the worker, by reason of the consent finding, could not in these proceedings deny that he had “fully recovered” from the effects of the subject injury. The Senior Arbitrator’s reasoning and conclusion reflected, generally, the manner in which the “estoppel” defence had been argued before her on behalf of the respondent. The Senior Arbitrator relied upon the decisions of WorkCover (NSW) v Evans [2009] NSWWCCPD 95; 7 DDCR 231 (Evans) and Total Steel of Australia Pty Ltd v Waretini [2007] NSWWCCPD 33 (Waretini) [35]–[36].

6. Both Evans and Waretini concerned the question as to whether a previous finding by an Arbitrator, that the pathological consequences of a proven injury had ceased, gave rise to issue estoppel, which estoppel would prevent, in subsequent proceedings, the making of an inconsistent finding that the worker suffered whole person impairment as a result of that injury [37].

7. It was argued by the worker that, having regard to more recent authority (Zanardo & Rodrigues Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 and Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah)and Greater Western Area Health Service v Austin [2014] NSWSC 604 (Austin)) the decisions in Evans and Waretini were incorrectly decided. The decision of the Court of Appeal in Haroun v Rail Corporation (NSW) [2008] NSWCA 192; 7 DDCR 139 (Haroun), delivered at a time between publication of Waretini and Evans, was also raised by the worker in argument before the Senior Arbitrator. The relevance of those decisions was the subject of careful attention in the course of reasoning by Roche DP in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie) at [249]–[250]. Deputy President O’Grady agreed with the summary and conclusion in Jaffarie [38]–[40].

Grounds one and three

8. The primary submission relied upon by the respondent was that the consent finding was characterised “as a finding of causation” and asserted that there could be no referral to an AMS. The respondent further sought to distinguish the decision in Jaffarie upon the ground that in Jaffarie, unlike the present case, the worker brought claims in respect of both weekly compensation and permanent impairment lump sum compensation. The respondent’s submissions could not be accepted. The recent decisions discussed in Jaffarie, in particular the decision of the Court of Appeal in Bindah, were taken to have established that any pronouncement by an Arbitrator that purports, expressly or otherwise, to determine the question as to whether whole person impairment results from an injury is made without jurisdiction (See Handley AJA at [21] in Haroun) [41]–[42].

9. The consent order made by the original Arbitrator had plainly been construed by the Senior Arbitrator as negativing the existence of whole person impairment and indeed as negativing the existence of a medical dispute with respect to such impairment. The Senior Arbitrator had failed to address the question as to whether the original Arbitrator had jurisdiction to make a finding, whether by consent or otherwise, which, by inference, purported to determine the existence or otherwise of whole person impairment in the absence of compliance with the provisions of s 65(3) of the 1987 Act. In that respect the Arbitrator had erred and such error had relevantly affected her determination of the dispute and her finding concerning estoppel. The relevant award appearing in the Certificate of Determination was revoked [43].

Ground two

10. As the appellant’s arguments advanced in respect of grounds one and three were upheld, it was unnecessary to address the matters raised by ground two, however, the Deputy President recorded his views concerning argument raised by the appellant that asserted that the consent finding was not one “legally indispensable to the award made”. The worker claimed that the subject matter of the dispute before the original Arbitrator concerned the worker’s entitlement to weekly compensation and at that time, there was no claim for, nor dispute with respect to, whole person impairment compensation [44]–[45].

11. The appellant’s argument was accepted by the Deputy President. Leaving aside the question of jurisdiction, whilst an inference may be drawn from the consent finding that no whole person impairment existed, and indeed that no medical dispute existed, such matters were not in dispute before the original Arbitrator and were thus not “indispensable” to her finding with respect to that dispute [49].

Collins v Signature Blend Pty Ltd t/as Alira [2015] NSWWCCPD 22

Fall from balcony of the worker’s home unit; whether worker in the course of his employment at a social gathering at the home unit; whether social gathering a continuation of an earlier work Christmas lunch at a restaurant; relevance of ingestion of alcohol and drugs; assessment of expert evidence; whether employer induced or encouraged worker to engage in the activity that brought about his injury; application of principles in Comcare v PVYW [2013] HCA 41; 250 CLR 246

Roche DP

18 March 2015

Facts:

This appeal concerned whether the Arbitrator erred in finding that the worker was not in the course of his employment when he either fell or jumped over the railing of a balcony at his home unit while affected by alcohol and drugs.

The worker was the manager and only director of the respondent, a Sydney restaurant. On 19 December 2011, he took his employees to a Christmas lunch, at another restaurant, that ran from midday to 4 pm. At the restaurant, the worker consumed alcohol and cocaine. There was no dispute that the events at the restaurant were in the course of employment.

After the lunch, all but two of the attendees at the party travelled by taxi to the worker’s apartment, where he consumed further alcohol and cocaine. At about 5 or 5.30 pm, the worker fell about 24 metres from his balcony. The evidence before the Arbitrator revealed two possible scenarios. In one version, scenario A, Mr Fitzgerald said that the worker was telling a story on the balcony and, while he had one hand on the balcony railing, which was wet from rain, he jumped in the air and clicked his heels together, “like an Irish jig type movement”, lost his grip, and fell over the railing.

The second version, scenario B, recorded in the police report, was based on the evidence from Mr Clare. This version was that the worker was on the balcony play fighting with Mr O’Brien. After this stopped the worker and Mr O’Brien continued talking on the balcony when the worker grabbed the railing of the balcony and flung himself over the rail and attempted to land on the cement ledge and, as the worker did this, he had lost his grip on the wet railing and fell to the ground.

