Issue 3: June 2018

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

(a) the deceased’s injury did not arise out of or in the course of her employment (s 4 of the 1987 Act, and

(b) the deceased’s employment was not a substantial contributing factor to her injury and her subsequent death (s 9A of the 1987 Act).

Held: The Arbitrator’s determination in favour of the employer was revoked and remitted for re-determination by another Arbitrator.     

Did the injury arise out of or in the course of employment?

1. An injury occurring in the course of employment involves a temporal relationship between the injuries sustained and the employment. A worker is in the course of their employment if they are “doing something which is part of or is incidental to [their] service.” The course of employment extends beyond a worker’s normal hours and place of work to “natural incidents connected with that class of work.” ([100])

(Whittingham v Commissioner of Railways (WA) [1931] HCA 49; 46 CLR 22, [28] and Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547, [5] considered)

2. The course of employment extends to the reasonable and normal use of the worker’s home while remaining there to be available at call under the terms of employment, as and when required by the employer. ([101])

(Archer v East West Airways Ltd (1976) WCR 176; Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97 considered)

3. The Senior Arbitrator’s consideration of whether the deceased was in the course of her employment when she was fatally injured, focused almost exclusively on the time of death. She noted that the evidence suggested the deceased’s usual working day started at 9 am. She found that the evidence did not permit her to make any finding as to when the deceased died other than it was after 7.30 am. Having made those findings, the Senior Arbitrator found that she could not be satisfied that the deceased was in the course of her employment when she died. That was an error. ([105]-[106])

4. The Senior Arbitrator failed to consider evidence and did not provide adequate reasons for finding that she was not satisfied that the deceased’s death did not occur in the course of her employment with the first respondent. The time of death was clearly an important issue, but it was not determinative of the issue before the Senior Arbitrator, namely whether there was a sufficient temporal connection between the deceased’s employment and her death to establish she was in the course of her employment when she was attacked by Mr Hill. ([107]-[108])

5. The President observed that the fact someone works from home does not necessarily mean they are always in the course of their employment whenever they are at home. However, the Senior Arbitrator failed to consider critical evidence as to the deceased’s span of working hours which went to the question of the temporal connection between the employment and death. In particular, she failed to consider or refer to the uncontradicted evidence from the eldest son that the deceased commenced work as early as 7.30 am. ([109]-[110])

6. The absence of reference to that critical evidence that the deceased commenced her working day from 7.30 am demonstrated that the Senior Arbitrator erroneously overlooked or disregarded relevant evidence. The failure to consider all relevant evidence constituted an error in the process of fact finding and was an error of law. This was critical because, if it is accepted that the deceased was essentially “on call” and that the assault occurred after 7.30 am and before 4 pm the deceased may well have been in the course of her employment when she was fatally injured. ([111]-[113])

(Waterways Authority v Fitzgibbon [1931] HCA 49; 46 CLR 22, [29] applied)

7. It followed that the Senior Arbtirator’s decision could not stand. As there was relevant evidence as to the time and location of the assault on the deceased which had not been properly considered, the matter was remitted for re-determination by another Arbitrator. It was therefore unnecessary to consider the remaining grounds of appeal. ([115], [123], [125])

The worker, Mr Mitchell, started working with the appellant in about 1997, performing building work. In his most recent statement he identified three specific injuries in the employ of Lotos:

(a) On 23 June 1997, he twisted his left knee while working on steel in a trench. He suffered a lateral meniscal tear, and underwent an arthroscopic meniscal repair to the knee in November 1997 (performed by Dr Walsh).

(b) He experienced neck and shoulder pain on a number of occasions during the course of the employment. On 3 July 1997, he picked up approximately 10 Y12 bars and balanced them on his right shoulder. He felt burning pain in his neck and right shoulder. Dr Cree operated on his neck in October 2002. This involved laminectomy and fusion at C4/5/6. Dr Mobbs, in November 2013, performed a C6/7 anterior fusion.

(c) In around late September 1998, Mr Mitchell fell into a pier hole and injured his lower back.

There were multiple previous claims and Commission proceedings between Mr Mitchell and Lotos:

(a) 14501-03 (which resulted in the parties entering into a complying agreement pursuant to s 66A of the 1987 Act. The complying agreement had one date of injury – 23 June 1997 (which included the neck));

(b) 227-04 (which resulted in consent orders being entered and also had a single date of injury, being 23 June 1997);

(c) 6007-10 (which resulted in consent orders being issued by the Commission for costs and weekly compensation, which also nominated a single date of injury as 23 June 1997);

(d) 3477-13 (which resulted in consent orders being made for s 60 expenses, and also nominated a single date of injury, 23 June 1997), and

(e) 475-15 (for lump sum compensation in respect of the neck and right upper extremity pursuant to s 60 of the 1987 Act, which nominated the date of injury to the neck as “July 1997”. The Certificate of Determination issued by Arbitrator Farrell in matter no 475-15 is the subject of controversy in this appeal).

The issues on appeal were whether the Arbitrator erred when he:

(a) found that the entry of the date 23 June 1997 in the complying agreement in 2003 was an error (Ground No 1);

(b) found that the respondent had acted to his detriment in reliance upon a representation by the appellant (Ground No 2);

(c) applied the decision in Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 (Verwayen) to find an estoppel against the appellant (Ground No 3);

(d) found that there was never an agreement that the respondent injured his neck on 23 June 1997 (Ground No 4);

(e) approached the question of whether there was an error in the Certificate of Determination on the basis of an error by the appellant (Ground No 5);

(f) considered that the question before him was whether there was fresh evidence (Ground No 6);

(g) considered that the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun) applied to create an estoppel (Ground No 7);

(h) found that the delay alone was determinative of the reconsideration application (Ground No 8);

(i) found that the Certificate of Determination of 3 June 2015 created an estoppel for the purposes of a work injury damages threshold dispute (Ground No 9), and

(j) amended the Certificate of Determination of 3 June 2015 (Ground No 10).

Held: Time was extended to bring the appeal; leave was granted to the extent necessary under s 352(3A) of the 1998 Act; the Certificate of Determination of 24 October 2017 was amended by deleting the first order; the Certification of Determination of 24 October 2017 was otherwise confirmed.

