Issue 6: June 2015

Court of Appeal

7 May 2015

Facts:

The worker, now deceased, worked for the Greater Taree City Council for almost 37 years. He passed away as a result of a metastic melanoma on 29 July 2011. It was not in dispute that the worker’s employment contributed to his death. The appeal was limited to the identification of the insurer responsible for the payment.

Held: The appeal was dismissed.

Beazley P (Ward JA agreeing)

1. Not only is the language of s 18(1) of the 1987 Actunambiguous, the section uses very different language to the language of earlier sections, including s 15(1)(b) upon which the appellant placed emphasis. In particular the phrase in s 18 “before the worker ceased to be employed by the employer”, a phrase which is used twice, is unambiguous in itself. It is also unambiguously different from the phrase that the appellant sought to have implied into the section, namely that the words “in employment to the nature of which the disease was due” should be inserted after the word “employer”. Nothing had been advanced to persuade her Honour that the clear words of s 18(1), with its stated purpose, ought to have words implied into it as submitted by the appellant [1].

Basten JA (Beazley P and Ward JA agreeing)

2. The answer to the question regarding the identification of the insurer responsible for the payment turned on the operation of ss 18(1) and 15 of the 1987 Act [3]–[4].

3. Section 15(1)(a) identifies when the injury is deemed to have happened “for the purposes of this Act”; s 15(1)(b) identifies the employer, including where there may be more than one, which is liable. Section 18(1) qualifies the effect of s 15(1)(a) in one circumstance and only for the purpose of determining the insurer liable in respect of the compensation [5].

4. The effect of s 18(1) was that the liability of the employer was taken to have arisen immediately before the worker ceased to be employed by the employer, namely on 24 February 2011. There was no dispute that the appellant, StateCover Mutual Ltd, was the Council’s workers’ compensation insurer at that time. Accordingly, a straightforward application of the relevant provisions supports the result reached by the Workers Compensation Commission, namely that the appellant was liable [7].

5. The deceased was last exposed to sunlight in the course of his employment with the Council in 1986. He then stopped working outside. AAI Ltd was the worker’s compensation insurer of the Council in 1986 [8].

6. The appellant firstly argued that the word “employed” referred to “employment of a kind which was a substantial contributing factor to the injury”. Section 17(1), which deals with loss of hearing, uses the language of a worker being “employed in an employment to the nature of which the injury was due”. Section 151AB(1) of the 1987 Act, dealing with the identification of the policy of insurance which responds to a claim for damages for an “occupational disease”, uses similar language to that found in s 17. Section 15(1)(b) also uses the language of the employer who last employed the worker in employment to the nature of which the disease was due [9].

7. The fact that s 18 does not use the extended language of the other provisions gives rise to the question why, when the legislature has expressly used that language in some provisions but not others, it should be assumed to have intended the language to operate in other provisions from which it was omitted, so as to achieve a different effect from the unambiguous language in fact used. The appellant’s argument that not to read the statute with the additional words inserted might give rise to anomalous results with respect to the liability of insurers had little, if any, weight with respect to the proper construction of a deeming provision, which identifies a relevant point in time for particular consequences of an injury which did not in fact “happen” at any particular point in time, but over a period [10].

8. The second argument relied on an effect described as “the increased emphasis on actual causation brought about by the enactment of s 9A of the 1987 Act and the definition of ‘disease’.” That argument might provide a basis for disregarding or placing limited weight on earlier authorities which predated the amendment of the definition of “disease” in s 4 of the 1998 Act and the insertion of s 9A [11].

9. This submission was rejected for two reasons. Firstly, the case could be determined by construing the statute, as it was in the Commission, and reference to authority was unnecessary for that purpose. More importantly, the statutory provisions relied on go to the question of liability of the employer, which is not an issue decided under s 18(1), but is a precondition to the operation of s 18(1). As explained in Allianz Australia Insurance Ltd v Pomfret [2015] NSWCA 4 at [20], caution should be taken in recrafting this legislative scheme [12].