A mechanical engineer gave evidence stating that scenario B was the more probable cause of the fall. The respondent also relied upon evidence from a pharmacologist who said that the effects of alcohol and cocaine were sufficient to impair the worker’s judgment and coordination when he “flipped himself over” the balcony railing.

The question was whether the worker’s actions at or after the work event took him outside the course of his employment. The Arbitrator concluded that the worker “did not sustain injury arising out of or in the course of his employment”.

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

• finding that the worker was not in the course of his employment when present in the apartment;
• finding that the ingestion of alcohol and cocaine was the root cause of scenario B occurring;
• rejecting scenario A;
• failing to place due weight on the evidence of the eyewitnesses;
• accepting and relying on the respondent’s expert opinion evidence in circumstances where the experts’ opinions could not support the Arbitrator’s findings;
• accepting and relying on the respondent’s expert opinion evidence in circumstances where the experts’ opinions were based on incorrect and unproven assumptions of fact;
• giving undue weight to the opinion of the pharmacologist, and
• in determining that scenario B occurred, giving insufficient weight to the evidence of the witnesses present at the party.

Held: The Arbitrator’s determination was confirmed.  

Discussion and Findings

1. The worker’s submissions could not be accepted. He failed because the Arbitrator was not satisfied that, at the time of the injury, he was in the course of his employment. That finding was open on the evidence and disclosed no error [33]–[34].

2. The worker was injured during an interval between two discrete periods of work and, in applying Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 250 CLR 246 (PVYW), it was necessary for the Arbitrator to consider whether the circumstances of the worker’s injury were referable to a place (his apartment) or an activity, and to determine whether the respondent had induced or encouraged him to be at that particular place, as distinct from his attendance at the Christmas lunch, or to engage in that particular activity. It was open to the Arbitrator to conclude that the character of the gathering changed at the conclusion of the formal lunch [35]–[37].

3. The mere fact that the worker, the respondent’s manager, participated in the activity did not mean that the respondent provided the necessary inducement or encouragement to make the gathering at his home a continuation of the work function. Not every decision or statement made by the worker on the day of the injury should be taken as a decision or statement made by or on behalf of the respondent [39], [42].

4. The submission that the presence of the respondent’s employees at the worker’s apartment “was solely for work purposes” was not supported by any convincing evidence and the Arbitrator’s failure to make that finding involved no error [44]–[46].

5. Hills v Pioneer Studios Pty Ltd (No 2) [2014] NSWWCCPD 42 did not advance the worker’s position and, in particular, did not establish error by the Arbitrator. The facts in that case were substantially different, being that there were no reasons, other than employment related reasons, for the worker’s presence at the relevant premises at the time of the injury. In this case, by the time of the injury, the accepted work function, the Christmas lunch, had ended and a separate function, a social gathering at a private residence, had begun [47].

6. The absence of cross-examination does not mean that a worker’s evidence is unchallenged or that the Arbitrator is bound to accept his or her assertions (see Campbell J in West v Mead [2003] NSWSC 161; discussed and applied in New South Wales Police Force v Winter [2011] NSWCA 330) [50].

7. The Arbitrator was well justified in concluding that, if, contrary to her view, the worker was in the course of his employment when he attended his apartment, his consumption of alcohol and cocaine while there took him outside the course of his employment. She approached that question by asking, consistent with PVYW, how was the worker’s injury “brought about”. The Arbitrator said that the question became, applying PVYW, “did the employer induce or encourage [the worker] to engage in that activity, that is, the consumption of excessive alcohol and the consumption of cocaine” [52]–[54].

8. Whether scenario A or B occurred made no difference to the ultimate conclusion [57].

9. The submission that the Arbitrator erred in giving “insufficient weight” to the evidence of the eye witnesses was rejected. The Arbitrator carefully assessed this evidence. The complaint on this issue was without substance and was rejected [62].

10. The complaints regarding the role played by the expert evidence in the Arbitrator’s reasoning process were misconceived. The evidence from the mechanical engineer and the pharmacologist were not challenged by any contrary expert evidence. This did not mean that the Arbitrator had to accept their opinions, even if unchallenged (South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213 at [59]), but it was relevant that, in regard to the mechanical engineer’s evidence, there was no alternative view of the biomechanical issues involved [63].

11. Counsel for the worker’s submissions ignored the principles relating to expert evidence in the Commission, as discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock). In non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight” (Hancock at [83]). What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests”. If the foundation for the expert’s opinion is false or inadequate, the opinion will be of limited probative value [64]–[65].

12. The information available to the mechanical engineer provided a “fair climate” for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844). Contrary to the worker’s submissions, the mechanical engineer did not proceed on the assumption that scenario B was correct and then provide an explanation as to why that was so. On a fair reading of the decision as a whole, the finding regarding the pharmacologist’s evidence was open on the evidence [67]–[70].

13. As the High Court explained in PVYW, whether an injury is received in the course of employment “does not raise any question about causation” (PVYW at [44]). Rather, the principle explained in Hatzimanolis directs attention to the “circumstance in which the injury is suffered” for the purposes of determining whether those circumstances rendered the injury as referable to a place or to an activity. If the injury is referable to an activity, the question will be whether the employer induced or encouraged the employee to engage in that activity. Accordingly, the question was not whether the consumption of alcohol and cocaine “caused” the worker to act impulsively, but whether the employer induced or encouraged the employee to engage in the activity in which he was engaged at the time of his injury. Clearly, it did not [71].

