Issue 3: March 2020

AV v AW [2020] NSWWCCPD 9

Section 4(b)(ii) of the 1987 Act and the test of ‘main contributing factor’

Snell DP

24 February 2020

Facts

This matter involved a claim by the worker (AV) for weekly compensation and medical expenses against her employer (AW) in respect of a psychological injury. A case was run alleging injury simpliciter (s 4(a) of the 1987 Act) and the disease provisions (s 4(b)(ii) of the 1987 Act). The employer disputed both injury allegations.

The worker worked full-time as an insurance claims and policy officer. She had some difficulties over the years with mental health issues that were not work-related.

After falling pregnant, unfortunately, the worker suffered a miscarriage and she underwent a curettage procedure at a local hospital. Circumstances surrounding this procedure were distressing. The worker came under the care of Dr 1, a psychologist, who diagnosed “symptoms of PTSD following these events”.

The worker resumed duties with the employer, initially working three days per week, then increasing to four days per week. The group in which she worked dealt with human resources, health and safety, training and insurance claims. The group sat in an open plan setting. The worker “wanted to be seated away from other staff who may have had conversations about pregnancy ... pregnant women might come into the office ... the sight of them and references to pregnancy would set off triggers in her with the development of panic and flashbacks”. Dr 1 suggested to the employer that the worker should be seated away from the HR department, as being “exposed to conversations regarding maternity leave ... act to cause intense distress”. The worker’s work station was not moved.

The worker described being “upset emotionally” on 26 July 2018 at work, she was told at work that she needed to get help. She ceased work that day and had not resumed.

The Arbitrator found that the worker had suffered an aggravation of her psychological condition within the meaning of s 4(b)(ii) of the 1987 Act in that the worker’s employment had aggravated and exacerbated her condition. However, he was not satisfied that the employment was the ‘main contributing factor’ to the aggravation and exacerbation of the worker’s psychological condition. There was an award in the respondent’s favour.

The worker appealed. After lodgment of the worker’s appeal, the employer lodged an appeal, in the nature of a notice of contention, to “protect its position”.

The issues on the worker’s appeal in matter no A1-2097/19 were whether the Arbitrator erred in:

(a) fact and law by not giving due weight to the medical evidence (Ground No 1);

(b) law in his approach to s 4(b)(ii) of the 1987 Act (Ground No 2), and

(c) law and fact in his application of ‘common knowledge’ (Ground No 3).

The issues on the employer’s appeal in matter no A2-2097/19 were whether the Arbitrator erred in:

(a) fact and law in finding that the worker suffered injury within the meaning of s 4(b)(ii), and

(b) fact and law in finding that the worker’s employment aggravated or exacerbated the worker’s already established psychological condition.

The employer only pressed its appeal if the worker’s appeal was successful. As the worker’s appeal failed, the employer’s appeal was not pressed and was dismissed.

Held: Both appeals were dismissed. The Arbitrator’s orders dated 30 August 2019 were confirmed.

The worker’s appeal – Ground No 1

‘Main contributing factor’

1. The following points were made by Deputy President Snell in relation to the test of ‘main contributing factor’:

   (a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.

   (b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.

   (c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole. ([65]–[78])

   (Police Association of New South Wales v State of New South Wales [2020] NSWCA 3; The Queen v A2 [2019] HCA 35; Awder Pty Limited t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222; Hogno v Fairfax Regional Printers Pty Limited [2009] NSWWCCPD 33; Villar v Tubemakers of Australia Pty Ltd [2009] NSWWCCPD 57; 7 DDCR 469; State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71; Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324, 7 DDCR 75; State of New South Wales v Rattenbury [2015] NSWWCCPD 46; Lilyvale Hotel Pty Limited v Bradley [2016] NSWWCCPD 62; Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313, and Reed v Commissioner of Police [2001] NSWCC 182; 22 NSWCCR 385 applied)

   The Arbitrator’s findings on the evidence

2. In relation to the Arbitrator’s findings on the evidence, the Deputy President observed the lay statements were consistent with the worker suffering from significant problems when she resumed work following the miscarriage. They were consistent with exposure to aggravating factors both in a work context, and outside the worker’s employment, after her resumption following the miscarriage. ([101])
3. There was evidence of exposure to triggers in non-employment circumstances, which the worker found distressing, both before and after the appropriate deemed date of injury. There was lay evidence of such encounters occurring in non-employment circumstances. There was the worker’s candid and accurate observation that she would be exposed to “pregnant people everywhere”. There was no medical evidence addressing the specific question of whether the test of ‘main contributing factor’ was satisfied. On the evidence overall, the Arbitrator’s decision that the worker had not discharged her onus of establishing ‘main contributing factor’ was properly open. It did not involve appealable error. Ground No 1 failed. ([104]–[105])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied)