10. The appellant thirdly contended that the Commission had failed to take into account the decision of the Court of Appeal in CIC Workers’ Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169 (Alcan), prior to the amendments relied on under the earlier submission. That decision was of no assistance. It dealt with s 151AB of the 1998 Act, not s 18 [13]–[14].

11. In the course of argument, the appellant sought to obtain assistance from the predecessor to s 18(1), namely s 18(6A) of the Workers Compensation Act 1926 (the 1926 Act). No useful purpose was to be served by exploring the earlier legislation in order to understand the purpose and effect of s 18(1). However, and relevantly in the context of reliance upon Alcan, reference to the earlier legislation may provide support for a contrary conclusion. Thus, s 18 and s 151AB fall in different parts of the current legislation. Their respective antecedents, however, were s 18(6A) and (6B) respectively of the 1926 Act. The juxtaposition of subs-s (6A) and (6B) in s 18 of the 1926 Act highlighted the fact that Parliament legislated differentially with respect to the identification of insurers’ liability to pay compensation, on the one hand, and damages, on the other, prior to the current Act [15].

12. The reasoning by Dixon J in Smith v Mann [1932] HCA 30; 47 CLR 426 at 448–449 was of quite a different kind from that invoked by the appellant. It involved reading a term in one part of s 7(4) of the 1926 Act (which was predecessor to s 15(1)) in the same way as the same term when used with words of clarification in another part of the same provision. That approach would not justify reading material from a provision having an identifiable purpose into a separate provision having a different purpose [16].

13. The reasoning in Smith v Mann was concerned to identify the nature of a “disease”, namely one contracted by a gradual process and due to the nature of employment. Alcan was concerned with the same language, now contained in s 151AB. Gleeson CJ noted that similar words had been construed by the House of Lords in Blatchford v Staddon and Founds [1927] AC 461 (Blatchford) at 482 per Lord Blanesburgh [17].

14. The 1987 Act deals with matters in steps. The first step requires that the worker establish that he or she has received an injury, within the meaning of s 4. That will include proving that the injury, in the case of a disease injury, is contracted in the course of employment and that the employment was the main contributing factor. Section 15 presumes that an injury has been established and, in the case of a disease contracted by a gradual process, identifies a point in time at which it is deemed to have happened and the employer who is liable to pay compensation. Section 18 presumes that liability has been established on the part of a particular employer and then deems when liability has arisen, for the purpose of determining the insurer liable in respect of that compensation. Section 18 is not concerned with a determination of liability, nor with identification of the employer. There is no reason why rules to be applied at one stage of the process should be incorporated into a later stage. As recognised by Lord Blanesburgh in Blatchford, the term “employment” can (and does) have different meanings in different parts of the 1998 Act [18].

15. Deputy President Roche’s disposal of the appellant’s argument in StateCover Mutual v Cameron [2014] NSWWCCPD 49 at [82]–[88] and description of the arguments put forward by the appellant as “fundamentally wrong” was correct [19].

Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29

Death claim; fatal injuries sustained in a motor vehicle collision while on a journey between worker’s place of employment and place of abode; whether open to infer that the collision was caused by fatigue due to long hours of work on night shift; whether there was a real and substantial connection between employment and the accident that caused the death; s 10(3A) of the 1987 Act

Keating P

4 May 2015

Facts

This appeal concerned a claim for the lump sum death benefit under s 25 of the 1987 Act. On 22 May 2013, the deceased was on a journey between her place of employment and her place of abode within the meaning of s 10(3) of the 1987 Act when her vehicle crossed to the incorrect side of the roadway, collided with a truck, and resulted in her death. More specifically, the appeal concerned whether there was a real and substantial connection between the deceased’s employment and the fatal motor vehicle accident (s 10(3A)).

The legal representative of the deceased’s estate, who brought the initial proceedings, alleged that the death occurred in compensable circumstances because the accident was due to the deceased falling asleep at the wheel of her car due to fatigue. It was alleged that the deceased was fatigued because she was relatively new to working night shift and had worked 60 hours, all on night shifts, in the five days preceding the accident. Therefore, so it was argued, and the Arbitrator found, there was a real and substantial connection between the deceased’s employment and the accident.