Power v NSW Logistics Pty Ltd t/as Hi-Trans Express [2015] NSWWCCPD 20

Psychological injury; calculation of time to appeal; extension of time to appeal; fresh evidence or additional evidence on appeal; failure to seek leave to rely on material in Application to Admit Late Documents; alleged failure by Arbitrator to consider material in Application to Admit Late Documents; obligation on parties to tender evidence at arbitration; alleged denial of procedural fairness; application of principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; failure to discharge onus of proof; whether Arbitrator gave undue weight to hearsay, supposition or suspicion

Roche DP

12 March 2015

Facts:

This appeal concerned a claim for compensation for a psychological condition allegedly caused by the receipt of unwanted text messages and an alleged sexual assault. In an appeal filed out of time, the worker sought to challenge the Arbitrator’s finding that there was no evidence that the text messages were received in the course of, or arose out of, the worker’s employment and that, with regard to the alleged sexual assault, she had not discharged the onus of proof.

The worker claimed that she was she was “subjected to harassment via explicit text messages and was also sexually assaulted by a colleague”. She started receiving the text messages in February 2012, late at night and every weekend. The worker alleged that the text messages were sent by X, an employee of the respondent. She further alleged that X sexually assaulted her at the respondent’s office on 27 November 2012 by putting one hand up her dress and the other on her breast. X consistently denied all allegations against him.

The worker reported the incident to Mr Cuy, her manager, that day. He said that the worker’s only complaint was that X said “what would you do if I put my hand up your skirt” and that she made no allegation that she had been physically assaulted. Mr Cuy acknowledged that the worker had complained of the text messages from about February 2012. He was unable to trace the source to anyone associated with the respondent, despite searching the respondent’s mobile phone records.

The worker saw her general practitioner on 29 November 2012, but gave no history of the assault to her until 20 December 2012.

The insurer disputed that the worker received an injury in the course of or arising out of her employment, and that, if she did receive such an injury, that employment was a substantial contributing factor to that injury and that she suffered any incapacity.

The matter was listed for conciliation and arbitration on 18 July 2014 in Broken Hill. On 17 July 2014, the worker’s solicitors filed an Application to Admit Late Documents in Sydney, which had attached to it an undated statement from the worker. At the arbitration, there was insufficient time to complete the hearing and the Arbitrator directed the parties to file written submissions. Both parties filed detailed written submissions, but neither referred to the 17 July 2014 application or the worker’s undated statement filed with it. On 3 November 2014, the Arbitrator determined that the worker had failed to discharge the onus of proof and he made an award for the respondent.

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

• “not considering all material served upon the Workers Compensation Commission and the [r]espondent which went directly to the evidence served by the [r]espondent in their Reply but also the Form 2C served on 10 July 2014” (not considering all material served);
• “stating [at [55]] that ‘there is therefore no evidence which could establish that the unwanted text messages arose out of or in the course of [the worker’s] employment with the respondent. She did not receive any of them at work nor is there any evidence of their origin from anybody engaged by or associated with the [r]espondent” (emphasis added in the submission) (not considering all material served);
• considering the effects of the claim on X (the effects of the claim on X), and
• giving undue weight to evidence which, by his own admission, contained hearsay (undue weight to hearsay).

Held: The Arbitrator’s determination was confirmed.  

Extension of time to appeal

1. The appeal was filed one day out of time. An extension of time to appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules (see also Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459; Bryce v Department of Corrective Services [2009] NSWCA 188 at [10]; and Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 at [9]). An error by a legal practitioner regarding whether an appeal is filed within time did not, of itself, provide exceptional circumstances for extending time to appeal. With considerable reluctance, time to appeal was extended until 2 December 2014 [18],[29]–[33],[35].

Fresh evidence or additional evidence

2. The admission of fresh evidence or additional evidence on appeal is governed by s 352(6) of the 1998 Act which involves two alternative threshold questions (see CHEP Australia Ltd v Strickland [2013] NSWCA 351). The first relates to the issue of availability of the evidence in advance of the proceedings, and the second to whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters. The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [66]). As the worker’s undated statement was available at the time of the arbitration, she could only rely on it if the second threshold test was made out [36]–[40].

Not considering all material served

3. Nowhere in counsel for the worker’s detailed and carefully reasoned submissions did he refer to the worker’s undated statement or the 17 July 2014 application. He made no application for leave to rely on the undated statement and it was not admitted into evidence. The only reasonable inference was that counsel for the worker made a forensic decision not to rely on the undated statement. On appeal, the worker’s solicitor provided no explanation as to why no application was made to rely on the undated statement. It is fundamental that parties are bound by the conduct of their case at arbitration and it is not open to attempt to conduct a different case on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481). The worker was not denied procedural fairness, as claimed by the worker’s solicitor (Sullivan v Department of Transport (1978) 20 ALR 323 at 343). A party is bound by the conduct of his or her counsel (Smits v Roach [2006] HCA 36; 227 CLR 423). It was not open to argue on appeal that the Arbitrator erred in not referring to the undated statement [56]–[58].

4. The Commission is modelled on adversarial proceedings, issues are defined by what “for convenience” can be described as “pleadings”, parties are entitled to be represented by a legal practitioner or agent, and, of particular importance in the present case, “they adduce the evidence upon which they wish to rely before the Arbitrator” (emphasis added) (See South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [94]) [59]–[60].

