Issue 5: May 2015

Q v Z [2015] NSWWCCPD 25

Consent finding made in previous proceedings between same parties; whether Arbitrator has jurisdiction to make a finding which implies that no whole person impairment exists; no estoppel where jurisdiction is absent; consideration of decision in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264

Acting President O’Grady

16 April 2015

Facts:

The worker alleged that she received injury arising out of or in the course of her employment as a teacher at a school conducted by the respondent. It was the worker’s allegation that, by reason of bullying and harassment experienced by her, she suffered psychological injury which resulted in incapacity.

The worker made a claim for compensation benefits, which was rejected by the respondent. On 27 August 2013, in proceedings commenced in the Commission, the parties reached agreement concerning the worker’s entitlement to compensation benefits.

In February 2014, the worker made a claim against the respondent in respect of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. In March 2014, that claim was declined on behalf of the respondent by its insurer. Notice concerning the reasons for the insurer’s decision to reject the claim was given to the worker in a notice pursuant to s 74 of the 1998 Act. The reason for rejecting the claim was that “in previous Workers Compensation Commission proceedings … instituted in respect of this injury, a Consent Finding was made that [the worker] had recovered from the effects of this injury… and … [the worker was] now estopped (precluded) from denying that fact”.

Following submissions, which were confined to the question as to whether the worker was estopped from proceeding with the claim, on 26 November 2014, the Arbitrator determined that the worker was estopped from bringing further claim in respect of psychological injury during the course of her employment with the respondent and entered an award for the respondent in respect of the worker’s claim for lump sum compensation.

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

• in finding as a matter of law and fact that the appellant was estopped from bringing a further claim in respect of psychological injury by reason of the terms of the previous settlement and consent award of the Commission;
• in making an award in favour of the respondent in respect of the appellant’s claim of lump sum compensation;
• in law in following the decision of Senior Arbitrator Moore in Hassan v Spotless Property Cleaning Services Pty Limited [2014] NSWWCC 399;
• at paragraph [49] of the reasons for decision to hold that a consent finding of “fully recovered” thereby prevented as a matter of law a subsequent claim for lump sum compensation by reason of the principles of issue estoppel;
• in law in failing to find that the parties to the original settlement and consent award had impermissibly contracted out of the operation of the 1987 Act and the 1998 Act pursuant to s 234 of the 1998 Act;
• in considering irrelevant matters as set out in paragraphs [4] and [22] of the reasons for determination. Such matters being relevant to an Application for Reconsideration (which had been filed by the worker) but not to the application of the law of estoppel, and
• in finding at paragraphs [7] and [9] that the matter proceeded on the basis of the allegation of estoppel only and that the parties agreed that if the appellant was estopped the matter should be dismissed.

Held: The Arbitrator’s determination was revoked.  

Discussion and findings

1. The respondent submitted that the subject matter of the estoppel (the issue that had been finalised between the parties) was that the worker had recovered from the effects of the work injury and it asserted that this was the issue that has been determined by way of the earlier consent finding [62].

2. The respondent emphasised that the Arbitrator had “jurisdiction” to make the consent finding. That assertion, which was founded upon the decisions of Peric v Lee & Ran t/as Pure & Delicious Healthy [2009] NSWWCCPD 47; 7 DDCR 215, WorkCover (NSW) v Evans [2009] NSWWCCPD 95; 7 DDCR 231 and Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33, was rejected [63].

3. The respondent failed to acknowledge two relevant matters when it asserted the existence of jurisdiction in the Commission to make the consent finding. The first was that the consent finding purported to impliedly determine, firstly, that there was no whole person impairment, and, secondly, that no medical dispute as to whole person impairment existed [64].

4. As described by Campbell J in Greater Western Area Health Service v Austin [2014] NSWSC 604, the resolution of disputes in the area of workers compensation is a “bifurcated procedure”. The statutory scheme which establishes that procedure was subsequently considered by Emmett JA in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 (Bindah) (at [111] and [112]) [65].

5. The Acting President was of the opinion that, having regard to the procedure summarised by Emmett JA in Bindah, it was not open for an Arbitrator, even by consent, to make a finding which by inference determined that no whole person impairment resulted from the injury suffered by the worker (see Handley AJA (at [19] and [20]) in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139) [66].