The monetary threshold

1. Deputy President Snell was of the view that consistent with the clear meaning of the text of s 352(1) of the 1998 Act, the phrase “dispute in connection with a claim for compensation” be read sufficiently broadly, to include a dispute pursuant to s 350(3) of the 1998 Act, about the reconsideration of orders previously made on a claim for compensation. A contrary reading would have the effect that a Presidential appeal pursuant to s 352, from a reconsideration application, would not lie, although such an appeal may well have been available (subject to the thresholds in s 352) against the decision in which the original orders were made. In the Deputy President’s view, it was unlikely that the legislature intended the provision to operate in this way. It would be illogical that a dispute would satisfy the requirements of s 352(1) when it was originally dealt with, but not if it was then revisited by way of reconsideration. Section 352(1) was satisfied. Lotos was a party to a dispute in connection with a claim for compensation, and the appeal was brought against a decision in respect of the dispute.

(Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493, [48] applied)

2. The reconsideration involved an application to rescind the earlier orders in 2015, for lump sum compensation of $35,000. It followed that the monetary threshold pursuant to s 352(3) of the 1998 Act was met. ([76], [78])

3. The basis on which Deputy President Snell concluded that the monetary thresholds were satisfied flowed from that part of the dispute which involved Lotos’s reconsideration application. Whether the thresholds could have been satisfied, on the basis simply of the proceedings brought by Mr Mitchell (being the assessment of permanent impairment for a threshold work injury damages claim), was an issue which the Deputy President did not decide in the circumstances. It is not without doubt, but it was unnecessary to further consider the issue as the monetary thresholds were satisfied in any event. ([83])

Interlocutory decision and leave

4. It would be quite artificial to deal with an appeal about the reconsideration application, without also dealing with Mr Mitchell’s application for referral for an assessment by an AMS. To the extent to which the decision was interlocutory, leave was granted for the appeal to proceed. ([91])

Grounds Nos 1, 4 and 5

5. Ground No 1 alleged error by the Arbitrator, in finding that entry of the date 23 June 1997 in the complying agreement was an error. The date 23 June 1997 was inconsistent with the claim at that time as made and particularised, and the evidence available to the parties at the time the agreement was entered into. Whether or not the term ‘error’ is used, on a proper construction of the agreement, having regard to the surrounding circumstances known to the parties at the time, 23 June 1997 was not the date of injury to Mr Mitchell’s neck. It was not alleged to be. The construction of the agreement by Arbitrator Farrell in the COD dated 3 June 2015 was appropriate. Arbitrator Wynyard’s treatment of the injury date was consistent with this. Ground No 1 was rejected. ([129])

6. Ground No 4 alleged error by the Arbitrator in finding that there was never an agreement that Mr Mitchell injured his neck on 23 June 1997. Arbitrator Wynyard found that “[t]he Complying agreement was not intended by the parties to indicate an agreed fact that the injury to [Mr Mitchell’s] neck occurred on 23 June 1997”. This finding was not in error, and was one with which the Deputy President agreed. Ground No 4 was rejected. ([130])

7. Ground No 5 alleged error in approaching “the question of whether there was an error in the [C]ertificate of [D]etermination on the basis of an error by [Lotos]”. Lotos’s submissions stated that the error was considering the earlier payment was in respect of an injury in July 1997, contrary to the date of injury in the complying agreement being recorded as 23 June 1997. Deputy President Snell accepted the submission on Mr Mitchell’s behalf:

In short, [A]rbitrator Wynyard clearly determined there had not in fact been an error and that the COD of [A]rbitrator Farrell correctly identified the true nature of the earlier agreement between the parties.

8. Ground No 5 was rejected. ([131]–[132])

Grounds Nos 6 and 8

9. Order no 4, in the COD dated 3 June 2015, described the 2003 payment for permanent impairment of the neck as being “for injury in July 1997”. Lotos submitted this was “clearly wrong”, and that the COD dated 3 June 2015 should be set aside. It was fundamental to Lotos’s submissions on reconsideration, that Arbitrator Farrell’s finding, that the 2003 payment related to neck injury in July 1997, was “clearly wrong”, a demonstrable error. The Arbitrator did not accept this submission. The Arbitrator concluded that the complying agreement did not involve agreement that the neck injury occurred on 23 June 1997. This did not involve error. The Arbitrator considered Lotos’s submissions on the reconsideration, and rejected them. It followed that Ground No 6 was rejected. ([143])

10. Ground No 8 went to the Arbitrator’s treatment of ‘delay’, as a factor in his rejection of the reconsideration application. The decision at issue was dated 3 June 2015. The Arbitrator did refer to the possible explanations that were put to him by Mr McManamey. The Arbitrator said that no explanation of delay at all had been made. The written submission of Lotos before the Arbitrator was not clearly identified as one dealing with ‘delay’. There was, in any event, no evidence explaining ‘delay’, and no inference that could be appropriately drawn by way of explanation. The Arbitrator described this deficiency as “fatal”. It was apparent, when the Arbitrator’s reasons were read as a whole, that he considered a variety of relevant issues (of which ‘delay’ was one) in rejecting the application for reconsideration. There were ample grounds for rejection of the reconsideration application. ([144], [148])

11. In any event, the Arbitrator’s fundamental conclusion was that the COD dated 3 June 2015 was not erroneous. The reconsideration application could not have succeeded, as it was based on the proposition that that COD involved “demonstrable error”. Ground No 8 was rejected. ([149])

Grounds Nos 2, 3, 7 and 9

Ground No 9

12. The issue of ‘injury’ in July 1997, and the issue of what injury the loss and impairment in the complying agreement in 2003 resulted from, were decided in the COD dated 3 June 2015, in matter no 475-15. They were matters “necessarily decided” for the decision in those proceedings. It followed that they could not be re-litigated in the current proceedings. Ground No 9 was rejected. ([161]–[164], [168])

(Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231; Egri v DRG Australia Ltd (1988) 19 NSWLR 600; Manpower Pty Ltd v Harris [2011] NSWWCCPD 10 applied)

Grounds Nos 2 and 3

13. The Deputy President was not persuaded that the Arbitrator found an estoppel on the basis of Verwayen. The Arbitrator did not make factual findings that would justify an estoppel of the type applied in Verwayen. Estoppels were created by the findings in the COD dated 3 June 2015. The result of this was that Lotos was not able to re-litigate matters necessarily decided in those proceedings regardless of whether an estoppel was available based on Verwayen. Grounds Nos 2 and 3 were rejected. ([172])