The worker’s appeal – Ground No 2

4. The Arbitrator said it was common human experience that pregnant ladies and babies are seen. Deputy President Snell held it was clear on the evidence overall that the worker was affected by exposure to situations involving pregnancy and babies. It was also clear that requests were made to the worker’s manager to move the worker’s station and that this did not occur. The worker’s submission was that although exposure to ‘triggers’ could potentially occur in either a work or non-work situation, that in a work situation was more psychologically damaging as it demonstrated a lack of empathy or support in the failure to move her work station. The worker sought to satisfy the requirement of ‘main contributing factor’ on the basis that exposure in a work situation had greater causative effect than exposure elsewhere. The worker had not referred to this argument at first instance and was not permitted to raise it for the first time on appeal. ([109])

   (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 applied)

5. In the event the Deputy President was wrong on this point, he held that the argument was without merit in any event. Ground No 2 failed. ([110]–[115])

   The worker’s appeal – Ground No 3

6. The Arbitrator referred to the triggers which affected the worker. The Arbitrator said there was “every reason to conclude that similar triggers to the [worker’s] psychological condition occurred outside the workplace”. The worker referred to this as an inference which could not be drawn.
7. Deputy President Snell held the worker’s submission that the inference was drawn in the absence of evidence was not right. The Arbitrator’s finding that the worker was exposed to causal aggravating factors (‘triggers’) outside the workplace, as well as in an employment context, was based on evidence, both lay and medical which was described at length. It was not dependent on the drawing of an inference that there was every reason to conclude that similar triggers to the worker’s psychological condition occurred outside the workplace. The Arbitrator said it was “common human experience that pregnant ladies and babies are seen throughout interaction with society such as simply walking in the streets”. This was true and one could readily conclude that, in modern Australian society, it is a fact “of a class that is so generally known as to give rise to the presumption that all persons are aware of it”. However, the result did not turn on this. After referring to “common human experience” at [248] of the reasons, the Arbitrator then said this was “supported by portions of the evidence” and discussed medical and lay evidence of exposure to triggering events outside the worker’s employment. This evidence supported the conclusion the Arbitrator drew, that the worker was exposed to triggering factors both in employment and non-employment contexts. The Arbitrator’s acceptance of the proposition did not simply depend on an inference. ([122]–[124])

Deputy President Snell concluded that the Arbitrator’s reasoning dealing with ‘main contributing factor’ did not depend on this inference. There was lay and medical evidence on which the Arbitrator relied, supporting the occurrence of triggering factors outside the work environment and the conclusion he reached regarding onus. The Arbitrator did draw an inference that there was every reason to believe that the worker’s interaction with her young child would expose her to similar triggers. The Deputy President said this inference was not supported by evidence, and was not properly available. As this inference did not affect the result it did not give rise to appealable error. Ground No 3 failed. ([129]–[130])

Cruceanu v Vix Technology (Australia) Limited [2020] NSWWCCPD 7

Nature of error required on appeal, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 considered

Phillips P

11 February 2020

Facts

On 10 April 2012, the appellant worker suffered injury in the course of his employment with the respondent employer after stumbling on a block of wood. It was not disputed that the worker suffered injury to his right knee. It was also accepted that the appellant suffered injuries to his neck and/or back as a result of the work incident.

The appellant claimed lump sum compensation on the basis of the medical reports of Dr Harrison and Dr Farey.

The Arbitrator was not satisfied the worker established on the balance of probabilities that his cervical symptoms manifested or deteriorated at the time of or following the injury. The Arbitrator entered an award for the respondent in respect of the allegation of injury to the worker’s neck and dismissed the claim for permanent impairment compensation. The worker appealed.

The worker advanced the following five grounds of appeal:

(a) Ground One – failure to decide critical finding of fact;

(b) Ground Two – failure to decide injury simpliciter;

(c) Ground Three – failure to deal with core submission;

(d) Ground Four – taking into account an irrelevant consideration, and

(e) Ground Five – misunderstanding submission by counsel.

Held: The Arbitrator’s Certificate of Determination dated 5 July 2019 was confirmed.

