Issue 5: August 2017

Pidcock Panel Beating Pty Ltd v Nicolia [2017] NSWWCCPD 32

(a) erred in the application of s 329(1)(b) of the 1998 Act (ground no 1);

(b) erred in the application of Sch 8, Pt 2A, cl 28D of the 2016 Regulation (ground no 2), and

(c) failed to give proper reasons for the reconsideration order pursuant to s 329(1)(b) of the 1998 Act (ground no 3).

Held: Leave to appeal granted and the Certificate of Determination dated 16 February 2017 was revoked and an order made in its place dismissing the proceedings.

Leave to appeal

1. Deputy President Snell held that the appeal was from an interlocutory decision and required leave pursuant to s 352(3A) of the 1998 Act (Licul v Corney [1976] HCA 6; (1994) 180 CLR 213 per Gibbs J at 225 applied). The making of an order remitting the matter to the Registrar, for referral to an AMS for further medical assessment, does not finally dispose of the rights of the parties. The Deputy President granted leave to appeal as it was desirable for the proper and effective determination of the dispute that the issue was resolved now (Campbelltown Tennis Club Ltd v Lee [2013] NSWWCCPD 50 at [22] and Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85 at [60] referred to). ([19]–[21], [26]–[27])

The nature of the proceedings

2. Deputy President Snell held that Sch 8, cl 11 of the 2016 Regulation, which provides that one further claim can be made on or after 19 June 2012, did not apply to the worker as he had not had a lump sum compensation claim before 19 June 2012, and lump sum compensation was paid in respect of his claim made on 26 June 2012 (that is, after 19 June 2012). ([55])

3. The Deputy President noted that the s 66 claim was concluded by a Certificate of Determination dated 11 April 2014 and the s 67 component was resolved by entering into a s 66A agreement dated 3 June 2014. Deputy President Snell held that consistent with the passages from Milosavljevic v Medina Property Services Pty Ltd [2008] NSWWCCPD 56 (Milosavljevic) at [59], there was then “no basis on which to require a further assessment” (Adriaansen v Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 referred to). ([57])

4. The Deputy President held that referral by the Registrar pursuant to s 329(1)(a), as an alternative to a medical appeal, was not available. There was no MAC to appeal from in the current proceedings. A medical appeal was not available in the earlier proceedings, as those proceedings had been the subject of determination by the Commission: ss 327(6) and (7) of the 1998 Act, Milosavljevic at [59]. ([58])

5. The issue raised by the appellant was a statutory defence, pursuant to s 66(1A) and associated provisions, which precluded the further claim pursuant to s 66. It raised a ‘liability’ issue. To the extent that a ‘medical dispute’ existed in the proceedings, such a dispute could not be referred for assessment under Div 7 of Pt 7 of the 1998 Act until that ‘liability’ issue was determined by the Commission: ss 293(2) and (3)(a), and 321(4)(a) of the 1998 Act (Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417 (Favetti Bricklaying) at [78]–[80] applied). ([59])

6. When the current proceedings were registered on 28 October 2016, the further claim pursuant to s 66 was precluded by s 66(1A) of the 1987 Act, the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015 did not assist the worker in making the further claim, and s 329 of the 1998 Act did not provide a vehicle by which the worker could have a further medical assessment (consistent with Milosavljevic). A referral pursuant to s 321 could not be made by the Registrar until the ‘liability’ issue had been determined by the Commission. Against this background, Deputy President Snell asked was there a basis for the referral made by the Arbitrator? ([60])

The state of the proceedings and whether there was a ‘medical dispute’

7. Deputy President Snell observed that if the worker no longer pursued the lump sum claim made on 26 July 2016 concerning the lumbar spine, there was no remaining ‘medical dispute’ to refer. The ‘medical’ dispute’ the subject of the earlier proceedings had been determined and a Certificate of Determination issued. The claim made on 26 July 2016 potentially created a ‘medical dispute’. However, the appellant did not, in its s 74 notice raise an issue falling within the definition of a ‘medical dispute’ within the meaning in s 319 of the 1998 Act. ([65])

8. The Deputy President held that even if there had been a ‘medical dispute’ flowing from the claim made on 26 July 2016, it could not have been referred for medical assessment pursuant to s 321 in the circumstances, because of the ‘liability’ issue which was raised, and not determined by the Commission. ([66])

