Issue 1: January 2020

Gardiner v Laing O’Rourke Australia Construction Pty Limited [2019] NSWWCCPD 66

Effect of deed of release signed by worker; s 149 and s 151A of the Workers Compensation Act 1987 considered

Phillips P

19 December 2019

Facts

This appeal considered the terms of a Deed of Release executed by the appellant worker, Dr Gardiner, and the respondent employer, Laing O’Rourke Australia Construction Pty Limited. The issue for consideration was whether or not, as a result of the execution of that Deed, ss 149 and 151A of the 1987 Act had been engaged such as to deny the worker the right or capacity to pursue his proceeding in this Commission.

The worker had a history of mental illness predating the commencement of his employment with the respondent, which is detailed in a report of his treating clinical psychologist, Ms Tendys of 23 October 2018. In these proceedings, the worker alleged that he suffered from a disease injury, or in the alternative his “psychological” disease had been aggravated, accelerated, exacerbated or deteriorated as a result of “numerous unaddressed issues/difficulties” in his employment.

The worker’s ARD annexed statements detailing his mental health history and descriptions of what transpired between the worker and the respondent during his employment, including details of the investigation commenced by the respondent and his direction to be examined by the work-appointed psychiatrist which ultimately led to the termination of his employment by the respondent on 12 March 2018.

On the same day he was terminated, the worker filed a complaint with the Anti-Discrimination Board of NSW alleging that he had been discriminated against on the grounds of his disability, as well as being victimised, in the course of his employment. The complaint was ultimately resolved by way of a Deed of Release dated 5 September 2018, in which the worker was paid $29,412.00 gross as general damages.

The issues on appeal were whether the Arbitrator erred:

(a) in fact in finding that the appellant had recovered “damages” “in respect of the injury concerned” (Ground One);

(b) in law in that she failed to give effect to the purpose and intent of s 151A, which is to avoid double recovery of compensation (Ground Two); and

(c) in failing to give any or any adequate reasons for giving no weight to the repeated exclusions set out in the Recital to the Deed (Ground Three).

Held: The Arbitrator’s Certificate of Determination dated 28 June 2019 was confirmed.

Ground One

1. The worker correctly asserted that the Commission was “required to determine whether the ‘damages’ recovered [were] for the same ‘injury’ which would give rise to an entitlement to workers compensation under the 1987 Act.”
2. The worker then challenged the conclusion that the Deed should be construed to include an exacerbation of his psychological condition and asserted that this was not open to the Arbitrator on the evidence. The worker placed much weight on a review of the Recitals to the Deed to support this submission of factual error in the Arbitrator’s reasoning.
3. The worker criticised the weight placed on the chronology and the evidentiary material provided to the Anti-Discrimination Board in substantiating the finding that the damages were in respect to psychological injury. The worker submitted that this approach was misguided and that the material filed in support of the Anti-Discrimination Board complaint was merely historical and was provided to enable the complaint to be understood.
4. The President did not accept the worker’s submission and found the conclusion reached by the Arbitrator was readily available on the evidence. The President found consideration of the description of injury in the ARD, the terms of the chronology and the reports of the worker’s treating clinical psychologist, lead to the view that the general damages paid for under the Deed were “in respect of the injury concerned” as found by the Arbitrator. The President found it abundantly clear from both a consideration of the chronology and the extracts from the psychologist’s reports that “the specific psycho-social hazard and the resulting interpersonal conflicts that were inadequately resolved, clearly triggered and/or exacerbated his depression, resulting in suicidality”. These issues gave rise to two claims, one under the Anti-Discrimination legislation, the other under the Workers Compensation Acts. ([45])
5. The President noted it was not uncommon in the modern workplace for various statutory provisions to apply in both a concurrent and overlapping way to the same set of facts and which can lead to rights being pursued under different statutes. ([45])
6. The President noted there was a real and obvious connection between the facts which gave rise to the claim before the Anti-Discrimination Board and the same facts which the medical evidence revealed caused an exacerbation to worker’s mental condition. The Recitals, Releases and terms of the Deed were drafted in sufficiently wide terms to cover all these matters. The Arbitrator’s approach was consistent with the proper approach to construction of written contracts and the President found it was plain that the parties clearly intended to resolve a number of claims and not just the discrimination claim which had been initiated in the Anti-Discrimination Board. ([46]–[48])

   (Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 per Bathurst CJ, [52] (Cordon Investments) applied)

7. The worker also attempted to distinguish the Court of Appeal decision in Adams, pointing to the covering letter which accompanied the cheque as identifying the damages as being for a “work injury claim” and drawing attention to the fact that no such description was given in this matter. The President noted the term of art “work injury damages” was not used in this Deed of Release. However, the failure to use that term was not determinative. Section 149 of the 1987 Act defines damages more widely than “work injury damages”. The key was the recovery of damages with respect to the same injury concerned in order to trigger s 151A of the 1987 Act. In Adams, the $2,500 settlement was paid with respect to “the injury concerned” and several other claims. That was precisely the case in this matter where the Recitals and the Release detailed, in a factual sense, the various claims, complaints and concerns which were subject to the settlement. It was clear as a matter of construction that the parties to the Deed of Release were resolving a wide range of matters which were inextricably linked with both the claim before the Anti-Discrimination Board and the claim before the Commission.

   (Adams v Fletcher [2008] NSWCA 238 applied)

8. The President held there was no doubt that the injury as pleaded in the ARD had been subject to a recovery of damages pursuant to the Deed of Release. The President found no error and Ground One was not made out. ([49], [51]–[52])

   Ground Two

9. The worker sought to advance the argument that the s 151A prohibition against double recovery was not enlivened in this circumstance, as this provision does not prohibit a worker from pursuing different causes of action. The President noted that as a statement of principle, the worker’s proposition was correct. The s 151A prohibition against double recovery only applies in circumstances where damages have been recovered with respect to the same injury. If this pre-condition is not met, the worker is free to pursue their various remedies. ([53]–[55])
10. The President noted that unfortunately in this matter, due to the terms of the Deed of Release and as he found in dismissing Ground One, the worker had resolved all his rights (as pursued in this litigation) when he executed the Deed of Release and recovered damages. Because the Arbitrator found that the monies recovered in the Anti-Discrimination Board proceedings were for the same injury as advanced in these proceedings, the s 151A prohibition against double recovery was thus enlivened. ([56])
11. The President accepted that the claim before the Anti-Discrimination Board, so as to engage with the provisions of the Anti-Discrimination legislation, was pursued on the basis of “less favourable treatment and detriment as a result of his disability”. The problem was that whilst that was the claim filed in the Anti-Discrimination Board, the settlement went further than just that particular matter and constituted the recovery of damages. ([58])
12. The President noted the problem for the worker in this matter was not any legal error in terms of how his different rights arose and were pursued. Rather, the difficulty was with the terms of the Deed of Release and the breadth of the facts, the claims and the releases which were subject to the settlement reflected in that Deed of Release. Once the worker recovered the damages paid pursuant to the Deed, s 151A of the 1987 Act was enlivened. Ground Two was dismissed. ([57]–[58])

    Ground Three

13. The worker’s complaint in this ground referred to the “repeated exclusions set out in the Recital to the Deed”, and the failure of the Arbitrator to provide reasons for giving these exclusions no weight. The President noted the obligation on decision makers to provide reasons “does not require lengthy or elaborate reasons.” ([60]–[64])

    (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA (Soulemezis)applied)

14. The President noted several exclusions within the Recitals and throughout the Deed which specifically applied to workers compensation rights. These were directly raised with the Arbitrator by the worker. ([65]–[70])
15. The President found that it was clear from the Arbitrator’s reasoning (see Reasons [64]–[67]) that the exclusion question was considered, the argument weighed, and evidence reviewed to assess whether the exclusion applied. The President noted that it was important to understand that the Release was from “all claims” and the Arbitrator set out her thoughts regarding what had been defined as “claims” in cl 1.1 (see Reasons [64]). ([72]–[77])
16. The worker took issue with how the Arbitrator dealt with the exclusion in cl 4 of the Deed. The Arbitrator considered that the operation of the workers compensation exception was defeated because of the broad language of the Release. The worker also took issue with this description in terms of the release being “broad”, instead arguing that the Release was quite specific. The President noted that this submission appeared to urge upon him a different construction of cl 4 of the Deed and that it was difficult to see how this submission could support an appeal ground alleging no or inadequate reasons. The President held that clearly at Reasons [65], the cl 4 Release was subject to construction by the Arbitrator. ([77])
17. The President held the Arbitrator construed the exclusions in a concise and succinct manner before expressing her conclusion at Reasons [67]. This approach was consistent with the Arbitrator’s duty under the 1998 Act and the Rules and arising from the decided cases on the obligation to give reasons. Ground Three was dismissed. ([76]–[77])

(Soulemezis, Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36 applied)

EML as agent for Insurance for NSW v AAI Limited t/as GIO [2019] NSWWCCPD 60

Sections 22 and 22A of the 1987 Act – apportionment of liability for weekly payments between insurers – whether an Arbitrator is bound by earlier agreed apportionment in respect of treatment expenses pursuant to s 60 of the 1987 Act and entitlements pursuant to s 66 of the 1987 Act; adequacy of reasons – Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48 discussed; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, Woolworths Ltd v Warfe [2013] VSCA 22 applied; whether the decision is illogical or irrational – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367 applied

Wood DP

3 December 2019

Facts

This appeal concerned an application made by EML as agent for Insurance for NSW (the appellant) for apportionment of liability for payments of weekly compensation and treatment expenses made to the worker. The appellant sought the apportionment between it and AAI Ltd t/as GIO (the respondent) pursuant to ss 22 and 22A of the 1987 Act.