The appellant claimed that the accident happened after the regular 12 hour shift was terminated, after only two and a half hours of work, due to a mechanical breakdown and the premature closure of the plant where the deceased worked. Lay evidence from the deceased’s co-workers indicated that the deceased was not displaying signs of fatigue when she completed her final shift and there was therefore no connection between the employment and the accident.

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

• there was sufficient evidence to support a finding that the deceased was suffering from fatigue at the relevant time and that fatigue was the probable cause of the accident, and
• there was a real and substantial connection, pursuant to s 10(3A) of the 1987 Act, between the employment and the accident that led to the deceased’s death.

Held: The Arbitrator’s determination was confirmed.  

Ground one

1. There was a solid evidentiary foundation for the inference drawn by the Arbitrator, that being, that the relevant accident occurred because of fatigue due to working long night shifts (G v H [1994] HCA 48; 181 CLR 387; Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Flounders v Millar [2007] NSWCA 238; Marshall v Prescott [2015] NSWCA 110; Holloway v McFeeters [1956] HCA 25; 94 CLR 470 applied) [92]­­–[96].

2. The evidence that the deceased was tired and fatigued by her work on night shift with the respondent employer was found in several sources. This included evidence from the deceased’s parents regarding their observations that the deceased was tired in the weeks leading up to the accident. The deceased had complained to her parents that work was making her feel tired and that she was still trying to acclimatise to it within a week of the accident [97]–[98].

3. After that complaint, the deceased worked five consecutive 12 hour night shifts. This fact, combined with the evidence from the deceased’s parents, provided a sound basis for the Arbitrator to conclude that, notwithstanding observations made by co-workers to the contrary, the deceased was tired on the night of the accident [99].

4. The evidence of the deceased’s housemate, that after completing work the deceased would seem tired, supported the Arbitrator’s finding. The Arbitrator’s finding was also consistent with everyday human experience that a worker who has worked 60 hours in five consecutive night shifts will be tired or suffering from some measure of fatigue. At the time of the accident the deceased had worked for a number of hours approaching double a common working week. Further, the work had been completed during night shifts which on the deceased’s own evidence she had struggled to acclimatise to and which, prior to starting work with the appellant, she had not previously worked. In addition, there was no evidence that the deceased was able to achieve adequate sleep during the day prior to commencing her shift on 22 May 2013 [100]–[102].

5. Subjective assessments of the deceased’s physical state based on her appearance during working hours was not determinative of whether the deceased was in fact fatigued due to her long hours of work on night shift. Evidence of the deceased’s appearance during working hours offered little assistance in determining whether the deceased felt tired or fatigued while driving alone on a country road at night after completing what was a truncated shift [103]–[104].

6. The Arbitrator evaluated the evidence of the co-workers which indicated that the deceased did not generally appear to be tired or fatigued at work or just before leaving the workplace on 22 May 2013. However he concluded that the objective facts were a more reliable guide to whether the deceased suffered from fatigue and fell asleep at the wheel of her vehicle. Those objective facts were:

• that the deceased had worked for 60 hours (on night shift) in the five days immediately preceding the accident over five shifts and commenced her last 12 hour shift on the night of the accident, which he assessed in the context of;
• the absence of any braking on the roadway;
• the absence of any attempt to take “any corrective measure” when a collision with a large vehicle travelling in the opposite direction was imminent;
• the absence of any hesitation in the way the vehicle moved before the collision, and
• the absence of any jerking movement of the vehicle, which could be consistent with a sneezing fit or temporary interference with the deceased’s control of the vehicle.

The Arbitrator was entitled to rely on these matters in his assessment of the evidence. Even if it could be argued that points (d) and (e) were equivocal, the remaining three points provided clear and objective evidence in support of the inference the Arbitrator drew [106].

Ground two

7. Given the Arbitrator’s finding that the deceased was tired, which the President held was open to him, it was further open to the Arbitrator to conclude that it was more probable than not that the vehicle crossed to the incorrect side of the roadway because the deceased had fallen asleep due to work related fatigue. There may have been other “possibilities” to explain why the deceased’s vehicle veered on to the incorrect side of the roadway. However, given the finding of tiredness and fatigue, which was consistent with the evidence from the deceased’s parents, and consistent with ordinary human experience, the more probable inference was that drawn by the Arbitrator, namely, that the accident was due to the deceased falling asleep [110].