Ground No 7

14. The Deputy President did not see that the complying agreement in 2003 could ground an Anshun estoppel. ([181])

15. There were two differences in the nature of the proceedings in matter no 475-15. The first was that matter no 475-15 required assessment of permanent loss and impairment pursuant to the Table of Disabilities, rather than whole person impairment, as the injury in July 1997 predated 1 January 2002. The second was that matter no 475-15 required assessment for the purposes of further lump sum compensation, whereas the current proceedings require assessment of whole person impairment for the purposes of a threshold dispute. ([184])

16. Whether Mr Mitchell suffered injury to his neck in July 1997 was a common and fundamental allegation in both matters. It was pleaded identically in both matters. Matter no 475-15 involved an award for lump sum compensation, resulting from neck injury in July 1997. If Lotos successfully disputed the occurrence of injury to the neck in July 1997, this would result in two decisions which are contradictory. The defence in the second action (that the pleaded injury did not occur) was so relevant to the subject matter of the first action, that it was unreasonable that Lotos did not rely on it in matter no 475-15. ([185])

17. It followed that Ground No 7, in so far as it related to an Anshun estoppel resulting from matter no 475-15, and Lotos’s failure to plead a denial of the injury in July 1997 in those proceedings, was rejected. Deputy President Snell accepted Lotos’s argument that the claims and proceedings prior to matter no 475-15 did not ground an Anshun estoppel. To that extent, ground no 7 was upheld. Ground No 7, to the extent to which it was upheld, did not affect the result. ([186)]

Ground No 10

18. Lotos’s submission dealing with Ground No 10 essentially raised, in short form, issues that had been argued in other grounds. Lotos submitted that there was no application by any party to amend the COD dated 3 June 2015, in the manner the Arbitrator did at [109] of his reasons (that is, the Arbitrator’s amendment of Order 4 of the COD dated 3 June 2015 so that, after the words “July 1997”, the phrase “(wrongly dated 23 June 1997)” was added). Mr Mitchell did not submit to the contrary. Given Lotos’s opposition to the amendment, agitated on this appeal, the appropriate course was to uphold Ground No 10, in that Lotos was denied procedural fairness, in not being given an opportunity to be heard regarding the amendment. This had the effect that the Arbitrator’s COD was amended by the deletion of the order at paragraph [1]. ([192])

(Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601, [123] applied)

On 22 November 2017, the Arbitrator declined to reconsider her decision of 25 February 2015. The Arbitrator declined to admit the fresh reports on the reconsideration application. First, because there was no explanation why they were not before her during the arbitral proceedings. Second, the opinion expressed in the further reports was “not of such significance that it would likely lead to a different result.” Ms Kathia appealed the Arbitrator’s decision.

The issues in dispute on appeal essentially concerned the following matters:

(a) the Arbitrator’s failure to admit and accept the evidence in Dr Manku’s report of 5 June 2014 and Dr Habib’s report of 2 June 2017, regarding neck and right shoulder, and

(b) the Arbitrator’s decision to decline to reconsider the decision of 25 February 2015.

The actual date of Dr Manku’s report was unclear. The handwritten date at the bottom of the report was either 5 June 2014 or 5 June 2017. Ms Kathia relied on the report as dated 5 June 2014, however the Arbitrator treated it as dated 5 June 2017. As Ms Kathia relied on it as a 2014 report, the President treated it as such for the purpose of the appeal.

Held: The Arbitrator’s determination was confirmed.     

1. The President considered the summary of principles governing reconsideration applications as found in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482. ([140])

Dr Manku’s report

2. The Arbitrator did not wrongly exclude Dr Manku’s report of June 2014. It was not fresh evidence. It was in existence prior to the arbitration hearing. It was in the possession of Ms Kathia’s solicitors. No attempt was made to explain why the report was not tendered in the Arbitration proceedings. Therefore, it was inferred that a forensic decision was taken not to rely upon the report during the arbitration proceedings. It is trite law that parties must live with the consequences of their forensic decisions. ([146]-[148])

(Caruana v Darouti [2014] NSWCA 85, [124] applied)

3. The President accepted the Arbitrator’s reasons for concluding Dr Manku’s opinion in her report of 5 June 2014 was unlikely to lead to a different result. However, he made some additional findings. Dr Manku’s independent recollection of complaints of neck, right arm and shoulder pain made by Ms Kathia in a consultation on 11 April 2010, two days after the accepted injuries were sustained, was not credible. Firstly, there was no evidence in the clinical notes of a consultation on 11 April 2010. The three consultations that took place in April, after the initial consultation on 9 April 2010, made no reference to the neck. Secondly, the first reference to the neck by Dr Manku was found in a WorkCover medical certificate issued on 6 December 2012.  Thirdly, Dr Manku’s recollection of contemporaneous complaints of neck pain was inconsistent with her referral letter to a medical specialist on 3 December 2012, which suggested that no such complaints were made until 6 June 2012. Fourthly, it was inconsistent with her report of 15 May 2014 which made no reference to complaint of neck or right shoulder or arm symptoms. Fifthly, it could not be accepted that a busy general practitioner could have a reliable independent recollection of symptoms discussed in a specific consultation more than four years earlier, in the absence of any contemporaneous notes to refresh her recollection. ([149]-[156])

4. The admission of fresh evidence on a reconsideration application is discretionary. The Arbitrator properly exercised her discretion to refuse the admission of Dr Manku’s report of 5 June 2014. The report could not be properly characterised as fresh evidence. Even if it were considered fresh evidence the evidence was not credible and could not have led to a different result. No error was demonstrated in the refusal to admit Dr Manku’s report of 5 June 2014. ([158])

5. If Dr Manku’s report was a 2017 report, the reasons for rejecting its admission were even more compelling. Dr Manku’s purported recollection of events occurring more than seven years earlier, for the reasons stated above, was not credible. The reconsideration power is not available to perpetuate a dispute that has been finally determined by the Commission. It is not an avenue to circumvent the appeal process by attempting to overcome deficiencies in the evidence disclosed in the Arbitrator’s determination. ([159])

Dr Habib’s report

6. The Arbitrator rejected the admission of the further report of Dr Habib, dated 2 June 2017, on two bases. First, Dr Habib’s opinion was similar to that of Dr Mastroianni, a medico-legal consultant occupational physician qualified by Ms Kathia, which the Arbitrator considered and rejected. The Arbitrator rejected Dr Mastroianni’s evidence because of a failure to explain how the circumstances of a relatively innocuous incident could have caused the alleged injuries to the neck, right arm and shoulder. Therefore, so the Arbitrator concluded, the additional evidence was unlikely to lead to a different result. ([160]-[161])