Ground One

1. The appellant complained that the Arbitrator failed to make “a factual finding that the applicant did not experience a sudden jolt during the fall”. After considering how the matter was pleaded and reviewing the Arbitrator’s reasons, the President was of the view that it was tolerably clear from the Arbitrator’s reasons, that the appellant’s evidence regarding the “sudden jolt up [his] body” was accepted. Indeed, this was not contested by the respondent below. The question that was in contest was whether this incident, which encapsulated the sudden jolt as pleaded, caused injury to the worker’s cervical spine. His Honour held it was clear from the reasons that the sudden jolt as described by the worker was not in doubt. ([39]–[49])
2. Whilst the Arbitrator did not make a positive finding that the appellant suffered a sudden jolt in the incident, the President thought it was clear from a fair reading of the reasons that this was in fact accepted by the Arbitrator. There was certainly no finding adverse to the appellant on this issue. The factual error alleged by the appellant simply did not occur. No error had been made out and Ground One was dismissed. ([50]–[51])

(Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston) applied)

Ground Two

3. Ground Two alleged that the Arbitrator failed to decide injury simpliciter. If this assertion was made out, this would have been a constructive failure to engage with the statutory test with respect to injury found in s 4 of the 1998 Act, and would have required correction. The allegation advanced by the appellant was that “the Arbitrator did not decide whether the worker suffered an injury to his cervical spine in the course of his employment with the respondent”. ([52]–[53])
4. The President held the Arbitrator posed the correct question in terms of finding whether the appellant suffered personal injury simpliciter. It was clear that whilst the Arbitrator accepted the fact of the occurrence of the incident on 10 April 2012, including the sudden jolt to the appellant’s body, his task was as he set for himself at [57] of his reasons. Notwithstanding the acceptance of the occurrence of the event itself, the Arbitrator found that the appellant was unable to establish to the requisite standard the relationship between that event and his neck injury. The difficulty with this appeal ground was that it was based upon an erroneous allegation that the Arbitrator did not make a finding one way or the other regarding injury simpliciter. ([57], [64])
5. The approach taken by the Arbitrator with respect to injury was detailed and in accordance with principle. The Arbitrator was well aware of the various appellate authorities which directed how this matter was to be approached and he complied with them in a reasoned and careful way. The alleged failure in this ground had not been made out and Ground Two was dismissed. ([67])

(Military Rehabilitation and Compensation Commission v May [2016] HCA 19; 257 CLR 468 applied)

Ground Three

6. Ground Three was not well expressed. The statutory permit for appeals under s 352(5) of the 1998 Act requires the identification of any error of fact, law or discretion. At one level, this ground complained that the Arbitrator failed to deal with the case that was submitted to him by the appellant. Namely, the appellant was suffering from two parallel pathologies in his cervical spine. The first pathology was a pre-existing cervical spondylosis, the second was the myelomalacia, which was stated as if a fact, as being an injury to the spinal cord. The complaint was that the Arbitrator undertook a conventional analysis when undertaking a review of the medical evidence in order to ascertain the origin or timing of complaints of pain to doctors by the appellant. This, it was said, was an erroneous approach as cervical spinal cord compression, according to Dr Farey, is a painless condition. Although not stated in terms in the appeal ground, this ground appeared to allege that as a result of the Arbitrator’s “conventional analysis”, an error of fact was committed. ([68])
7. The appellant’s argument stood in contradistinction to his own evidence. The President held the Arbitrator was correct to approach the evidence in the “conventional way” as he did. Ground Three was not made out as no error had been established. ([74]–[76])

Ground Four

8. The appellant alleged that at [79] of the reasons, the Arbitrator took into account an irrelevant consideration, namely that Dr New did not express a clear view on causation. He submitted that the inference that Dr New’s failure to express a view on causation “was gratuitous but also concerning” and that this inference appeared to have wrongly influenced the Arbitrator’s mind on the issue of causation. ([77]–[78])
9. It appeared to the President that the two offending words in this section of the Arbitrator’s reasoning was the phrase “possibly wittingly”. Potentially, this phrase, as asserted by the appellant, was suggestive that the doctor had a view that there was no causative link but chose not to deal with the question directly. ([81])
10. In the first sentence of the reasons at [79], the Arbitrator found that the factual assumptions underpinning Dr Farey’s report were not made out. He then proceeded to state, quite correctly, that Dr New did not positively assert a causal nexus between the accident and the cervical pathology. This absent the offending phrase, was a correct and fair reading of Dr New’s opinion. The speculation about Dr New’s reason for doing so did not serve to impugn the purport of Dr New’s opinion. That reading, in the President’s view, was the only available assessment of that opinion. There was no error of the type discussed in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, which would enliven the power to intervene on appeal. Ground Four was not made out and was dismissed. ([83]–[84])