8. The circumstances in the present case gave rise, as the Arbitrator found, to a reasonable and definite inference that, because of tiredness caused by long hours on consecutive night shifts, the accident resulted from the deceased falling asleep. There were no conflicting inferences of equal degree of probability [111].

9. The Arbitrator’s reasoning processes did not reverse the onus of proof by placing an onus on the appellant to disprove the requirements of s 10(3A), as the appellant had submitted. By noting an absence of alternative explanations for the accident the Arbitrator did no more than to articulate that that was one of his reasons (although not a decisive one) for drawing the inference he did from the available evidence. Reading the decision as a whole it was clear that the Arbitrator approached the matter on the basis that the respondent bore the onus of establishing that there was a real and substantial connection between the employment and the accident (s 10(3A)) [113]–[114].

10. The Arbitrator’s conclusion was based on an inference he drew from objective evidence, which the Arbitrator accepted. That evidence was more than sufficient to support the Arbitrator’s conclusion that it was more probable than not that the accident was caused by the deceased falling asleep at the wheel of her car due to work related fatigue. Those findings were open on the evidence and did not involve error. It did not involve, or require, a finding of “conclusive probability”. It involved the correct application of the civil standard of proof, namely on the balance of probability [115]–[116].

Harrington v New South Wales Police Force [2015] NSWWCCPD 31

Two injuries received by worker; whether one incapacity results from such injuries; whether worker suffers separate and distinct incapacities as a result of each injury; consideration of Sydney City Council v Ince (1989) 16 NSWLR 690

O’Grady DP

25 May 2015

Facts:

This appeal concerned the question as to whether two particular pathological conditions, each suffered by a worker as a result of injury received in the course of his employment, resulted in separate and distinct partial incapacities, thereby entitling the worker to two separate payments of weekly compensation.

The worker was a police officer. There was no dispute that the worker, in the course of that employment, suffered an injury to his right shoulder when he tackled an offender who was attempting to abscond. That incident occurred on 27 July 2009.

Before that incident, and during the course of his service as a police officer, the worker had suffered a serious assault causing a head injury, leading to neurosurgical treatment, and was subjected to a number of terrifying and stressful experiences. Included among those experiences was a confrontation which occurred on 3 July 2009, when the worker was dealing with two intoxicated offenders. A woman advanced towards the worker armed with two large carving knives and threatened to kill him. The worker managed to secure the offender in custody without resort to use of his firearm. At that time he experienced severe physical and mental disturbance. He was shaking and his legs “felt like jelly”. He could not “put his thoughts together and felt quite numb”.

The worker continued to experience unsettling emotional symptoms following the 3 July 2009 incident which persisted until the incident which occurred on 27 July 2009. Immediately before sustaining the shoulder injury, the worker had been investigating the activities of an arsonist. He located a suspect following his identification by a member of the public. During his search for that alleged offender he experienced a panic attack with fear and anxiety and hoped that he would not locate the suspect. Once apprehended, the suspect made serious threats directed to the worker.

The worker ceased work following that incident and sought medical treatment the following day in respect of his injured shoulder. Within a few days he consulted a counsellor concerning his mental and emotional state. He was advised to leave the town at which he was stationed and to see a psychologist. The worker moved to the east coast. He did not return to his duties as a police officer and was medically discharged from the NSW Police Force on 22 July 2010.

The worker claimed, and was paid, weekly compensation benefits at the statutory maximum rate payable in accordance with the 1987 Act. The 2012 amendments do not apply because the worker was a police officer.

On 17 December 2013, the worker’s solicitors wrote to the insurer, asserting that the worker had two separate entitlements and that by reason of his orthopaedic and psychiatric conditions and resultant disability, the worker suffered separate and distinct incapacities in respect of each, and that he was seeking payment, in addition to those payments already made, of a further weekly sum representing the maximum statutory rate in respect of the past and into the future. In February 2014, the insurer denied the claim and issued a s 74 notice on the basis that the worker had not suffered separate injuries so as to give rise to distinct partial incapacities for the purposes of s 40 of the 1987 Act.