5. It was for the worker’s legal advisers to seek leave to tender the evidence upon which they wished to rely. As they made no application for leave to tender the undated statement, it was not a document the Arbitrator had to consider. The Commission’s 2011 Rules require that all information and documents on which a party proposes to rely, and that are in the possession or control of the party, should be lodged and served with the Application to Resolve a Dispute or, if the party is a respondent, with the Reply (Pt 10 r 10.3(1) of the 2011 Rules. See also Pt 10 r 10(2) of the 2011 Rules) [61]–[63].

6. Where a party in default seeks to tender late documents, that party carries the onus of establishing why the 2011 Rules should not be enforced (Nelson Bay Pest Service Pty Ltd v Morrison [2007] NSWWCCPD 135) [64].

7. After reviewing the undated statement in detail, Deputy President Roche was firmly of the view that its admission into evidence would not have affected the outcome and would not establish that the Arbitrator’s decision was affected by error. Counsel for the worker’s (apparent) decision not to seek leave to rely on it was appropriate. It was of no evidentiary value and, if admitted into evidence on appeal, would not have led to a different result. The first two grounds of appeal were baseless and were rejected. The application to rely on the undated statement as additional evidence was refused [115]–[116].

The effects of the claim on X

8. This ground related to the Arbitrator’s application of the principles Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw). The Arbitrator’s findings were open on the evidence and disclosed no error. The significant matters were the various inconsistencies in the worker’s account and the fact that the case recorded by Dr Ali – that the worker had been subjected to harassment, bullying and intimidation – was not the case pleaded. These matters were fatal to the claim and well justified the Arbitrator’s conclusion that the worker had failed to discharge the civil standard of proof. These matters were not addressed in the undated statement, and did not depend on the effects of the claim on X [120], [132].

9. What was important, with regard to this ground of appeal, was that the Arbitrator applied the correct civil standard of proof, namely on the balance of probabilities. That was clear from his statement at [94] that he found “it difficult[,] on the balance[,] to accept that the event took place on 27 November 2011 [sic, 2012] in the manner described by [the worker]”. The Arbitrator’s conclusion was that, on the balance of probabilities, the worker had not made out her case. The Arbitrator’s analysis of the evidence, and ultimate conclusion, was not based on the potentially damaging effect on X of accepting the worker’s version of events [133]–[134].

10. Moreover, the Arbitrator’s conclusion was consistent with the passage he quoted from Briginshaw that the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”. Neither that statement, which is effectively codified in s 140 of the Evidence Act 1995 (NSW), nor the Arbitrator’s application of it, involved a departure from the civil standard of proof (see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 (Neat Holdings) at 171). The Arbitrator’s approach was consistent with Neat Holdings and disclosed no error [135]–[137].

Undue weight to hearsay

11. The worker’s solicitor submitted that the Arbitrator conceded that the statements relied on by the respondent contained “hearsay, supposition or suspicion” and that, despite this, the Arbitrator quoted extensively from it. The worker’s solicitor submitted that the Arbitrator made an error of discretion by applying undue weight to the evidence that contained “hearsay, supposition or suspicion”. The worker’s solicitor’s submissions, made without any relevant reference to the evidence, took the Arbitrator’s statement out of context and did not establish that the Arbitrator erred in his approach or conclusion [138]–[140].

12. The Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act) and is therefore permitted to consider evidence that a court would reject as hearsay. The weight to be attached to that evidence is another matter. Evidence should be logical and probative, and relevant to the facts and issues in dispute. However, evidence based on speculation or unsubstantiated assumptions is unacceptable (Pt 15 r 15.2) [141]–[142].

13. The submission that had the Arbitrator considered the undated statement he would have had available to him “evidence which went directly to the ‘hearsay, supposition or suspicion’” of the evidence of the respondent was based on the assumption that the Arbitrator relied on such material in reaching his conclusion. Clearly, he did not [146].

14. This appeal was completely without merit. It failed to consider how the arbitration proceeded, how arbitrations in general are conducted in the Commission, the content of the undated statement, and the Arbitrator’s reasons overall [147].

Air Electrical Pty Ltd t/as DJ Staniforth & Co v Mortimer [2015] NSWWCCPD 18

Order for payment of proposed knee replacement surgery; surgery not performed within 12 months of the date of claim; entitlement to compensation for cost of surgery lost by operation of s 59A of the 1987 Act; appeal against order; whether, in the circumstances, the monetary thresholds in s 352(3) of the 1998 Act are satisfied; meaning of “compensation at issue on the appeal”

Roche DP

6 March 2015

Facts:

This was an appeal against an Arbitrator’s finding that the worker suffered an injury by way of an aggravation, acceleration, exacerbation or deterioration of a disease, namely, osteoarthritis, and that, as a result of that injury, it was reasonably necessary that the worker have a right knee replacement operation and that the employer pay for that operation.

The worker, aged 65, worked as an electrical fitter for the appellant from 1974 to 1977 and again from 1989 to date. He injured his knee whilst working for another employer in 1989 and had surgery for that injury and returned to work.

On 13 November 2013, the worker completed a claim, asserting that he had been experiencing problems with his right knee for the previous couple of years and his orthopaedic specialist informed him that he needed to have a knee replacement. He claimed he suffered a gradual deterioration of the condition of his knee joint due to the type of work he carried out over 20 years. The insurer disputed that the worker had received an injury, that his employment was a substantial contributing factor to any injury and asserted that the need for the proposed knee replacement did not result from any injury at work.

The worker claimed the cost of medical expenses relating to the proposed knee replacement. The claim was referred to an AMS for opinion on whether the proposed surgery was reasonably necessary as a result of a work injury.

An issue arose as to whether the monetary thresholds in s 352(3) of the 1998 Act were satisfied.

Held: The monetary thresholds in s 352(3) of the 1998 Act had not been met and there was no right to appeal.