6. It followed that the Arbitrator’s finding concerning the force and effect of the original Arbitrator’s consent finding was made in error. The determination that the consent finding “creates an issue estoppel” was also made in error. The Arbitrator’s finding and the award entered in favour of the respondent were revoked [67].

7. It was not necessary to consider the further ground relied upon by the worker concerning s 234 of the 1998 Act. However, it was appropriate to record the Acting President’s view, that the worker’s submission that there was no evidence before the original Arbitrator of “recovery” by the worker from the effects of the injury should be accepted. Contrary to the submissions put by the respondent’s counsel, the evidence of Dr Roberts did not support a conclusion that the worker had “recovered from the effects of any injury”. Dr Roberts was of the view that the worker was suffering from a serious mental illness, but that such was not work related. In the circumstances, it was the case that an attempt to reach an agreement which purported to provide for the worker’s relinquishment of her rights was defeated by operation of s 234 as argued by the worker: Ashenden v Stewarts and Lloyds (Australia) Limited [1972] 2 NSWLR 484 per Jacobs JA at 489 and Taylor AJA at 492 (where s 45 of the former Workers Compensation Act 1926 was considered by the Court) [68].

8. The s 74 notice relied upon by the respondent had raised estoppel as the only defence to the claim. Whilst it was not entirely clear, it appeared that the respondent elected to proceed with the argument concerning estoppel in the absence of any application for leave to raise an un-notified matter by way of defence pursuant to s 289A of the 1998 Act. The outcome of the appeal defeated the estoppel defence. In the circumstances, the matter was remitted forthwith to the Registrar for referral to an AMS for assessment [70].

Colefax v Secretary, Department of Education and Communities [2015] NSWWCCPD 24

Challenge to quantification of entitlement to weekly compensation; claim said to have been brought pursuant to the former s 38 of the 1987 Act; whether appellant advanced argument upon reliance of the former s 38 of the 1987 Act; raising new point on appeal; consideration of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68

Acting President O’Grady

9 April 2015

Facts:

The worker was an ESL teacher employed by the respondent. By reason of bullying and harassment to which the worker was subjected in the course of that employment, she suffered psychological injury. By reason of incapacity, the worker ceased work in August 2008. A claim seeking compensation benefits was made by the worker which was accepted by the respondent. Compensation benefits were paid up until 21 April 2011.

Since cessation of compensation payments, the worker had, on occasions, taken up offers of suitable employment with the respondent as well as other, occasional, work. The worker alleged that she suffered four subsequent injuries which either arose in the course of her employment or arose out of that employment. The respondent did not dispute the occurrence of three subsequent injuries which occurred on 10 October 2011, 20 February 2012 and 8 November 2012. Each of those injuries gave rise to an aggravation or exacerbation of the worker’s psychiatric condition which had resulted from the 2008 injury. The worker alleged that a further injury occurred on or about 28 January 2013 that was, again, said to have been an exacerbation of the worker’s psychiatric condition. The occurrence of such injury was denied by the respondent in a s 74 notice issued under the 1998 Act.

The worker made claims in respect of further compensation benefits, which claims were rejected by the respondent’s insurer. The matter came before the Arbitrator on 28 August 2014, 28 October 2014 and 26 November 2014. The Arbitrator delivered an extempore decision awarding the worker payments of weekly compensation.

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

• calculating entitlement to weekly compensation by reference to s 40 of the 1987 Act;
• failing to take into account particular findings made which were relevant to the determination of entitlement to weekly compensation, and
• failing to take into account that “it was not necessary for [the worker] to take reasonable steps to obtain suitable employment from some other person in circumstances where the issue of entitlement pursuant to s 38 was before the Commission.”

Held: The Arbitrator’s determination was confirmed.  

Disposition of the Appeal

1. The worker challenged the findings made by the Arbitrator concerning quantification of her entitlement pursuant to s 40 of the 1987 Act. The first complaint made was that the Arbitrator erred in failing to take into account findings made which “were relevant to [the worker’s] claimed entitlement pursuant to s 38”. Those findings were identified as being: that the worker was at all relevant times ready, willing and able to accept an offer of suitable employment as required by s 38A(2)(a); that the worker had supplied the employer with relevant medical certificates as required by s 38A(2)(b); and that the worker had either requested suitable employment as required by s 38A(2)(c) or it was apparent from the circumstances that she was ready, willing and able to accept such an offer [34].