7. Other than on a temporal association, neither Dr Mastroianni nor Dr Habib explained how the injuries occurred from such an innocuous incident. Moreover, given Dr Habib’s diagnosis of a severe strain of the neck and right shoulder, he failed to explain why the effects of a soft tissue injury, even if it was severe, persisted for over eight years. ([163]-[167])

8. The Arbitrator’s second reason for the refusal to entertain Dr Habib’s report was because, no explanation or evidence was given to explain why Dr Habib’s opinion could not, with reasonable diligence, have been available at the time of the Arbitration hearing. That finding was correct. In any event, Dr Habib’s report of June 2017 was not fresh evidence, it was simply more evidence. It was an attempt to rectify an obvious gap in the evidence presented at first instance. It followed that the Arbitrator’s exclusion of Dr Habib’s report of 2 June 2017 disclosed no error. ([168]-[169])

Delay

9. The Arbitrator’s conclusion that the delay in lodging the reconsideration application, which was over two years since the original determination, was a matter that militated against the exercise of the discretion to reconsider her previous decision. So was the need to balance the policy requirement of finality of litigation with the obligation to rectify any injustice. These were valid reasons for her decision not to exercise her discretion to reconsider her previous decision. The Arbitrator’s decision was correct and disclosed no error. ([170]-[172])

The 30 grounds of appeal were grouped into six issues on appeal, which were whether the Arbitrator erred with respect to:

(a) the exclusion of the worker’s Application to Admit Late Documents (AALD’s) (Issue 1);

(b) the Arbitrator’s decision on interest (Issue 2);

(c) admissibility of medical reports of Professor Wakefield and Dr Potter (Issue 3);

(d) consequential loss (Issue 4);

(e) domestic assistance (Issue 5), and

(f) the terms of the referral to the AMS (Issue 6).

Time

1. The history of the worker’s claim was somewhat protracted. Of relevance to these proceedings, on numerous occasions, the worker failed to comply with Directions of the Commission, including the requirement to file submissions. The worker’s conduct was a consideration. Deputy President Wood also considered the merits of the appeal below. For the reasons outlined below, the Deputy President was of the view that there were no prospects of success on appeal and declined to extend the time for appeal. ([79]–[82], [92], [94]–[96])

(Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 and Gallo v Dawson [1990] HCA 30; 93 ALR 479 applied)

New Evidence

2. The worker sought to adduce eight documents on appeal. After discussing the contents of the documents, Deputy President Wood observed that some of the documents were already in evidence and she admitted the documents of email correspondence that passed between the Commission and the parties that post-dated the decision appealed against. They gave a complete picture of the correspondence passing between the parties and the Commission. ([97], [122])

(CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

The worker’s submissions in reply

3. The worker made three applications to extend the time to file his submissions in reply, which were granted. The submissions in reply were ultimately due by 13 April 2018. The worker filed incomplete submissions in reply on 27 March 2018. No further submissions were received by 13 April 2018 and there was no further application for extension of the time made prior to the expiry date. On 27 April 2018, the worker sent by email further submissions consisting of a 202 page document described as “Amended Response” to the reply. The covering email did not seek to have the date for filing amended but requested the documents be accepted. The Deputy President held that any application for extension of time to respond to a direction issued by the Commission should properly be made before the time expires. She declined to consider the further submissions. ([312], [317]–[321])

(Bale v Mills [2011] NSWCA 226, [58]–[61] applied)

Discussion on the merits of the appeal

The model litigant policy

4. The worker repeatedly claimed that National Mutual and its insurer had breached the model litigant policy. Deputy President Wood could not identify any circumstance where National Mutual had acted without transparency or asserted its position to the detriment of the worker, other than in proper evidence based circumstances. ([328], [334])

5. The model litigant policy does not extend to require litigants to forego invoking their fundamental rights or privileges and does not impinge on a litigant’s ability to enforce its substantive rights. Allegations of a breach of the model litigant policy are serious allegations that should not be made without proper foundation. The only legal remedy available to a person aggrieved by a breach of the model litigant policy is potentially a favourable costs order, which is not available in the Commission’s jurisdiction, except in some limited exceptions that did not apply to the worker. ([336]–[338])

(Brandon v Commonwealth of Australia [2005] FCA 109, [11]; Elston v Commonwealth of Australia [2014] FCA 704, [72]; Director of Fair Work Building Inspector Directorate v McDermott [2016] FCA 1147 and Galea v Commonwealth of Australia (No. 2) [2008] NSWSC 260 applied)

6. In any event, the role of the Presidential member in this jurisdiction is limited to correction of error in the Arbitrator’s decision. The conduct of National Mutual in its defence of this claim did not constitute a breach of the model litigant policy nor had it resulted in an error of fact, law or discretion in the Arbitrator’s decision-making process. Even if a breach of the model litigant policy was substantiated, there is no costs remedy available to the worker, so there is no sanction available. ([339]–[340])

Issue 1 – Grounds 1–3: Error in relation to the admission of AALD’s dated 17 March 2015, 10 July 2015, 27 September 2015 and 9 August 2016

7. The worker asserted the Arbitrator erred in making no findings as to the admissibility of these late documents. From a reading of the transcript, there was no record of the worker making an application to have those AALD’s admitted, nor a record of the Arbitrator failing to address any such application. The Arbitrator cannot err in failing to deal with an application when there has simply not been one. ([341])

8. The Arbitrator made no error of legal principle, did not take into account an irrelevant matter and did not fail to give proper consideration to some relevant matter. The decision to exclude documents beyond the commencement of submissions could not be regarded as unreasonable or unjust. A party to litigation who has commenced submissions ought not be faced with further evidence about which no submission had been made. To allow the evidence would result in an absolute denial of natural justice. ([351]–[352])

(Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, [45] applied)

9. The Commission and the Arbitrator provided the worker with significant leeway in respect of the admission of late documents despite those applications being non-compliant with the 2011 Rules. Even if the worker sought to adduce that evidence, pursuant to r 10.3(3) the Arbitrator was entitled to disallow further AALD’s in order to conduct the arbitration in a procedurally fair manner. Grounds 1–3 of the appeal had no merit. ([355]–[356])

Issue 2 – Grounds 4–18: Interest

10. It is not sufficient that assertions are made in statements or submissions without reference to the evidence before the Commission. ([372])

11. The worker has brought numerous disputes to the Commission since 2004 in which a claim for interest supported by evidence could have been included in those proceedings. Further delay was occasioned by the 2013 matter being dismissed for failure to prosecute the matter with due dispatch. The worker had not adequately explained the delay in prosecuting an interest claim. ([375])