The worker, a firefighter employed by Fire and Rescue NSW, suffered an injury in 1988 to his back when he stepped out of his vehicle carrying a large pot of curry prepared for his colleagues at the station (the 1988 injury). In 2007, the worker suffered a further injury to his back when he slipped on an icy road surface while alighting from the brigade vehicle (the 2007 injury). The respondent was the insurer on risk for all periods up to 30 June 1989 and from 1 July 1989 the insurer on risk was the appellant.

In 2008, the appellant and the worker entered into a complying agreement in accordance with s 66A of the 1987 Act in respect of 2% whole person impairment pursuant to s 66 of the 1987 Act as a result of the 2007 injury. At about the same time, the respondent and the worker also entered into a complying agreement in respect of the permanent impairment of the worker’s back and the loss of efficient use of the worker’s right and left lower extremities.

The Arbitrator determined that the weekly payments were to be apportioned on the basis of 75% to the appellant and 25% to the respondent. The Arbitrator further determined that the treatment expenses pursuant to s 60 were to be apportioned as 25% to the appellant and 75% to the respondent. The appellant appealed the Arbitrator’s decision.

The issues on appeal were whether:

(a) the Arbitrator erred in determining that a claim for apportionment in respect of weekly payments of compensation should be treated differently to a claim in respect of medical expenses (Ground One);

(b) the Arbitrator failed to give adequate reasons for his determination of the apportionment, thus denying the appellant procedural fairness (Ground Two), and

(c) the Arbitrator’s determination was either not supported by any evidence or was illogical and irrational, so that the Arbitrator committed a jurisdictional error (Ground Three).

Held: The Amended Certificate of Determination dated 3 June 2019 was confirmed. The appellant was to pay the respondent’s costs of the appeal.

Discussion

1. Contrary to the appellant’s submissions in reply, in order to succeed in this appeal, the appellant must show that the Arbitrator’s decision is affected by error of fact, law or discretion before the Presidential member can intervene. The appellant’s reliance on BHP Billiton Ltd v Bourke [2009] NSWWCCPD 117 (Bourke) as authority for the assertion that it is not necessary that error be found before a Presidential member can intervene was misplaced. The decision in Bourke pre-dated the substantial amendments to s 352 of the 1998 Act, which came into force on 1 February 2011 and is no longer relevant authority on the power to intervene in an appeal. ([105])
2. The issues for determination by the Arbitrator were of a relatively narrow scope. The relevant considerations were limited to:

(a) an evaluation of the evidence going to the degree of apportionment;

(b) an appraisal of the law relating to apportionment (ss 22 and 22A);

(c) whether the apportionment should be on the basis of the relative periods of risk of each insurer, or if not,

(d) whether special circumstances required the apportionment on some other basis (s 22A(1)(b)). ([107])

Ground One

3. The basis upon which the Arbitrator formed the view that a different approach to the apportionment of weekly payments should be taken was that, in his view, liability for weekly payments is defined “not by causation but by the effect a given injury has on an injured worker’s capacity to earn.” The Arbitrator based that conclusion on a consideration of the heading for Division 2 of Part 3 of the 1987 Act, and the heading and contents of s 33 of the 1987 Act. Section 33 provides that weekly payments of compensation are payable to an injured worker where the injury results in partial or total incapacity. Division 2 of Part 3 of the 1987 Act deals with when weekly payments are payable and the method of calculating that entitlement. There was no issue in this case that the worker was entitled to weekly payments of compensation or the extent of those entitlements. Those provisions have no relevance as to where the liability for the payments rests. Sections 9, 15, 16, 17, 22 and 22A, which appear in Part 2 of the 1987 Act, deal with the liability to pay compensation. This part of the Arbitrator’s reasons for applying a different apportionment to the weekly payments was flawed. ([109])
4. While the Arbitrator’s reason that the legislature requires a different approach did not support a departure from applying the same apportionment, it did not follow that because the need for surgery and the lump sum entitlements were apportioned in a particular way the Arbitrator was bound to adopt the same apportionment. This was particularly so given that the apportionment for those entitlements was agreed between the parties. The parties did not agree on the apportionment of the liability for the weekly payments. ([110])
5. Whether an incapacity results from an injury is a question of fact to be decided on the evidence using common sense principles. Each case turns on its facts and depending on those facts, there may well be a proper basis for apportioning weekly payments on a different basis to that of treatment expenses or lump sums. The first ground of appeal was not made out and failed. ([112]–[113])

Ground Two

6. The appellant’s second ground of appeal complained that it was denied procedural fairness because the Arbitrator failed to give adequate reasons for his determination as to the apportionment. ([114])
7. Deputy President Wood held that the Arbitrator provided a detailed summary of the documentary evidence before him. She also observed the Arbitrator reviewed at length the details contained in the MAC issued by Dr Davies (AMS). The Arbitrator considered that the 1988 injury was responsible for the occasional aggravations of the worker’s lumbar spine from 1988 and up to the 2007 injury, so that the 1988 injury was responsible for at least some apportionment of liability. Turning to s 22A(1)(b), the Arbitrator acknowledged that that section provided for apportionment to be relative to the length of the period of insurance, but that it was open to him to order the apportionment on another basis if the special circumstances in the case made it just and equitable to do so. The appellant raised no issue in respect of that approach taken by the Arbitrator. ([118], [120]–[121])
8. The Arbitrator did not reject the opinions of the various medical experts, apart from Dr Casikar’s conclusion, which was not the subject of this appeal. It was clear that the Arbitrator considered the medical evidence, but it was implicit in his reasoning that he took into account that the opinions that were provided were for the purposes of determining the apportionment in respect of other heads of damage rather than for the purpose of addressing the task he had before him. ([122])
9. In assessing whether the reasons are adequate, the reasons must be read as a whole, and the reasons need not be lengthy or elaborate. A fair reading of the Arbitrator’s reasons indicated that he did take into account the opinions of the medical experts, but acknowledged that a consideration of apportionment in respect of weekly payments required him to take into account other factors. The Arbitrator balanced the evidence of the medical experts against the factual background relevant to incapacity. In the context of the nature of the limited issues the Arbitrator was required to determine, the Deputy President was of the view that the Arbitrator’s reasons were adequate to explain the reason why he arrived at his ultimate conclusion. It followed that Ground Two of the appeal failed. ([123]–[126])

(Beale v Government Insurance Office (NSW)(1997) 48 NSWLR 430 and Woolworths Ltd v Warfe [2013] VSCA 22 applied)

Ground Three

10. The third ground of appeal alleged that the Arbitrator’s determination was not supported by any evidence or was illogical or irrational. As submitted by the respondent, the Arbitrator specifically referred to the medical evidence that both injuries were causative and also took into account the history of the worker’s incapacity. The history of the worker’s incapacity was evidence upon which the Arbitrator could rely, so the appellant’s allegation that there was no evidence could not be sustained. Nor could it be sustained that the Arbitrator’s decision had been infected by an illogical or irrational process. The Arbitrator’s conclusion was based upon that uncontested factual evidence. While a different decision-maker may have given greater weight to other evidence, such as the apportionment of liability for the other heads of damages opined by the medical experts, and have come to a different conclusion, that did not demonstrate error of the kind required in respect of this Arbitrator’s factual decision. Ground Three also failed. ([127]–[131])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367 applied)

Thadsanamoorthy v Teys Australia Southern Pty Limited [2019] NSWWCCPD 61

Sections 281 and 282 of the 1998 Act; requirement for worker to submit themselves to a medical examination at the request of the employer; the worker resides overseas and is unable to obtain a visa to enter Australia for the purposes of a medical examination in accordance with s 281; whether there is discretion in ss 281 and 282; Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326; 74 NSWLR 229 discussed and applied; adequacy of reasons

Parker SC ADP

9 December 2019

Facts

The appellant worker sustained injury to his left knee on 11 November 2014.