Ground Five

11. The appellant referred to the Arbitrator’s comment “As [counsel for the appellant] recognised, there is no compelling evidence which would establish injury to the neck other than Dr Farey”. The appellant stated that this was not an accurate characterisation of the submission made by his counsel as the appellant’s statement of 7 April 2017 had also been relied upon by counsel in terms of establishing causation. The President did not consider that the criticism of this line reflected a proper reading of the reasons overall. ([85]–[86])

    (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied)

12. The appellant had failed to prove that the Arbitrator was wrong when he said “there is no compelling evidence which would establish injury to the neck other than Dr Farey”. In many respects this appeal point was a collateral attack upon the Arbitrator’s findings regarding the appellant’s statement in circumstances where the appellant had not pursued any appeal ground directed at those findings. Ground Five was not made out and was dismissed. ([94]–[95])

    Decision

13. As the appellant had been unable to identify and establish error on the part of the Arbitrator, the Arbitrator’s decision therefore remained.

(Raulston applied)

Secretary, Department of Education v Balhatchet [2020] NSWWCCPD 5

Appeal from an interlocutory decision – Licul v Corney [1976] HCA 6; 180 CLR 213; P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; 6 DDCR 12 applied – adequacy of reasons –  Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59] per McColl JA applied

Wood DP

6 February 2020

Facts

The respondent worker was employed by the appellant employer as a part-time teacher’s assistant. During the course of her employment she suffered a number of injuries, described in the pleadings as injuries to the “back, left and right knees, right hip, numbness and tingling in her hands”. The respondent commenced proceedings seeking weekly payments of compensation, treatment expenses pursuant to s 60 of the 1987 Act and a lump sum pursuant to s 66 of the 1987 Act.

The Arbitrator determined that the respondent’s impairments of the lumbar spine and both knees resulted from the “same injury”, in accordance with s 322(2) of the 1998 Act and were to be assessed together. He remitted the claim for permanent impairment to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of injury on 27 August 2013. The Arbitrator also awarded the respondent weekly payments pursuant to s 37 of the 1987 Act on the basis that the respondent had no capacity for work and made an award in favour of the respondent in respect of her treatment expenses.

The employer appealed the Arbitrator’s determination that the assessment of the lumbar spine and both knees were the same injury and were to be assessed together. The appellant also appealed the Arbitrator’s determination in relation to the award of weekly payments.

The appellant relied on the following three grounds:

(a) Ground One: the Arbitrator gave inadequate reasons for finding that the respondent’s impairments of her knees and back resulted from the same pathology and thus could be aggregated;

(b) Ground Two: there was no evidence, or no adequate evidence to support the finding that the respondent’s impairments of her knees and back resulted from the same pathology and thus could be aggregated, and

(c) Ground Three: there was no evidence that the appellant had agreed that the respondent had no capacity, so that the Arbitrator was required to satisfy himself as to the respondent’s capacity and failed to do so.

Held: The Certificate of Determination dated 5 August 2019 was revoked and the matter was remitted for re-determination by another arbitrator.

Ground One: did the Arbitrator provide adequate reasons for his conclusion that the pathology was the same?

1. The appellant complained in this ground that the Arbitrator failed to provide adequate reasons for making that determination. ([169])
2. A consideration under s 322(2) of the 1998 Act requires a consideration of not only the medical diagnoses, but also reasons for arriving at the conclusion that the pathology is the same. ([172])
3. In this case, the Arbitrator determined that this was not a “disease” case and that the lumbar spine and knee conditions did not arise as a result of the “nature and conditions” of employment. ([173])
4. Deputy President Wood observed the Arbitrator determined the relevant pathologies in each body part and pointed to the evidence that supported those diagnoses. The Arbitrator also had to explain why he considered the pathology in the left knee was the same as the right knee, given they are different body parts. He did not do so. Despite the fact that each knee was diagnosed as medial compartment osteoarthritis with degenerative tears, the Arbitrator did not explain how the osteoarthritic condition and degenerative tears in the knees constituted the same pathology as degenerative changes in another body part (the lumbar spine). ([175])
5. In the context of the Commission, while an arbitrator is not required to provide lengthy reasons, he or she must give sufficient reasons to show the process that was followed to arrive at his or her conclusions. In this case, where there were distinct pathologies associated with each body part, the issue between the parties was critical and the reasoning process did not explain or did not adequately explain the Arbitrator’s conclusion. ([176])
6. The duty to give reasons must be considered in the context of the decision making process. The extent and content of the reasons will depend on each case and the issues for consideration, but it is essential to expose the reasoning on a critical point in the contest between the parties. The Arbitrator is required to do justice to the issues posed by the parties. ([177])

(Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, at [59] applied)

7. A failure to give reasons or adequate reasons is an error of law. The appellant had established the requisite error on the part of the Arbitrator. It followed that ground one of the appeal succeeded. ([178])

   Ground Two: was there evidence to support the finding?

8. Given that the first ground of appeal succeeded, the finding that the pathology in each knee and lumbar spine was the same in accordance with s 322(2) of the 1998 Act was also revoked. It was therefore not necessary for the Deputy President to consider this ground. ([179])

   Ground Three: the weekly payments decision

9. The appellant contended that there was no agreement that the respondent had no capacity for work and that the Arbitrator erred by proceeding on that misconception and awarding the respondent weekly payments on the basis of no capacity. The appellant submitted that the Arbitrator was required to satisfy himself that there was no capacity for work. ([180])
10. The question of whether the respondent was entitled to weekly payments was identified as an issue at the arbitration and in the statement of reasons attached to the Certificate of Determination. There was no reference in the transcripts of the proceedings before the Arbitrator of any such agreement or concession. The transcripts did disclose that neither the appellant nor the respondent made any submissions relevant to the degree of capacity of the respondent or how any weekly award should be calculated. The extent of the agreement as recorded in the transcript was limited to the identification of the period during which payments should be claimed and the calculation of 80% of the pre-injury average weekly earnings. It could not be inferred from that conversation that there had been an agreement about the respondent’s capacity. ([182]–[183])
11. The respondent did not assert and the appellant did not concede that such a concession was made which was not recorded, such as in the conciliation phase or at the telephone conference. Deputy President Wood accepted that there was a dispute about weekly payments that required determination. ([184])
12. The Deputy President held that despite the absence of assistance by submissions from the parties in relation to the dispute, it was incumbent upon the Arbitrator to refer to evidence and provide a legislative basis for finding that the respondent had no capacity for work in accordance with s 37 of the 1987 Act. It followed that ground three also succeeded. ([185]–[186])

Conclusion

As grounds one and three were successful, the issues as to whether the respondent can aggregate her impairments, and whether the respondent has no work capacity in accordance with s 37 of the 1987 Act required re-determination. As these issues requiring determination required factual conclusions to be made, it was appropriate to remit the matter to another Arbitrator for re-determination. ([190]–[191])

Seif v Secretary, Department of Family and Community Services [2020] NSWWCCPD 6

Section 352(3) of the 1998 Act – monetary threshold to appeal – Popovic v Liverpool City Council [2017] NSWWCCPD 49; Inghams Enterprises Pty Ltd v Grigor [2017] NSWWCCPD 23 distinguished; distinction between an “injury” as defined by s 4 of the 1987 Act and a condition that arises as a consequence of an injury

Wood DP

6 February 2020

Facts

The appellant worker was employed by the respondent as a Child Protection contact worker, which involved transporting and at times carrying children and their luggage. The appellant brought proceedings for treatment expenses associated with a number of alleged injuries and conditions.

Ultimately, the issues in respect of whether the workers left shoulder and low back conditions resulted respectively from accepted right shoulder and right knee injuries proceeded to arbitration. The Arbitrator entered an award for the respondent in respect of “injury” to the left shoulder, found the appellant had suffered a consequential condition in his low back as a result of the left knee injury and made a “general order” for treatment expenses related to the low back in accordance with s 60 of the 1987 Act.

The worker appealed the Arbitrator’s decision in respect of the award for the respondent for the left shoulder.

The issues on appeal were whether the Arbitrator erred in:

(a) law in that the Arbitrator applied the wrong test in determining the issue of whether the appellant suffered a consequential condition in the left arm as a result of the right arm injury;

(b) law by requiring the appellant to establish that he had suffered an injury to the left arm within the meaning of s 4 of the 1987 Act;

(c) requiring the appellant to establish some identifiable pathology in order to prove he suffered from a consequential condition, and

(d) fact in failing to find that the presence of symptoms in the left shoulder could constitute a compensable consequential condition.