2. It was further asserted by the worker that it was not necessary for her to seek employment elsewhere by reason of s 38A(2)(d) because there was no evidence that the respondent had pursuant to s 38A(3) either notified the appellant in writing that she was required to do so, or failed to take action as recommended by another Arbitrator which required it to be arranged or explore the possibility of suitable employment [35].

3. It was also asserted that the Arbitrator “had failed to take into account that it was not necessary for [the worker] to take reasonable steps to obtain suitable employment from some other person in circumstances where the issue of entitlement pursuant to s 38 was before the Commission” [35].

4. The Acting President observed that it was abundantly clear from the evidence that the worker had always wished to return to employment with the respondent. It was also correct, as argued by the worker in submissions in reply, that there were numerous references to s 38 and to Ch 3 of the 1998 Act recorded in the transcript of proceedings. The worker stated in evidence that it was her wish to work until she was aged 70 years. The worker commenced proceedings in the Commission in 2012 in another proceeding, in which she secured an order that the respondent was to provide suitable duties to her pursuant to Ch 3 of the 1998 Act. The worker had not resumed duty with the respondent [38].

5. The respondent submitted that the worker was attempting to have her matter reheard on the basis of arguments not put before the Arbitrator. It relied upon relevant authority that the worker was bound by the manner in which the proceedings were conducted at first instance and no circumstances existed to permit departure from the general rule that a party is bound by the case presented at first instance (see Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71). The respondent’s submissions were accepted by the Acting President [39]–[40].

6. A fair reading of the transcript of the proceedings before the Arbitrator did not reveal any plainly stated nor argued claim made pursuant to s 38, except those concerning the few days conceded by the respondent as was awarded and concerning entitlement following injury received on 8 November 2012 which was awarded by the Arbitrator [41].

7. There was no reliance upon the provisions of s 38 particularised in the amended Application upon which the worker relied [42].

8. The claim appeared to have been presented, in the amended Application, by placing reliance upon the “spreadsheet” or “wages schedule” attached to it. No express reference was made to, nor was reliance placed upon, that document in the course of submissions. When doubt as to relevant earnings and wage rates was raised by the Arbitrator, efforts were made by counsel to determine the appropriate figures without any express reference being made to that document [43].

9. It was clear that counsel took specific instructions concerning earnings and wage rates. It was clear that it was agreed by counsel that following the four days compensated pursuant to s 38, the claim was one pursuant to s 40 at the “max stat rate” [44].

10. The respondent’s counsel, who had very extensive experience in matters such as this case, conceded that there remained four days of s 38 payment, subject to proof of incapacity, and he then proceeded to address the questions of incapacity and quantification of s 40 entitlement during the balance of the period of claim. It was of significance that no attention was given by counsel for the respondent to any other s 38 claim. Given the facts, including the relevant chronology, the question of “revival” of s 38 entitlement following subsequent injuries and the health consequences of the Federal Magistrates Court proceedings between the parties, it was clear that any s 38 claim, if it had been a live issue, would have given rise to considerable debate before the Arbitrator. No such argument was recorded [45].

11. Counsel’s submissions concerning entitlement following the second (10 October 2011) and third (20 February 2012) injuries may be construed only as a claim for entitlement pursuant to s 40 in respect of partial incapacity [46].

12. Submissions in reply by the worker suggested that the Arbitrator had erred by reason of failure to provide adequate reasons for his decision not to make an order pursuant to s 38 in respect of identified periods of the claim. Leaving aside the fact that such argument had, for the first time, been raised in reply to the respondent’s submissions on appeal, the submissions failed to address the respondent’s assertion that a new point cannot be raised on appeal given the circumstances and manner in which the case was presented before the Arbitrator. The circumstances fell outside any permissible exception to the general rule as was summarised in the joint judgment of Mason CJ and Wilson, Brennan and Dawson JJ at 497 in Water Board v Moustakas [1988] HCA 12; 180 CLR 491 [47].