Monetary thresholds

1. Section 59A of the 1987 Act provides that a worker to whom weekly compensation has not been paid or payable is entitled to compensation under Div 3 of Pt 3 of the 1987 Act, that is, compensation for any treatment, service or assistance, for only 12 months from the date on which a claim for compensation in respect of the injury was first made, but is not entitled to recover the cost of such treatment given or provided more than 12 months after that date (s 59A(1)) [18].

2. It was agreed that the worker’s entitlement to recover compensation under Div 3 of Pt 3 of the 1987 Act expired on 12 November 2014. As he was 65, the worker had no potential right to weekly compensation in the future (s 52 of the 1987 Act). Therefore, s 59A(3) could not apply to revive his entitlement to recover medical expenses in the future. It followed that, by operation of law, the worker had no entitlement to recover the cost of any treatment, service or assistance given or provided more than 12 months after 13 November 2013 [19].

3. As no compensation was payable under the award, no compensation was “at issue on appeal” and the monetary thresholds in s 352(3) could not be satisfied. That was demonstrated by the fact that no order made on appeal would affect the worker’s entitlement to recover the cost of the proposed surgery. Though the worker would have been entitled to recover the cost of the surgery had he had it between the date of the Certificate of Determination on 7 November 2014 and 12 November 2014, that did not happen [20].

4. It was irrelevant that the arbitration was heard and determined prior to the passing of the 12 month time limit in s 59A and that that section had no bearing on the decision. The effect of the section was that the worker had no entitlement to recover the cost of the proposed surgery (or to enforce the Arbitrator’s award) and as no other compensation was claimed or, on the current state of the evidence, could be claimed, there was no compensation at issue on appeal [21].

5. The Commission’s power, under s 352, to determine if a “decision” is affected by any error of fact, law or discretion is restricted to cases that satisfy the relevant monetary threshold. The amount of compensation at issue on appeal is not limited to a consideration of the context of the issues joined at the arbitration. It is limited by the amount of the compensation awarded or claimed [22].

6. The appellant was not bound by paragraph five of the Certificate of Determination, which ordered it to pay for the cost of the proposed surgery. The force and effect of that order was extinguished, in the worker’s circumstances, by the effect of s 59A and the passing of the 12 month limit in that section. As a result, the award cannot be enforced [23].

7. The appellant’s submission about the potential consequence if the worker is later found to be a seriously injured worker involved three assumptions. First, that the worker will have the surgery. Second, that he will have a poor result from it. And, third, that due to some additional factor consequent upon the surgery, the worker will ultimately be assessed to have a whole person impairment of more than 30 per cent. Whether any of those things would happen was entirely speculative. The monetary threshold in s 352(3) is determined by reference to the award entered or, if no award for the payment of compensation is made, by reference to the quantum of compensation claimed. The claim made was for proposed surgery. As the expense had not yet been incurred, it was not possible for the Arbitrator to order the payment of a specific amount [24]–[25].

8. The worker’s submission that the effect of lodging the appeal was that the worker had been unable to have the proposed surgery and the appellant has avoided its liability to pay for the surgery regardless of the outcome of the appeal was incorrect. The worker lost his right to recover the cost of the proposed surgery by operation of s 59A, not because of the appeal which was filed on 5 December 2014 [28].

Barrott v RTC Facilities Maintenance Pty Ltd [2015] NSWWCCPD 21

Section 11A of the 1987 Act; whether employer’s actions concerning discipline and transfer were reasonable; obligation to provide adequate reasons for decision; whether error by Arbitrator affected the decision; s 352(5) of the 1998 Act

O’Grady DP

17 March 2015

Facts:

The worker alleged injury in the course of his employment with RTC Facilities Maintenance Pty Ltd (the first respondent) and alleged a further injury in the course of employment with a subsequent employer, Complete Staff Solutions (4) Pty Ltd (the second respondent). The injury received in each case was alleged to have been a psychological injury. Claims made by the worker with respect to workers compensation benefits were declined by each employer, following which proceedings were commenced in the Commission. The claim was limited to a claim for weekly compensation against each respondent.

Following conduct of an arbitration, the Arbitrator entered awards in favour of each respondent. On appeal, the worker challenged the factual findings made by the Arbitrator and the awards entered in favour of each of the respondents.

The worker was employed by the first respondent from 2 November 2009, as a project supervisor. The first respondent had regional offices in Bathurst and Orange. The worker was assigned to duties which concerned supervision of construction and maintenance work being carried out on behalf of the New South Wales Department of Housing in that region. The worker performed that work until, on 16 December 2011, it came to his employer’s notice that he had been engaged by a subcontractor of the first respondent to carry out lawn-mowing duties at a time when he was on sick leave. The worker resigned from his position that day. Following a meeting with the manager of the first respondent, Mr Hall, the worker’s resignation was withdrawn and the worker was immediately suspended for three weeks. Following the suspension, the worker, who had earlier been placed in Bathurst, was based at the Orange office and his income was reduced by reason of the transfer.

The worker continued working until 27 February 2012, when he presented a written formal resignation to Mr Hall. In the resignation, the worker stated that following on from the “stressful events of the last 3 months and on advice from my doctor following a recent hospitalisation for a heart problem resulting in an angiogram” he gave notice of his retirement. A medical certificate, dated 21 February 2012, which noted the diagnosis being “acute coronary syndrome”, accompanied the notice.