Held: The Certificate of Determination was revoked in part and the matter was remitted to another arbitrator for re-determination of whether the left shoulder condition resulted from the injury to the right shoulder on 5 May 2015.

Discussion

1. Deputy President Wood was of the view that the four grounds of appeal were not separate grounds of appeal. In essence, the appellant complained that the Arbitrator erred by requiring the appellant to establish the matters relevant to an injury pursuant to s 4 of the 1987 Act, rather than what is required to establish a consequential condition. Wood DP dealt with the appeal on that basis. ([92]–[93])
2. On the appeal, the respondent raised an argument relating to s 59A of the 1987 Act. It submitted that the appellant was not entitled to treatment expenses because two years had expired since the appellant was last paid compensation. Deputy President Wood rejected these submissions. Although s 59A was raised as an issue in the respondent’s dispute notice dated 17 October 2018, it was not identified as an issue requiring determination by the Arbitrator and was not the subject of a ground of appeal. Absent the issue being raised, argued and determined by the Arbitrator, it was not appropriate to invoke a consideration of the section in the appeal. ([115])

(Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 applied)

3. Deputy President Wood noted the respondent’s concession that the appellant’s claim was on of an alleged consequential condition and not an allegation that the appellant suffered an injury to the left shoulder. ([116])
4. The distinction between an “injury” as defined by s 4 of the 1987 Act and a condition that arises as a consequence of an injury is well settled. In order to establish that there has been an injury within the meaning of s 4 of the 1987 Act, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. The issue in the present proceedings was not whether the appellant received an injury but whether the medical treatment to the left shoulder had resulted from the injury to the right shoulder. ([117]–[118])

(Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar) and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) applied)

5. In this case, the appellant made the same complaint as Mr Moon did in Moon. That is, that on the basis of the restrictions in his ability to use the injured right shoulder, the appellant developed symptoms of overuse in the left shoulder. In Moon, Roche DP found error on the part of the Arbitrator, who had found against Mr Moon for the following reasons:

   (a) he would have expected a complaint to a treating doctor and some investigation about the left upper extremity if Mr Moon suffered symptoms by way of gradual onset over time;

   (b) he was not satisfied on the medical evidence that there was sufficient evidence of injury, pathology and continuing symptoms which might give rise to a permanent impairment, and

   (c) the evidence was rather scant until three years after the original injury, and there was no complaint recorded before that time about the onset of symptoms. ([119])

6. Deputy President Wood found the Arbitrator in the present case also considered that the absence of, and delay in, reports of left shoulder symptoms weighed against the appellant. The Arbitrator did not explain why an apparent delay in the reporting of symptoms to a medical practitioner was relevant. Had the Arbitrator been determining the question of injury, then that would have been a relevant factor, but in the case of an allegation of a consequential condition, which often does not manifest in early symptoms, or the medical focus is aimed primarily at treating the injured body part, the lapse in time is not always adverse to the worker’s case. ([120]–[121])

   (State of New South Wales v Bishop [2014] NSWCA 354, at [20] and [68] applied)

7. The Arbitrator’s consideration of the delay in this case was not explained, but a reading of the Arbitrator’s reasons as a whole suggested that the delay was relevant to a consideration of whether the appellant had suffered an injury to the left shoulder, rather than whether he had developed a consequential condition. ([122])
8. Deputy President Wood held that the Arbitrator’s analysis of the evidence and the weight he attached to the evidence, placed a higher bar than that required to prove a causal connection between a compensable injury and the subsequent development of symptoms in another body part. It followed that the Arbitrator erred by requiring the appellant to establish some type of pathological change to have occurred in order to make the left shoulder condition compensable. Further, the Arbitrator erred in requiring the medical evidence to identify an injury and looking to the medical experts to provide a diagnosis. Such an approach was inconsistent with the authorities of Moon, Kumar and Brennan. ([123]–[124])
9. The matter required re-determination. Whether the appellant’s left shoulder condition resulted from the right shoulder injury was a factual determination. In addition, the respondent had raised an issue in respect of the reliability of the appellant’s evidence. In the circumstances, the Deputy President was of the view that it was appropriate for the matter to be re-determined by an arbitrator instead of herself. ([125]–[127])

Wood v Woolworths Limited [2020] NSWWCCPD 8

A decision should be given on the basis of issues that have been litigated in the course of the trial – Chanaa v Zarour [2011] NSWCA 199, Popovic v Liverpool City Council [2017] NSWWCCPD 49 applied; the weight to be afforded to evidence is generally a matter within the province of the primary decision maker – Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367, Shellharbour City Council v Rigby [2006] NSWCA 308; requirement to identify facts relied upon – use of the phrase “nature and conditions”

Wood DP

24 February 2020

Facts

The appellant worker was employed by the respondent employer as a store person and cleaner. On or about 13 January 2018, the worker lodged a workers compensation claim in respect of an alleged psychological injury, alleging the injury arose from bullying and harassment in the workplace.