12. The state of the evidence was such that if the Arbitrator attempted to exercise his discretion, his fact-finding process would be a matter of pure conjecture. On that basis, the claim would fail in any event. ([377])

13. An entitlement to interest pursuant to s 109 of the 1998 Act does not arise as of right but flows from a determination by the Commission in the exercise of its discretion. Grounds 4–18 had no merit. ([378]–[381])

(Pasminco Ltd v Walters [2005] NSWWCCPD 30, [77] applied)

Issue 3 – Grounds 19–22: Admissibility of IME reports

14. The worker complained that the Arbitrator failed to determine the reports of both Professor Wakefield and Dr Potter were inadmissible. He alleged a conflict of interest, making extensive submissions as to why that was so. However, he failed to draw the Commission’s attention to documents that might support that assertion. It is not sufficient for the aggrieved party to simply argue that he or she preferred a different outcome. ([382], [385])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [72] applied)

15. On 1 August 2006, the worker wrote to Professor Wakefield, requesting the Professor perform an examination and provide a report. The letter described his condition, his treatment regime and the history of his claim. Attached was an annexure described as “a brief overview” of his illness. It appeared to be common ground that Professor Wakefield declined to see the worker, but instead referred him to Professor Lloyd. There was nothing in the letter or annexure that goes further than to provide a history which would be provided to any medicolegal specialist, whether qualified on behalf of the applicant or by the respondent. ([387]–[389])

16. As with Professor Wakefield, the worker’s communications with Dr Potter’s rooms constituted nothing more than a request for an examination and report with a history of his injury and treatment. That information is normally made available to any medicolegal specialist who has been qualified by either the insurer or the worker to perform an examination and report. There was nothing in the documentation that would support the necessity for Dr Potter to withdraw because of a conflict of interest. ([396]–[397])

(Lake Macquarie City Council v Kevin Bushby [2008] NSWWCCMA 421 distinguished)

17. Deputy President Wood held that neither Professor Wakefield or Dr Potter had breached the Guidelines on Independent Medical Examinations and Reports. She observed that the Workers Compensation Commission Approved Medical Specialist Code of Conduct is not relevant to an IME. As there had been no breach of the Guidelines, s 119(4) of the 1998 Act did not apply. ([399]–[400])

18. The worker further alleged that the reports of Professor Wakefield, Dr Potter and Dr Slezak were inadmissible because they were “excessive forensic reports” and did not comply with cl 44 of the 2016 Regulation. This submission misunderstood the terms of cl 44. Clause 44(1) provides that only one forensic medical report can be relied upon in proceedings. Clause 44(3) allows an additional forensic report if the injury has involved treatment by more than one specialist with different areas of speciality, provided the additional medicolegal examiner is of the same speciality. The areas of expertise of the worker’s medicolegal experts is irrelevant to the admissibility of National Mutual’s reports. The area of expertise of the worker’s treating specialists is the determinative factor. As Dr Potter is a rheumatologist, Professor Wakefield is an immunologist and Dr Slezak is a general physician, National Mutual was permitted to rely on the reports in view of the worker’s treating specialists. The Arbitrator had not erred in admitting the reports subject to the weight each should be afforded. Grounds 19–22 had no merit. ([405]–[410])

Issue 4 – Grounds 23–25: Consequential loss

19. The worker alleged that the Arbitrator erred in his consideration of the pelvis, speech and sense of smell as consequential to the condition rather than an inherent part of the condition. The Arbitrator has done nothing more in the case than to hear submissions, review the medical evidence and refer the question of causation to an AMS for independent, non-binding opinion. He has not made a decision on the causation of the conditions. Until the Arbitrator makes that decision, he is not required to adjudicate on the submissions made and the Presidential member is not required or empowered to intervene in that process. There was no merit in the appeal on this issue. ([411]–[414])

Issue 5 – Ground 26: Domestic assistance

20. The Arbitrator had made no decision with respect to the application for domestic assistance about which the worker could mount an appeal based on error of fact, law or discretion. The worker’s complaint was unfounded. ([415]–[418])

Issue 6 – Grounds 27–30: Referral to the AMS

21. The worker complained that the Registrar had not abided by the Arbitrator’s order. He maintained that the nominated specialist ought to have experience in testing and treatment of the relevant body parts. He further contended that a rheumatologist is not relevantly qualified. ([419]–[420])

22. In the Amended Certificate of Determination, the Arbitrator remitted the matter to the Registrar for the purposes of a referral to the AMS. The Arbitrator did not make the referral. The referral was initiated by the Registrar. The decision to select a rheumatologist was made by the Registrar or his delegate exercising the functions of the Registrar. Such a function is not reviewable by a Presidential member. ([422]–[423])

(Mayne Group Limited v Unicomb [2006] NSWWCCPD 107, [34] referred to)

23. The worker also asserted error with respect to the Arbitrator’s decision to refer the question of causation to the AMS for a non-binding medical opinion. Section 321(1) of the 1998 Act gives the Arbitrator a discretionary power to refer a question or questions to an AMS with or without the consent of the parties. The opinion of the AMS is not binding, but is evidence in the proceedings. The practice is generally exercised by Arbitrators in circumstances where there are competing medical opinions and the Arbitrator forms the view that he or she requires further medical opinion (independent of that of the parties) in order to assist with the decision-making process. In the circumstances, it could not be alleged that the Arbitrator fell into error. In any event, the matter is best dealt with by seeking the Arbitrator amend the terms of the referral to request an opinion as to whether the conditions are a component of the injury. ([424], [427]–[428], [430])

The issues on appeal were whether the Arbitrator erred in:

(a) fact, law or discretion by failing to support an application to cross-examine, which has led to error in findings of fact and law (Ground 1);

(b) law by not applying the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw) (Ground 2);

(c) fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence (Ground 3);

(d) law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence (Ground 4);

(e) law in finding against the credit of Mr Baines in the light of the respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines (Ground 5), and

(f) law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act (Ground 6).

Held: The Senior Arbitrator’s finding that Mr Baines was not injured as alleged was revoked. The Senior Arbitrator’s finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act was confirmed. The Certificate of Determination dated 29 November 2017 was confirmed.