13. Each of the grounds raised on behalf of the worker were rejected and the appeal failed [48].

Donovan v Secretary, Department of Education and Communities [2015] NSWWCCPD 27

Psychological injury; claim for lump sum compensation for loss of vision due to retinal artery occlusion in the left eye; whether occlusion due to stress caused by psychological injury; correct approach to causation; assessment of expert evidence; whether Senior Arbitrator erred in accepting evidence of treating ophthalmologist in preference to evidence of qualified psychiatrist; assessment of evidence; weight of evidence; relevance of pre-existing medical condition; whether pre-existing medical condition aggravated by psychological injury

Roche DP

27 April 2015

Facts:

This appeal concerned a challenge to an Arbitrator’s finding that he was not satisfied, on the balance of probabilities, that loss of vision in the worker’s left eye was causally related to the stress associated with a psychological injury.

The appellant worked as a teacher with the respondent since 1990. In about 2007 or 2008, the worker suffered a psychological injury in the form of a generalised anxiety disorder and panic disorder secondary to harassment and bullying at work. She suffered from “mottling or patchy vision” in her left eye which started in July 2009 and lasted for about three weeks.

On 9 November 2009, the worker experienced a loss of vision in her left eye. On 11 November 2009, Professor Mitchell, a Professor of Ophthalmology, diagnosed her to have a retinal artery occlusion in her left eye. She remained off work until about mid-2010, returning to work on a return to work program. She continues to work.

On 31 August 2011, in a s 74 notice, the respondent denied liability for the left eye condition on the ground that the loss of sight was not a workplace injury.

In a report dated 31 October 2011, Dr Delaney diagnosed a “central retinal artery occlusion with a loss of vision in [the worker’s] left eye” resulting in a 100 per cent loss of vision in the left eye, equal to 24 per cent whole person impairment, which was permanent.

On 9 November 2012, the worker made a claim for lump sum compensation and for work injury damages as a result of her loss of vision. The respondent denied liability in a second s 74 notice, dated 13 December 2012, in which it asserted that any injury to the worker’s left eye on 9 November 2009 was not related to her employment.

The worker’s case at arbitration was presented on three alternative bases: first, that the bullying and harassment at work caused stress that resulted in vasospasm (spasm of a blood vessel), which caused the retinal occlusion; second, the worker had been diagnosed with ulcerative colitis in about 1996 and this condition was a disease that was aggravated by the stress caused by the bullying and harassment at work and this aggravation resulted in vasospasm which caused the retinal occlusion, and, last, she contended that she suffered a primary psychological injury and, as a result of that injury, suffered a consequential condition involving the loss of vision in her left eye.

The worker relied upon evidence from her qualified psychiatrist, Dr Jungfer.The respondent contended that Dr Jungfer did not provide acceptable support for the worker’s proposition that stress directly caused the loss of vision in the left eye, relying upon the evidence of Dr Delaney, Professor Mitchell and Dr Duggins. It was the respondent’s case that Dr Jungfer’s opinions went beyond her area of expertise.

After the conclusion of the hearing, the worker’s solicitor filed further written submissions without leave that sought to also rely upon the disease provisions. On 12 December 2014, the Senior Arbitrator held that the worker had not established that her loss of vision resulted from her employment injury and made an award for the respondent. The worker appealed.

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

• misapplying the legal approach to the issue of causation (misapplication of the legal approach to causation);
• finding that the opinions of Professor Mitchell and Dr Delaney were entitled to greater weight than the views of Dr Jungfer (evidence of Professor Mitchell and Dr Delaney);
• discounting the weight to be given to the opinion of Dr Jungfer because Dr Jungfer did not have the benefit of “background material” (weight of Dr Jungfer’s evidence);
• ignoring the undisputed and uncontested opinion of Dr Jungfer to the effect that severe stress caused a cerebrovascular accident resulting in the loss of vision in the worker’s left eye (Dr Jungfer’s evidence);
• ignoring the undisputed and uncontested opinion of Dr Jungfer that the cause of the occlusion was stress which resulted in either:
  • a stroke, or
  • a vasospasm, or
  • exacerbation of a pre-existing ulcerative colitis, or
  • a combination of the above. (Dr Jungfer’s evidence)
• failing to find that as a consequence of the stress or psychiatric injury (which was not disputed), the worker suffered an exacerbation or “flare up” of her inflammatory bowel disease/ulcerative colitis (flare up of ulcerative colitis);
• preferring the opinion of Professor Mitchell (evidence of Professor Mitchell and Dr Delaney), and
• failing to find, in the absence of any other known cause (and after extensive investigations and thorough tests), that the loss of eye sight was caused by the stress/psychiatric injury (absence of any other known cause).