The appellant was an unauthorised maritime arrival, who arrived in Australia on 24 June 2012. A Protection Visa was declined on 14 August 2013 and, after an unsuccessful review by the Administrative Appeals Tribunal, he was deported to Sri Lanka on 2 August 2016.

The worker was examined by Dr Silva in Colombo, Sri Lanka, who assessed his whole person impairment as a result of the injury to his left knee to be 25%. On 18 December 2017, the appellant served on the respondent a claim for permanent impairment compensation. On 25 January 2018, the respondent’s solicitors advised that the insurer required the appellant to undergo a medical examination. The solicitors’ letter indicated that their client would consider paying the appellant’s travel expenses to return to Australia for an examination if he was able to enter the country.

On 20 April 2018, the respondent’s solicitor wrote again to reiterate the requirement that the appellant submit himself for medical examination in accordance with s 281 of the 1998 Act. The appellant’s solicitors advised the respondent that the appellant was unable to obtain a visa to come to Australia.

Ultimately before the Arbitrator, the respondent made an application for the proceedings before the Commission be struck out. The Arbitrator determined that the appellant had not provided the respondent all relevant particulars about the claim in accordance with s 281(2)(c) of the 1998 Act and struck out the Application to Resolve a Dispute. The worker appealed.

The issues on appeal were whether:

(a) the Arbitrator erred in failing to apply the correct statutory construction of ss 281 and 282 of the 1998 Act, particularly the interaction of the procedural requirements of s 282 with the substantive sections of the 1998 Act and the 1987 Act;

(b) the Arbitrator unduly restricted the ambit of his discretion in his determination that the appellant had failed to ‘provide all relevant particulars about the claim’;

(c) the Arbitrator’s determination that the exercise of his discretion would only be initiated by unconscionable actions of the respondent was erroneous;

(d) the Arbitrator erred in respect of the discretionary elements of his judgment, and

(e) the Arbitrator failed to give adequate reasons for his decision.

Held: The decision of the Arbitrator dated 29 April 2019 was confirmed.

Ground (a) – statutory construction of ss 281 and 282 of the 1998 Act

1. Sections 281 and 282 appear in Division 4 of Part 3 of Chapter 7 of the 1998 Act. Part 3 creates a regime for the payment of compensation benefits. Division 1 relates to weekly payments, Division 2 makes further provision with respect to weekly payments, Division 3 relates to medical expenses, Division 4 to lump sum payments and Division 5 to enforcement of obligations arising under these provisions. ([66]–[67])
2. It is evident from the text of s 281 that the provision is intended to promote the early determination of liability and assessment of claims for lump sum compensation. To facilitate that objective s 282 requires the claimant to provide “relevant particulars about the claim ... sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement on the claim”. The emphasis is on providing information to the insurer to enable it to make an expeditious and early determination of liability and, if liability is accepted, to make an early and reasonable offer of settlement. ([68])
3. Sub-section 282(2) facilitates that purpose by directing that the employer can have the claimant examined. This is intended to provide a mechanism whereby the insurer can inform itself as to the impairment, if any. The intent is to avoid referral to an AMS and to enable the parties to resolve medical disputes. Until such time as the claimant submits for examination “the claimant is not considered to have provided all relevant particulars about the claim”. The failure to supply the particulars, including attendance at a medical examination, engages s 281(2)(b). ([69]–[70])
4. The text of s 281 and s 282 does not permit discretion. The language reposes such discretion as may exist in the insurer in the sense that the option provided is for the insurer to have the claimant examined or not examined. There is no option provided for a claimant for lump sum compensation not to be examined if the employer requires the claimant to submit for examination. ([71]–[72])

(Berowra Holdings Pty Limited v Gordon [2006] HCA 32; 225 CLR 364 referred to)

5. When the procedural law is engaged a party is put to a choice. Under the provisions of the 1998 Act, when the appellant made a claim for lump sum compensation the insurer was put to a choice as to whether it wished to have the appellant medically examined, which it chose to. By virtue of s 282(2), until such time as the appellant was medically examined, he was not considered to have provided all relevant particulars about the claim, thus the period of time during which the insurer was required to determine the claim in accordance with s 281(1) was postponed. ([73])
6. Because the appellant could not attend in Australia for the proposed medical examination, the “relevant particulars” were not furnished. Therefore the time within which the insurer was required to determine the claim as specified in s 281(2)(b) did not commence to run. Compliance with s 281(2)(b) is mandatory on the insurer only in so far as it is provided with “all relevant particulars about the claim”. It is up to the insurer to determine whether it wishes to have the claimant medically examined. If it does so, there is no discretion to override the insurer’s requirement in this regard. ([74]–[75])
7. When a party invokes by way of defence non-compliance with the procedures and processes specified in the legislation the court deals with such an application “in accordance with ordinary discretionary principles that may depend on many different factors”. ([79])

(Wattyl Australia Pty Limited v McArthur [2008] NSWCA 326; 74 NSWLR 229, at [87]–[88] applied)

8. The Acting Deputy President was of the view that there was no alternative in terms of the construction of s 282(2). If the insurer insists on an examination, the worker is required to submit. Until such time as he or she does, the relevant particulars have not been furnished. ([80])
9. Further, the Acting Deputy President was of the view that there was nothing that would prevent the insurer from having the examination conducted by an appropriately qualified medical practitioner in Sri Lanka or some other venue to which the appellant could conveniently travel. He also could see no reason why the insurer could not, as the worker did, have a New South Wales practitioner travel to Sri Lanka for the purpose of the examination. However, the Acting Deputy President could see no basis in the legislation to require an insurer to take these steps to facilitate its examination. ([81])
10. A reasonable construction of s 282(2) requires the medical practitioner to be a suitability qualified health practitioner practising in New South Wales or at least Australia and trained in the Workers Compensation Guidelines. This follows from the guidelines themselves. ([82])

Grounds (b) to (d) – Discretion

11. These three grounds of appeal related to the manner in which the Arbitrator undertook hypothetically to exercise the discretion in the event that he was wrong in his conclusion that such a discretion did not exist. ([85])
12. If contrary to the Arbitrator’s and the Acting Deputy President’s view, there was a discretion to, in effect, excuse the claimant from attending for medical examination when required to do so by the insurer, then any such discretion is a judicial discretion. A judicial discretion must be exercised for the purpose for which it is provided under the empowering statute and for reasons clearly expressed and in accordance with the statutory purpose. Contrary to the appellant’s submission, the Arbitrator did not confine himself solely to a consideration of whether the respondent had engaged in disentitling conduct. ([87]–[88])

Ground (e) – as to Reasons

13. Acting Deputy President Parker SC held the reasons expressed by the Arbitrator both as to why there was no discretion and on the hypothetical possibility that there was a discretion, satisfy the requirement for reasons in the context of the Workers Compensation Commission. ([94]–[95])

    (Beale v GIO of New South Wales(1997) 48 NSWLR 430 (Beale), at 443 applied)

14. The appellant’s complaint concerning the Arbitrator’s reasons was that he gave no reasons as to why he would decline to exercise his discretion in the appellant’s favour and he did not consider or give reasons in respect of the effect of his decision on the substantive rights that the appellant would lose as a result of his determination. Importantly, there was no complaint that the Arbitrator failed to consider the relevant evidence or that he did not set out the material findings or ultimate findings of fact he relied on for his decision. ([96]–[97])

    (Beale applied)

15. Furthermore, the grammatical meaning of ss 281 and 282 is straight forward and without ambiguity. Acting Deputy President Parker SC held the Arbitrator gave clear expression to his reasons for finding that he did not have a discretion to excuse the appellant from attending for medical examination. ([98])
16. The Acting Deputy President did not see that proper and adequate reasons required the Arbitrator to make express reference to the present consequence for the appellant’s substantive claim. This would not add to the appellant’s understanding of the reasons for his lack of success or to an understanding of the reasoning for the purpose of appellate review. ([99])
17. Parker SC ADP concluded the Arbitrator’s statement of reasons satisfied the three fundamental requirements for a statement of reasons specified in Beale at 443. There was no failure to provide appropriate reasons and this ground of appeal was rejected. ([100])

Conclusion

18. The grounds of appeal had not been made out. The decision was not affected by error of fact, law or discretion. ([106])

Toll Holdings Limited v Doodson [2019] NSWWCCPD 62

Whether proposed treatment is reasonably necessary pursuant to s 60 of the 1987 Act – Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32; Diab v NRMA Ltd [2014] NSWWCCPD 72 discussed; s 352(5) of the 1998 Act – the requirement to establish error of fact, law or discretion

Wood DP

10 December 2019

Facts

The respondent worker brought a claim in relation to proposed surgery recommended by Dr Ho, pain management and rehabilitation specialist. The surgery proposed was the insertion of a trial dorsal root ganglion (DRG) stimulator. It was intended to address the respondent’s symptoms and conditions flowing from two left knee injuries suffered during the course of the respondent’s employment with the appellant, Toll Holdings Limited.