The form of order made by the Arbitrator

9. Deputy President Snell held that the subclauses (1)(a) and (1A) of s 329 did not apply. He noted that the Arbitrator’s referral was for further assessment pursuant to s 329(1)(b). ([68]–[71])

The nature of the power under s 329(1)(b)

10. The Deputy President accepted the correctness of the passages at [58(c)–(d)] and [59(a), (e) and (g)] in Milosavljevic dealing with s 329. He held that they are consistent with the clear words of s 350(1) of the 1998 Act. ([74]–[75])

The availability of the order in the circumstances

11. The dispute the subject of the earlier proceedings had been determined, in a way which was final and binding, and was not susceptible to referral for further assessment pursuant to s 329(1)(b). Deputy President Snell held that the claim dated 26 July 2016 did not give rise to a ‘medical dispute’ within the meaning of s 319 of the 1998 Act, as the only issue raised by the appellant was, in general terms, whether the worker was entitled to bring a second claim for lump sum compensation in the circumstances. ([76])

12. Even if the claim dated 26 July 2016 had generated a ‘medical dispute’, such a dispute could not be the subject of being “referred again”, within the meaning of s 329(1), as it would not previously have been “referred for assessment under this Part”. Such a ‘medical dispute’ would require referral for assessment pursuant to s 321 of the 1998 Act. The only further claim which was made, on the evidence, since the earlier proceedings, was that dated 26 July 2016, for further lump sum compensation. Deputy President Snell held that the Arbitrator’s referral pursuant to s 329(1)(b) was not, in the circumstances available and it was necessary that that order be set aside. Ground no 1 was upheld. ([77]–[78])

Schedule 8, Part 2A of the 2016 Regulation

13. Deputy President Snell stated that the appellant’s argument that the worker could not validly make a second claim for lump sum compensation, notwithstanding the 2016 transitional Regulation, may well be correct. ([82])

14. The Deputy President held that the stated purpose of the 2016 transitional Regulation is to provide for one further assessment of permanent impairment for a worker in the worker’s position (an ‘existing recipient’ whose degree of permanent impairment has previously been assessed). This will be relevant to whether or not such a worker is subject to the otherwise disentitling application of s 39(1) of the 1987 Act (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [69]; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; 157 CLR 309 at [4]; ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1; Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 at [19], and Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704 at [12] applied). ([85])

15. Deputy President Snell held that the 2016 transitional Regulation, whilst it relaxes the prohibition in s 322A against a further assessment of the degree of permanent impairment, does not itself provide a vehicle for a referral for further assessment to be made (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 and Favetti Bricklaying referred to). ([87]–[88])

16. Section 329(1) provides for “a matter referred for assessment” to be “referred again”, that is, the same matter that was previously referred. Deputy President Snell was of the view that it is conceivable that, on a referral for a “further assessment” within the meaning of cl 28D, a worker may seek to refer body parts or systems that were not the subject of an earlier referral, for example consequential conditions. This could potentially give rise to a ‘liability’ dispute which would require determination by the Commission, before assessment by an AMS: State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1. The ‘medical dispute’ referred for the purposes of Sch 8, Pt 2A of the 2016 Regulation may not be identical to that referred previously. The scheme of the Acts provides for ‘liability’ issues to be determined, prior to referral to an AMS: ss 293(2) and (3), and 321(4)(a) of the 1998 Act. The Deputy President held that there is nothing in Sch 8, Pt 2A of the 2016 Regulation which suggests that it is necessary, in giving effect to that Part, that the “further assessment” should involve referral pursuant to s 329, rather than referral of the relevant ‘medical dispute’ pursuant to s 321. ([89])

17. Deputy President Snell rejected the worker’s submission that there is no vehicle available for assessment within the meaning of cl 28D, other than s 329(1)(b) of the 1998 Act. Typically, the need for assessment within the meaning of cl 28D will arise in the context of a ‘medical dispute’, which (subject to the determination of any necessary ‘liability’ issues) will be referred for assessment pursuant to s 321 of the 1998 Act. This process falls within “the terms of the Workers Compensation Acts”. He said it is consistent with the scheme of the Acts (see Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719 at 723G and Studorp Ltd v Robinson [2012] NSWCA 382 at [46]). It avoids the use of s 329 “in an unrestrained or unlimited way” (see Milosavljevic). Difficulties associated with the use of the referral power in s 329 were apparent from the circumstances in this matter. ([90])