Held: The Arbitrator’s determination was confirmed.

Ground one – misapplication of the legal approach to causation

1. The Senior Arbitrator’s approach to the issue of causation was consistent with Murray v Shillingsworth [2006] NSWCA 367 (Shillingsworth) at [37] (to which the Arbitrator referred and quoted extensively from), Seltsam Pty Ltd v McGuiness (2000) 40 NSWLR 262 (McGuiness) (per Spigelman CJ at [93]), Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (McDougall J (McColl and Bell JJA agreeing) at [44]) (that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must “feel actual persuasion of the existence of that fact”), and Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (where Kirby P explained at 463 that what is required is a “common sense evaluation of the causal chain”). It disclosed no error [38]–[41].

Grounds two and seven – evidence of Professor Mitchell and Dr Delaney

2. The Senior Arbitrator was entitled to prefer the evidence of Professor Mitchell and Dr Delaney to Dr Jungfer. The psychological effects of stress were no doubt within Dr Jungfer’s field of expertise and she was entitled to express an opinion on those matters. However, Professor Mitchell and Dr Delaney were “experienced medical practitioners in the relevant specialty” and the causation issues fell “more within [their] specialties” than that of Dr Jungfer [47]–[49].

3. Given Professor Mitchell’s qualifications, that he saw the worker on several occasions as her treating specialist, and, that he was aware of the various investigations conducted into the possible cause of the condition, the Senior Arbitrator’s reliance on his evidence disclosed no error [62].

Ground three – weight of Dr Jungfer’s evidence

4. The worker’s solicitor’s submission that Dr Jungfer had the benefit of the worker’s “background material” and that she referred to it in her report of 22 August 2014 was incorrect. The “background material” was significant and the Senior Arbitrator was entitled to note that that material was not before Dr Jungfer. It demonstrated that the only reference to the worker suffering an exacerbation of her ulcerative colitis was a note by her general practitioner on 1 October 2008, followed by a note on 22 October 2008, that the ulcerative colitis symptoms were “settling” [65]–[66].

5. Records from Professor Keegan about four weeks before the loss of vision did not mention any exacerbation of the worker’s ulcerative colitis. Records from Dr Duggins about four weeks after the loss of vision reported that although the worker’s ulcerative colitis had previously been severe; it had been “stable in recent months” [69]–[70].

6. On 25 July 2011 (when Dr Jungfer first saw the worker), she reported that there had been no episodes of ulcerative colitis since 2003 and specifically noted that the “ulcerative colitis has not been exacerbated in association with work related stress”. In Dr Jungfer’s 22 August 2014 report, she recorded that the worker “describe[d] a mild exacerbation [of her ulcerative colitis] associated with the bullying and placement at the school in 2009”. These two histories were inconsistent and there was no explanation of the inconsistency. The Senior Arbitrator’s conclusion that the worker did not suffer any exacerbation of her ulcerative colitis after 22 October 2008, and that the allegation that the worker suffered a s 4(b)(ii) injury failed, were consistent with the evidence and involved no error [71]–[74].

7. The worker’s submission that the Senior Arbitrator erred in finding that weight to be given to Dr Jungfer’s opinion should be discounted because she did not have the benefit of seeing the opinions from the other specialists who had commented on causation was without substance. That was a matter the Senior Arbitrator was entitled to consider, though it was not determinative [76]–[77].

8. Even if the incorrect history regarding the alleged exacerbation of the ulcerative colitis was ignored, Dr Jungfer’s opinion raised no more than a possible connection between stress and the occlusion. That was not sufficient to discharge the onus of proof [82].