The alleged injury as against the first respondent particularised in the Application filed in the Commission was “psychological, psychiatric, depression, anxiety”. In explaining how the injury occurred, the worker alleged “the workplace was unreasonably stressful, unreasonable demands placed on the worker, the worker was required to perform other underperforming co-workers’ tasks, victimisation by supervisors and management, bullying and harassment, being pressured unreasonably to resign, being suspended without pay for three weeks with no reasonable cause, constant yelling and cursing by supervisors and management, unrealistic time pressures and deadlines being imposed”.

In March 2012, the worker successfully applied for a position as temporary/casual technical officer employed with the second respondent. That employment was terminated after one day. The injury alleged as against the second respondent was particularised as “psychological, psychiatric, depression, anxiety”. In stating how the injury occurred, the worker alleged “the employer wrongfully terminated the applicant by relying on information from a previous employer that made allegations that the applicant had engaged in fraudulent conduct. Ms Lois Booth informed the applicant that his employment was no longer required. This information was relayed by Lois Booth in the presence of the worker and Ross Kerwick.”

Both respondents denied the occurrence of injury as alleged and further in the alternative, relied upon the provisions of s 11A of the 1987Act that any psychological injury proven was “wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of each of the respondents with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”. Incapacity was also denied.

Held: The award in favour of the first respondent was revoked. The Arbitrator’s entry of an award in favour of the second respondent was confirmed.  

Disposition of the appeal

1. This appeal was governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5), being limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7) [66]–[67].

2. The worker’s submissions put in support of the appeal enumerated no less than 17 grounds upon which reliance was placed in seeking to have the awards entered by the Arbitrator revoked. Each of those grounds, with the exception of ground 16, appeared to challenge the award entered in favour of the first respondent. Ground 16 asserted “failure to make any finding at all in relation to the claim against the second respondent”. So far as the first respondent was concerned, the first ground asserted “failure to provide adequate reasons”. The balance of the “grounds” appeared to be the identification of alleged oversight or failure to give sufficient or proper weight to particular evidence [68].

3. The appellant’s assertion that the Arbitrator failed to provide adequate reasons for his determination concerning the claim against the first respondent was well founded. There was a misapprehension on the part of the parties as to what exactly was decided by the Arbitrator with respect to s 11A. The manner in which the Arbitrator approached the fact finding process gave rise to considerable confusion. The Arbitrator had in fact concluded that injury had been received and that the conduct of the first respondent concerning suspension and transfer to Orange was reasonable action within the meaning of s 11A. As was noted by the respondents, “[h]aving considered the reasonableness of the first respondent’s actions in accordance with the s 11A defence, the Arbitrator embarked on a consideration of whether the reasonable action was wholly or mainly responsible for the appellant’s injury”. Also, the task which then faced the Arbitrator was to determine whether the evidence established that the worker “suffered an injury through circumstances other than the disciplinary action following the lawn mowing incident” [69]–[70].

4. The respondents, when dealing with the appellant’s arguments advanced on the appeal, asserted that the Arbitrator “...ultimately made no finding in respect of the s 11A issue. 11A is a defence and would only come into play if the Arbitrator was satisfied that the appellant had suffered injury arising out of or in the course of employment with the first and or second respondents.” That submission demonstrated the confusion which had arisen by reason of the manner in which the Arbitrator had expressed his factual conclusions [71].

5. It was reasonably clear that the Arbitrator treated the disciplinary and transfer circumstances as affording the first respondent a defence to the allegation of injury arising out of those circumstances. That those circumstances caused injury as diagnosed by Dr Vickery was implicit in the Arbitrator’s statements [72].

6. In reply on this appeal, the worker asserted that the respondents “concede[d] that s 11A ... [was] irrelevant”. Whilst the respondents may have made such a suggestion in argument, it may not be accepted given that the Arbitrator considered it necessary to determine the question of the reasonableness or otherwise of the first respondent’s actions before turning attention to the question as to whether injury, resulting from the nature and conditions of employment generally, had been proven.

The challenge to the award entered in favour of the first respondent

7. The Arbitrator recorded that the worker was, in 2012, “suffering from a known psychological condition: see report of Dr Graham Vickery dated 19 December 2012... where it is described as a ‘Major Depressive Disorder’”. That statement made by the Arbitrator was taken as a finding that the worker suffered the condition as described. It seemed that the worker’s allegation of injury resulting from employment conditions other than the disciplinary action was rejected by the Arbitrator. The worker had argued before the Arbitrator that, whilst there was no contemporaneous medical evidence to support his allegation of such injury, he placed reliance upon his own evidence, as well as the evidence of Ms Rout and Mr Coles [74].

8. It was the worker’s complaint on this appeal that the Arbitrator had failed to have regard to the evidence of Ms Rout and Mr Coles when reaching his apparent conclusion as to injury. The submission of error by reason of failing to provide adequate reasons was accepted by the Deputy President. Whilst the Commission is not bound by the rules of evidence, it was clear that evidence such as that given by Ms Rout and Mr Coles concerning the worker’s state of mind and health at relevant times was admissible at law (Ramsay v Watson [1961] HCA 65; 108 CLR 642). Such evidence may be persuasive and it was incumbent upon the Arbitrator to make reference to that evidence and to evaluate its relevance and weight. Failure to do so constituted error and such error had affected the Arbitrator’s decision concerning the liability of the first respondent. It was thus necessary that the award entered be revoked. (see McColl JA (at [57]–[59]) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110) [75].

9. The first respondent sought to support the Arbitrator’s reasoning and apparent conclusion as to injury by emphasising the existence of a significant body of evidence which suggested that no such injury had occurred. Those submissions did not touch on the Arbitrator’s failure to deal with the evidence which, had it been considered, may have been treated as corroborative of the worker’s allegation [76].