The respondent suffered injuries to his left knee in December 2009 and April 2010. Following the second injury, he underwent two arthroscopies and a cartilage harvest and reimplantation procedure in 2010. In October 2011, Dr Manohar performed a trial spinal stimulator procedure. In December 2011, a permanent spinal stimulator was implanted. Unfortunately, in July 2012 the respondent was involved in a motor vehicle accident, the impact of which reportedly caused the stimulator to be dislodged. As a result, the stimulator was eventually removed in October 2014.

The respondent proceeded with ongoing conservative treatment until 30 July 2018, when he underwent a total left knee replacement, followed by a left knee manipulation procedure on 22 October 2018.

On 15 November 2018, the respondent requested the appellant approve the insertion of a trial DRG stimulator, which was said to be a more advanced stimulator than the previous implant. The appellant denied the claim. The Arbitrator found the proposed surgery was reasonably necessary. The employer appealed.

The appellant relied on four grounds of appeal described as:

(a) Ground One: the Arbitrator erred in fact and law in applying the relevant authorities to the facts;

(b) Ground Two: there was insufficient evidence to determine the matter;

(c) Ground Three: the Arbitrator ought to have considered alternative treatment modalities and rejected the proposed treatment, and

(d) Ground Four: the Arbitrator failed to take into account the respondent’s psychological condition, which was referred to in the notes and referred to by A/Prof Shatwell, the appellant’s expert.

Held: The Certificate of Determination dated 7 June 2019 was confirmed.

Discussion

1. The appellant’s first ground of appeal alleged that the Arbitrator erred in fact and law when he applied the relevant authorities to the facts. The only “facts” identified by the appellant in its submissions were those recorded by A/Prof Shatwell that the respondent had a psychological component to his presentation and that at the time the A/Prof wrote his report, it had been less than twelve months since the total knee replacement occurred. ([100]–[101]).
2. The Arbitrator thoroughly reviewed the authorities of Rose v Health Commission (NSW) [1986] NSWCC 2; 2 NSWCCR 32 (Rose) and Diab v NRMA Ltd [2014] NSWWCCPD 72 (Diab) and correctly identified the principles and considerations to be applied in determining whether the proposed treatment was reasonably necessary. The Arbitrator proceeded to consider the evidence before him which included the extensive treatment provided by Dr Manohar prior to the respondent being referred to Dr Ho. There was no error in the Arbitrator’s approach. ([102]–[104])
3. The Arbitrator found that the respondent had enjoyed some benefit from the previous stimulator. The factual finding that the previous stimulator provided some benefit to the respondent had not been challenged in this appeal. Even if it was challenged, there would be no reason to disturb it. For the appellant to succeed in establishing an error of fact, it must establish that in arriving at his conclusion, the Arbitrator overlooked material facts, or gave undue or too little weight to material facts in deciding the inference to be drawn, or the available inference in the opposite sense is so preponderant that the decision is wrong. In the face of histories taken some years later by two medico-legal experts (Dr Vote and A/Prof Shatwell), the Arbitrator’s finding was soundly based on probative evidence and ought not be disturbed. ([106]–[107])

(Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, at [45] applied)

4. Having made that finding, the Arbitrator proceeded to consider the probative value of A/Prof Shatwell’s evidence. Noting the opinion was based on the history that the respondent had experienced no benefit from the previous stimulator, the Arbitrator also observed that A/Prof Shatwell had misread Dr Ho’s opinion about the potential outcome of the procedure. That observation was undoubtedly correct. ([108])
5. The Arbitrator rejected, on a proper basis, A/Prof Shatwell’s opinion as to why the DRG stimulator was not reasonably necessary. Having done so, the accepted evidence was sufficient to find the proposed procedure reasonably necessary. The Arbitrator was not required to consider whether the alternate treatment put forward by A/Prof Shatwell was reasonably necessary in the terms identified in Rose and Diab. As the Arbitrator observed, it is not necessary to establish that the treatment was reasonably necessary to the exclusion of all other treatment. The appellant had failed to identify error on the part of the Arbitrator and Ground One of the appeal failed. ([109]–[110])
6. Grounds Two, Three and Four were simply restatements of Ground One. ([111])
7. Ground Two alleged that there was insufficient evidence to determine the matter. As the respondent submitted, the submissions in support of what was expressed as Ground Two were not submissions that were put to the Arbitrator. If a submission is not made, it is not an error to fail to refer to it. ([113])

(Brambles Industries Limited v Bell [2010] NSWCA 162, at [22] and [30] applied)

8. Ground Three asserted that the Arbitrator ought to have considered the treatment proposed by A/Prof Shatwell and ought to have found the trial DRG stimulator was not reasonably necessary. It is not sufficient for the appellant to simply assert that the Arbitrator ought to have found in its favour. An appeal brought pursuant to s 352 of the 1998 Act is not a review or a re-hearing. It followed that the appellant’s complaint, expressed as Ground Three, failed. ([114]–[117])

   (Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519 applied)

9. Ground Four contended that the Arbitrator failed to take account of the respondent’s psychological condition. The Arbitrator’s findings leading to his conclusion that the proposed treatment was reasonably necessary were factual findings. Findings of fact will not normally be disturbed if they have rational support in the evidence. There was no evidentiary material and nothing about the process of reasoning followed by the Arbitrator that was indicative of error. On the contrary, the Arbitrator’s approach was rational, logical and consistent with the authorities of Diab and Rose. The complaint made in Ground Four was not made out and Ground Four failed. ([118]–[120])

(Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

Westpac Banking Corporation v Chauhan [2019] NSWWCCPD 63

Approach to expert evidence considered; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 considered

Phillips P

10 December 2019

Facts

This is an appeal by the employer against the Arbitrator’s decision to award the worker, Ms Chauhan, weekly benefits compensation and medical expenses in respect of incapacity suffered as a result of aggravation, acceleration, exacerbation or deterioration of the worker’s bilateral cubital tunnel syndrome. In this appeal, the appellant employer took issue with how the Arbitrator approached the task of considering the expert medical opinion in reaching his ultimate conclusions. The appellant also submitted that the Arbitrator erred in failing to consider whether the alleged incapacity was a result of any injury suffered by the worker.

The worker was employed by Westpac Banking Corporation, the appellant, as a bank officer working in an in-bound call centre. The worker claimed she suffered an injury to her neck, both elbows and both wrists as a result of excessive typing and use of the mouse in the course of her employment with the appellant.

On 1 September 2017 the worker reduced her working hours from full time to part time. At the time of the appeal, she continued to work part time for the appellant undertaking her pre‑injury duties. The worker made a claim for weekly benefits compensation from 1 September 2017 and medical expenses.

The appellant issued notices pursuant to s 74 of the 1998 Act dated 17 May 2016 and 25 August 2017, declining liability.

On 21 December 2018 the worker lodged an ARD, claiming injury to her cervical spine and both elbows and wrists due to excessive typing and use of the mouse during the course of her employment with the appellant since early 2008.

The issues on appeal were whether the Arbitrator erred:

(a) in fact, law or discretion in so far as he failed to identify an injury for which there was expert medical support, notwithstanding it was noted such expert guidance was required by the Commission (Ground One)

(b) in law due to the failure to consider whether the relevant incapacity was as a result of the injury; this error stands alone but also proceeds from the initial error of an imprecise identification of the injury (Ground Two).

Held: Order 1 of the Certificate of Determination dated 11 June 2019 was amended by deleting the date 1 September 2015 and inserting in its place the date 1 September 2017. Otherwise, the Arbitrator’s Certificate of Determination dated 11 June 2019 was confirmed.