The appellant ultimately commenced proceedings in the Commission, alleging “various incidents of bullying and harassment by his employer and manager” between 2012 and February 2018. He alleged that he had suffered the gradual onset of a psychological injury “due to the nature and conditions of employment” with a deemed date of injury of 13 January 2018.

The Arbitrator entered an award for the respondent in respect of the allegation of psychological injury. The worker appealed.

The issues on appeal were whether the Arbitrator erred in fact and law:

(a) in determining whether the appellant suffered a psychological condition that had a physiological effect (Ground One);

(b) in considering whether the appellant’s psychological condition was causally related to his employment when that was not an issue for determination (Ground Two);

(c) by failing to consider all of the evidence in the medical records (Ground Three);

(d) by failing to give adequate reasons for rejecting the opinion of Dr Oldtree Clark (Ground Four), and

(e) when she considered that the appellant did not rely on the event of his termination of employment and consequently erroneously relied on that matter to reject the opinions of Dr Oldtree Clark (consultant forensic psychiatrist) and Dr Ayliff (treating general practitioner) (Ground Five).

Held: The Arbitrator’s Certificate of Determination dated 5 August 2019 was confirmed.

Ground One

1. In this ground, the appellant alleged that the Arbitrator erred in her determination that she was not satisfied that the appellant suffered a psychological injury as alleged. The appellant was critical of the Arbitrator’s approach after she noted that certain events occurred that were real, which the appellant perceived as creating a hostile work environment. The appellant said, firstly, that the Arbitrator was required to determine whether those events were causative of injury. He subsequently submitted that the Arbitrator was required to determine what condition the appellant suffered from before looking to the causative events. Deputy President Wood was of the view those submissions did not sit happily together. ([178], [180]–[181])
2. The appellant contended that a diagnosis of the appellant’s condition was required before the relevance of the prior history could be considered. This submission appeared to hinge upon the opinion of Dr Oldtree Clark, who in his report dated 28 February 2019, changed the appellant’s diagnosis from that expressed in his earlier reports (adjustment disorder) to a major depressive disorder. There were the following difficulties with this argument:

(a) Dr Oldtree Clark did not appear to have re-examined the appellant for the purposes of that report;

(b) Dr Oldtree Clark’s initial diagnosis of a work-related adjustment disorder was made on the basis of the appellant suffering anxiety and depression as at 19 June 2018. Having then had the benefit of the history of previous non-work related psychological symptoms, Dr Oldtree Clark diagnosed the appellant’s prior non-work-related symptoms also as anxiety and depression. His change in diagnosis could not therefore be evidence indicating that some new pathological consequence occurred as a result of work events to warrant a change in that diagnosis, and

(c) in determining whether the appellant suffered a compensable injury, it was incumbent upon the Arbitrator to determine whether there was evidence to support the notion that the work related events precipitated the symptoms of which the appellant complained. The Arbitrator was evaluating the weight that ought to be afforded the appellant’s statement evidence and expert evidence that went to establishing that the appellant had suffered a work related injury. The Arbitrator concluded that the past history was significant, that Dr Oldtree Clark’s evaluation of the significance of the history was unsatisfactory and, on that basis, she could not accept the expert’s opinion. That was a factual determination. There was nothing untoward in the Arbitrator’s approach. ([182]–[188])

1. The appellant had failed to show error by the Arbitrator and Ground One failed. ([189])

   Ground Two

2. The appellant alleged that the Arbitrator fell into error by considering whether the appellant’s condition was causally related to work events, which he said was not in issue. ([190])
3. While the respondent expressed reliance upon the report of A/Prof Kaplan (forensic psychiatrist qualified by the respondent), Deputy President Wood did not accept that the sole issue for the Arbitrator to determine was whether the appellant’s symptoms were sufficient to satisfy a diagnosis of a psychological condition. The respondent clearly disputed that the appellant had suffered an injury within the meaning of s 4 of the 1987 Act. The Arbitrator was required to determine whether any such injury was compensable by looking to potential causes. ([193]–[196])