The challenge to the award entered in favour of the second respondent

10. The error asserted in ground 16 was that the Arbitrator failed “to make any finding at all in relation to the claim against the second respondent”. The Arbitrator’s finding was that the evidence was “insufficient to prove anything ... happening on that day at work which would establish that an injury occurred”. The worker’s case was that he was wrongfully dismissed on that day and, as a consequence (although not expressly stated), suffered an exacerbation of a psychiatric condition [77].

11. The second respondent argued that the manner in which the Arbitrator addressed the question of the second respondent’s liability was appropriate having regard to the worker’s concession “that the medical evidence would not assist the Arbitrator in reaching a finding of injury against the second respondent”. Whilst the absence of reasons for the Arbitrator’s conclusion, other than a statement that there was no evidence, may have given rise to some criticism, any error which may have been perceived as arising from the Arbitrator’s failure to consider the consequences of the second respondent’s conduct and its reasonableness (see Jeffery v Lintipal Pty Ltd [2008] NSWCA 138) would not lead to the conclusion that such error had relevantly affected his decision concerning the second respondent’s liability. This conclusion was reached by reason, in particular, of the concession, properly made, by the worker concerning the state of the medical evidence [78].

12. It was unnecessary to address the other “grounds” raised on the appeal as those “grounds” generally failed to identify error but rather constituted submissions concerning the manner in which the Arbitrator addressed, or failed to address, the evidence before him. Whilst the Court of Appeal has expressed the view that, should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determine the matter (see Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344; 5 DDCR 1 per Santow JA at [28] and [29]) it was not the appropriate course in the present matter. The proceedings against the first respondent were remitted to another Arbitrator for re-determination [79]–[80].

Glemaro Pty Ltd v He [2015] NSWWCCPD 17

Appeal from interlocutory orders; leave to appeal; fresh evidence on appeal; s 352(6) of the 1998 Act; discretion to grant leave under s 289A(4) of the 1998 Act; application of the principles in House v The King [1936] HCA 40; 55 CLR 499 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

Keating P

3 March 2015

Facts

This matter concerned an Arbitrator’s refusal to grant leave to permit the employer to dispute an alleged injury to the worker’s central nervous system in circumstances where the alleged injury was not part of the initial dispute (the issue). The allegation of injury to the central nervous system arose by way of an amendment after the proceedings were well advanced in the Commission.

A dispute relating to a previously unnotified matter may only be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so (s 289A(4) of the 1998 Act).

The Arbitrator issued a Certificate of Determination refusing leave to dispute injury to the central nervous system and stood the matter over for further directions.

The employer sought leave to appeal the Arbitrator’s interlocutory order.

Fresh Evidence

On appeal, the appellant employer sought to adduce additional evidence which it claimed was not available to its counsel on the day of the arbitration. That evidence was a copy of a letter dated 17 September 2014 from the appellant’s legal representative to the respondent’s legal representative. The substance of the letter contains a denial of liability for the claim for injury to the central nervous system.

The letter disputing liability for injury to the central nervous system was available to both parties at the time of the arbitration proceedings. The reason for it not being put before the Arbitrator by either party was both unexplained and unsatisfactory.

The evidence sought to be admitted was relevant to the question of delay in notifying the disputed issue. (The person on whom a claim is made for lump sum compensation must determine the claim within two months after the claimant has provided to the insurer all relevant particulars about the claim (s 281(2)(b) of the 1998 Act).) Had the Arbitrator been aware of the letter he would have appreciated that the claim in respect of the alleged injury to the central nervous system was in dispute, having been raised in writing between the parties, over a month before the final hearing, not a week before the final hearing as the Arbitrator assumed.

The President found that the exclusion of the letter would cause substantial injustice in the circumstances of the case as it would have affected the Arbitrator’s assessment of the application for leave to dispute whether the worker injured her central nervous system. In view of the circumstances, the President admitted the letter into evidence on appeal (Chep Australia Ltd v Strickland [2013] NSWCA 351 applied).

Held: Leave to appeal was granted and the Arbitrator’s determination was revoked. The employer was granted leave to dispute the alleged injury to the worker’s central nervous system. The matter was remitted to the Arbitrator for further hearing.    

Determination – leave to appeal

1. An appeal from an interlocutory decision may only proceed with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute (s 352(3A) of the 1998 Act). The President granted leave to appeal, as it was desirable for the proper and effective determination of the dispute that, before the matter proceeded further, the issue raised by the appellant be determined [74]­­­­–[75].

2. The Arbitrator approached his consideration of the exercise of his discretion by applying the provisions of s 298A(4) of the 1998 Act, which provides for the restrictions as to when a dispute can be referred to the Commission [76]–[77].

3. Whether an Arbitrator has erred in the exercise of their discretion calls for a consideration of the principles in House v The King [1936] HCA 40; 55 CLR 499 (House v The King). In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Heydon JA referring to the principles discussed in House v The King stated (at [45]) that:

“Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:

• made an error of legal principle,
• made a material error of fact,
• took into account some irrelevant matter,
• failed to take into account, or gave insufficient weight to, some relevant matter, or
• arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.” [78]–[79]

4. In exercising his discretion, the Arbitrator took into account the delay by the appellant in placing the alleged injury to the worker’s central nervous system in dispute. The Arbitrator approached the matter by concluding that the delay was about two months. Based on the evidence that was before the President on appeal that was a material error of fact because the relevant delay was about one month. That error occurred because the Arbitrator failed to take into account the content of the letter of 17 September 2014 from the appellant’s solicitors to the worker’s solicitors [80].