18.The Deputy President held that there was error in how Sch 8, Pt 2A, cl 28D was applied in the circumstances, particularly its procedural interaction with Ch 7, Pt 7 of the 1998 Act. Ground no 2 was upheld to this extent. Deputy President Snell observed that there may be occasions where the dictates of justice require a further referral pursuant to s 329 of the 1998 Act, in connection with the 2016 Regulation. The scope of the section “must be determined on a case-by-case basis” (Milosavljevic at [58] applied). ([91]–[92])

19. The Deputy President held that there could be no basis for reconsideration pursuant to s 350(3) on the evidence as it stood, where the earlier claim pursuant to s 66 was decided consistent with a MAC which was “conclusively presumed to be correct”: s 326(1) of the 1998 Act. ([94])

(a) the finding of injury pursuant to s 4(b)(ii) of the 1987 Act due to the “events after the respondent worker’s return to work from November 2015 [was] one that was made without evidence in support and without adequate explanation”;

(b) there was no medical evidence to support a finding that surgery was required as a result of the aggravation, acceleration, exacerbation or deterioration caused by events after 2 November 2015;

(c) error of fact regarding lay evidence;

(d) denial of procedural fairness, and

(e) failure to engage with the evidence.

Held: The decision of the Arbitrator was confirmed.

Ground 1 – Absence of Evidence for s 4(b)(ii) Finding

1. Acting Deputy President Parker held that this ground misstated the Arbitrator’s approach and placed far too much emphasis on the brief statement of conclusion made by the Arbitrator. He held that it did not acknowledge the consideration given by the Arbitrator to the lay and medical evidence prior to that conclusion. ([24])

2. The Acting Deputy President held that the concepts of aggravation, acceleration, exacerbation or deterioration involve the worsening of the disease by making it more grave, grievous or serious in its effect on the worker: Federal Broom Co Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626. It is sufficient that there be an increase in the symptom to satisfy the requirement of aggravation: Rural Press Limited v Hancock [2009] NSWWCCPD 160 at [67]. ([27])

3. Acting Deputy President Parker held that degenerative conditions of the lumbar and cervical spine are well established as disease conditions within s 4(b)(ii). He held that the Arbitrator’s conclusion that the continued employment of the worker in heavy work after 2 November 2015 was available on the evidence which he accepted and held that it should not be disturbed. The Acting Deputy President held that it was plain that the worker’s condition worsened as a result of the fall on 2 November 2015 and that that fall aggravated a pre-existing condition of canal stenosis in the neck. Ground 1 of the appeal failed. ([35]–[36], [38], [41])

Ground 2 – Absence of Evidence for s 60 Finding

4. Acting Deputy President Parker held that this ground of appeal failed for the reasons given in relation to Ground 1. He held that it must follow that the medical and treatment expenses associated with the remedial surgery were reasonably necessary as a result of the injury. ([43], [45]–[46])

Ground 3 – Error of Fact Regarding Lay Evidence

5. The Acting Deputy President perceived that it was not submitted that the Arbitrator’s acceptance of the worker’s narrative as set out in his statement was erroneous. ([47])

6. Acting Deputy President Parker held that the Arbitrator’s decision was based on his assessment of the lay evidence of the worker, the other statement and documentary evidence and also an analysis of the medical evidence including that of Dr Breit, relied on by the appellant. It was not a case of a conclusion supported only by lay evidence (Bielecki v Rianthelle Pty Limited t/as Belfora [2008] NSWWCCPD 53 at [67] applied). He held the nature of the injury was well established and the medical opinion supported the worker. Ground 3 of the appeal was rejected as that appellant had failed to demonstrate that an error of fact, law or discretion had occurred in the conclusion expressed by the Arbitrator. ([51]–[54])

Ground 4 – Denial of Procedural Fairness

7. The appellant based its submissions on Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb). The Acting Deputy President held that those submissions were misplaced. Unlike in Ghaleb, in the present matter there was no concession that any part of the pleaded case was not to be advanced. Acting Deputy President Parker held that it was apparent that both counsel were cognisant of the allegation under s 4(b)(ii). ([57], [62])