The worker filed an Application to Resolve a Dispute in the Commission in July 2014, claiming weekly benefits compensation between 2 October 2010 and 31 December 2011. On 19 February 2015, the Commission issued a Certificate of Determination making an award for the respondent. The worker appealed.

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

• failing to find that the worker suffers from two separate and distinct incapacities;
• failing to give adequate reasons as to why the Arbitrator did not find that the worker suffered an incapacity arising from his shoulder injury during the period of the claim;
• failing to properly address the evidence given by the worker as to his suitability or otherwise in relation to the alternative employment which is theoretically available to him, and
• misapplying the decision of Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40 [Sedrak] in finding that the Applicant was not entitled to compensation because there was an ‘intermingling’ of symptoms leading to an incapacity for employment.

Held: The Arbitrator’s determination was confirmed.  

Ground (a)

1. This ground asserted factual error on the part of the Arbitrator in failing to make a finding that the worker suffered from two separate and distinct incapacities. The worker correctly observed that the Arbitrator had made a finding that two distinct injuries had been received. Those submissions also correctly recorded the Arbitrator’s findings concerning the incapacitating consequences of each injury as found [43]–[44].

2. It is clear on the authorities that a question as to the existence of incapacity and, if such is established, its causal nexus with a particular injury is one of fact. It is also clear that a determination by the Commission as to the existence of separate incapacities in the case of multiple injuries, or whether such multiple injuries have given rise to a single incapacity, is also a question of fact to be determined having regard to all the circumstances of the case (Sydney City Council v Ince (1989) 16 NSWLR 690 (Ince)) [47].

3. The argument advanced by the worker failed to acknowledge, as was made clear by Deane J in National & General Insurance Co Ltd v South British Insurance Co Ltd [1982] HCA 62; (1982) 149 CLR 327, that a single incapacity may, for purposes of workers compensation legislation, be attributable to more than one injury (at 332) where his Honour made reference to the decisions in Harwood v Wyken Colliery Co [1913] 2 KB 158 and Bushby v Morris [1980] 1 NSWLR 81), which decisions, as acknowledged by Deane J, had been cited by the judge at first instance, Yeldham J.

4. The Arbitrator concluded that the psychological injury had been caused, in part, by events experienced by the worker before the last incident which occurred on 27 July 2009. That last incident (the injurious event) caused two injuries (two pathologies), the orthopedic injury and the aggravation of the psychological injury. The effects of those injuries in combination caused, for the first time, incapacity for work as a police officer [49].

5. This case may readily be distinguished from that considered by the House of Lords in Doudie v Kinneil, Cannel & Coking Coal Co Ltd [1947] AC 377 (Doudie), which decision was discussed by Clarke J in Ince where separate incapacities were stated to be discernible in circumstances where a worker, who is partially incapacitated by reason of a work injury, suffers further injury with the same employer, or with a different employer, which results in a further diminution of his earning capacity. The views of Viscount Simon as expressed in Doudie are not to be taken as an exhaustive description of circumstances that might lead to a finding of separate incapacities, however the views as expressed demonstrate the need to take into account all relevant circumstances when the question is being considered. The Arbitrator’s conclusion was one open on the evidence. Ground (a) failed [50].

Grounds (b) and (c)

6. That there is a duty upon an Arbitrator to give adequate reasons for a decision, and that failure to do so constitutes error, is clear (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]–[59]). As McColl JA stated, reasons must be adequate to permit exercise of an appeal and must “do justice to the issues posed by the parties’ cases”. The Arbitrator’s findings concerning incapacity demonstrated that the very exhaustive description concerning the effects of injury made by the worker as found in his statement had been accepted by him. There was, in that event, no need for the Arbitrator to trawl through that lengthy statement merely to repeat the worker’s allegations [51], [53].

7. There was no failure on the Arbitrator’s part to provide sufficient reasons for his conclusion. The worker’s complaint of failure to address the evidence was not made out [57].