5. Due to the above error, the exercise of the Arbitrator’s discretion miscarried and therefore the Arbitrator’s decision had to be revoked and the interlocutory issue re-determined. As there were no credit issues involved, the President re-determined the issue [81].

6. The circumstances in which the error identified occurred were highly unsatisfactory. This was exacerbated by the fact that the legal representatives made no attempt to explain why the relevant evidence was not brought to the Arbitrator’s attention [83].

7. The President rejected the respondent’s submissions that the worker would be prejudiced by a further adjournment and the need to further investigate the claim. In terms of the merit and substance of the issue, the President noted that the evidence from the worker’s surgeon in support of an impairment to the central nervous system was heavily qualified. Having regard to the history of the matter, the President found that it was in the interests of justice that the appellant be permitted to dispute the alleged injury to the central nervous system [83]–[88].

Webber v State of NSW [2015] NSWWCCPD 23

Appeal filed out of time; extension of time to appeal; s 352(4) of the 1998 Act; Pt 16 r 16.2(12) of the 2011 Rules; whether demonstrable and substantial injustice if time to appeal not extended; failure to comply with Practice Direction No 6; failure to properly identify proposed grounds of appeal; medical treatment for consequential condition; s 60 of the 1987 Act

Keating P

20 March 2015

Facts

The worker required surgery to her left wrist. It was alleged that the condition for which the surgery was required resulted from an accepted injury to the right wrist and was due to favouring the right wrist. The worker also suffered from a constitutional abnormality in both wrists, namely an abnormally long ulna.

The appellant worker appealed the Arbitrator’s finding that he was not persuaded on the balance of probabilities that the treatment proposed in respect of the left wrist resulted from the undisputed injury to her right wrist.

Held: The application to extend time to appeal was refused.  

Time

1. Due to an administrative oversight by the worker’s legal representatives, the appeal was lodged six days outside the time prescribed by s 352(4) of the 1998 Actto file an appeal and therefore the appellant required leave to extend time to appeal.    

2. An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules which provides:

(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal. [22]

3. For reasons which are noted below, the appeal could not succeed and therefore there was no injustice in refusing the application to extend time to appeal. The application to extend time was refused (Gallo v Dawson [1990] HCA 30; 64 ALJR 458 applied) [26]–[27].

Alleged errors of law

4. The appellant alleged that the Arbitrator erred when applying Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, by finding that the worker’s failure to provide evidence of left wrist symptoms whilst at work in the years that followed before she ceased work meant that the left wrist condition could not result from the original injury. The appellant further submitted that the Arbitrator appeared to find that the passage of time after the original injury, during which no symptoms emerged, somehow broke the chain between the original undisputed injury to the right wrist and the condition in the left wrist [68].

5. The appellant submitted that the delayed onset of symptoms during the period the worker was not working should not be regarded as having broken the chain of causation. The appellant further submitted that the Arbitrator erred to the extent that he found the presence of the underlying constitutional condition in the left wrist was a decisive point, rather than accepting that the injury does not have to be the only, or even a substantial, cause of a need for treatment before the cost of that treatment is reasonably recoverable under s 60: Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 [69]–[70].

6. The appellant’s submissions wrongly sought to compartmentalise the Arbitrator’s findings when the Arbitrator’s conclusion was reached by taking into account a combination of factors, including the delay in the onset of symptoms and the presence of a constitutional abnormality in both wrists [72].

7. The Arbitrator did not find that the presence of a constitutional condition in the left wrist was a decisive point. Rather, he found that as he was not satisfied on the balance of probabilities that the condition in the worker’s left wrist resulted from the undisputed injury to the right wrist, the underlying constitutional condition provided a compelling explanation for the need for the proposed surgery. That constitutional condition being the undisputed abnormality in the worker’s ulna in both wrists requiring an osteotomy or shortening procedure to alleviate her symptoms [74].

Alleged errors of fact

8. The appellant submitted that the absence of complaints of pain in the left wrist prior to leaving work was “critical” to the Arbitrator’s determination. The President found that that was not an accurate statement of the Arbitrator’s analysis of the evidence. The absence of complaints was a relevant matter which the Arbitrator correctly weighed with all the evidence. He did not state that it was critical to his determination and a fair reading of his decision did not lead to that inference [75].

9. The Arbitrator did as he was required to do, that is, to weigh all the evidence including the lay and expert evidence. Ultimately the Arbitrator’s conclusions were reached after considering a combination of factors, namely:

• that the worker suffered from a recognised constitutional condition, that is, an unusually long ulna in both wrists;
• two expert witnesses, including an AMS, were adamant that the proposed treatment in the left wrist did not result from the injury to the right wrist;
• little or no weight could be given to the evidence of the worker’s general surgeon because of his failure to acknowledge that there was any pre-existing constitutional condition when clearly there was;
• a paucity of evidence to support the factual basis upon which the worker’s treating specialist relied in order to reach his conclusions, and
• a substantial and unexplained delay in the onset of symptoms [89].

10. The Arbitrator’s findings were open to him on the evidence. The appeal did not establish an arguable case that the Arbitrator erred in his approach or conclusions [90].

Conclusion

11. The President was satisfied that the Arbitrator correctly identified the issue before him and the legal principles to be applied. His conclusions were soundly based on the evidence presented before him. The President found that the proposed appeal had no reasonable prospects of success and in those circumstances it could not be established that refusing to extend time to appeal would result in substantial injustice [91]–[92].