8. Contrary to the appellant’s submission, Acting Deputy President Parker held that the appellant had an opportunity to submit to the Arbitrator that there was no medical evidence to support a finding of injury pursuant to s 4(b)(ii) or that such an injury caused the need for surgery. The Acting Deputy President dismissed this ground of appeal because he did not regard the appellant as having shown that it was deprived of an opportunity to make appropriate submissions on s 4(b)(ii) at the hearing before the Arbitrator. He made the additional observation that in any event the appellant had had an opportunity to make relevant submissions in support of grounds 1 and 2 at this time. ([64]–[66])

Ground 5 – Failure to Engage with the Evidence: Aggravation Injury

9. In relation to the evidence of Drs Coughlan and Higgs, Acting Deputy President Parker held that the Arbitrator adequately dealt with this evidence. He did not accept the submission that the Arbitrator failed to engage with the evidence. For the reasons above, the conclusions reached by the Arbitrator concerning this evidence was not disturbed. ([67])

10. In relation to Dr Culvenor, Acting Deputy President Parker held that the Arbitrator expressly rejected this evidence. He held that Dr Culvenor was unable to be more definitive because as he said there was no analysis of the work tasks. The conclusion that the worker’s symptomatic neck was the result of the nature and conditions of his employment after the fall of 2 November 2015 was not falsified by the report of Dr Culvenor. ([68]–[72])

11. This part of ground 5 failed.

Ground 5 – Failure to Engage with the Evidence: Rejection of Dr Breit

12. The Arbitrator rejected Dr Breit’s evidence on the basis that:

(a) he is an orthopaedic surgeon as opposed to a neurosurgeon;

(b) he recorded an incorrect history and, accordingly, the report was based on a false premise;

(c) he agreed that trauma could aggravate cervical spondylosis, but his opinion was falsified as he obtained an incorrect history that no symptoms presented themselves for two weeks after the fall;

(d) the doctor did not assign any weight to the fact that the worker was performing heavy work (the Arbitrator regarded the heavy work after 2 November 2015 in particular to be of significance), and

(e) Dr Breit did not discuss the nature of the fall in his report and concluded that there was no neck injury in the fall because there were no immediate neck symptoms. ([74])

13. Acting Deputy President Parker held that the Arbitrator was entitled to reject the opinion of Dr Breit. The reasons the Arbitrator gave (as listed above) for doing so were sufficient and adequate. The Acting Deputy President rejected the submission that the Arbitrator did not engage with Dr Breit’s opinion. The remainder of ground 5 failed. ([77]–[78])

(a) finding that activity between the “Patient WC/Shower door in the open position and the hand basin would not be captured [on CCTV] because movement is blocked by this door” (Ground No 1);

(b) finding that the patient GW assaulted and was abusive towards the worker, on the background of being considered by Ms Diprose (the manager in charge of the relevant unit on 20 March 2014) and Mr Nolan (psychiatric nurse working in the Unit) to be unwell, psychotic, delusional and paranoid (Ground No 2);

(c) finding that the employer declined liability on the basis of Mr Rollans’ (the employer’s acting senior security officer) viewing of the CCTV, without considering that the CCTV would “not catch movement between the open Patient WC/Shower door and hand basin where the incident between the patient GW and Mr Phelan occurred” (Ground No 3);

(d) finding that injury occurred on 20 March 2014 and that the worker was entitled to weekly compensation and medical expenses arising from it (Ground No 4), and

(e) failing to give “proper reasons” for the above findings (Ground No 5).

The sole issue on the worker’s appeal was whether the Arbitrator’s decision was affected by error of fact in determining that the injury resulted from reasonable action taken by the Employer in respect of discipline and pursuant to [section] 11A no compensation was payable.”

Held: Time to appeal in the worker’s appeal was extended pursuant to r 16.2(12) of the 2011 Rules. The Arbitrator’s amended decision was confirmed.

1. The worker filed his appeal out of time. Deputy President Snell held that on balance, the circumstances favoured an extension of time to appeal. He granted the worker an extension of time to appeal in accordance with r 16.2(12) of the 2011 Rules. ([25])

(Bryce v Department of Corrective Services [2009] NSWCA 188 per Allsop P (Beazley and Giles JJA agreeing) at [8]; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 per Campbell JA (Tobias JA and Handley AJA agreeing) at [66]–[67] (as applied in Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310); Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at [2] per McHugh J and Hume v CSR Ltd [2015] NSWWCCPD 7 applied) ([16]–[19])

(Rules 31.18(4) and 51.17 of the Uniform Civil Procedure Rules 2005 referred to) ([17])