Ground One

1. Ground One took issue with how the Arbitrator approached the task of considering the expert medical opinion in reaching his ultimate conclusions. The appellant and the respondent were effectively arguing that different principles ought to be applied to this task.
2. The appellant stated that the factual basis underlying the worker’s orthopaedic surgeon Dr Gupta’s report had not been proven and hence did not satisfy the requirements for expert evidence as described in Makita (Australia) Pty Ltd v Sprowles. The appellant also took issue with how the Arbitrator approached and used the evidence of Associate Professor Wong, general surgery consultant, and Dr Paul, occupational physician.
3. The respondent worker submitted that this was not the correct approach and that the Commission, not being bound by the rules of evidence, was guided by cases such as Paric v John Holland (Constructions) Pty Ltd and Hancock v East Coast Timber Products Pty Limited.

4. Based upon a consideration of the authorities described above, the President did not accept the appellant’s essential submission that strict non-compliance with Makita was fatal to the Arbitrator placing any reliance upon Dr Gupta’s report. The President did not read the authorities of Makita, Paric and Hancock as necessarily presenting an either/or choice for a decision maker. In the President’s view, Makita set out in comprehensive terms the proper approach for the tribunal of fact when considering expert evidence. In Makita, Heydon JA himself referred to Paric and acknowledged that an opinion will be admissible and material even though the facts established may not correspond with complete precision. The President therefore did not read Makita as standing for the appellant’s proposition that if the facts are not proven to substantiate the opinion, the opinion is inadmissible or ought be accorded little or no weight. The President noted that at [64] of Makita, Heydon JA acknowledged that “other admissible evidence may be available to substantiate the opinion”. ([74]–[81])

   (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita), Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505(Paric), Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock)considered and applied)

5. The President noted that Makita was decided before Hancock, which specifically dealt with how Makita was to be applied in the context of a tribunal not bound by the rules of evidence. The President noted that Beazley JA in Hancock said that strict compliance with every feature referred to by Heydon JA in Makita is not required. What is required is for the Commission to be satisfied that the expert evidence provides a satisfactory basis upon which the Commission can make its findings. ([82]–[83])

   (Hancock [82]–[83] per Beazley JA applied)

6. It was through this lens that the President examined whether the Arbitrator was correct in his approach to assessing the expert testimony.
7. Upon reviewing the lay and medical evidence, the President found that the Arbitrator closely examined this medical material and was correct to accord little weight to the opinion of Associate Professor Wong. The President found there was no sufficient factual basis contained within Associate Professor Wong’s report, consistent with Paric and Hancock, for it to be accorded much, if any, weight at all. This then essentially left the contest in the medical evidence to the question of resolving the differences between the diagnoses reached by firstly Dr Gupta and secondly Dr Paul for the appellant. The President found that in approaching this task, it was appropriate for the Arbitrator to glean from the various reports the fact that the worker gave a history that her work duties caused an increase in her symptoms. This was a fact which was not seriously challenged. Rather, the contest was whether these symptoms related to what Dr Paul considered to be a constitutional condition or Dr Gupta’s diagnosis of the aggravation of cubital tunnel syndrome. Ultimately, the Arbitrator accepted the view of Dr Gupta that the correct diagnosis of the worker’s condition was cubital tunnel syndrome as evidenced by the contusion of the ulnar nerve identified on surgery. ([93])
8. The President noted that it was true there was no history recorded of the worker leaning on her elbows. This point has been made by the appellant. It was also true however, that the history given by the worker, Dr Gupta and Dr Paul, accurately reflected the desk duties she was undertaking with her computer and telephone. ([94])
9. The President noted that it was not necessary that the facts so proved must correspond with complete precision to the proposition on which the opinion has been based. The question was whether there was “a fair climate” in which the expert views could properly flourish and in the President’s opinion such a fair climate existed in this case. The President found the Arbitrator had unchallenged evidence before him (save and except for Dr Gupta’s statement about the worker leaning on her elbows) as to her work duties. Further, there was no challenge to the worker’s complaints of increasing pain as a result of performing those duties. The Arbitrator then set out in detail the reasons why he was persuaded that the worker’s employment was causally related to the aggravation, acceleration, exacerbation or deterioration of her cubital tunnel syndrome. This involved the appropriate and correct consideration of the medical evidence and the application of a common sense evaluation of the causal chain. ([94]–[96])

(Paric [509] – [510], Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) 463–464 per Honour Kirby P (as he then was) applied)

10. The President found the Arbitrator’s finding was plainly available on the evidence and in accordance with authority and disclosed no error on the part of the learned Arbitrator. Ground One was not established.

    Ground Two

11. Ground Two alleged the Arbitrator committed an error of law by failing to consider whether or not the alleged incapacity was a result of any injury suffered by the worker. The appellant in fact challenged whether the fact of the worker suffering an injury had been established.
12. The President found this ground had no merit. The President found that for the reasons outlined with respect to Ground One, the appellant had not succeeded in the task of disturbing the Arbitrator’s finding that the worker’s cubital tunnel syndrome had been aggravated, accelerated, exacerbated or deteriorated by her employment. ([99]–[100])
13. The President went on to examine how “injury” had been dealt with by the Commission and the predecessor Compensation Court and found the Arbitrator’s approach to align with the relevant authority. Ground Two was not made out. ([101]–[103])

(Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 per Neilson CCJ, Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 considered)

Corrigendum

The respondent identified an error in Order 1 of the Certificate of Determination in that the deemed date read as 1 September 2015 when the formal finding made by the Arbitrator found that the entitlement to compensation arose from 1 September 2017. The President accepted that the date in Order 1 was in error and made orders for its amendment

Heyworth v VMWare Australia Pty Limited [2019] NSWWCCPD 64

Whether the Arbitrator, having found injury, was correct to find that the appellant had not made out a case of resultant incapacity for two closed periods between 1 December 2013 and 2 March 2014 and 1 October 2015 and 18 April 2016

King SC ADP

11 December 2019

Facts

The appellant worker was employed by the respondent from December 2012 until July or August 2013. He ceased the performance of duties with the respondent in July 2013 and said that from then until March 2014 he was unfit for work. Thereafter in March 2014 he took up contract work with Transport for NSW, which was a lesser role than his job with the respondent. It seemed he worked for Transport for NSW until July 2015 but that there was some doubt about the reasons for his cessation of work there.

The appellant appealed from a decision of the Arbitrator that he had not made out a case of incapacity in respect of two closed periods, that is, from 1 December 2013 to 2 March 2014 and from 1 October 2015 to 18 April 2016.

This was a finding that the appellant had not discharged the onus upon him of establishing that during those periods he had “no current work capacity” for the purposes of s 32A of the 1987 Act. The Arbitrator was not persuaded that during either of the periods, the appellant was not able to work either in his pre-injury role or in suitable employment.

A critical question on appeal was whether the Arbitrator’s factual decision, namely his review and comment on the evidence expressed at [121]–[145] of his reasons displayed any error.

The ultimate issue on appeal was whether the Arbitrator was correct to find that the appellant had failed to discharge his onus of showing that his employment injury had resulted in incapacity for work during the two periods that made up his claim for weekly payments.

Held: The Arbitrator’s Certificate of Determination of 24 April 2019 was confirmed.

Consideration and Conclusion

1. The decision appealed against was a factual one. It was a conclusion upon the evidence that the appellant had not made out a case of incapacity. Put another way, at a factual level, upon the evidence he had not discharged his onus. The Arbitrator’s decision that the appellant did not get over the requisite hurdle took into account both matters that were affirmatively in evidence, and matters which were absent from the evidence but were material to the question the Arbitrator was considering. ([36], [47], [50])
2. A Presidential member should not interfere with the Arbitrator’s decision if upon the evidence it is to be seen as fairly open to him or her. It does not matter, if deciding the matter at first instance or by way of a review, that the Acting Deputy President might merely have reached a different view. Error must be shown. ([48])

(Branir Pty Limited v Owston Nominees (No 2) Pty Limited [2001] FCA 1833; 117 FCR 424 and Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40 applied)

3. Acting Deputy President King SC did not think the appellant was denied procedural fairness. The documentary material that the Arbitrator thought caused doubt, particularly in relation to the cessation of the appellant’s employment with Transport for NSW, was all disclosed to the appellant before the hearing. He was represented by able and experienced legal practitioners who must have understood the way that material would be deployed against him. ([49])
4. Ultimately, the Arbitrator’s decision could only be seen as one involving the evaluation of the weight of the evidence that was there according to its own terms and in light of an absence of evidence which could reasonably be expected to be advanced in support of the appellant’s case, but which was not before him. The Acting Deputy President held it could not be said that the Arbitrator’s view was not fairly open. ([51])
5. It is commonplace for people who have suffered injury to be able to work while suffering symptoms of some kind. Of concern to the Acting Deputy President, was the reference in the passage at [133] of the Arbitrator’s reasons to “cogent or compelling evidence”:

“I have significant concerns about the veracity and reliability of the [appellant’s] evidence. Although the medical evidence supports ongoing symptoms, there is no cogent or compelling evidence that those symptoms impacted on the applicant’s capacity to work in any tangible way. The fact of receipt of a compensable injury and treatment for same does not prove incapacity for work. Whilst there is no dispute the [appellant] has suffered a workplace injury which has resulted in a need for investigation and management, in my view the evidence does not support total incapacity during the periods claimed ...” (emphasis added)

There is of course no need for evidence to rise that high to support a finding in any civil litigation in favour of any party to it. That is so even if the Briginshaw test (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336) is applicable. Satisfaction on the balance of probabilities is all that is called for, and even if a serious matter is in contention, so that to be satisfied on the probabilities a fact-finder should look for a sound evidentiary basis, it is not necessary that the evidence come to more than that. ([52]–[53])

6. It would follow that if the Arbitrator directed himself that evidence of that calibre was necessary, and that without it the appellant could not discharge his onus, error would be apparent. However, the Acting Deputy President was not persuaded that the Arbitrator did so direct himself, or that the use of those words in [133] drove his decision given the nature of the detailed discussion to be found in his reasons. He in fact expressed himself more mildly in the concluding part of the above extract. ([54])
7. Secondly, the statement by the Arbitrator (at [124] of his reasons), that the appellant’s family and recreational life continued “unabated” could be no more than an inference, and to the Acting Deputy President amounted to exaggeration or hyperbole. Accepting that the weight to be given to the evidence is a matter for the primary fact finder, had Acting Deputy President King SC been satisfied that this inference of the Arbitrator’s, alone or in combination with the comment at [133] of his reasons, was instrumental in his decision, the Acting Deputy President thought error would be shown. ([55])
8. Whilst the Acting Deputy President thought the Arbitrator went too far in relation to this part of the evidence, it was only one part of the evidence and it could not be said to have been of absolutely no weight. Much more importantly, the Arbitrator thought that the Transport for NSW/Ampersand (the recruitment company that facilitated the appellant’s employment with Transport for NSW) records cast doubt on the totality of the appellant’s evidence, and as to the cessation of his employment with Transport for NSW, rendered that evidence implausible. This, Acting Deputy President King SC thought, was the real driver of the Arbitrator’s decision, and in the end, the Acting Deputy President was not persuaded that the Arbitrator’s conclusion was wrong. ([56])
9. Both grounds of this appeal failed. ([57])

Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65

Section 11A(1) of the 1987 Act – reasonable action with respect to ‘discipline’; duty to afford procedural fairness

Snell DP

17 December 2019

Facts

The respondent worker was employed by the appellant as a Security Monitoring Facility Supervisor. He supervised a team of eight people. On about 23 October 2015, two sisters who were in the respondent’s team approached him and complained he had harassed them. The respondent reported this to his direct report Mr Franke and another manager and requested a meeting. Ultimately, Ms Klaassen was appointed by the appellant to conduct an investigation, interviewing members of the team. The respondent was not interviewed. Ms Klaassen concluded that she had found “each of the allegations substantiated” and that the respondent had breached various sections of the Transport Code of Conduct. A “disciplinary penalty decision” was made that the respondent be dismissed, which was confirmed on review. The appellant did not supply copies of multiple statements and other material that formed part of the investigation, to the respondent, or to the Commission as part of the proceedings.

The respondent made a claim for compensation in respect of a psychological injury. The employer did not dispute that the respondent received a psychological injury, but relied on a defence pursuant to s 11A(1) of the 1987 Act.

The Arbitrator found the appellant’s defence was not made out. The Arbitrator entered an award for weekly payments from 4 November 2016 to 1 June 2018, made a general order for the payment of expenses pursuant to s 60 of the 1987 Act, and referred the claim for lump sum compensation to an AMS to assess whole person impairment in respect of psychological injury. The employer appealed.

The issues on appeal were whether the Arbitrator’s decision was affected by an error:

(a) of law in the application of s 11A of the 1987 Act (Ground One);

(b) of mixed fact and law in the conclusion that the appellant employer had failed to “discharge the burden of proof in establishing whether the entirety of its action with respect to discipline was reasonable” (Ground Two);

(c) of fact in that the evidence did not support the Arbitrator’s conclusion that “the [appellant] chose to withhold the statements from the [respondent] so that he was deprived of a legitimate opportunity to make submissions on both the allegations and penalty” (Ground Three), and

(d) of mixed fact and law in concluding, by inference, that the worker’s psychiatric condition arose wholly or predominantly from the employer’s failure to provide source material to the worker or interview the worker (Ground Four).

Held: The Arbitrator’s decision dated 19 June 2019 was confirmed.

Ground One

The possibility that the safety of witnesses was a factor in not providing the statements

1. The appellant did not, before the Arbitrator, rely on an assertion that the safety of the witnesses could have been compromised if the statements were provided. The appellant’s position was simply that procedural fairness did not require that it make the statements available. ([61]–[64])

   The application of procedural fairness in the circumstances

2. It was common ground that the appellant was under an obligation to afford the respondent procedural fairness. The Arbitrator referred to and discussed the decision in Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113; 103 FCR 539; 175 ALR 706, relied on by the appellant. The Arbitrator correctly concluded that that decision relevantly dealt with what a decision maker was required to disclose about his thinking prior to making a decision, as opposed to the disclosure of evidence. ([67]–[68])

   The failure to provide statements

3. The Arbitrator gave specific reasons for his view that the appellant should have provided the statements taken by Ms Klaassen to the respondent, prior to making a decision on the substantive allegations. The Arbitrator referred to the fact that the Klaassen report stated that the statements were attached, yet they were not. The allegations were serious, and the proposed sanctions severe. Disciplinary action for breaches of the Code of Conduct extended to termination of employment, as occurred in this instance. The Arbitrator observed that the only reason proffered by the appellant for non-disclosure of the statements was that it did not have to do so. ([69]–[71])
4. The appellant had moved the respondent out of his supervisory position and he was no longer working with the complainants. The evidence did not suggest that he represented an ongoing threat to other employees of the appellant, whilst the investigation was being conducted. The appellant did not proffer any reason which would have necessitated, from a practical point of view, curtailing the content of the procedural fairness which it owed to the respondent. ([72])

(Kioa v West [1985] HCA 81; 159 CLR 550 applied)

5. The appellant submitted the respondent was made aware of the allegations via other sources. One of these was submitted to be “gossip”. The submission that the appellant could comply with its obligation to give appropriate notice of the relevant “adverse information”, through gossip in the workplace, was rejected. Whilst the respondent clearly would have had some concept of the nature of the allegations, there was no basis to conclude, on the evidence, that he would have been aware of the content of the evidence overall that was being considered. The general way in which the complaints were formulated and put to the respondent for response, in the letter dated 22 March 2016, did not provide adequate notice of the complaints. ([73]–[74])
6. The appellant also submitted the respondent would have been aware of the allegations through provision of the investigation report. The appellant conceded that the respondent would not have received the Klaassen report in sufficient time to respond to the allegations. Deputy President Snell rejected the appellant’s submission that the respondent was fully appraised of the allegations made against him and given ample opportunity to respond. ([75]–[77])
7. The appellant’s submissions on Ground One dealt largely with whether the appellant complied with its (conceded) obligation to afford procedural fairness to the respondent. This is relevant to the issue of ‘reasonableness’ for the purposes of s 11A(1), but is clearly something different to that statutory test. ([78])
8. The test of reasonableness “requires an objective assessment by the Commission”. Reasonableness is not established on the basis that “an employer complied with its own protocols”, unless the protocols are objectively reasonable. ([79]–[80])

(Jeffery v Lintipal Pty Ltd [2008] NSWCA 138, at [50]; Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139, at [62]–[63]; Balranald Shire Council v Walsh [2013] NSWWCCPD 47, at [50]–[56], and Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie) applied)

9. As an employer’s compliance with its own protocols can be highly relevant to the issue of ‘reasonableness’, within the meaning of s 11A(1), so too can the extent to which an employer complies with its procedural fairness obligations to a worker. ([81])