Ground (d)

8. This ground, which made complaint that the Arbitrator erred in “misapplying the … decision of [Sedrak]”, was not supported by any meaningful analysis of that decision, nor was any argument advanced which suggested error of law in failing to apply a correct principle or applying a wrong test. There being nothing put on behalf of the worker which suggested relevant error of law under this ground, the ground was rejected [58]–[59].

Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28

Claim for cost of hospital and medical expenses for consequential right shoulder condition alleged to have resulted from accepted injury to the left wrist; assessment of lay and expert evidence; alleged finding against the weight of evidence; alleged failure to conduct proceedings “in equity, good conscience and on the substantial merits of the case”; consequence of respondent’s failure to comply with cl 46 of the 2010 Regulation; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged error in applying the “best evidence rule” when the Commission is not bound by the rules of evidence; s 354(2) and (3) of the 1998 Act; conduct of proceedings in the Commission generally

Roche DP

4 May 2015

Facts:

This appeal involved a challenge to the Arbitrator’s finding that he was not persuaded that the worker’s right shoulder condition was caused by her employment or resulted from favouring her left arm after suffering an accepted work injury to her left wrist.

The worker worked part time as a customer service assistant for the respondent from 2007. In 2009, she injured her left wrist when she attempted to stop a box from falling. Investigations revealed a triangular fibro-cartilage tear in the worker’s left wrist. After a period away from work, she returned to work on 13 May 2009, after being certified fit for suitable duties, but was to avoid heavy lifting and pushing loads.

On 19 October 2009, the worker’s general practitioner, Dr Mill, recorded that the worker had a “sore (R) shoulder [indecipherable] → shifting load to other side; not well tolerated”. On 9 November 2009, among other things, the general practitioner recorded that the worker had “no previous (R) shoulder problems”.

On 23 November 2009, the worker had surgery on her left wrist, which did not give any great improvement. On 30 November 2009, another doctor at Dr Mill’s practice certified the worker fit for work and also noted that the worker’s right shoulder was aching.

In March 2010, Dr Mill recorded that the worker had increased shoulder symptoms that persisted and were initially thought to be due to altered load in response to her wrist injury.

In September 2010, the worker saw Dr Jansen, orthopaedic surgeon, reporting that at the end of 2009 her employer had installed touch screen monitors and her job involved a lot of touching of the screen, which involved a lot of work at shoulder level. An MRI revealed mild tendonitis in the supraspinatus with a “tiny focal partial thickness undersurface tear”. It also showed mild tendonitis of the infraspinatus tendon.

In a s 74 notice dated 8 December 2010, the insurer denied liability in respect of the alleged right shoulder injury. The worker sought a review of the insurer’s decision and it rescinded its “declinature”, stating that it would meet the cost of proposed treatment for the worker’s right shoulder.

On 29 November 2012, the respondent terminated the worker’s employment. On 3 December 2012, the respondent issued a s 54 notice declining liability for any weekly compensation.

The worker continued to see Dr Jansen, who noted that the worker was “heading towards surgery” and recorded that over the three preceding years, the worker had had six guided injections that did not provide much relief and the worker was keen to have the surgery.

On 9 May 2013, the worker saw Dr Wallace, orthopaedic surgeon qualified by the respondent, who opined that the condition of the worker’s right shoulder was not work related.

On 27 March 2014, Dr Khor, pain management specialist, reported that the worker’s shoulder pain flared up in conjunction with her left wrist pain, which was a point of contention and stress, because it was not covered by the insurer “even though it probably arose from increased use of the right upper limb from impairment over the left wrist”.

On 1 May 2014, the worker saw Dr Mastroianni, consultant occupational physician, who took a history of right arm overuse at work following the left wrist injury. Dr Mastroianni stated that as a result of favouring her left arm and returning to normal duties doing predominantly right handed work, the worker developed tendonitis in her right shoulder.

In an Application to Resolve a Dispute filed with the Commission on 11 June 2014, the worker claimed compensation for the cost of the surgery proposed by Dr Jansen. The respondent denied liability on the grounds outlined in the reports from Dr Wallace.