(Itek Graphix Pty Limited v Elliott [2002] NSWCA 104; 54 NSWLR 207 distinguished) ([24])

THE EMPLOYER’S APPEAL

Grounds Nos 1, 3 and 4

2. Deputy President Snell held that there was a plethora of evidence that supported the allegation of the second injury. He held that the evidence of the worker; Mr Nolan; Mr Wheaton (leader of the High Dependency Unit on 20 March 2014); Ms Taylor (another psychiatric nurse at the Unit) and Ms Diprose supported the allegation. The Deputy President noted that the employer’s submissions on appeal concerned themselves primarily with whether it was possible that the incident occurred, given the CCTV footage. Having viewed the CCTV footage, Deputy President Snell found that the water closet/shower door was open for much of the time and had the capacity to impede the view of things on the other side of it. ([65]–[68])

3. The Deputy President held that the Arbitrator’s finding that the CCTV footage would not capture movement between the open patient water closet/shower door and the hand basin was open on the evidence. It was consistent with the contents of the CCTV footage. The effect of this factual finding was that the CCTV footage did not disprove that the injury occurred. The lay evidence accepted by the Arbitrator, not only of the worker but also of other nursing and managerial staff of the employer, was consistent with the occurrence of the injury. ([73])

4. Deputy President Snell held that the approach taken by the Arbitrator, on all of the evidence, was available to him. The employer had not succeeded in demonstrating ‘error’ as described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir). Grounds nos 1, 3 and 4 were rejected. ([77])

Ground No 2

5. This ground alleged error by the Arbitrator in finding that the patient GW assaulted and was abusive towards the worker, on the background of being considered by Ms Diprose and Mr Nolan to be unwell, psychotic, delusional and paranoid. The Arbitrator’s description of GW’s mental state was clearly based on acceptance of the evidence of Mr Nolan and Ms Diprose, two long term mental health professionals in the employer’s employ, who had contact with GW on the night in question. There was no basis for concluding that this aspect of the Arbitrator’s findings involved error. The finding challenged by this ground was open on the evidence. Ground No 2 was rejected. ([78]–[79])

Ground No 5

6. This ground challenged the adequacy of the Arbitrator’s reasons. The Commission’s obligation to give reasons has a statutory basis: s 294(2) of the 1998 Act, r 15.6 of the 2011 Rules (NSW Police Force v Newby [2009] NSWWCCPD 75 at [149]–[151] cited). ([80], [83])

7. Deputy President Snell held that it was not submitted that the Arbitrator’s description of the area shown in the CCTV footage was inaccurate. The Arbitrator’s conclusion, on the extent to which the view of the relevant area was obscured, was stated to be based on viewing the CCTV footage with counsel at the arbitration hearing. ([84])

8. Deputy President Snell held that the Arbitrator’s observation, about what Mr Rollans considered, could not affect the result of the matter, and could not constitute appealable error (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141). The Deputy President held that the challenge to the Arbitrator’s reasons on this point was without merit. ([86])

9. The submission that the Arbitrator’s reasons were inadequate in that they did not give any reason for not accepting the employer’s submission that the only possible interaction shown in the footage between the worker and GW was wholly inconsistent with the circumstances of the incident alleged could not be sustained. The submission that the Arbitrator failed to give any reasons why the Arbitrator found Mr Nolan’s evidence was corroborative also could not be sustained. This required consideration by the Arbitrator of the evidence as a whole, to determine whether the worker had discharged his onus of establishing the occurrence of the injury. This the Arbitrator did, and he gave reasons for his conclusions. ([82], [87])

10. Overall, the Arbitrator’s reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. The challenge, in ground no 5, to the adequacy of the Arbitrator’s reasons failed. ([91])

THE WORKER’S APPEAL

11. The worker essentially alleged that the Arbitrator erred in finding that the employer had satisfied its onus of establishing that its relevant conduct was reasonable. ([102])

12. After quoting the passages by Sackville AJA at [59], [71]–[72] and [171] in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie) Deputy President Snell stated that the test of reasonableness is an objective test (St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 referred to). ([104])

13. Deputy President Snell held that many of the matters that the worker submitted were deficiencies in the employer’s conduct were specifically taken into account by the Arbitrator. The Deputy President was of the view that a number of the matters raised by the worker were of a relatively minor nature, such as the failure to appoint an investigator (which was not required under the Disciplinary Plan), and the escalation of the matter to Mr Shaw (Network Manager Mental Health Richmond Clarence Network) without explanation to the worker. How the worker’s relevant correspondence was delivered to him, particularly the letter containing the formal caution, was unfortunate, but not of great significance in the context of the disciplinary process (Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [97] cited). ([106], [122]–[123])