Cross-examination and the rule in Browne v Dunn

1. It is well settled that where documentary evidence is adduced in proceedings in the Commission it is open to the Arbitrator to determine issues of credit without the necessity to hear oral evidence or hear and observe evidence by cross-examination and the rule in Browne v Dunn does not apply. A Court 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. ([212]–[213])

(Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng No 2); West v Mead [2003] NSWSC 161 (West), [97] and New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 (Winter), [81] applied)

Ground One: Error of fact, law or discretion by failing to support an application to cross-examine

2. It was evident from the transcript of proceedings, the Senior Arbitrator’s reasons and the submissions of the parties that when the matter proceeded to arbitration, Mr Baines’ counsel made no application to call evidence-in-chief from Mr Baines, or to cross-examine Mr Hany. Mr Baines’ complaint was that the Senior Arbitrator “strongly pressed both Counsel not to seek to cross-examine”. Such a complaint did not constitute an error of either fact, law or discretion arising from the decision of the Senior Arbitrator. ([222]–[224])

3. Mr Baines submitted that the Senior Arbitrator ought to have given a warning that the “Briginshaw test” was to be applied. He did not enlighten the Commission as to how the Senior Arbitrator was obliged to give such a warning, what the warning ought to consist of, or the principle from that authority to which he was referring. ([225])

4. The decision not to lead evidence or cross-examine was a forensic decision made by Mr Baines’ counsel during the arbitration. A party must live with the consequences of its own forensic choices. Mr Baines was not entitled to bring an objection to a determination by the Senior Arbitrator on the ground that she had used her best endeavours to bring the parties to agreement on some or all issues before her. This ground failed. ([229]–[231])

(Caruana v Darouti [2014] NSWCA 85, [124] applied)

Ground Two: Error of law by not applying the principles in Briginshaw

5. Mr Baines asserted the Senior Arbitrator did not apply the principles set out in Briginshaw without any discussion of that case or identifying the principle. This ground was entirely at odds with Mr Baines’ argument at [3 ([225] of reasons) above. ([232])

6. His submissions seemed to state that that case is authority for the proposition that the evidence must be tested by cross-examination before the Senior Arbitrator could accept or reject it. That argument was rejected. It is abundantly clear that in proceedings before the Commission, the Commission may accept or reject evidence that is untested by cross-examination. Mr Baines had not demonstrated any error of fact, law or discretion with respect to this ground. This ground failed. ([233]–[234], [237])

(West, Winter, Zheng No 2, Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (Zheng No 1) and Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 applied)

Ground Three: Error of fact and law in finding that the accident did not happen at all, such finding being against the weight of the evidence

7. Mr Baines asserted that the Senior Arbitrator’s decision was underpinned by a series of perceived deficiencies which led to her overall conclusion that the injury was implausible. It was difficult to see how a different result would have been reached by the Senior Arbitrator if Mr Baines had given that evidence orally or Mr Hany had been cross-examined. Mr Baines did not explain how it was that a different outcome would result, or where the error lay other than in a perceived obstruction to cross-examination. ([238], [242])

8. In any event, the Senior Arbitrator was entitled to assess that evidence without it being tested by cross-examination and that disclosed no error. ([243])

9. Mr Baines further complained that the Senior Arbitrator did not give proper consideration to the evidence of Mrs Baines and ignored the evidence of Mr Clinton. The Senior Arbitrator did not consider the balance of Mrs Baines’ evidence, which consisted of Mr Baines reporting the injury and the circumstances to Mrs Baines and Mr Baines’ complaints to her of pain, together with her observations when he attempted to assist her with the shopping. That evidence was unchallenged. The only consideration of Mr Clinton’s evidence was at [138] of the reasons, where the Senior Arbitrator noted that the statement was not made until October 2017. ([244]–[246])

10. The unchallenged evidence of Mrs Baines was material evidence that, if accepted, gives weight to Mr Baines’ having suffered the alleged injury. It was not apparent from the Senior Arbitrator’s reasons whether she took into account that evidence when she weighed up the totality of the evidence before her. If the Senior Arbitrator rejected that evidence, then it was incumbent upon her to provide reasons for that rejection, which she did not. ([248])

11. With respect to Mr Clinton’s statement, the only criticism of that evidence was the Senior Arbitrator’s observation that it was not made until October 2017. The Senior Arbitrator did not take into account that, apart from a blanket denial of injury in his statement of 21 September 2016, Mr Hany did not provide any substantive response to Mr Baines’ claim until 28 September 2017. Further, her consideration did not take into account that Mr Clinton’s evidence was largely uncontested. His evidence was material evidence going to whether or not an injury occurred and Mr Hany’s knowledge of such injury. There was nothing in her reasons to suggest that the Senior Arbitrator gave proper consideration to Mr Clinton’s evidence in her assessment of the totality of the evidence before her. ([249]–[250])

12. The Senior Arbitrator failed to take into account the above material evidence in her deliberations as to whether the injury occurred as alleged. Her conclusion that the injury did not occur was infected by this failure. On that basis, this appeal ground succeeded and the Arbitrator’s decision that Mr Baines was not injured as alleged was revoked. However, for reasons discussed below, the Deputy President declined to re-determine the issue and declined to remit the matter for further determination by another Arbitrator. ([253])

Ground Four: Error of law and discretion in making an adverse finding as to Mr Baines’ credit, which was against the weight of the evidence

13. This ground was a separate ground, but was essentially the same argument as made in Ground Three and was dealt with above. ([254])

Ground Five: Error of law in finding against the credit of Mr Baines in the light of the respondent’s concessions, which were made to obviate the need for cross-examination of Mr Baines

14. The submissions made in respect of this alleged ground were the same as those made in respect of Grounds Two and Three and were dealt with under those grounds. ([255])

Ground Six: Error of fact and law in finding that Mr Baines was not a worker within the meaning of s 4 of the 1998 Act

15. The Arbitrator’s determination with respect to the issue of injury disposed of the matter before her. It was not clear from the reasons expressed as to whether her deliberations and finding on the issue of worker were intended to form part of the ratio decidendi of her determination that there be an award for the respondents, or whether they were to be regarded as obiter. ([256])

16. Deputy President Wood did not accept that Mr Baines’ description of the relationship was irrelevant. The labels used to describe the parties are of little assistance if they “are inconsistent with the real substance or reality of the relationship involved.” While it is not determinative, it was in this case a relevant factor, particularly as Mr Baines, through his legal representatives, described himself as a self-employed contractor who performed work for Mr Hany, if he was not performing work for others. That representation was made in pleadings in a jurisdiction in which his rights were dependent upon him being excluded from the provisions of the 1987 and 1998 Acts. In any event, the nature of the relationship between Mr Baines and Mr Hany was carefully considered by the Senior Arbitrator and in accordance with the authorities cited by her. ([264]–[265])

(On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 and Malivanek v Ring Group Pty Ltd [2014] NSWWCCPD 4 applied)

17. When applying all of the indicia to the facts of this case, the outcome lends support to the ultimate conclusion reached by the Senior Arbitrator that the evidence before her supported the classification of Mr Baines being an independent contractor rather than a worker. The Deputy President confirmed the finding of the Senior Arbitrator that Mr Baines was not a ‘worker’ as defined in s 4 of the 1987 Act. ([267]–[268])

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

(a) failing to decide that she suffered an injury to her left upper extremity as a result of the nature and conditions of her employment, and

(b) finding that she has capacity for work as a sandwich maker or kitchen hand.