   Balancing the interests of the employer and the worker

10. The appellant submitted the Arbitrator failed to give adequate weight to the objectives of the appellant, as opposed to the rights of the respondent, when the safety of other employees was at risk. The Arbitrator proceeded on the basis, consistent with the submissions of both parties, that he was not required to determine whether the respondent engaged in misconduct. The question for him was whether the appellant’s actions were ‘reasonable’. ([82]–[85])

    (Heggie; Vines v Australian Securities and Investment Commission [2007] NSWCA 126, at [8]; St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, at [147]–[148]; Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67, at [57]–[58]; State of New South Wales v Phelan [2017] NSWWCCPD 29, at [104]–[105]; Westpac Banking Corporation v Mani [2019] NSWWCCPD 41, at [170] applied)

11. There were other parts of the process which the Arbitrator did not regard as reasonable. One of these was the failure of the appellant to furnish the respondent with the statements. ([86])

    The failure to interview the respondent

12. A further matter on which the Arbitrator did not regard the appellant’s actions as reasonable was Ms Klaassen’s failure to interview the respondent. Ms Klaassen took oral statements from the complainants and witnesses. The respondent “was only provided with the opportunity to provide a written statement”. Ms Klaassen made findings accepting the credibility of the complainants and witnesses, based in part on their demeanour, when the respondent “was not provided with this opportunity”. The Arbitrator described the respondent’s complaint about the process as reasonable. The evidence and submissions did not suggest the respondent was ever offered an opportunity to be interviewed, or that the investigator or the appellant ever formed a view that an interview was warranted. ([87], [94])
13. In respect of the two specific areas of action on which the Arbitrator was critical of the reasonableness of the appellant’s actions, its failure to provide the statements that were part of the Klaassen report and its failure to interview the respondent, the Arbitrator’s criticisms were open and amply justified. ([95])
14. The basis on which the appellant ultimately failed on its s 11A(1) defence was that the appellant had failed to discharge its onus of establishing that its actions were ‘reasonable’. It was common ground that the appellant carried the onus of establishing the elements of its defence on the basis of s 11A(1). The matters identified by the Arbitrator justified his conclusion that it had failed to do so. Ground One failed. ([96]–[98])

Ground Two

The test on reasonableness applied

15. When the reasons were read as a whole, it was apparent that the Arbitrator did not approach the test of ‘reasonableness’ on the basis that the appellant was required to demonstrate that each step or each omission was reasonable. The Arbitrator referred to a number of settled authorities dealing with s 11A(1). On a fair reading of the Arbitrator’s reasons as a whole, Deputy President Snell did not accept that the Arbitrator approached the test of ‘reasonableness’ in the way the appellant submitted in dealing with this ground. ([105]–[106])

    The appellant’s submissions dealing with injury

16. The issue of ‘injury’ having been conceded, there was nothing further the respondent was required to do to establish it. The concession was not withdrawn. ([108])
17. The initial step was the finding of psychological injury. The onus was then on the employer, seeking to rely on s 11A(1) as a defence, to establish the elements of the defence. These included the issue of whether the injury resulted ‘wholly or predominantly’ from the relevant actions, in this case in respect of discipline. There is no suggestion in Commissioner of Police v Minahan [2003] NSWCA 239, or other authority, that a worker carries an onus in respect of ‘wholly or predominantly’. ([110])
18. Section 11A(1) only becomes relevant when there is a finding of psychological injury. Ground Two failed. ([111]–[112])

(Flanagan v NSW Police Force [2017] NSWWCCPD 33 applied)

Ground Three

19. Ground Three asserted factual error. It is necessary that the reasons at [201] and [202] be read together, along with other parts of the reasons that are relevant to discharge of the appellant’s onus on the s 11A(1) issue. Deputy President Snell accepted the respondent’s submission that the finding at [202], that the respondent chose to withhold the statements from the applicant, was inferential. There were compelling reasons for the inference to be drawn. It followed that the appellant’s attack, on the finding in the reasons at [202] did not succeed. ([113], [119]–[122])
20. The Deputy President was not persuaded, reading the reasons as a whole, that the Arbitrator made a finding that the respondent’s decision to withhold the statements was based on malice. The appellant’s reasons for withholding the statements were not, as the Arbitrator made clear, identified by the appellant. The Arbitrator’s finding was that the appellant had failed to discharge its onus on the s 11A(1) issue of reasonableness.
21. The appellant submitted the failure to produce material to the Commission could not have caused or contributed to the psychological injury, and therefore was irrelevant. The significance of the failure to produce the material to the Commission was not that it could be causally related to the injury. The significance was that the Arbitrator was dealing with whether the appellant had discharged its onus on the s 11A(1) defence, and it had failed to adduce evidence that was in its possession and arguably likely to be relevant, without explanation. Ground Three failed. ([126]–[127])

Ground Four

22. The appellant sought to argue that, based on the opinion of Dr Rastogi, the psychological injury occurred prior to dates in October 2015 or March 2016, before either the failure to interview the respondent or the failure to supply the statements occurred. This would, on that argument, be inconsistent with a causal relationship between those deficiencies (if they are recognised as such) and the psychological injury. This argument was not raised at first instance. The appellant should not be permitted to raise this argument for the first time on appeal. The argument accordingly was rejected. ([134])

    (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, at [7], Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at [15] applied)

23. This ground asserted the Arbitrator erred in finding that the psychological injury arose wholly or predominantly from the employer’s failure to provide source material to the respondent or to interview the respondent. This ground was based on a misconception of how the case was conducted before the Arbitrator. The issue of whether the respondent suffered a psychological injury in the course of or arising out of his employment was not in issue. ([135])
24. The appellant’s submissions on this ground additionally faced the same difficulty as those dealing with Ground Two, in that they conflated the proof of injury by a worker with proof by an employer of the causation test in s 11A(1). This was erroneous. Ground Four failed. ([136]–[138])

Workers Compensation Nominal Insurer v Kula Systems Pty Ltd [2019] NSWWCCPD 67

Monetary threshold required by s 352(3) of the 1998 Act; application of Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42, at [44]–[46], Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71

Wood DP

19 December 2019

Facts

The worker made a claim for compensation in respect of an injury received on 17 January 2011 in his employment with Kula Systems Pty Ltd (the employer). The worker alleged he suffered an electric shock, causing injury to his neck, low back and right shoulder. The employer did not have a workers compensation insurance policy in place at the time of the injury. The employer was contracted to a head contractor, Buildco Projects Pty Ltd, who was an insured principal within the meaning of s 20 of the 1987 Act (the s 20 principal).

Following the conclusion of proceedings in the Commission regarding lump sum entitlements, in 2016, the worker filed a pre-filing statement pursuant to s 315(1) of the 1998 Act, claiming work injury damages in respect of the injury. The first defendant was nominated as S.L.J.C. Gyprock (a business operated by the employer) and the second respondent was the Workers Compensation Nominal Insurer (the Nominal Insurer).

The parties resolved the matter by entering into an agreement to pay the worker $225,000.00 in damages. A deed of release (the deed), was signed by all three parties. The deed recorded the name of the employer as “Kula Systems Pty Ltd t/as S.L.J.C. Gyprock.”

The Nominal Insurer subsequently issued a Notice pursuant to s 145(1) of the 1987 Act, seeking reimbursement from the employer of the payment made by the Nominal Insurer to the worker pursuant to the deed. The employer filed a Miscellaneous application seeking orders that it was not liable to pay the compensation amount; that it is not to reimburse the appellant in the amount sought in the notice or at all; that the Commission waive any liability the employer had to reimburse the Nominal Insurer, or the Commission refuse to make any order to reimburse the Nominal Insurer.

After a protracted history, involving a previous arbitral decision and appeal, in which the original arbitral decision was overturned, the matter was re-determined by another Arbitrator. The Arbitrator ultimately determined the employer was not liable to reimburse the Nominal Insurer for the monies it had paid. The Nominal Insurer appealed.

In a separate appeal, the employer appealed the Arbitrator’s decision not to award costs in its favour. That appeal (matter number A3-6271/16) was dealt with separately in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2019] NSWWCCPD 68 (which is summarised below).

The preliminary issue on the appeal was whether the threshold pursuant to s 352(3) of the 1998 Act had been met.

Held: The appeal could not be brought as the issue in dispute was not “in connection with a claim for compensation” as required by s 352 of the 1998 Act. There was no right of appeal.