(Chanaa v Zarour [2011] NSWCA 199 and Popovic v Liverpool City Council [2017] NSWWCCPD 49 applied)

6. It was apparent from the issue in dispute and the submissions made at arbitration that the issue of causation was a live issue and a matter which the Arbitrator was required to address. It followed that Ground Two failed. ([197])

   Ground Three

7. This ground of appeal complained that the Arbitrator failed to consider all of the medical records. The appellant contended that the Arbitrator erred by failing to consider the clinical notes. He contended that the Arbitrator erred by failing to consider the totality of the evidence when she concentrated on some matters and formed the view that the history taken by Dr Oldtree Clark was not an accurate reflection of the evidence. ([198])
8. Deputy President Wood found the Arbitrator had clearly appraised herself of the later history recorded in the clinical notes. However, the reasons she provided for discounting the opinion of Dr Oldtree Clark went to the cursory nature of Dr Oldtree Clark’s consideration of the earlier history, and not the import of subsequent complaints. It was noted that the appellant adamantly described his case as being an injury within the definition of s 4(b)(i) of the 1987 Act. That is, he sought to establish that the alleged injury was one of a disease contracted in the course of his employment to which employment was the main contributing factor, and not an aggravation of such a condition as defined by s 4(b)(ii) of the 1987 Act. ([201])
9. The appellant’s case was that he developed a different condition following the work related events. As noted above, Wood DP discussed the absence of support from the evidence of Dr Oldtree Clark for that proposition, and the appellant pointed to no other evidence to suggest such a proposition was available. ([202])
10. The Arbitrator’s finding in relation to the probative value of Dr Oldtree Clark’s evidence was a finding of fact. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. The Arbitrator’s finding was rational and open to her for the reasons she gave. The appellant had pointed to no proper reason to disturb that finding and Ground Three of the appeal failed. ([203])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118, at 125–126 applied)

Ground Four

11. The appellant contended the Arbitrator failed to give adequate reasons for rejecting the opinion of Dr Oldtree Clark. The Deputy President earlier had concluded that the Arbitrator’s reasons were rational, based on the evidence and open to her. It followed that Ground Four failed. ([204])

    Ground Five

12. Ground Five raised the question as to whether the appellant’s termination was relied upon by the appellant as causative of the injury. The Arbitrator proceeded on the basis that the termination was not relied upon by the appellant. The appellant maintained that it was. ([205]–[206])
13. Deputy President Wood did not accept that the pleadings sufficiently identified the matters relied upon by the appellant as causative. The use of the phrase “nature and conditions” in this case did no more than tell the opposing party and the Arbitrator that the appellant relies upon a series of events which culminated in injury. In this case, the description of injury indicated without specificity that those events were of the type considered to be bullying and/or harassment. In order to determine which events were relied on, it was therefore necessary to turn to the appellant’s complaints as set out in his statements and the transcript of submissions made at arbitration. ([208]–[209])

(Mirkovic v Davids Holdings Pty Ltd [1995] NSWCC 19; 11 NSWCCR 656 applied)

14. Nowhere in the appellant’s statements did he complain that the termination of his employment caused or aggravated psychological symptoms. The transcript of the arbitration recorded that the respondent submitted that the termination of the appellant’s employment was not a factor relied upon by the appellant, and that it did not constitute “bullying and/or harassment”. The appellant did not cavil with that submission and was completely silent as to whether the termination of the appellant’s employment was a factor. The Deputy President held it was incumbent upon the appellant to adequately set out his case before the Arbitrator. ([210]–[213])

(Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23; Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, and Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 discussed)

The Deputy President concluded it is not satisfactory for the appellant to expect the Arbitrator to ascertain what the appellant’s case was without the benefit of a statement setting out those matters relied upon and without having the benefit of submissions on that point. Given the failure of the appellant to assist the Arbitrator by identifying the events relied upon, and the appellant’s silence in relation to the respondent’s submission that the termination of employment was not part of the appellant’s case, it was not surprising that the Arbitrator considered that the termination was not part of the appellant’s case. The Arbitrator provided sound reasons for that conclusion. The appellant had not established error on the part of the Arbitrator in respect of this conclusion and Ground Five failed. ([214]–[215])