14. Deputy President Snell held that there may well be some matters in the disciplinary process that could have been dealt with differently. The Arbitrator considered the evidence as a whole, including acknowledging and dealing with various criticisms, made on the worker’s behalf, of the process. He considered the process overall, whilst acknowledging certain “blemishes”. The Arbitrator’s finding that the employer’s actions were ‘reasonable’ involved an evaluative judgment. It is a finding of fact which, consistent with Heggie at [171], should only be set aside on appeal pursuant to s 352 of the 1998 Act, on the basis of error within the principles stated by Barwick CJ in Whiteley Muir at 506 (see also Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 at [19]–[20]). It would not be a basis to interfere with the decision, if the Deputy President thought that a different outcome was preferable: Heggie at [72]. The Arbitrator’s factual finding on this issue was open to him on the evidence, considering the entirety of the disciplinary process. Deputy President Snell was not persuaded that the worker had established relevant error. Accordingly, the worker’s appeal failed. ([124]–[125])

(a) misidentifying the issue of injury as requiring consideration of medical causation as opposed to medical diagnosis (Ground 1);

(b) impermissibly including considerations of a potential s 11A defence in his deliberations on the issue of injury (Ground 2);

(c) speculating about parts of the medical history, not considered by the expert witnesses (Ground 3);

(d) finding that the opinions of the worker’s treating psychiatrist, Dr Wright and qualified psychiatrist, Dr Anderson were fatally flawed by failure to consider additional matters of history which, prima facie appeared to be events related to the worker’s employment with the respondent (Ground 4);

(e) considering the issue before him by reference to the incorrect text of s 4(b) of the 1987 Act, applying a causation test of “main contributing factor” (in a matter involving the statutory entitlement of a police officer) (Ground 5);

(f) holding that it was for the expert medical witnesses to consider the application of s 4(b) of the 1987 Act to the evidence (Ground 6);

(g) making adverse credit findings against the worker by making incorrect assumptions about the evidence (Ground 7), and

(h) making credit findings against the worker by applying flawed reasoning (Ground 8).

Held: The Certificate of Determination dated 12 April 2017 was revoked and the matter was remitted for re-determination by another Arbitrator.

Ground 1

1. Deputy President Snell held that the s 74 notice in the current matter clearly stated that the respondent disputed the “allegations of a psychological injury”. The clarity of that statement was undermined somewhat by the description in the reasons that followed, which confused various concepts, and could be understood as a denial that the effects of injury continued, rather than as a denial of the occurrence of a compensable injury. The Deputy President held that the Arbitrator clearly approached the matter on the basis that ‘injury’ was in issue, as did the respondent’s counsel. The worker’s counsel, on this appeal, had approached the matter on the basis that the issue was raised for the limited purpose of disputing that there was an available psychiatric diagnosis. ([59])

2. The Deputy President held that although the original s 74 notice was poorly drafted, and conflated issues of ‘injury’ and incapacity, on balance, it was sufficient to put the occurrence of injury in issue. Reading the notice as a whole, and the notice lacked precision, it was not appropriate to restrict the denial of ‘injury’ solely to whether a psychiatric diagnosis could be established. It followed that the adequacy of the worker’s evidence, including medical evidence going to causation of the alleged injury, was a matter in issue, on which the worker carried an onus. ([60])

3. Whilst there was a second s 74 notice, which raised a s 11A(1) defence, the parties did not approach the matter on the basis that the second s 74 notice replaced the first s 74 notice. There was no suggestion that the first s 74 notice had been abandoned. Deputy President Snell stated that where a s 74 notice is imprecise, this has the capacity to deny the other party procedural fairness. The Deputy President held that a party is entitled to know the case against it. It is desirable, more particularly when they are not raised with clarity, that the issues be agreed and put on the record, at the commencement of an arbitration hearing. This avoids the possibility of a party failing to adequately deal with an issue, on the basis there is doubt about whether it is raised and on what basis. Deputy President Snell held that any procedural unfairness in this matter flowing from the imprecision of the original s 74 notice will be cured in any event, as the appeal was upheld for other reasons, and was remitted for re-determination by another Arbitrator. ([61]–[63])