Held: The Arbitrator’s determination was confirmed, but varied to record a general award in favour of the respondent in respect of the left upper extremity (shoulder).     

1. The President accepted the Arbitrator failed to deal with the allegation of injury to the left shoulder arising from the nature and conditions of her employment with the respondent. The Arbitrator’s consideration of the left shoulder was limited to a determination of the consequential condition allegation. That was an error. ([95]-[97])

2. Having considered the evidence, the President did not accept that there was evidence of an injury to the left shoulder arising out of the nature and conditions of employment with the respondent. The expert opinions either did not support the nature and conditions claim or supported a consequential condition claim. The only evidence in support of a nature and conditions claim was a report by the treating general practitioner which was prepared in September 2016 and WorkCover Certificates of Capacity which were inconsistent with Ms Visic’s evidence, which supported a consequential condition of the left shoulder. It followed that the Arbitrator did not err in not dealing specifically with the allegation of a nature and conditions injury to the left shoulder because the evidence did not support the claim in any event. ([98]-[112])

3. Ms Visic challenged the Arbitrator’s assessment of her residual ability to return to work in suitable employment pursuant to s s 32A of the 1987 Act, as a kitchen hand and/or sandwich maker. The Arbitrator considered s 32A of the 1987 Act and the definition of suitable employment. He carefully analysed all of the available evidence on Ms Visic’s capacity to earn in suitable employment. ([126])

4. The only evidence of the type of work Ms Visic could undertake was found in the report of the employer’s medical expert. That report recorded that Ms Visic was assessed as fit for work as a sandwich maker, kitchen hand, process worker, sales assistant or cashier. ([128])

5. Having regard to the medical evidence, the Arbitrator considered Ms Visic’s work history in the former Yugoslavia before coming to Australia. He also considered that Ms Visic had a poor command of English and that she had been supported by interpreters at medico legal assessments and during both conciliation/arbitration hearings. He found that this would make it difficult to undertake employment as a sales assistant, cashier or other occupations involving interactions with the public. That finding was open on the evidence presented. ([129])

6. Ms Visic did not provide any evidence of the types of occupations she may be capable of undertaking in the event that she was found to have a current work capacity. The Arbitrator had regard to the relevant criteria in s 32A of the 1987 Act in finding Ms Visic’s ability to earn in suitable employment as a kitchen hand or sandwich maker. Those conclusions were open on the evidence. Ms Visic must accept responsibility for, and the consequences of, the forensic decision she made with respect to evidence of current work capacity. It followed that no error was demonstrated. ([133]-[136], [139])

(Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 considered and applied)

The grounds of appeal were:

(a) Ground One: error of law in failing to provide sufficient reasons;

(b) Ground Two: error of fact in failing to consider all of the evidence;

(c) Ground Three: error of law in taking into account the report of Dr Smith dated 11 April 2013;

(d) Ground Four: error in law by not taking into account the worker’s perceptions arising from her police service, and

(e) Ground Five: error of law in applying the wrong test of causation.

Held: The name of the respondent was amended to “State of New South Wales” and the Certificate of Determination of 6 December 2017 was confirmed.

Ground One: failing to provide sufficient reasons

1. The worker asserted that the Arbitrator erred in that he “failed to deal with” the reports of Dr Martin dated 13 March 2012 and 2 May 2012. The reports were in the papers but were specifically not relied on by the parties. ([248])

2. It was obvious from the Arbitrator’s reasons that the Arbitrator took into account the opinions of Dr Nguyen, Dr Florida and Ms Sweeney. ([256])

3. To ascertain whether the Arbitrator’s reasons are adequate, it is necessary to take into account the whole of the decision. The Arbitrator’s reasons are not required to be lengthy or elaborate. ([256]–[258])

(Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443 and Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, [64] applied)

4. Section 294(2) of the 1998 Act requires that when a Certificate of Determination is issued by the Commission, a “brief statement” setting out the Commission’s reasons must be attached. ([259])

5. Taking into account the Arbitrator’s observations of the evidence, Deputy President Wood was of the view that the Arbitrator’s reasons as a whole were indeed sufficient to satisfy the necessary degree of adequacy required by s 294(2) of the 1998 Act. ([260])

6. The worker further complained that the Arbitrator failed to give reasons as to why he did not take into account the admission of liability made by the NSW Police Force in making payments of weekly compensation and treatment expenses. The worker did not point to any part of the transcript that recorded a submission to that effect. The Arbitrator cannot have erred in failing to consider a submission not made before him. ([261]–[263])

(Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [22] and [30] applied)

7. In any event, an admission made otherwise than in the course of a formal court process is merely an item of evidence that the court might ultimately accept or reject. It cannot be withdrawn but it can be explained. The employer’s initial acceptance of liability was explained by the medical support available to the insurer and the subsequent denial of liability was based on new medical evidence that challenged the causal nexus. ([265])

8. Having regard to the Arbitrator’s findings and reasons, the Deputy President was satisfied that the Arbitrator’s reasons complied with the legislative requirements in s 294(2) of the 1998 Act and were of a standard by which the adequacy of reasons must be determined. ([266])

Ground Two: error of fact in failing to consider all of the evidence

9. The worker submitted that the Arbitrator failed to consider the medical evidence from Dr Martin, Dr Nguyen, Dr Florida and Ms Sweeney. As held above, this submission was rejected. The Arbitrator clearly considered the evidence of those treatment providers and gave adequate reasons for concluding that those opinions did not assist him. ([267]–[268])

10. The worker also alleged the Arbitrator failed to consider her argument that the acceptance of liability was an admission of liability. This submission was rejected, as the Deputy President did not consider that the Arbitrator had fallen into error as that submission had never been before him to consider. ([269]–[270], [272])