Grounds four and five – Dr Jungfer’s evidence

9. Dr Jungfer’s evidence, contrary to the worker’s submission, was not uncontested. Lack of cross-examination does not mean that the relevant evidence is uncontested. A court or tribunal is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; and Gaunt v Hooft [2009] WASC 36 [41]–[42]). (See also the general discussion about cross-examination in the Commission in New South Wales Police Force v Winter [2011] NSWCA 330) [88].

10. Dr Jungfer’s evidence was contradicted by a credible body of substantial evidence, and was defective in several key respects. The Senior Arbitrator was not obliged to accept it and did not err in not accepting it [89].

11. The worker’s various submissions on these grounds were not an accurate summary of the evidence, and involved a misreading of the decision and the evidence [93]–[94], [96]­–[97], [100].

Ground six – flare up of ulcerative colitis

12. The worker’s solicitor’s submissions of this point did not establish error by the Senior Arbitrator, nor establish a relevant exacerbation of the worker’s ulcerative colitis in 2009. The Senior Arbitrator’s conclusion was open on the evidence [108]–[110].

13. The entries (in the medical records) that the Senior Arbitrator did not refer to did not establish that the Senior Arbitrator erred in finding that there was no evidence of an exacerbation of the worker’s ulcerative colitis in 2009. They merely confirmed that on 8 October 2009, a colonoscopy showed “local active colitis” which Professor Keegan said was “unlikely to be significant”. This was consistent with Dr Duggins’ evidence on 11 December 2009 that the worker’s ulcerative colitis had previously been severe but she had been stable in recent months [112].

Ground eight – absence of any other known case

14. The worker submitted that having undergone extensive investigations and testing, the only possible finding open to the Senior Arbitrator, on the balance of probabilities, applying McGuiness and Shillingsworth, was that the loss of eyesight was caused by the stress/psychological injury as opined by Dr Jungfer. This submission was rejected [115]–[116].

15. The worker carried the onus of proving her case and in a loss of vision case, relied upon the evidence from a qualified psychiatrist. That evidence was deficient and fell well short of establishing the worker’s case on the balance of probabilities. Considering the evidence as a whole, it was open for the Senior Arbitrator to conclude that the worker had not made out her case [117].

Alazzawy v DND Group Pty Ltd t/as Topline Finish [2015] NSWWCCPD 26

Personal injury; s 4(a) of the 1987 Act; suggested error of law being application of the wrong test; causation of injury; discharge of onus of proof; error of fact not made out

O’Grady DP

27 April 2015

Facts:

The worker was a painter working for the respondent from early 2004 until 2006. He alleged that as a result of the “nature and conditions” of his work with the respondent, he suffered injury to his lumbar spine.

The worker did not give notice of his claim until a claim for lump sum compensation and medical expenses was made on 31 January 2012. On 15 February 2012, the respondent’s insurer requested further particulars of the claim and, after some delay, that request was replied to on 6 June 2013. The respondent failed to determine the claim and no reasons for declinature were provided to the worker as required under s 74 of the 1998 Act.

The worker filed an Application to Resolve a Dispute with the Commission on 21 May 2014, seeking orders in respect of lump sum compensation and medical expenses. The insurer acknowledged that there had been a failure to determine the claim and sought leave to rely upon 11 defences. The worker amended the date of injury as being 1 January 2006. No reliance was placed upon the disease provisions of the 1987 Act. The respondent was granted leave to dispute the occurrence of injury as alleged; to dispute that employment was a substantial contributing factor to injury, and to argue that, should injury be determined in the worker’s favour, such injury was in the nature of a disease.

On 7 January 2015, the Commission issued a Certificate of Determination that made an award for the respondent in relation to the worker’s claim, for “injury to his back (lumbar spine) arising out of or during [sic] the course of this employment with the respondent”. The worker appealed.

The issues in dispute on appeal were whether the Arbitrator:

• (a) made an error of law by applying the wrong test when determining whether the worker sustained a ‘personal injury’ to his back; and
• (b) made an error of fact by finding that the worker did not sustain a work-related injury to his back having applied the wrong test referred to in (a) above and only determining whether the worker sustained a ‘discal’ injury to his back.