On 1 October 2014, Dr Ho, AMS and orthopaedic surgeon, prepared a non-binding Medical Assessment Certificate, in which he agreed that the worker had features suggestive of AC joint impingement. However, he did not think this was related to “the work injury which is causing the problem in the left wrist”. He felt it would happen whether she was favouring the use of her left hand or not, concluding that the surgery proposed by Dr Jansen was not reasonably necessary as a result of the left wrist injury.

On 15 December 2014, the Arbitrator made an award for the respondent. He preferred Dr Ho’s evidence and was not persuaded that the worker’s right shoulder problem was caused by her employment, or that it resulted from favouring her left arm. The worker appealed.

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

• his interpretation of Dr Mill’s notes of 19 October 2009 (Dr Mill’s notes);
• finding that, after her left wrist injury, the worker returned to normal duties (the worker’s post injury duties);
• failing to conduct the proceedings in “equity, good conscience and on the substantial merits of the case” in not taking account of the respondent’s failure to produce the report of Dr Gray when issuing the s 74 notice (failure to produce Dr Gray’s report);
• failing to adequately consider the evidence of Dr Mill (Dr Mill’s evidence);
• finding that Dr Jansen was “sitting on the fence” (Dr Jansen’s evidence);
• finding that there was no rotator cuff pathology (the pathology/Dr Khor’s evidence);
• rejecting the evidence of Dr Khor on the ground that Dr Khor found that there was rotator cuff pathology (the pathology/Dr Khor’s evidence);
• refusing to find that the worker overused her right arm (overuse of the right arm);
• requiring “clear evidence from [the worker] as to precisely how she overused her right arm” (clear evidence);
• accepting Dr Ho’s opinion (Dr Ho’s evidence);
• reaching a conclusion that was against the weight of the evidence (finding against the weight of evidence), and
• applying the “best evidence rule” (the best evidence rule).

Held: The Arbitrator’s determination was confirmed.  

Dr Mill’s notes

1. On 19 October 2009, Dr Mill recorded, among other things that the worker had a sore right shoulder “→ shifting load to other side; not well tolerated”. On this evidence, the Arbitrator said that the worker “complained of shoulder soreness from shifting a load”. Assuming, as the worker submitted, that the Arbitrator misinterpreted the notes, it made no difference to the result. A fair reading of the Arbitrator’s reasons as a whole revealed that he was well aware that Dr Mill supported the claim that the worker developed symptoms suggestive of an occupational overuse mechanism of injury resulting from the unaccustomed increased load to the right shoulder from her inability to use her left arm. This ground was rejected [39]–[43].

The worker’s post-injury duties

2. This challenge was based on certificates from Dr Mill, which suggested that, since the injury to the left wrist, the worker had only ever been certified fit for light duties. In finding that the worker returned to work on her ordinary duties after the first operation, the Arbitrator made a finding that was consistent with the evidence from the worker, evidence upon which her counsel relied. It was not open to argue on appeal that the Arbitrator erred in making that finding. This challenge also took the Arbitrator’s statement out of context [45], [47], [48].

3. Even if the Arbitrator erred in saying that the worker returned to her “ordinary duties” after the first operation, and the Deputy President did not accept that he did, it was not an error that had affected the outcome [51].

Failure to produce Dr Gray’s report

4. The Deputy President accepted that the respondent was obliged to produce both of Dr Gray’s reports to the worker (see cl 46 of the 2010 Regulation) and that it failed to do so. The issue on appeal was whether the Arbitrator erred in the manner alleged by the worker’s counsel [53].

5. Provisions such as s 354(3) of the 1998 Act do not release the Commission from the obligation to apply the rules of law in arriving at its decision (see South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [88], and Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29–30) [56].

6. The Arbitrator was correct that, because of cl 49 of the 2010 Regulation, the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298 did not apply. The absence of Dr Gray’s report was not “unexplained”; the parties could not rely on the report because of cl 49. This ground of appeal was without substance [58], [60].

Dr Mill’s evidence

7. The Arbitrator did not fail to “adequately consider” the evidence from Dr Mill on the ground that he was “merely a general practitioner”. The Arbitrator considered all the relevant evidence and assessed the strength of Dr Mill’s evidence in the context that he was not a specialist. He weighed that evidence with and against the other evidence tendered, which included evidence from several specialties. That approach was open to the Arbitrator and disclosed no error [63], [70].