Threshold matters

1. In order to satisfy the threshold, the Nominal Insurer was therefore required to establish that the amount it paid in respect of “damages” fell within the parameters of an “amount of compensation.” Compensation is defined in s 4 of the 1998 Act as “compensation under the Workers Compensation Acts and includes any monetary benefit under those Acts.” Neither party addressed this issue in their substantive submissions. The Deputy President ordered the parties to make further submissions on this issue. ([22])
2. Section 352(1) of the 1998 Act provides that a party to a dispute “in connection with a claim for compensation” may appeal a decision of an arbitrator to a Presidential member. Section 352(3) imposes a mandatory threshold which must be satisfied before an appeal can be brought against a decision of an arbitrator. The section specifically requires that the “amount of compensation” in dispute is at least $5,000.00 (the monetary threshold) and at least 20% of the award (the percentage threshold). The amount in issue in these proceedings well exceeded the monetary and percentage thresholds. However, for the purposes of determining whether this appeal can be brought, it is necessary to consider whether the dispute is “in connection with” a claim for compensation, and whether the amount in issue can be categorised as “compensation.” Section 4 of the 1998 Act defines “compensation” as “compensation under the 1987 and 1998 Acts, and includes any monetary benefit under those Acts.” ([46]–[47])
3. Deputy President Wood was of the view that the payment the Nominal Insurer was seeking to recover cannot be considered to be a “monetary benefit.” The only monetary benefits specified in the 1987 Act and 1998 Act are those pertaining to benefits to workers or their dependants as set out in Part 3 of the 1987 Act. Clearly the amount the Nominal Insurer sought to have reimbursed was not in connection with weekly payments, treatment expenses or lump sum compensation, which are the monetary benefits referred to in the 1987 Act. The payment made by the Nominal Insurer, which it sought to recover, was a payment made to the worker as work injury damages. The distinction between “damages” and “compensation” has been considered in a number of Presidential decisions. ([48]–[52])

(Programmed Maintenance Services Limited v Barter [2005] NSWWCCPD 42, at [44]–[46] and Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71 applied)

4. The character of the payment for which the Nominal Insurer sought reimbursement is not restricted by s 145 to “compensation” and nor is the power of the Commission to make a determination under s 145. Curiously, the jurisdiction of the Commission conferred by s 145 is not expressed to be limited to determining liability for only those payments which were in relation to weekly payments, treatment expenses or lump sum entitlements. The Deputy President noted, however that s 105 of the 1998 Act confers exclusive jurisdiction on the Commission to hear and determine all matters arising under both the 1987 and the 1998 Acts, but, except for the operation of Part 6 of Chapter 7, the Commission does not have jurisdiction in respect of matters arising under Part 5 (common law remedies) of the 1987 Act. In addition, Part 6 of Chapter 7 is headed ‘Special Provisions for Work Injury Damages’. Further, the power to make orders or awards pursuant to s 145(4)(b) is limited to being with respect to “the payment of compensation”. ([57]–[59])

   (Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; 57 NSWLR 282 referred to)

5. What appears on the face of subss (3) and (4)(a) of s 145 to be a broad power to determine liability in respect of any payment made by the Nominal Insurer is difficult to reconcile with the provisions of s 105 and s 312 of the 1998 Act, and indeed the limited powers to make orders and awards contained in s 145(4)(b). However, the jurisdiction of the Commission in terms of hearing a dispute brought by an employer was not the subject of submissions before the Arbitrator, or the subject of the appeal. ([60]–[61])
6. It is appropriate to interpret the references to “damages” and “compensation” in a manner consistent with the whole of the legislation. ([62])

(Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 applied)

7. Section 250 of the 1998 Act provides that, for the purposes of Chapter 7 of the 1998 Act (New Claims Procedures) “damages” has the same meaning as in Part 5 (Common Law Remedies) of the 1987 Act and defines “work injury damages” as “damages recoverable from a worker’s employer ...”. Part 5 of the 1987 Act relevantly provides that “damages” does not include “compensation under this Act.” For the purposes of Part 5 of the 1987 Act and Chapter 7 of the 1998 Act, therefore, “damages” does not include “compensation.” Section 352 falls within Part 9 of Chapter 7 so that the definition of damages, which excludes compensation, applies. ([66]–[67])
8. Section 140, which is in Division 6 of Part 4 of the 1987 Act, provides that a claim can be brought under the Division “for compensation under this Act or work injury damages.” This suggests that Division 6, which includes s 145, contemplates a distinction between damages and compensation, which is consistent with Part 5 of the 1987 Act and Chapter 7 of the 1998 Act. ([68])
9. The terms “compensation” and “damages” are used consistently throughout the legislation to refer to claims that are separate to and distinct from each other. While the Deputy President had had regard to the object and purpose of the 1987 and 1998 Acts, the meaning of “damages” as it is used in Chapter 7 of the 1998 Act and throughout the legislation is clearly defined and does not include “compensation”. No ambiguity arose as to its interpretation or the meaning of “compensation”. While the result of excluding the right to appeal falls from that construction and is unfair, it is not up to courts or tribunals in construing a statute to consider what is or is not a desirable policy or to impute the favourable construction to the legislature in order to achieve the preferred outcome. ([69])

(SAS Trustee Corporation v Woollard [2014] NSWCA 75, at [59] applied)

10. To construe “compensation” as it appears in s 352 to have a wider scope of meaning than it has in other sections of the Acts, including its exclusion from the definition of damages that appears in the same chapter (s 250), is inconsistent with the principles enunciated in Favetti Bricklaying Pty Limited v Benedek [2017] NSWSC 417 at [74]. To construe the term “compensation” in any other manner is to have disregard to the language of the instrument when viewed as a whole. While it is preferable to adopt a construction of the legislation that will avoid a consequence which appears irrational or unjust the text must not be read in isolation from the enactment of which it forms a part. It followed that the amount the Nominal Insurer sought to be reimbursed was not “compensation”, and the Nominal Insurer had no right to appeal. ([70]–[71])

Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2019] NSWWCCPD 68

Monetary threshold required by s 352(3) of the 1998 Act; appeal solely in relation to costs – application of Grimson v Intergral Energy [2003] NSWWCCPD 29; monetary threshold not met

Wood DP

19 December 2019

Facts

This appeal was an appeal brought by Kula Systems Pty Ltd (the employer) against the same decision of the Arbitrator as the appeal brought by the Workers Compensation Nominal Insurer in appeal no A2-6271/16 – Workers Compensation Nominal Insurer v Kula Systems Pty Ltd [2019] NSWWCCPD 67 (the Nominal Insurer’s case), which is summarised above.

The Arbitrator issued a Certificate of Determination (COD) dated 9 April 2019, determining that the employer was not liable to reimburse the Nominal Insurer for the work injury damages paid to the worker. The Arbitrator did not include a costs order. The employer appealed from the failure by the Arbitrator to order costs in its favour.

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

Threshold matters

1. The employer’s reliance on s 353 of the 1998 Act was misplaced. That section deals with appeals from a Presidential member to the Court of Appeal and requires that an application for leave to appeal is required if, among other matters, the appeal is limited to an appeal about costs. Section 352 does not allow for an application to be brought by leave and satisfaction of the threshold requirement as to the quantum of compensation at issue is mandatory. The section speaks of there being “no appeal under this section” which is prohibitive of an appeal being brought when the monetary threshold has not been satisfied. There is, therefore, no discretion vested in the Commission to otherwise grant leave to appeal. ([16])
2. Section 4 of the 1998 Act defines “compensation” as “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. There must therefore be “an amount of compensation at issue” in order to bring an appeal. The question of whether an order pertaining to costs constitutes “an amount of compensation” has been considered in a number of Presidential appeals and by various Presidential members. ([17]–[24])

(Grimson v Intergral Energy [2003] NSWWCCPD 29; Sorbello v Yellamo Pty Ltd [2006] NSWWCCPD 91; Roads and Traffic Authority v Warden [2004] NSWWCCPD 55; El-Said v 3WJ Pty Limited [2008] NSWWCCPD 50 applied)

3. At the time these decisions were made, appeals pursuant to s 352 of the 1998 Act required leave to be granted, and the former s 352(2) (the equivalent provision to the current s 352(3)) provided that leave could not be granted unless the monetary threshold was met. Appeals from decisions of arbitrators made from 1 February 2011 do not require leave to appeal, but the same prohibition in relation to the monetary threshold applies. ([25])
4. Although invited to do so, the employer made no submissions about the threshold requirements. Deputy President Wood saw no reason to depart from the consistent reasoning and conclusions reached in the above cases. In this case, the monetary thresholds pursuant to s 352(3) had not been satisfied and there was no right to appeal. ([26])