Held: The Arbitrator’s determination was confirmed.      

Disposition of the appeal

1. The case presented before the Arbitrator alleged that, by reason of the day to day physical demands of his work, the worker suffered a “personal injury” within the meaning of s 4(a) of the 1987 Act. That allegation suggested repeated micro traumata affecting the spine which, on the worker’s case, had caused a discal injury at the lumbosacral level [39].

Ground (a)

2. It was argued in support of ground (a) that the Arbitrator erred in law in “applying the wrong test” when determining the question as to the occurrence, or otherwise, of such personal injury [40].

3. The worker sought to emphasise, in argument, the Arbitrator’s apparent acceptance that the relevant work duties “probably placed some stress on [the worker’s] spine”. Having so concluded the Arbitrator failed, it was argued, “to consider whether there was evidence of a ‘sudden identifiable pathological change’ in [the worker’s] lower back” and whether there was a “sufficient causal nexus between the pathological change and [the worker’s] employment” to permit a finding of relevant “personal injury” [41].

4. The issue before the Commission was correctly identified by the Arbitrator immediately following his acceptance of probable stress upon the spine arising from the worker’s work as being “… whether or not those probable stresses have led to an injury for the purpose of s 4(a)” [42].

5. It was abundantly clear from the manner in which the evidence as a whole had been evaluated by the Arbitrator, that he had concluded that the evidence was incapable of persuading him that the symptoms complained of by the worker had been caused by injury arising out of or in the course of the relevant employment. The Arbitrator appeared to have gone further and rejected the diagnosis of discal injury [44].

6. The controversy before the Arbitrator concerned the existence or otherwise of a causal nexus between the work duties and the back pain complained of by the worker to his general practitioner. It was recorded by the general practitioner on 14 June 2004, three weeks after the first recorded consultation, that the worker wanted a prescription for the provision of Tramal, a pain killing analgesic which, it was recorded in the notes, the worker had been “given in the past”. During a consultation on 30 June 2004, the attending medical practitioner recorded “chronic back pain” and Tramal was again prescribed [45].

7. The Arbitrator was not addressed concerning the occurrence of a “sudden identifiable pathological change” arising out of or in the course of employment. The term “sudden identifiable pathological change” was first stated by Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 (Hussey) in the context of an examination of the term “personal injury” as it appeared in s 6(1) of the former Workers Compensation Act 1926. The High Court was there dealing with the occurrence of death of a worker as a result of heart failure whilst on a relevant journey [46].

8. The High Court in Hussey was concerned to determine whether the sudden identifiable pathological change (heart failure) could, as stated by Kitto J (at 508), “properly be described as a personal injury not being a disease” [47].

9. This matter concerned an allegation of micro traumata causing disc injury, each individual traumatic event constituting injury being a personal injury within the meaning of s 4(a) of the 1987 Act. That allegation was rejected by the Arbitrator [48].

10. The Arbitrator’s process of reasoning leading to his fact finding did not demonstrate that a “wrong test” was applied and the worker’s submission that relevant error of law had been committed was rejected by the Deputy President. The task before the Arbitrator required an examination of the evidence to determine whether such was sufficient to satisfy the Commission, on the balance of probabilities, that the undisputed painful symptoms were relevantly caused by the work performed between 2004 and 2006. That onus was found not to have been discharged. The question as to the weight and persuasiveness of the evidence was one to be determined by the Arbitrator. No relevant error of law had been made out. Ground (a) was rejected [49].

Ground (b)

11. The Arbitrator’s factual conclusion as to the issue of injury was challenged upon the basis that such conclusion was reached following application of the wrong test. It was put that, had the Arbitrator “properly carried out his task and applied the correct test, the outcome would have been favourable to [the worker] because [the worker] is not simply required to establish that he sustained a discal injury to his back, rather that he received an injury to his back as a result of his employment” [50].

12. Given the Deputy President’s conclusion concerning the absence of any error of law in the Arbitrator’s reasoning concerning the occurrence of injury, it followed that the suggestion of factual error occasioned by the application of the wrong test must be rejected. It was not suggested that factual error as described by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506) had been committed. Ground (b) was rejected [51].