Dr Jansen’s evidence

8. The Arbitrator’s statement that Dr Jansen was “sitting on the fence” had to be read in its proper context. Dr Jansen did not clearly express an opinion on causation. It was in this context that the Arbitrator added that Dr Jansen’s opinion was “critical to the outcome and when he sits on the fence, it makes resolution of the issue more difficult than it might otherwise be”. This statement was consistent with the evidence [72], [80].

The pathology/Dr Khor’s evidence

9. The Arbitrator’s statement that the radiology did not demonstrate any rotator cuff pathology was consistent with the most recent MRI scan in evidence, and did not involve any relevant error. Dr Ho’s evidence, coupled with Dr Jansen’s erroneous statement about the “last MRI”, provided a sound basis for the Arbitrator’s statement that the radiology did not demonstrate any rotator cuff pathology. That conclusion provided a valid reason for discounting Dr Khor’s evidence, which was, in part, based on the worker’s shoulder condition being “secondary to rotator cuff pathology”. These grounds were not made out [88]–[90].

Overuse of the right arm

10. The Arbitrator was well aware that the worker complained of pain in her right shoulder with use, and he noted the evidence to that effect from several sources. However, the complaint of pain with use did not establish that the right shoulder condition resulted from the injury to the left wrist. That issue depended on an assessment of the whole of the evidence, expert and lay [92].

11. To ascertain the worker’s pre-injury duties, the Arbitrator was forced to rely on the history recorded by Dr Ho. That was unsatisfactory, but highlighted the unsatisfactory state of the lay evidence presented in support of the claim. With respect to the alleged overuse of the right shoulder because of the left wrist injury, the worker’s statement was effectively silent. The Arbitrator did not err. This ground was not made out [94], [95].

Clear evidence

12. The worker’s submission was based on the incorrect assumption that the Arbitrator “required” clear evidence from the worker as to precisely how she overused her right arm before she could succeed. He did no such thing. In assessing and weighing the evidence, the Arbitrator was entitled to note the lack of clear evidence from the worker on the very issue in dispute. This ground was rejected [97], [100].

Dr Ho’s evidence

13. The Arbitrator accepted Dr Ho’s history of the worker’s normal work duties, a history that was not disputed by the worker. This statement was consistent with Dr Ho’s evidence. Nothing in the Arbitrator’s approach or conclusion demonstrated any error and his approach was consistent with the statement by Kirby P at 463 in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 [103], [110]–[111].

14. The submission that Dr Ho’s opinion was “in ipse dixit style” failed to acknowledge the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 at [83],[85] (see also Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 179 FLR 1 at [631] and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; 117 FCR 189 at [89] and Spigelman CJ at [170] in Australian Security and Investments Commission v Rich [2005] NSWCA 152) [112]–[114].

Finding against the weight of evidence

15. Section 352 appeals are not a rehearing where a Presidential member can, in the absence of error, substitute his or her view for the view reached by an Arbitrator. They are restricted to the identification and correction of error (s 352(5)). The Arbitrator carefully considered the competing medical opinions and it was open to him to prefer Dr Ho’s opinion [120]–[122].

The best evidence rule

16. The worker’s statement said nothing relevant about the nature of her pre-injury duties. The Arbitrator was forced to extract evidence of those duties from other sources. Evidence in a medical history is evidence of the fact (Guthrie v Spence [2009] NSWCA 369; 78 NSWLR 225 at [75]). The Arbitrator was entitled to have regard to Dr Ho’s history, it being the best evidence on the subject [124], [129]–[131].

17. Though the Commission is not bound by the rules of evidence (s 352(4) of the 1998 Act), it “is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material” (Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282) [134]–[136].

18. In the Commission every attempt must be made to administer “substantial justice” (see R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; 50 CLR 228 at 256). The Commission is “entitled to have regard to evidence which is logically probative whether it is legally admissible or not” (see Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482 at 493; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390). The Arbitrator’s approach was correct and disclosed no error [137]–[138].