11. In her submissions, the worker referred to and quoted a report of Dr Martin dated 2 May 2012 that was not relied on by either party and was not in evidence. There was no challenge to the worker’s allegations of fact that the events occurred except to the extent of her exposure to the case of KA. This case did not rise and fall on how the worker perceived the events, as it would if the worker had misperceived real but innocuous events that led to her psychological decline. ([274]–[276])

12. The Arbitrator weighed the evidence and accordingly determined that he was not satisfied work related events contributed to the worker’s psychiatric condition. That finding was open to him on the evidence. This ground of appeal disclosed no error and therefore failed. ([277]–[278])

Ground Three: error of law in taking into account the report of Dr Smith dated 11 April 2013

13. The worker submitted that the Arbitrator ought not to have regard to this report. Dr Smith provided a number of reports between 2011 and 2015 in which he expressed his view based on the information available to him. It was clear that Dr Smith changed his position with respect to the question of causation after consideration of the NSW Police Force lay witness evidence. It was ethically appropriate that a complete picture of Dr Smith’s opinion was before the Commission. Had the Arbitrator disregarded the views expressed in the report, the respondent would undoubtedly have proper grounds for complaint. ([279]–[280], [284]–[285])

(Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, [92] applied)

14. The worker made no submission at arbitration that Dr Smith’s report of 11 April 2013 did not create a “fair climate” for his opinion. This ground was untenable and failed. ([289]–[290])

(Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85 referred to)

Ground Four: error in law by not taking into account the worker’s perceptions arising from her police service

15. The worker contended that she provided detailed evidence of her perceptions arising from traumatic events. She submitted that there was no attack on her credibility and she was not cross-examined. She further submitted that the Arbitrator took into account the extensive evidence that the worker related her condition to her interpersonal family issues. ([291])

16. The worker said that did not mean that she was not having those perceptions. The worker did not explain why in this case her perception of the events was relevant to the issue of causation. Those submissions were dealt with above. The worker’s reliance on extracts from the medical report of Dr Martin that were not in evidence was as unhelpful as her failure to provide cogent submissions as to how the Arbitrator might have erred. This ground of appeal failed. ([292]–[294])

Ground Five: error of law in applying the wrong test of causation

17. Consistent with ss 4(b)(i) and 4(b)(ii) of the 1987 Act, the Arbitrator clearly approached his determination by appreciating that the task before him was to determine whether the worker had either contracted or aggravated her psychiatric condition (which he considered a disease) in the course of her employment. The worker had not established error in the Arbitrator’s reasoning and this ground failed. ([300]–[301])

Ms Le appealed. The issues in dispute on appeal were whether the Arbitrator erred by:

(a) rejecting the opinion of occupational physician Dr Dias and/or failing to give his opinion due weight;

(b) failing to accept that the evidence provided a fair climate for the acceptance of Dr Dias’ opinion, and

(c) imposing “an unnecessarily strict test requiring exact correspondence between the history in Dr Dias’ medical report and what was proved in evidence for the validity of the medical opinion”.

Held: The Arbitrator’s determination was confirmed.     

1. Ms Le sought to re-ventilate the merits of the matter as argued before the Arbitrator, which was not permissible on appeal under s 352 of the 1998 Act. ([88])

2. The President did not accept that the Arbitrator erred by failing to treat the history obtained by Dr Dias as providing a “fair climate” for the acceptance of his opinion. The facts assumed by the expert do not have to correspond “with complete precision” with the facts established. The President observed that the weight to be attached to expert opinion is subject to the extent of the correlation between proven facts and the assumptions on which the expert medical opinion is based. Experts must identify the facts and reasoning process which they assert justify the opinion expressed, sufficient to enable the tribunal of fact to evaluate the opinion expressed. ([90]-[92])

(Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85; Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 considered and applied)

3. The Arbitrator was correct to place little or no weight on Dr Dias’ opinion. There was a tension between the history given to Dr Dias of continuing pain in the right shoulder since 2009 and complaints documented by Ms Le’s general practitioner commencing on 30 June 2014, which alleged that the right shoulder pain was due to overuse. There was no contemporaneous evidence to support Ms Le’s complaint of ongoing pain in the right shoulder from 2009. ([93]-[96])

4. Accepting that Ms Le commenced in 2014 to complain of right shoulder pain as a result of overuse, the clinical notes provided little utility in identifying the cause of the alleged overuse of the right shoulder. They did not support complaint of right shoulder pain from mid-2009 nor did they explain the causal connection between employment and right shoulder pain. ([97])

5. It was open to the Arbitrator to conclude it was difficult to extract anything logical or coherent from the clinical notes. The clinical notes gave an appearance of a cut and paste exercise rather than a genuine attempt to accurately record symptoms as they occurred from time to time. ([98])

6. It followed that the history recorded by Dr Dias of Ms Le suffering pain in her right shoulder since 2009 was wrong. It was not borne out by the medical evidence. ([99])

7. Dr Dias’ opinion that injury to the right shoulder was both consequential to the left upper extremity injury and arose out of the course of employment was based on the “chronicity” of symptoms persisting in the shoulder over five years, between 2009 and 2014. It was not based on an overuse of the right shoulder as a consequence of injury to the upper left extremity. There was nothing in the medical evidence to support a history of any complaints of the right shoulder, much less chronic complaints, during the period in question. Also, there was no contemporaneous record to corroborate any complaints until mid-2014. ([100])

8. Given the unreliability of Ms Le’s account of her symptoms (which makes no reference to overuse but states she injured her right shoulder because of the nature and conditions of her employment) and lack of any corroborative evidence to support Dr Dias’ history of chronic complaints since 2009, the Arbitrator was correct to find that the history relied on by Dr Dias was so fundamentally different to the facts proven that it did not provide a fair climate for acceptance of his opinion. It followed that the Arbitrator did not err in rejecting Dr Dias’ opinion on that basis. ([101], [106], [109])

(Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 62 ALR 85; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 considered and applied)

9. Contrary to Ms Le’s submissions, the Arbitrator rejected Dr Dias’ opinion not because of a “counsel of perfection” but because the history relied on was wrong. ([102])

10. The Arbitrator’s finding that there was insufficient evidence to support a finding that Ms Le suffered an injury to her right shoulder arising out of or in the course of her employment with the respondent did not disclose error. Further, the Arbitrator’s finding that the condition in Ms Le’s right shoulder was not consequent upon the accepted injury to the left upper wrist was consistent with the evidence presented. No error was demonstrated. ([112])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 and Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 considered and applied)