Grounds 5 and 6

4. Sub-section 4(b) of the 1987 Act was amended by the 2012 Amending Act. It became necessary, to establish a ‘disease injury’ subsequent to the amendments, to prove that the employment was the main contributing factor, rather than simply a contributing factor. The test became more stringent, and more demanding to satisfy. The worker was a ‘police officer’, and as a consequence the more demanding test did not have application to him: Sch 6, Pt 19H, cl 25 of the 1987 Act. The respondent’s submissions sought to distinguish between ‘injury’ and “a disease claim”. Deputy President Snell held that the concepts are not mutually exclusive. ‘Injury’ includes injury pursuant to the ‘disease’ provisions. ([74]–[75])

5. It was clear from the pleadings, the nature of the medical evidence, and how the case was run, that the worker’s allegations of injury were based on the ‘disease’ provisions of the 1987 Act. ([79])

6. Deputy President Snell held that the Arbitrator’s finding on ‘injury’, against the worker, applied the test appropriate to a ‘disease injury’, in s 4(b) of the 1987 Act, as amended by the 2012 Amending Act. That was not the correct test in the circumstances, and involved error. The Arbitrator was required on all of the evidence, medical (including that of psychologists) and lay, to consider whether the worker had discharged his onus of establishing ‘injury’ within the meaning of s 4 of the 1987 Act, particularly having regard to the ‘disease’ provisions, which were engaged. The Arbitrator concluded that the worker had failed to discharge his onus, applying a test different to, and more stringent than, the correct test. The correct approach on appeal, having regard to this error, was that the appeal should be allowed, unless “it could not possibly have affected the result”: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [12], Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561 at [10]. The error had the clear capacity to affect the result, and required correction. ([80])

7. For completeness, the Deputy President also held that the worker’s submission that the Arbitrator conflated the tests pursuant to ss 4(b) and 11A(1) was correct. In a case where s 11A(1) of the 1987 Act is raised as a defence, it is necessary that the issue of whether a worker has proved ‘injury’, within the meaning of s 4, be dealt with initially. It is only if ‘injury’ is established, that it is then necessary to consider whether s 11A(1) provides the employer with a defence (see Manly Pacific International Hotel v Doyle [1999] NSWCA 465; 19 NSWCCR 181 at [4]). In a claim involving the ‘disease’ provisions of the legislation, the test to establish injury (whether or not the 2012 Amending Act applies) is different to the causation issue requiring determination in s 11A(1). There were occasions, in the Arbitrator’s reasons dealing with ‘injury’, where he interspersed references to whether various events, potentially relevant to ‘injury’, might be subject to the provisions of s 11A in any event. The two issues, ‘injury’ and the causation test in s 11A(1), are different, and need to be considered separately. ([81])

8. As Ground 5 was upheld, it was not necessary for the Deputy President to deal with the balance of the grounds. ([82])

1. Whilst the Senior Arbitrator’s finding on injury and entitlement to weekly compensation and medical expenses were final, the third order remitting the matter to the Registrar for referral to an AMS to assess permanent impairment was interlocutory and required leave pursuant to s 352(3A) of the 1998 Act. The President was of the opinion that it was necessary and desirable for the proper and effective determination of the dispute that leave be given for the appeal to proceed. Leave was granted. ([12]–[17])

The absence of transcript of the Senior Arbitrator’s extempore decision

2. The respondent worker conceded that the appeal should be allowed and the determination be revoked on the basis that the Senior Arbitrator erred in law in that she failed in her duty to give proper and adequate reasons for her determination and decision. ([29]–[30])

3. The President stated that there is a statutory requirement to provide a statement of reasons pursuant to s 294 of the 1998 Act and the matters to be included in a statement of reasons are governed by r 15.6 of the 2011 Rules. ([31]–[32])

4. The President held that through no fault of her own the Senior Arbitrator erred in failing to provide adequate reasons for the decision. The President applied Recyclit Enviro Chutes Pty Ltd v Axisa [2016] NSWWCCPD 41 where his Honour held that the absence of the recorded reasons for decision amounts to a constructive failure to give reasons as required by s 294 and r 15.6 (Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47; Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSWWCCPD 14, and K-Mart Australia Ltd v Falzon [2006] NSWWCCPD 283 referred to). ([33]–[34])